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FIFTH DIVISION
MARCH 31, 2004

Following a bench trial, defendant, Edwin Valentin was convicted of the first degreemurder of Irene Figueroa and of the attempted first degree murder of Gustavo Coronel, and wassentenced to concurrent terms of 45 and 30 years' imprisonment. On appeal, defendant contendsthat: (1) the State failed to prove him guilty of attempted first degree murder beyond a reasonabledoubt; (2) his sentences are excessive; and (3) the trial court improperly admonished himregarding his opportunity to file a motion to reconsider his sentences pursuant to Supreme CourtRule 605. (Official Reports Advance Sheet No. 21 (October 17, 2001) R. 605, eff. October 1,2001). For the following reasons, we affirm defendant's conviction, vacate his sentences, andremand this case to the trial court to resentence defendant consistent with this opinion.

BACKGROUND

The following facts are relevant to this appeal. On November 28, 2000, Irene Figueroaand Gustavo Coronel were driving in Coronel's car when they were repeatedly hit by a car beingdriven by defendant. As a result, Coronel lost control of his car and was hit by an oncoming car.Figueroa was killed and Coronel was injured. Defendant was arrested and charged with themurder of Figueroa and the attempted murder of Coronel.

At trial, Jeannie Colon, Figueroa's sister, testified that in November 2000, she was stayingat Figueroa's house, located at 3750 West Armitage, Chicago. Prior to November 25, 2000,defendant had lived with Figueroa in the house. After defendant moved out, Figueroa had thelocks changed. Figueroa was not dating Coronel at the time of her death.

On the afternoon of November 25, 2000, defendant visited Figueroa's house. Colonanswered the door and defendant demanded to see Figueroa. Colon told defendant that Figueroawas not home, but let defendant into the house. Colon stated that defendant began to wave hishands and make "mean" faces. In a raised voice, defendant told Colon that he if he saw Figueroawith "another nigger" he would kill her. Shortly thereafter, defendant left.

On November 28, 2000, defendant returned to Figueroa's house at approximately 3:30p.m. Colon again answered the door, and defendant entered the house and asked whetherFigueroa was at home. Defendant then went upstairs to get some of his belongings and duringthat time Figueroa returned home with Coronel. Colon told Figueroa and Coronel that defendantwas upstairs and that they should leave, and they did so. That was the last time Colon saw hersister alive. Defendant left the house soon afterwards.

Coronel testified that he had dated Figueroa on and off for seven years. OnNovember 28, 2000, after speaking with Colon, Coronel and Figueroa left her home immediately,walked to his parked car, a 1987 Honda Accord, and, after driving a short distance north onAvers Avenue, noticed a small, dark, two-door car in front of them pull over. Coronel drove pastthe other car. In doing so, Coronel noticed that defendant was the driver of the car and that therewas a girl in the passenger seat. Coronel identified defendant in open court.

Coronel testified that defendant drove up behind him and began to hit the rear of Coronel'scar with his car. Defendant hit the rear of Coronel's car approximately four to six times in threeblocks on Avers as Coronel approached Fullerton Avenue. Each time defendant hit Coronel's car,Coronel's car bounced back. Defendant appeared to speed up as he hit Coronel's car over andover. During this time, Figueroa was shaking and her eyes were wide open. Coronel turned thecar from Avers onto Fullerton Avenue and defendant continued to follow behind them, ramminginto Coronel's car another four times.

Finally, defendant hit Coronel's car with such force that the car began to spin and Coronellost control of the car. Defendant then rammed Coronel's car into oncoming traffic, causing thepassenger side of Coronel's car, where Figueroa was seated, to be exposed to oncoming cars. Another car collided with Coronel's car, hitting the passenger side door. Coronel's car came to acomplete stop, at which time Coronel felt some pain and dizziness. When he looked back atFigueroa, she was unconscious and there was broken glass on her neck and clothes. Coronelscreamed to several people on the street to call an ambulance, at which point Coronel sawdefendant get out of his car and run toward Coronel's car. Defendant tried to pull Figueroa out ofthe car and Coronel yelled at him, "You killed her, you killed her." Defendant responded, "Sheain't dead, she ain't dead," and then ran back to his car and left the scene. Upon arrival of theambulance, paramedics removed Figueroa from Coronel's car and transported her to IllinoisMasonic Hospital, where she was pronounced dead. Coronel later identified defendant from apolice lineup.

John Fischer testified on behalf of the State that he was at Tony's Finer Foods on NorthCentral Park Avenue and Fullerton when he heard a loud crash, which sounded like a caraccident. Fischer saw two vehicles sliding across Fullerton and noticed that one vehicle wastotally smashed in on the passenger side. Fischer saw Coronel get out of the damaged vehicle andthen heard defendant say to Coronel, "I told you not to fuck with me." Defendant then walkedover to Coronel's car and unsuccessfully attempted to remove Figueroa from the car. Defendantthen returned to his car and drove away. Fischer also identified defendant in a police lineup.

