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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.

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

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

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