People v. Cavazos , 2015 IL App (2d) 120171 ( 2015 )

2015 IL App (2d) 120171No. 2-12-0171
Opinion filed March 31, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 08-CF-3321
)
JOSHUA CAVAZOS, ) Honorable
) Timothy Q. Sheldon,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Zenoff and Birkett concurred in the judgment and opinion.
OPINION
¶1 On January 20, 2007, 15-year-old Oscar Rodriguez and his girlfriend, Claudia Lozano,
were walking along High Street near Grove Street in Aurora. Gunshots were fired from a
passing sport utility vehicle (SUV), killing Rodriguez and injuring Lozano. Defendant, Joshua
Cavazos (age 17 when the shooting occurred), and his brother, Justin Cavazos (age 16 when the
shooting occurred), were charged in connection with the incident.
¶2 In 2011, the brothers were tried simultaneously (in adult court) by separate juries.
Joshua’s jury convicted him of two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2)
(West 2006)), attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)),
unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2006)), and
2015 IL App (2d) 120171aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). 1 Further, regarding
the first-degree-murder and attempted-murder convictions, the jury found that Joshua personally
discharged the weapon used in those crimes. The trial court denied Joshua’s posttrial motion,
but granted in part his motion to reconsider his sentence and, ultimately, sentenced him to an
aggregate of 75 years’ imprisonment.
¶3 On appeal, Joshua argues that: (1) the evidence was insufficient to sustain his
convictions; (2) the jury was improperly instructed on the attempted-murder charge, where the
instruction did not state that, to be found guilty, he had to specifically intend to kill Lozano, as
opposed to merely “an individual”; (3) the attempted-murder conviction must be reversed
because no evidence established that he specifically intended to kill Lozano; (4) Illinois law is
unconstitutional where it automatically subjects juveniles to adult prosecution and sentencing,
without consideration of youthfulness at the time of the offense; and (5) the application to
juveniles of mandatory firearm enhancements (see 730 ILCS 5/5-8-1(a)(1)(d) (West 2006)),
mandatory consecutive sentencing (see 730 ILCS 5/5-8-4(d) (West 2006)), and “truth in
sentencing” provisions (730 ILCS 5/3-6-3(a)(2)(i), (ii) (West 2006) (requiring that Joshua serve
100% of the murder sentence and 85% of the attempted-murder sentence)) is unconstitutional
because the provisions do not permit consideration of youthfulness at the time of the offense.
For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 On November 28, 2011, during jury selection, the court informed the venire that Joshua
was charged with first-degree murder for the shooting death of Rodriguez and with attempted
1
Justin, who was also convicted, appeals in People v. Cavazos, 2015 IL App (2d)
120444.
-2-
2015 IL App (2d) 120171first-degree murder for shooting Lozano. Similarly, at the end of its opening statement, the State
argued that the evidence would show that Joshua was the shooter and “is guilty of first-degree
murder of Oscar Rodriguez and also attempted murder of Claudia Lozano[,] who was standing
right near Oscar when he was shot. That she was shot at as well.”
¶6 A. State’s Case-In-Chief
¶7 Lozano testified that, on January 20, 2007, she and Rodriguez were in the ninth grade. At
around 2 p.m., they were walking down the sidewalk on High Street in Aurora. Rodriguez was
closer to the street. Lozano testified that she is nearsighted, which affects her ability to clearly
see things at a distance, and was not wearing her glasses that day. A dark, navy blue, four-door
SUV drove by, with the driver’s side of the SUV closer to the sidewalk. According to Lozano,
the passengers on the driver’s side started “throwing” gang signs and yelling gang slogans at
Lozano and Rodriguez. Lozano testified that, initially, the passengers were throwing signs
associated with the Insane Deuces street gang and were saying something similar to, “Deuce
love” and “[Latin] King killer.” She did not recall anyone in the SUV yelling anything
indicating a loyalty to the Latin Kings street gang. Rodriguez responded, “King love.”
Rodriguez might have known members of the Latin Kings, and his brothers used to wear Latin
King colors, but Lozano did not know if they were gang members.
¶8 The SUV passed Rodriguez and Lozano, but it did a quick U-turn and, when it returned,
the SUV’s passenger side was closer to the sidewalk. Lozano heard four or five gunshots come
from the SUV. She and Rodriguez fell to the ground. Lozano was hit by a bullet on her left
thigh. She stood up, looked at Rodriguez, and saw that he had been shot and his head was
bleeding. Rodriguez could not stand up or talk and (as testified to by the medical examiner) died
from multiple gunshot wounds. The SUV drove south and made a left turn onto Grove Street.
-3-
2015 IL App (2d) 120171¶9 Lozano testified that she could not identify the people who were inside the SUV, because
they were all wearing “hoodies” and her vision was blurry. She did, however, observe that there
were two people in the front seat, and she knew that there was at least one person in the backseat
because, when the SUV returned, someone was hanging out of the backseat passenger-side
window. Lozano recalled that this person had the gun. Lozano told police that she thought that
the men in the SUV (she did not hear any female voices shouting from the SUV) were Hispanic,
that the driver had a beard or goatee, and that he appeared to be around 17 years old.
