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FIRST DIVISION
March 29, 2002

A jury found defendant, Francisco Mena, guilty of firstdegree murder. The trial court found that defendant committedthe murder with exceptional brutality and on that basis the courtimposed an extended-term sentence. On appeal defendant contendsthat the trial court erred by refusing to instruct the jury onsecond degree murder and prosecutorial misconduct deprived him ofa fair trial. We reject both arguments and affirm theconviction. Defendant also challenges the extended-term sentencebecause the court based it on a factual finding on an issue neversubmitted for jury determination. We agree and therefore wemodify the sentence.

Around 3 a.m. on June 22, 1996, police officers arrived atthe scene of a car collision. Gilberto Arteaga and Santos Chavezstood outside of Arteaga's car. Arteaga's car sustained majordamage to its front end, especially on the driver's side. About300 feet away another car with major damage had come to rest atthe side of the street. Police found the car's owner, HectorSaldana, face down outside the passenger side of the car, withblood all around his head. He had died from multiple blunt forceinjuries.

By a fence near the crash site, police found a jack coveredin blood. A forensic examiner found that the pattern of marks onSaldana's body appeared to match the pattern of ratchets on thejack.

An hour after the police arrived, Freddie Ayala anddefendant came to the scene of the collision. An officer noticedthat Ayala's shoes had spots that looked like blood, anddefendant's shoes looked wet. Based on information gathered fromothers at the scene, an officer arrested Ayala and defendant. Another officer later remembered that he had seen defendantriding in Arteaga's car around 1 a.m. that night, two hoursbefore the collision.

After 6:30 p.m. that day, about 14 hours after the arrest,defendant gave a statement recorded by a court reporter. Defendant said that on June 21, 1996, around 5 p.m., he wentcruising with Arteaga, a fellow member of the Latin Kings. Theypicked up Ayala. While Arteaga drove on a local street, anothercar rammed the back of Arteaga's car. The occupants of the othercar flashed signs indicating membership in the Two-Six gang,rivals of the Latin Kings. The collision flattened Arteaga'srear tire. Arteaga drove on it to a nearby alley.

According to the court-reported statement, Santos Chavezthen joined defendant, Arteaga and Ayala. After they changed thetire, the four of them got in the car and went out looking for aTwo-Sixer's car to ram. They saw such a car and chased it. Itled them to a street where they saw many other Two-Sixers. Arteaga quickly turned his car and headed back east, towardsLatin Kings territory. He saw a car following his.

Defendant said that Arteaga made a U-turn and headed west. The eastbound car that had followed them then crossed the centerline and hit Arteaga's car, causing extensive damage. Defendantand Ayala jumped out of the car. Defendant told Arteaga to openthe trunk. Defendant took a jack from the trunk and ran withAyala to the other car, where they found Saldana lying in thefront seat. Defendant said, "[M]otherfucker, what you doing?" When Saldana did not respond defendant struck him with the jack. Saldana still made no response. Defendant pulled him from thecar and threw him on the ground. Defendant struck Saldana's headtwice with the jack, and Ayala jumped on Saldana. According todefendant's statement, they attacked Saldana because he hadwrecked Arteaga's car.

Defendant ran off and washed the blood off his clothes aswell as he could. He went home and changed clothes, then threwhis clothes in a trash can in a nearby alley. He then went overto Ayala's apartment. They returned to the collision site tocheck on Arteaga and Chavez.

Although defendant had no complaints about police treatment,he said he had not had any sleep the prior night. Because heworked on June 21 before meeting Arteaga, he had not slept in 36hours. Police did not find defendant's clothes in the trash canwhere he said he threw them.

A grand jury indicted defendant for first degree murder. The charging instrument does not mention any facts that mightwarrant a death sentence or an extended-term sentence. Theindictment does not charge defendant with exceptionally brutaland heinous conduct indicative of wanton cruelty.

At trial the prosecution first presented Saldana's sister,who testified that Saldana was 18 and working as a deliverymansince he moved from Mexico about a year before his death. Although the testimony had established the length of time Saldanalived in Chicago, the questioning continued:

Q. Do you remember when it was that Hector camefrom Mexico?

A. He came back a day after my mother passedaway, June 20th of '95.

Q. Did he come for the funeral?

A. Yes.

Q. After the funeral, is that when he decided tostay here?

A. Yes, he did."

The medical examiner found two large injuries to the back ofSaldana's head. Each blow fractured the skull. Seven or eightback injuries showed the pattern of the jack. Extensivehemorrhaging under the scalp showed that Saldana was alive whenthe jack struck his head. Beneath the brain, the bottom of theskull also had been fractured. The medical examiner said thatfracture proved massive force had been used. The injuries werenot consistent with injuries caused by car accidents.

The trial court refused defendant's proposed instruction onsecond degree murder.

At the beginning of the closing argument, the prosecutorstressed the loss society suffered from Saldana's murder,"[b]ecause of the insanity that has been brought about by streetgangs." After discussing the evidence, the prosecutor invitedthe jury to tell gangs the streets "don't belong to the gangs." The jurors had "a phenomenal opportunity to send that message."

The defense emphasized the lack of physical evidence tyingdefendant to the crime scene and defendant's sleepless state whenhe made the court-reported confession.

In rebuttal the prosecution returned to the subject ofgangs:

"[Defendant] chose to be a Latin King. And,ladies and gentlemen, let's not make any mistake aboutit. We are not asking you to convict him because he isa Latin King gang member. We are asking you to convicthim because he is a cold-blooded murderer."

The prosecutor described the scene:

"Saldana is lying on the ground, choking on his lastbreath of life, drowning in his blood."

Later, he added:

"You know, it's amazing they never mention therights of Hector Saldana. What about his rights? There was no one there to protect Hector's rights. This guy behind me was his judge, his jury, and hisexecutioner.

Counsel mentions our burden of proof in hisargument. It is as if he expects [us] to cower underour table.

Well, ladies and gentlemen, that is our burden ofproof, proof beyond a reasonable doubt. We embracethat burden. We welcome that burden.

Remember, it is proof beyond a reasonable doubt. It is not proof beyond all doubt. It is not proofbeyond a shadow of a doubt. It is proof beyond areasonable doubt. It is the same burden that juries inthis building and juries across this country use toconvict the likes of [defendant].

Hector's sister was the very first person that youheard from during the course of this trial.

Thanks to [defendant], Hector will be forever 18in [his family's] hearts and their mind[s]."

The jury found defendant guilty of first degree murder. Because the judge found the murder brutal and heinous, hesentenced defendant to an extended term of 90 years in prison.

Defense counsel failed to file an appellate brief. Wedismissed the appeal for want of prosecution. Many months laterdefendant contacted a court clerk, seeking information about hisappeal. The clerk told him the court dismissed the appeal forwant of prosecution. Defendant filed a petition for post-conviction relief. The trial court dismissed the petition anddefendant appealed. Defendant later moved this court to vacatethe dismissal of the direct appeal. We granted the motion. Wedispose of the appeal from denial of the postconviction petitionby separate opinion. Here, we address the reinstated directappeal.

Defendant argues first that the court committed reversibleerror by denying his request for an instruction on second degreemurder.

"Whether to tender a jury instruction on voluntarymanslaughter is within the discretion of the trialcourt. [Citation.] This discretion, however, iscontrolled by clear guidelines from this court. Ifthere is evidence in the record that, if believed bythe jury, would reduce a crime from murder tomanslaughter, a defendant's request for a manslaughter instruction must be granted. [Citations.] Defendanthas the burden of proving there is at least 'someevidence' of serious provocation or the trial court maydeny the instruction.

*** [T]he provocation must be proportionate to themanner in which the accused retaliated. The crime ismurder when a defendant attacks a victim with violenceout of all proportion to the provocation. This isespecially true if the homicide is committed with adeadly weapon." People v. Austin, 133 Ill. 2d 118,124-27, 549 N.E.2d 331 (1989).

Here, the prosecution presented some evidence of seriousprovocation: according to defendant's statement, whichconstituted the principal evidence against him, Saldana chasedArteaga and drove across the center line to ram the front ofArteaga's car. The photographs of the scene show the result of avery forceful collision in which Arteaga's passengers, includingdefendant, faced serious danger.