The parties stipulated to the following testimony: Chicago police officer Glines wouldhave testified that he was assigned to investigate a homicide on November 28, 2000, and arrivedat the scene, 3635 West Fullerton Avenue, at approximately 4 p.m. Chicago police officerGerome Bugucki, who interviewed Coronel at the scene, would have testified that Coronelreported that he was traveling eastbound on Fullerton and that defendant last rammed into his carjust west of North Monticello Street. Finally, Dr. Thamrong Chira, a forensic pathologist with theoffice of the medical examiner for Cook County, would have testified that the autopsy heconducted on Figueroa revealed that her death was a result of both external and internal injuries. Dr. Chira ruled the death a homicide.

Anita Roman testified on defendant's behalf that she was with defendant on November 28,2000, and that they have a child together. Roman testified that when defendant pulled his carover on Avers, another car hit defendant's car on the front left side fender. Defendant thenfollowed that car and tapped it one time. Roman stated that the other car made a left turn, and athird car struck that car on its passenger side. Roman stated that she saw the accident from adistance away and claimed that she did not know the driver of the car that hit defendant's car, thesame driver who later got into the accident on Fullerton.

On cross-examination, the State impeached Roman with her prior testimony given at thegrand jury on December 15, 2000. Roman testified at the grand jury that defendant told her thatCoronel and Figueroa were in the other car. Roman further stated at the grand jury thatdefendant hit Coronel's car hard the first time, but did not hit the car hard on the second and thirdtimes. Roman also admitted that the force of the impact pushed her out of her seat.

The parties stipulated to the testimony of Assistant State's Attorney Anne Marie Allen,who would have testified that the grand jury transcript of Roman's testimony was a true andaccurate record of the questions Roman was asked and the answers she gave.

The trial court found defendant guilty on all counts. The trial court noted that defendant'sflight after the occurrence was circumstantial evidence of his guilt and that Roman's grand jurytestimony was more credible than her trial testimony. The trial court denied defendant's motionfor a new trial and, after a hearing, sentenced defendant to a 30 years' imprisonment for theattempted murder and a concurrent term of 45 years' imprisonment for murder.

Defendant's timely appeal followed.

OPINION

Initially, defendant contends that the State failed to prove him guilty of the attemptedmurder of Coronel beyond a reasonable doubt. Defendant argues that the evidence failed to showthat defendant had the specific intent to kill Coronel when he rear-ended Coronel's vehicle withhis own vehicle.

The standard of review on a challenge to the sufficiency of the evidence is whether, afterviewing the evidence in the light most favorable to the prosecution, any rational trier of fact couldhave found the essential elements of the crime beyond a reasonable doubt. People v. Cooper, 194Ill. 2d 419, 430-31, 743 N.E.2d 32 (2000). The determination of the credibility of the witnesses,the weight given their testimony, and the inferences drawn therefrom are exclusively within theprovince of the trier of fact, and a reviewing court will not overturn the trial court's determinationmerely because the reviewing court would have decided the case differently. People v. Holmes,198 Ill. App. 3d 766, 777, 556 N.E.2d 539 (1989). This court will not reverse a convictionunless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of defendant'sguilt. People v. Williams, 165 Ill. 2d 51, 54-55, 649 N.E.2d 397 (1995).

The offense of attempted murder is shown when the State proves, beyond a reasonabledoubt, that the defendant, with the specific intent to kill, commits any act which constitutes asubstantial step toward the commission of murder. 720 ILCS 5/8-4 (West 2000); People v. Hill,276 Ill. App. 3d 683, 658 N.E. 2d 1294 (1995). The question of a defendant's intent is one offact to be determined by the trier of fact (Hill, 276 Ill. App. 3d at 687), and can be inferred fromthe surrounding circumstances such as the character of the attack, use of a deadly weapon, andseverity of injury. Williams, 165 Ill. 2d at 64. Intent can also be inferred from an act, "the directand natural tendency of which is to destroy another's life." Hill, 276 Ill. App. 3d at 688. Forexample, a deadly weapon is not necessarily one manufactured for the special purpose of taking alife - a deadly weapon is defined as any instrument that is used or may be used for the purpose ofan offense and that is capable of producing death. In re T.G., 285 Ill. App. 3d 838, 845, 674N.E. 2d 919 (1996).