¶ 10 Felipe Rojo testified that, for 18 years, he had lived near the intersection of High and
Grove Streets in Aurora and could see the intersection from his house. Around 2 p.m. on
January 20, 2007, Rojo was inside his house when he heard a sound “kind of like some
gunshots.” Rojo went to the front window and saw a car, similar to a Ford Explorer or Chevrolet
TrailBlazer, drive up High Street and turn east onto Grove Street. The SUV was driving “almost
as if it had been sliding, very fast.” Rojo could not recall the SUV’s color, but he remembered
that it had a yellow permit on its rear license plate.
¶ 11 Officer Ted Hunt responded to the scene. Dispatch informed him that the suspect
vehicle, a black Chevrolet TrailBlazer with a temporary license plate, was last seen going east
near Grove Street and High Street. Hunt proceeded in that direction and located, parked along
the curb at 1223 Grove Street, i.e., seven blocks from the scene of the shooting, a black
Chevrolet TrailBlazer with a yellow temporary license plate. Hunt ran the vehicle’s information
through his computer system and learned that it was stolen.
¶ 12 Jorge Briesca testified that the recovered SUV was his and that he had reported it stolen.
When the SUV was processed for DNA, gunshot residue, and fingerprints, one of the items
-4-
2015 IL App (2d) 120171tested was a cigar found in the cup holder on the front passenger-side of the vehicle. Briesca
testified that the cigar was not his, nor was the cigar in his SUV when it was stolen.
¶ 13 Katharine Mayland, a forensic scientist and latent fingerprint examiner, testified that
Joshua’s fingerprint was found on the cigar’s clear plastic cellophane wrapper.
¶ 14 Four shell casings were found at the scene. Jeff Parise, a forensic scientist specializing in
the fields of firearms and firearms identification, studied the casings and opined that they were
fired from the same .40-caliber automatic or semiautomatic firearm.
¶ 15 1. Gang Member Testimony
¶ 16 David Hernandez testified that he previously lived in Aurora. Hernandez joined the
Insane Deuces when he was 15 years old, because he was “bored.” In 2007, both Justin and
Joshua were members of that gang, as was Jaime Barragan (and Ignacio Rios, Eddie Montanez,
and Wesley Grant). The gang members would often stay at Manny Caranza’s apartment in
Aurora. Caranza, also an Insane Deuces member, kept firearms, including .40-caliber weapons,
in his apartment. The guns, known as “nation guns,” belonged to the gang and were available for
any gang member to use when “hunting” (i.e., looking for rival gang members to shoot). At the
time of the shooting, the Insane Deuces and the Latin Kings were rivals, and the area of High and
Grove Streets in Aurora was known Latin King territory. Generally, “hunting” would be the
only purpose for Insane Deuce members to enter that area.
¶ 17 On January 19, 2007, Hernandez, Barragan, and both Cavazos brothers were at Caranza’s
apartment. Late in the evening, Hernandez and Barragan left the apartment to steal a car. While
Hernandez stood as lookout, Barragan stole a black TrailBlazer SUV. The license plate had a
“Dempsey” dealership decal. They drove the SUV back to Caranza’s apartment and stayed the
night.
-5-
2015 IL App (2d) 120171¶ 18 The next morning, January 20, 2007, Hernandez and Barragan told the Cavazos brothers
about the SUV, and then they “hung out,” playing video games and talking. At some point,
Justin, Joshua, and Barragan, who had been having a conversation in the kitchen, entered the
living room and told Hernandez to come with them. The four men got into the SUV: (1)
Barragan drove; (2) Joshua sat in the front passenger seat; (3) Hernandez sat in the rear
passenger-side seat; and (4) Justin sat in the rear driver’s-side seat. They drove around, ate
McDonald’s food, and then went “hunting” in Latin King territory. On High Street, they saw a
“rival gang banger” walking with someone else. When asked if the “gang banger” was a “he” or
a “she,” Hernandez replied, “he.” When asked how he knew that “he” was a rival gang member,
Hernandez explained that he was wearing Latin King colors. Further, when the driver’s side of
the SUV was closer to the sidewalk, someone in the SUV “threw up” the Latin King crown
signal. The male pedestrian, who was closer to the street, threw the crown back, “so that notified
him as a Latin King.”
¶ 19 The SUV drove past the pedestrians, then turned around and came back toward “him.”
The passenger side of the SUV was now closer to the sidewalk. At that time, Justin handed
Hernandez a .40-caliber semiautomatic handgun. Hernandez looked at the gun, held it for a
second, and refused to pull the trigger. He passed the gun back to Justin. Justin then passed the
gun up front to Joshua. Joshua aimed the firearm out the window and shot three or four rounds.
Hernandez looked out the window and saw the male lying on the ground. Hernandez did not
remember if, at that time, he was hanging out of the SUV’s back window. Barragan sped off and
turned left. A few blocks later, they “ditched” the car. They were wearing gloves while in the
car and did not wipe it down before running away. The four men split up; Barragan and Justin
ran off together, and Hernandez and Joshua ran through some fields until they arrived at a flea
-6-
2015 IL App (2d) 120171market. They used the bathroom and then called Caranza for a ride. While they were waiting,
they hid the gun under some leaves and branches by Cowart Middle School.
¶ 20 Caranza picked up Hernandez and Joshua and they returned to his apartment. Eventually,
Joshua and Barragan returned too. At that time, Caranza, Joshua, Justin, and Barragan had a
conversation in the spare bedroom. Hernandez was not included in that discussion; he was
treated like a “coward” because he did not pull the trigger. As a result of the shooting, Joshua
had a tattoo of a spade placed on his back. