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SECOND DIVISION
MARCH 2, 2004

No. 1-02-0662 and 02-0871 (Cons.)

In October 1999, the defendants, Juan Perea and GeorgeGalarza, and a third offender, Lee Jimenez, who acted with thedefendants but is not a party to this appeal, were charged injuvenile court with attempted first degree murder and aggravatedbattery for attacking Samuel Avalos. In June 2000, on theState's motion, the defendants were transferred from the juvenilecourt system into the criminal court system pursuant to thepresumptive transfer statute (Presumptive Transfer Statute) (705ILCS 405/5-805(2)(a) (West Supp. 1999) (added by the JuvenileJustice Reform Provisions of 1998 (Pub. Act 90-590, eff. January1, 1999)) of the Juvenile Court Act of 1987 (Juvenile Court Act)(705 ILCS 405/1-2 et seq. (West 1998)). A grand jury thenreturned an indictment charging the defendants with (1) attemptedfirst degree murder (720 ILCS 5/8-4, 9-1 (West 1998)); (2) armedrobbery (720 ILCS 5/18-2(a) (West 1998)); (3) armed violence (720ILCS 5/33A-2 (West 1998)); and (4) aggravated battery (720 ILCS5/12-4(b)(1), (b)(8) (West 1998)).

In January 2002, the trial court found the defendants guiltyof armed robbery (720 ILCS 5/18-2(a) (West 1998)) and aggravatedbattery (720 ILCS 5/12-4(b)(1), (b)(8) (West 1998)). Followingtheir convictions, the defendants filed posttrial motions withthe trial court seeking a new trial and requesting that the trialcourt exercise its discretion and send the defendants to thejuvenile court for sentencing. The trial court denied bothmotions and sentenced the defendants under the Criminal Code of1961 (Criminal Code) (720 ILCS 5/1-1 et seq. (West 1998)).

The defendants appeal arguing (1) the Presumptive TransferStatute is ambiguous regarding how to sentence juvenilestransferred for one offense but convicted of another and,therefore, the trial court abused its discretion in sentencingthe defendants as adults instead of as juveniles; (2) thePresumptive Transfer Statute violates the due process and equalprotection clauses of the United State and Illinois Constitutionsbecause there is no provision made for juveniles who areacquitted of the offense for which they were transferred; (3) thePresumptive Transfer Statute is unconstitutionally vague anddenies juveniles due process because it fails to provide guidanceto trial courts sentencing juveniles acquitted of the offensetriggering the Presumptive Transfer Statute; (4) the PresumptiveTransfer Statute violates Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because the defendantswere exposed to enhanced sentences despite the fact thosesentence enhancing factors were not proven beyond a reasonabledoubt; and (5) the defendants were wrongly convicted of armedrobbery because property was stolen from Avalos before he wasstruck with a weapon.

BACKGROUND

Around 9 p.m. on the evening September 29, 1999, Avalos waswalking home when he was attacked by the defendants. At the timeof the attack, Perea was 15 years old and Galarza was 16 yearsold.

In October 1999, the defendants were initially charged injuvenile court with attempted first degree murder and aggravatedbattery. However, the State petitioned the juvenile court topermit prosecution of the defendants in the criminal court systempursuant to the Presumptive Transfer Statute in the JuvenileCourt Act (705 ILCS 405/5-805(2)(a) (West Supp. 1999)) and basedon the attempted first degree murder charge facing thedefendants. The juvenile court granted the State's motion totransfer and in June 2000, a grand jury returned an indictmentcharging the defendants under the Criminal Code with (1)attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1998));(2) armed robbery (720 ILCS 5/18-2(a) (West 1998)); (3) armedviolence (720 ILCS 5/33A-2 (West 1998)); and (4) aggravatedbattery (720 ILCS 5/12-4(b)(1), (b)(8) (West 1998)). All chargesarose from the attack on Avalos.