Defendant argues that the intent to kill Coronal cannot be proven or inferred from histhreat directed at Figueroa three days prior to her death, his actions of repeatedly bashing intoCoronel's vehicle with his own vehicle, or from his statement after the incident: "I told you notto fuck with me." Defendant argues that his threat was too "remote" to constitute intent, that hewas driving a "small" car and could not have intended murder based on his actions, and that hisfinal words were merely those of the "scorned lover," illustrating "the macho bravado of the ex-boyfriend." Defendant does not define the terms "macho bravado," nor does he provide asufficient distinction of the actions of "macho bravado," from those actions that constituteattempted murder.

The facts here show that defendant used his automobile as a weapon with the requisiteintent to kill the occupants of Coronel's car. Defendant rammed his car into Coronel's carrepeatedly, ultimately pushing the car into oncoming traffic and causing the death of Figueroa. Defendant's actions, along with his threatening remarks days prior to the incident, and hiscomment made following the fatal crash fulfill the element of intent required in a conviction forattempted murder.

This matter is distinguishable from the case of People v. Jones, 184 Ill. App. 3d 412, 541N.E.2d 132 (1989), upon which defendant relies. There, the defendant broke into the victims'home burglarized the home and brutalized the three occupants. On appeal, this court affirmed thedefendant's conviction for attempted murder of the wife, whom the defendant raped and beat witha gun, but reversed the conviction for attempted murder of the husband. The court explained thatin light of the availability of deadlier means, hitting the husband in the head several times with thegun and repeatedly kicking him in the head was not a severe enough assault to produce death,where the defendant and codefendants could have easily committed murder once gaining controlof the home. Jones, 184 Ill. App. 3d at 430.

By contrast, in the present case, defendant had no control over which rider in Coronel'scar would die as a result of his actions of ramming the car into oncoming traffic. There is nothingin the facts to suggest that defendant, by his actions, intended to kill Figueroa but not Coronel.

Defendant further contends that the trial court applied the incorrect standard of law inconvicting him of attempted murder based on a finding that defendant "knew his actions created astrong probability of causing great bodily harm or death." Defendant argues that this is not thestandard for attempted murder, as it does not contain the specific intent to kill, and therefore hisconviction should be reversed and the matter remanded for a new trial.

Defendant has waived the issue for review for failure to both raise it at the time of the trialcourt's final ruling and to include the issue in his posttrial motion. People v. Enoch, 122 Ill. 2d176, 186, 522 N.E.2d 1124 (1998). This issue is not reviewable as plain error, as the evidence isnot closely balanced and defendant received a fair trial. People v. Carlson, 79 Ill. 2d 564, 576,404 N.E.2d 233 (1980).

Notwithstanding defendant's waiver, the record shows that the trial court did, in fact, finddefendant possessed the intent to kill:

"Did he specifically intend to kill, he specifically intended todo great bodily harm at least to one or both of these individuals, Iin fact think he specifically intended to kill them both or to dogreat bodily harm resulting in death, and that was the ultimateresult." (Emphasis added).

The specific intent to kill Coronel can be substantiated through the doctrine of "transferredintent," which applies when a third person is injured as a result of a defendant's assault uponanother person. People v. Burrage, 269 Ill. App. 3d 67, 76, 645 N.E.2d 455 (1994). In Burrage,the evidence revealed that the defendant had the intent to kill an individual named Andre, butactually shot and killed a three-year-old child. The court found that the defendant's intent to killtransferred to the child. Burrage, 269 Ill. App. 3d at 76.

The doctrine also applies to attempted murder cases, where the third-party victim is notkilled. People v. Ephraim, 323 Ill. App. 3d 1097, 1108-09, 753 N.E.2d 486 (2001). In Ephraim,this court held that when the evidence showed that the defendant intended to kill the driver of aspecific automobile, and young child victims were injured, rather than killed, the doctrine applied. Ephraim, 323 Ill. App. 3d at 1109.

Here, the evidence shows that defendant intended to kill Figueroa and that there was nodistinction between his actions in furtherance of that intention toward Figueroa and those directedat Coronel as they were occupants of the same vehicle that defendant rammed into oncomingtraffic. Defendant's conviction for the attempted murder of Coronel is proper.

Next, defendant originally argued that his concurrent sentences of 45 years' imprisonmentfor murder and 30 years' imprisonment for attempted murder were excessive where he was 20years old at the time of the offenses and had no prior convictions for violent crimes. Defendantargued that the trial court failed to take into account his rehabilitative potential in sentencing.

The offense of first-degree murder is punishable by a sentence of 20 to 60 yearsimprisonment. 730 ILCS 5/5-8-1(a)(1)(a) (West 2000). Attempted first degree murder is a ClassX felony, punishable by a sentence of 6 to 30 years imprisonment. 730 ILCS 5/5-8-1(a)(3) (West2000). Both of defendant's sentences fall well within the statutory range of the offenses for whichhe was convicted.