Defendant said that in response he grabbed a jack and ran toSaldana's car, where he found Saldana lying, unresponsive, acrossthe front seat. He dragged him from the car and bashed his headwith such force that he fractured the base of Saldana's skull. Then defendant bashed Saldana's head again.

Although the provocation here cannot be considered slight,the response to the provocation is disproportionate, especiallybecause Saldana lay injured and unresponsive before defendantbegan hitting him. We cannot say that the trial judge abused hisdiscretion by denying the second degree murder instruction.

Next, defendant claims that prosecutorial misconductdeprived him of a fair trial. He admits that he waived the issueby failing to object to the misconduct at trial, but he asks thecourt to review the issue for plain error. Under the plain errorexception to the waiver doctrine, this court conducts a limitedreview of the record to determine whether the evidence wasclosely balanced or the errors were of such magnitude that theydeprived the defendant of a fundamentally fair trial. People v.Mitchell, 155 Ill. 2d 344, 354, 614 N.E.2d 1213 (1993).

While the prosecution has presented less than overwhelmingevidence of defendant's guilt, we cannot characterize theevidence as closely balanced. An officer saw defendant inArteaga's car two hours before the assault, and defendant arrivedat the crime scene about one hour after police arrived. Defendant's confession explains both of these facts and fits wellwith the evidence at the crime scene. We note that theconfession provided police no new information, apart from themeans of disposing of the bloody clothes, and police did not findthe clothes in the place described in the confession. But thecourt-reported confession shows that defendant narrated most ofhis responses to open-ended questions. The transcript does notshow any special prompting of the answers, just as it does notshow the interrogation process over the 14 hours defendant spentin custody leading up his confession. In light of theconsistency of the credible confession with all of the otherevidence presented, we hold that the evidence is not closelybalanced.

Thus, we review the alleged errors only under the secondprong of the plain error rule. Even when a defendant has waivedobjections, this court must remedy error when necessary topreserve the integrity of legal proceedings. People v. Vargas,174 Ill. 2d 355, 363, 673 N.E.2d 1037 (1996). "A reviewing courtwill grant relief under the second prong of the plain error ruleonly if the error is so fundamental to the integrity of thejudicial process that the trial court could not cure the error bysustaining an objection or instructing the jury to disregard theerror." Vargas, 174 Ill. 2d at 363-64.

Defendant argues that prosecutors engaged in three separatekinds of misconduct. They improperly dwelt on the sufferings ofSaldana and his family, they appealed to jurors' fears of streetgangs, and they minimized the burden of proof.

On direct examination of Saldana's sister, the prosecutorasked for more specific information about Saldana's move toChicago about a year before the murder. The objectionablequestion elicited the irrelevant and provocative testimony thatSaldana's mother had died about one year before Saldana died. See People v. Blue, 189 Ill. 2d 99, 129, 724 N.E.2d 920 (2000). But a sustained objection to the question would have preventedthe elicitation of the prejudicial testimony and the prosecutor'stwo further references to the funeral of Saldana's mother.

A sustained objection also could have alleviated prejudicefrom improper comments in closing regarding the sufferings andmemories of Saldana's family. See People v. Childress, 158 Ill.2d 275, 298, 633 N.E.2d 635 (1994). Comments on the victim'srights, similar to those at issue here, did not mandate reversalin People v. Smith, 152 Ill. 2d 229, 268-69, 604 N.E.2d 858(1992). No evidence supported the prosecutor's argument thatSaldana drowned in his own blood. But the exceptionally violentbeating, fracturing both the top and the base of Saldana's skullwith a blow struck while Saldana was alive, lends itself todescriptions yet more lurid that the description the prosecutorposed. The remark about drowning is not likely to have been amaterial factor in the conviction. See People v. Doran, 256 Ill.App. 3d 131, 137, 628 N.E.2d 260 (1993). The improper remarksabout the sufferings of Saldana and his family do not amount toplain error.