In October 2001, the defendants filed motions for severancewhich were granted by the trial court. The defendants waived ajury trial. In December 2001, a bench trial was held.

Avalos testified that on September 29, 1999, he was walkinghome through the 2600 block of South Ridgeway Avenue in Chicago,Illinois. Avalos remembers seeing some people across the streetand then he woke up in the hospital. Avalos testified he washospitalized for five months after the attack and had to undergomultiple surgeries on his brain, throat, and abdomen. AlthoughAvalos has had rehabilitative therapy, he cannot walk normally,his speech is slurred, and he needs glasses.

George Avila testified that at the time of the attack helived in the 2600 block of South Ridgeway Avenue and was at homewith his family on the evening of September 29, 1999. Avilaheard screams coming from the front of his home. Avila ranoutside and saw four people hitting and kicking a man. Avilacalled to his mother to notify the police. Avila testified hedid not recognize the victim but had seen the attackers before;however, at trial Avila could not identify the attackers.

At trial Avila was confronted with a handwritten statementdated from early October 1999, in which he identified Galarza as"G-dog" and Perea as "Little Ghost." In his October 1999statement, Avila stated he saw Galarza and Perea beating up thevictim, witnessed Galarza take off the victim's sweater andshoes, and watched as Galarza, after initially walking away, cameback to kick the victim in the face. Avila also saw Jimenezthrow a concrete block at the victim's head. When shown a photoof the lineup he viewed in October 1999, Avila identified Jimenezas the man who threw the rock and Galarza as the man who removedthe victim's shoes and sweater.

Avila's neighbor, Gladys Naranjo, testified she and herboyfriend were in her family's backyard on September 29, 1999. Gladys testified she heard a bottle break and screaming. Gladys's mother and brother came out of the house to investigatethe cause of the noise. Gladys, her mother, and her brotherfound a man lying on the ground between their home and the next-door neighbor's home; the man had been beaten and wasunconscious. Gladys did not recognize the beaten man; however,she identified Galarza as "G-dog" and testified that Galarzaapproached the victim and kicked him in the face. In earlyOctober 1999, Gladys viewed a lineup at the police station andidentified Galarza.

Hector Naranjo, Gladys's brother, testified he was in theliving room of his home when he heard yelling and a bottlebreaking. Hector saw three people beating up a man, he saw theman fall, and he saw one of the attackers drop a rock on theman's head. Hector specifically testified Galarza and Perea werepresent when the other attacker dropped a concrete block on thevictim's head. Hector recognized the attackers and had seen themoften in the neighborhood. Hector identified two of theattackers: Perea, whom he knew as "Little Ghost," and Galarza,whom he knew as "G-dog." Hector specifically testified he sawGalarza holding Avalos while Perea beat him.

Dr. Hernando Torres, chief of neurosurgery at Mt. SinaiHospital, testified he treated Avalos on September 29, 1999, whenhe was admitted to the hospital in an unconscious state andbleeding from the back of his head. Dr. Torres performed acraniotomy on Avalos in order to relieve the swelling caused bythe injuries he had sustained. Three weeks later Avalos wastransferred for rehabilitation.

Mike Miller, a detective with the Chicago police department,testified he was assigned to investigate Avalos's beating. Miller testified he was unable to interview Avalos so he went tothe scene and found fresh blood, a large piece of concrete, andbroken beer bottles. In late September 1999, Miller receivedinformation from witnesses regarding the nicknames of two of thethree offenders and that the offenders were members of theRidgeway Boys street gang. Miller brought the three defendantsto the police station and placed them in a lineup with threeadditional participants. Four witnesses viewed the lineup andthe three defendants were arrested.

Detective Donald Flaherty testified he assisted inconducting a six-man lineup. Flaherty stood with the witnesseswho viewed the lineup. Gladys Naranjo identified Galarza. Avilaidentified all three defendants. There were two other witnessesto the lineup as well; three of the four witnesses identifiedPerea and all four identified Galarza.