In between the time of the filing of defendant's appeal and the oral argument of thismatter, however, our supreme court handed down the opinion of People v. Phelps, No. 93830(January 23, 2004), which affirmed mandatory consecutive sentences under section 5-8-4(a) ofthe Unified Code of Corrections for a defendant convicted of aggravated kidnaping and heinousbattery, both Class X felonies. Under section 5-8-4(a)(i), consecutive sentencing is mandatedwhere "one of the offenses for which defendant was convicted was * * * a Class X or Class 1felony and the defendant inflicted severe bodily injury." 730 ILCS 5/5-8-4(a) (West 2000). "[A]ny Class X or Class 1 felony that results in severe bodily injury being inflicted on the victim ofthat felony triggers consecutive sentences." (Emphasis in original.) Phelps, slip op. at 10, quotingPeople v. Whitney, 188 Ill. 2d 91, 99 (1999).

Based on the above, the State argued, and defendant concedes, that his concurrentsentences are improper under the law. We therefore vacate defendant's sentence and remand thismatter to the trial court to resentence defendant consecutively in accordance with Phelps andsection 5-8-4(a) of the Unified Code of Corrections.

Finally, defendant contends that after imposing his sentence, the trial court failed to telldefendant that he must include in his motion to reconsider sentence all issues and claims of errorrelative to his sentence, as required by Supreme Court Rule 605(a)(3), and that he is thereforeentitled to file a new motion to reconsider his sentence. The State responds that defendant wassubstantially admonished pursuant to Rule 605(a)(3).

Rule 605 is entitled "Advice to Defendant," and in section (a), "On Judgment andSentence After Plea of Not Guilty," subsection (3) provides that at the time of imposing sentence,the trial court will advise the defendant as follows:

"A. that the right to appeal the judgment of conviction,excluding the sentence imposed or modified, will be preserved onlyif a notice of appeal is filed in the trial court within thirty (30) daysfrom the date on which sentence is imposed;

B. that prior to taking an appeal, if the defendant seeks tochallenge the correctness of the sentence, or any aspect of thesentencing hearing, the defendant must file in the trial court within30 days of the date on which sentence is imposed a written motionasking to have the trial court reconsider the sentence imposed, orconsider any challenges to the sentencing hearing, setting forth inthe motion all issues or claims of error regarding the sentenceimposed or the sentencing hearing;

C. that any issue or claim of error regarding the sentenceimposed or any aspect of the sentencing hearing not raised in thewritten motion shall be deemed waived; and

D. that in order to preserve the right to appeal followingthe disposition of the motion to reconsider sentence, or anychallenges regarding the sentencing hearing, the defendant must filea notice of appeal in the trial court within 30 days from the entry ofthe order disposing of the defendant's motion to reconsidersentence or order disposing of any challenges to the sentencinghearing. (Emphasis added) Official Reports Advance Sheet No. 21(October 17, 2001), R. 605(a)93), eff. October 1, 2001.

The purpose of the Rule 605 admonishment is to ensure that a defendant is aware of therequirements of Supreme Court Rule 604(d), which set forth the deadlines and requirement forappeals form sentences imposed upon a plea of guilty. Official Reports Advance Sheet No. 21(October 17, 2001) R. 605(d), eff. October 1, 2001. The trial court need not strictly comply withthe admonishment requirements of Rule 605 as the rule requires only substantial compliance. People v. Robinson, 83 Ill. 2d 424, 428, 415 N.E.2d 1045 (1980). Substantial compliance isfound insufficient if the trial court omits information or provides the defendant with additionalmisinformation which leads the defendant not to follow the proper procedure in seeking reviewfrom the court's finding. People v. Bates, 323 Ill. App. 3d 77, 80-81, 84-85, 751 N.E.2d 180(2001).

Here, the record shows that the trial court informed defendant of all of the proceduralsteps necessary to follow in order to perfect an appeal, but failed to inform defendant aboutwaiving issues relevant to sentencing if he did not include them in his motion. The record showsthat defendant timely filed his motion to reduce his sentence. Defendant fails to identify anyspecific issue that was deemed waived by his not having been admonished that he needed toinclude all issues in his motion regarding sentencing or have them waived. It is not apparent thatdefendant suffered any prejudice as a result of the trial court's omission. Defendant wassubstantially admonished in accordance with Rule 605.

For the reasons stated above, we therefore affirm defendant's conviction and remand thismatter to the trial court for the imposition of consecutive sentences.

Affirmed; remanded for sentencing, with instructions.

O'BRIEN and HARTIGAN, JJ., concur.