The prosecutor began closing argument by decrying "theinsanity *** brought about by street gangs." He later pled forthe jury to send a message to the gangs. The prosecutor alsolisted the wrong choices defendant made, starting with his choiceto join a gang. Defendant argues that these remarks deprived himof a fair trial, just as the remarks in People v. Fluker, 318Ill. App. 3d 193, 742 N.E.2d 799 (2000), deprived that defendantof a fair trial. We disagree.

The case for the prosecution in Fluker rested on the out-of-court identifications of the defendant as the offender by twoeyewitnesses. Both of the witnesses retracted theidentifications at trial. The prosecutor, choosing to misleadthe jurors, said:

"The only issue in this case is not is this amistaken identity * * *. The only issue is who do youwant to control our criminal justice system? ***

*** Do you want * * * the Four Corner Hustlers tocontrol our society?" Fluker, 318 Ill. App. 3d at 203.

The trial court compounded the error by overruling prompt,appropriate objections.

The prosecutor here did not substitute any improper,irrelevant issue for the issue properly before the jury. Thecomments on gangs here were also less pervasive than the commentsin Fluker. The comments here resemble the comments in People v.Morgan, 306 Ill. App. 3d 616, 632-33, 713 N.E.2d 1203 (1999),more closely than the comments in Fluker. In Morgan, theappellate court held that the trial court cured prejudice fromremarks on gangs by sustaining the defendant's prompt objections. We cannot say that the comments on gangs here deprived defendantof a fundamentally fair trial.

Defendant also objects to the prosecutor's comments on theburden of proof. The prosecutor made light of defense counsel'semphasis on the burden, saying that he would not "cower under[the] table." The prosecutor then attempted to define the burdenof proof beyond a reasonable doubt, arguing that the prosecutionneed not prove guilt beyond all doubt and that juries across thecountry find evidence in other cases sufficient to meet theburden. The appellate court has repeatedly held similararguments improper. See People v. Jones, 241 Ill. App. 3d 228,234, 608 N.E.2d 953 (1993); People v. Frazier, 107 Ill. App. 3d1096, 1102, 438 N.E.2d 623 (1982); People v. Martinez, 76 Ill.App. 3d 280, 285, 395 N.E.2d 86 (1979). However, the appellatecourt has also held that by sustaining objections and properlyinstructing the jury, the trial court can ameliorate theprejudicial effect of such remarks. People v. Wielgos, 220 Ill.App. 3d 812, 820-21, 581 N.E.2d 298 (1991). Again, we cannot saythat the improper comments on the burden of proof depriveddefendant of a fundamentally fair trial.

Even considering the closing argument as a whole, we cannotsay that the comments "were so inflammatory that defendant couldnot have received a fair trial or so flagrant as to threatendeterioration of the judicial process." People v. Albanese, 104Ill. 2d 504, 518, 473 N.E.2d 1246 (1984). Accordingly, we affirmthe conviction for first degree murder.

After the jury found defendant guilty of first degreemurder, the trial court, at sentencing, found that defendantcommitted the murder in an exceptionally brutal and heinousmanner indicative of wanton cruelty. Based on that finding, thecourt sentenced defendant to an extended term of 90 years inprison, pursuant to sections 5-5-3.2 and 5-8-2 of the UnifiedCode of Corrections (730 ILCS 5/5-5-3.2(b)(2), 5/5-8-2 (a)(1)(West 1996)).

The appellate court has repeatedly held that the statutoryscheme for extended-term sentences denies defendants due process,because the statute permits the court to sentence a defendant toa term in excess of the maximum permitted by statute for thecharge submitted to the jury, based on a finding of fact neversubmitted for jury determination. E.g., People v. Nitz, 319 Ill.App. 3d 949, 962-69, 747 N.E.2d 38 (2001); People v. Swift, 322Ill. App. 3d 127, 129-31, 750 N.E.2d 294 (2001); People v.Reynolds, No. 1-00-0747 (February 8, 2002); People v. Johnson,No. 5-99-0637 (October 23, 2001). As the court explained inNitz:

"When we examine the machinery for the imposition of alife sentence, we need to ask: What was the mostsevere punishment the law allowed the trial judge toimpose, absent his finding that [the defendant] killed[the victim] in a brutal and heinous manner indicativeof wanton cruelty? *** '[D]oes the required findingexpose the defendant to a greater punishment than thatauthorized by the jury's guilty verdict?'" People v.Nitz, 319 Ill. App. 3d at 968, quoting Apprendi v. NewJersey, 530 U.S. 466, 494, 147 L. Ed. 2d 435, 457 120S. Ct. 2348, 2365, (2000).