James Snaidauf, a forensic scientist with the Illinois StatePolice, testified he examined a broken beer bottle recovered fromthe scene and that the print impressions left on the bottlematched those of Perea.

Assistant State's Attorney George Canellis testified hespoke with Galarza on October 2, 1999. Canellis testifiedGalarza made a videotaped confession. The videotape wasintroduced as evidence only in Galarza's trial. In Galarza'svideotaped statement he admits to walking with Jimenez and Pereaand noticing Avalos walking through the neighborhood. Galarza,Jimenez, and Perea suspected Avalos was in a rival gang and beganchasing him. When Galarza, Jimenez, and Perea caught up withAvalos, Galarza hit him in the face. Galarza, Jimenez, and Pereahit Avalos numerous times before he fell down. Galaros admittedthat once Avalos was down he, Jimenez, and Perea began kickinghim. Later, Jimenez grabbed a concrete block with both hands anddropped it on Avalos's face from shoulder height. Galarzaadmitted it sounded as though Avalos was choking on his own bloodso Galarza kicked him again and then went home.

The trial court determined Jimenez was guilty of attemptedfirst degree murder (720 ILCS 5/8-4, 9-1 (West 1998)) and armedviolence (720 ILCS 5/33A-2 (West 1998)) based on his action ofthrowing the concrete block at Avalos's head. However, the trialcourt concluded Galarza and Perea were not accountable forJimenez's actions and, therefore, not guilty of either attemptedfirst degree murder or armed violence. Nevertheless, the trialcourt did find Galarza and Perea guilty of armed robbery (720ILCS 5/18-2(a) (West 1998)) and aggravated battery (720 ILCS5/12-4(b)(1), (b)(8) (West 1998)).

In mid-January 2002, the defendants appeared before thetrial court on a posttrial motion seeking a new trial. Thedefendants argued against the finding of armed robbery (720 ILCS5/18-2(a) (West 1998)), based on testimony that (1) Avalos wasunconscious and (2) the concrete block had been thrown afterAvalos's shoes and sweater were taken. Therefore, the defendantsargued, their actions were more akin to robbery (720 ILCS 5/18-1(a) (West 1998)). The trial court found the facts of this caseconducive to a finding of armed robbery because, "even though thevictim was incapacitated at such times as those items wereremoved, I find the acts [of dropping the concrete block onAvalos's head and taking Avalos's sweater and shoes were]contemporaneous." The trial court then denied the defendants'motion for a new trial.

A hearing on the defendants' motion to remove the case tojuvenile court for resentencing was then rescheduled until lateJanuary 2002. At that time, the defendants argued that becausethey were not convicted of the offense for which they werepresumptively transferred from the juvenile court (i.e.,attempted first degree murder), the trial court should invoke itsdiscretion and return the defendants to the juvenile court systemfor sentencing. The State argued the trial court had nodiscretion regarding the sentencing of the defendants as adults. In the alternative, the State argued that even if the trial courtbelieved it had discretion, it should not exercise it and insteadsentence the defendants as adults based on the brutal nature oftheir acts.

The trial court cited to People v. Brown, 301 Ill. App. 3d995, 705 N.E.2d 162 (1998), and determined it did have discretionto send the defendants to the juvenile court for sentencing. However, the trial court found it within its discretion tosentence the defendants as adults based on the fact they werefound guilty beyond a reasonable doubt of armed robbery (720 ILCS5/18-2(a) (West 1998)), a Class X felony (720 ILCS 5/18-2(b)(West 1998)). Thus, the trial court denied the defendants'motion to transfer.

