CBA Record

33 / 52

Y O U N G L A W Y E R S J O U R N A L
CBA RECORD 33
van approached again and he saw Flores
reach down with his right arm. Fearing
that the van would strike him, Guyton
fired several gunshots at the van. Saldivar
received a fatal gunshot to the head, while
Flores was superficially injured.
A jury found Guyton guilty of second
degree murder with respect to Saldivar on
the basis that Guyton, while engaging in
conduct that would otherwise constitute first
degree murder, was acting on an actual, albeit
unreasonable, belief in the need to defend
himself. However, as explained below, this
imperfect self defense claim is only avail-
able to mitigate completed homicides and
not attempted homicides. Thus, Guyton’s
shooting at Flores resulted in a verdict for
the more serious offense of attempted first
degree murder. The trial judge sentenced
Guyton to 36 years in prison for attempt-
ing to kill Flores, but only 18 years for the
completed killing of Saldivar.
An Anomaly Explained
How did this seemingly disproportionate
result happen? It stems from Illinois’ failure
to recognize the offense of attempt second
degree murder, which in turn derives from
the attempt statute:
A person commits the offense of
attempt when, with intent to commit
a specific offense, he or she does any
act that constitutes a substantial
step toward the commission of that
offense.
720 ILCS 5/8-4 (emphasis added). First
in People v. Reagan, 99 Ill. 2d 238 (1983),
and later in People v. Lopez, 166 Ill. 2d 441
(1995), the Illinois Supreme Court con-
strued the above clause to mean that intent
must be layered upon each element of the
attempted offense. Applying this reasoning
to voluntary manslaughter (Reagan) and
second degree murder (Lopez), the Court
concluded that attempting those offenses
is not possible because one cannot logically
intend to have an unreasonable belief in
the need for self defense or intend to act
under a sudden and intense passion result-
ing from serious provocation. Thus, the
Court has taken the view that the offense
of attempted second degree murder does
not exist in Illinois.
Less clear from the Illinois Supreme
Court’s decisions is what offense, if any, is
supported by evidence that an attempted
killing was accompanied by the mitigat-
ing factors traditionally associated with
second degree murder. Writing separately
in Lopez, Justice McMorrow remarked
that the majority’s analysis sanctioned an
attempted first degree murder conviction
in cases where imperfect self defense was
raised. Lopez, 166 Ill. 2d at 457 (McMor-
row, J., concurring in part, dissenting
in part). However, under the majority’s
view of the attempt statute, a conviction
for attempted first degree murder would
require the defendant to have intended the
killing to be without justification. Signifi-
cantly, the majority also recognized–albeit
in the context of attempted second degree
murder–that intent to kill without justifi-
cation is incompatible with a belief in the
need for self defense. Lopez, 166 Ill. 2d at
448-449. Furthermore, while the major-
ity acknowledged the possibility that an
attempted killing could result in a stiffer
sentence than a completed killing, the
Court appeared to entertain this hypotheti-
cal only in cases where passion/provocation
was raised. Thus, Lopez generated confusion
as to whether defendants such as Guyton
who are acting in a belief in the need for self
defense should be convicted of attempted
murder (a Class X felony) with respect to
a surviving victim, or acquitted entirely.
An Attempted Legislative Fix
In response to the holdings in Lopez and
Reagan, the legislature in 2010 enacted a
new statutory provision, 720 ILCS 5/8-
4(c)(1)(E), based on the recommenda-
tions of the CLEAR Commission, a body
the legislature had tasked with proposing
broad reforms to the criminal code. Under
this provision, a defendant convicted of
attempted first degree murder would have
the opportunity to mitigate the offense at
sentencing. If the defendant could prove by
a preponderance of the evidence that he
acted in response to serious provocation,
the offense would be reduced to a Class 1
felony, punishable by 4 to 15 years. The
legislature thus reduced the vast sentencing
disparity between completed killings and
attempted killings, at least with respect
to the serious provocation prong. And by
placing the mitigation issue at sentenc-
ing, it did so without disturbing Lopez’s
holding that Illinois does not recognize
the substantive offense of attempt second
degree murder.
Following the CLEAR Commis-
sion’s proposal, Judge Michael Toomin, a
member of the commission, explained that
no special sentencing provision was neces-
sary for the imperfect self defense factor,
because a defendant who attempts to kill
someone with an unreasonable belief in self
defense lacks the requisite specific intent
to kill necessary for attempt first degree
murder. See Toomin, Second Degree Murder
and Attempted Murder: CLEAR’s Efforts to
Maneuver the Slippery Slope, 41 J. Marshall
L. Rev. 659 (2008). Thus, under Judge
Toomin’s view, such a defendant should be
acquitted of attempted first degree murder.
Guyton’s Appeal
Guyton raised a number of arguments in
his appeal to Illinois’ First District Appel-
late Court. Notably, Guyton adopted
Toomin’s view of attempted first degree
murder, arguing that his conviction should
be reversed outright where the jury’s find-
ing imperfect self defense with respect
to the fatal shooting of Saldivar showed
that he did not have the specific intent to
kill Flores without justification. In other
words, because Guyton’s mental state did
not change between the time he fired at
Saldivar and the time he fired at Flores, his
belief in the need for self defense mandated
an acquittal of attempt first degree murder.
The appellate court rejected Guyton’s
argument. The court acknowledged that
Guyton’s mental state did not change
between the two offenses and that Guyton’s
convictions led to a sentencing conundrum
that was recognized in Lopez. The court,
however, interpreted Lopez as having
authorized a conviction for attempted first
degree murder, even where there is a miti-
gating factor present. The court also placed
great reliance on the legislature’s actions in
the wake of Lopez, noting that in 2010, the
legislature amended the attempt statute to
address the sentencing anomaly, but did so