Here, as in Nitz and Swift, the jury's verdict, without anyadditional finding of fact, authorized the court to sentencedefendant to a term of between 20 and 60 years in prison. 730ILCS 5/5-8-1(a)(1)(a) (West 1996). The Unified Code ofCorrections unconstitutionally deprives the defendant of theright to a jury determination of a fact crucial for setting therange of appropriate sentences the court has the authority toimpose.

The prosecution claims that two cases require a contraryresult. In People v. Ford, 198 Ill. 2d 68, 761 N.E.2d 735(2001), our supreme court affirmed an extended-term sentenceimposed on a defendant when the court found the defendantmurdered the victim in an exceptionally brutal manner. But thecourt explained that the prosecution there sought the deathpenalty, and the defendant waived his right to a jury for thedetermination of death eligibility. At the death penaltyhearing, the trial court "found, by proof beyond a reasonabledoubt, that defendant was eligible for the death penalty. Atthis point, and based exclusively upon facts that were provedbeyond a reasonable doubt, defendant faced a prescribed statutorymaximum sentence of death." People v. Ford, 198 Ill. 2d 68, 74(2001). The court held that the extended term did not exceedthis maximum.

The decision in Ford fully comports with the principlesrestated in Nitz. The defendant in Ford had a right to have ajury determine, beyond a reasonable doubt, all facts necessary toestablish the appropriate range of sentences, up to a maximum ofthe death sentence. The imposition of a lesser sentence based onthe court's finding of exceptional brutality did not violate theconstraints of due process.

The prosecution also cites People v. Vida, 323 Ill. App. 3d554, 572, 752 N.E.2d 614 (2001), which rejected the reasoning ofall prior cases addressing the issue. The court in Vida heldthat section 5-8-1(a) of the Unified Code of Corrections,authorizing sentences of 20 to 60 years for first degree murder,does not establish a statutory maximum for any crime, and thefinding of exceptional brutality does not qualify as a finding offact. Vida, 323 Ill. App. 3d at 570-72. The court concludedthat the jury verdict of murder permitted a maximum sentence ofnatural life in prison, without any separate findings of whatthat court considered facts.

We adopt the more persuasive reasoning of Nitz:

"While our legislature clearly authorized theimposition of natural-life imprisonment in certainexceptional cases of first-degree murder, it did notpermit the imposition of a life sentence based solelyupon the facts determined by a jury in arriving at itsguilty verdict. *** To increase the sentencing rangefrom the 20-to-60-year range set forth in section5-8-1(a)(1)(a), the sentencing judge must first find anadditional fact, not decided by the jury. Without therequired additional finding, the judge is constrainedby law to impose a sentence no more severe thanimprisonment for 60 years. Hence, a 60-year prisonterm is the most punishment to which an accused isexposed on the facts assigned to the jury fordetermination." Nitz, 319 Ill. App. 3d at 968.

The record includes some evidence that the victim provokeddefendant by driving after the car in which he rode and crashinginto that car after it turned around. But we find that the trialcourt did not abuse its discretion by refusing the second degreemurder instruction because the severe beating of the unresponsivevictim was disproportionate to the provocation. Although theprosecutors made several improper arguments, defendant failed toobject. We cannot say that the improper arguments depriveddefendant of a fundamentally fair trial or that the commentsamount to plain error. Following Nitz, we find the extended termsentencing statute unconstitutional as applied to defendant, andtherefore we modify the sentence to a term of 60 years in thecustody of the Department of Corrections.

Affirmed as modified.

COHEN, P.J. and COUSINS, J., concur.