The trial court then sentenced Perea under the Criminal Codeto seven years in the Illinois Department of Corrections (DOC)based on the armed robbery conviction (720 ILCS 5/18-2(a) (West1998)). Perea's aggravated battery conviction (720 ILCS 12-4(b)(1), (b)(8) (West 1998)) was to merge. The trial court alsosentenced Galarza to nine years in DOC on the armed robberyconviction (720 ILCS 5/18-2(a) (West 1998)); Galarza's aggravatedbattery conviction (720 ILCS 5/12-4(b)(1), (b)(8) (West 1998))was also to merge. It is from the denial of the defendants'post-trial motions, their convictions, and their sentences thatthey now appeal.ANALYSIS

I. Ambiguity in the Presumptive Transfer Statute

The defendants first argue that the presumptive transferstatute is unclear and ambiguous because it contains no provisionfor sentencing a minor convicted of a charge other than the oneused by the State to transfer them from the juvenile court systeminto the criminal court system. The State maintains the statuteis unambiguous and that the trial court correctly sentenced thedefendants as adults because they were convicted of armed robbery(720 ILCS 5/18-2(a) (West 1998)), itself a predicate felony underthe Presumptive Transfer Statute (705 ILCS 405/5-805(2)(a) (WestSupp. 1999)). The State also argues that although the trialcourt determined it was within its discretion to sentence thedefendants as adults, it had no such discretion as the statuteclearly presumes a juvenile over 15 years old who is charged witha Class X felony will be tried and sentenced as an adult.

The threshold question we must resolve is one of statutoryconstruction, determining the meaning of section 5-805(2)(a). (705 ILCS 405/5-805(2)(a) (West Supp. 1999). The guidingprincipals of statutory construction are well settled. Weconsider the intent of the legislature. In re Marriage ofMurphy, 203 Ill. 2d 212, 219, 786 N.E.2d 132 (2003). "We mayconsider the reason and necessity for the law, the evils it wasintended to remedy, and its ultimate aims." Murphy, 203 Ill. 2dat 219. We also presume that the legislature did not intend anabsurd or unjust result. However, our inquiry always begins withthe language of the statute, "the surest and most reliableindicator of legislative intent." Murphy, 203 Ill. 2d at 219. "When possible, the court should interpret the statute accordingto the plain and ordinary meaning of the language." People v.Donoho, 204 Ill. 2d 159, 171, 788 N.E.2d 707 (2003), citing Parisv. Feder, 179 Ill. 2d 173, 177, 688 N.E.2d 137 (1997). Theinterpretation of a statute is reviewed de novo. Paris, 179 Ill.2d at 177-78.

Section 5-805(2)(a) of the Juvenile Court Act permits theprosecution of a minor 15 years of age or over under the criminallaws for, inter alia, a Class X felony, upon a motion to transferfrom the State if the juvenile court determines there is probablecause to believe that the petition is true. 705 ILCS 405/5-805(2)(a) (West Supp. 1999). In order to defeat a request by theState to transfer such a minor, the minor must prove by "clearand convincing evidence" that he "would be amenable to the care,treatment, and training programs available through the facilitiesof the juvenile court." 705 ILCS 405/5-805(2)(b) (West Supp.1999). Therefore, once the juvenile court found probable causeto believe that the allegations against the defendants were true,a presumption of transfer arose and the juvenile court wasrequired to enter a transfer order unless it found by clear andconvincing evidence that the defendants were amenable totreatment and care in the juvenile court system. In re M.C., 319Ill. App. 3d 713, 720, 745 N.E.2d 122 (2001).

In initially transferring the defendants from the juvenilecourt system to the criminal court system, the juvenile courtbegan by noting the statutory factors and nonstatutoryconsiderations evidencing whether the defendants would beamenable to the care and treatment available through the juvenilecourt. The trial court found most factors to be againstretaining jurisdiction of the defendants and dismissed thedefendants' assertion that the confrontation with Avalos was astreet fight.

"In order to have a street fight, you have tohave two people fighting. There has neverbeen two people fighting in this particularcase. The minor - was pursued down a street. He was punched in the face. He was kickedand pummeled to the ground."

The juvenile court then stated that the defendants

"beat and kicked another human being intoretardation essentially. They beat thisperson until he was within an inch of hislife. Not only did they beat him, but theystood there while another person dropped aconcrete block on his head. And then afterthat occurred, they continued to beat andkick him."

The juvenile court noted the serious, inhumane, and viciousnature of the crime. Based on the juvenile court's observationsof the two defendants and the testimony presented at the transferhearing, the juvenile court found that under the "totality of thecircumstances, giving extra weight to the seriousness of theoffense and giving the appropriate weight to all of the otherfactors, the motion of the State to prosecute these young menunder the criminal laws will be allowed."

Later, trial court considered the defendants' post-trialmotion to be transferred to the juvenile court system forsentencing. The trial court, relying on Brown, 301 Ill. App. 3d995, 705 N.E.2d 162, and the Presumptive Transfer Statute (705ILCS 405/5-805(2)(a) (West Supp. 1999)), determined it haddiscretion to transfer the juveniles back to the juvenile courtfor sentencing. The trial court found the only change betweenwhat was presented to the juvenile court when it transferred thecase to the criminal court and now was a finding beyond areasonable doubt that the defendants were guilty of armedrobbery, itself a Class X felony. The trial court stated:

"recognizing the fact that I do havediscretion and recognizing the fact that the[juvenile court] held a hearing and the onlydifference between what was held at thathearing on that date and today's date is theinclusion of that finding beyond a reasonabledoubt of a Class X felony, recognizing mydiscretion I still find that under the factsas presented before this court that thedefendants fall within the jurisdiction ofthe criminal code and I will sentence them asadults."

"The legislature has determined that certain minors are noteligible for continuation in the administrative scheme of thejuvenile court." M.C., 319 Ill. App. 3d at 720, citing People v.J.S., 103 Ill. 2d 395, 402, 469 N.E.2d 1090 (1984). Further,"[m]inor defendants do not have a constitutional right to betreated as juveniles, and, because the juvenile system isstatutory, the legislature has the authority to define the limitsof the juvenile system." M.C., 319 Ill. App. 3d at 320. TheAppellate Court, Second District, has held that where a minordefendant is ultimately convicted of crimes which are notpredicate offenses under the Presumptive Transfer Statute, thecriminal court has the discretion to consider whether the minordefendant should be transferred back to the juvenile court system(see People v. A.T., 303 Ill. App. 3d 531, 536-37, 708 N.E.2d 529(1999)); the facts of this case are distinguishable because here,the defendants were found guilty of a predicate felony, armedrobbery (720 ILCS 5/18-2(a) (West 1998)), itself a Class X felony(720 ILCS 5/18-2(b) (West 1998)).

In this case, the juvenile court found that the defendantswere eligible for transfer from the juvenile court to thecriminal court based on the predicate felony charge against themand the heinous and vicious nature of their crime. Thedefendants were convicted of armed robbery, a Class X felony,beyond a reasonable doubt. The armed robbery charge could havebeen used to transfer these defendants, and under the PresumptiveTransfer Statute, they would have been eligible for transfer fromthe juvenile court system into the criminal court system. 705ILCS 405/5-805(2)(a)(West Supp. 1999); 720 ILCS 5/18-2(a), (b)(West 1998). We agree with the State that the PresumptiveTransfer Statute is unambiguous and mandates a defendantjuvenile, convicted of a predicate felony different from thepredicate felony which resulted in his transfer to the criminalcourt system, be sentenced as an adult. The trial court does nothave discretion regarding sentencing so long as the defendant isconvicted of a predicate felony under the Presumptive TransferStatute. Therefore, we affirm the trial court's decision tosentence the defendants as adults but disagree with itsreasoning.

II. Due Process and Equal Protection

The defendants next argue their constitutional right to dueprocess (U.S. Const., amend. V, XIV) and equal protection (U.S.Const., amend. XIV; Ill. Const. 1970, art. I,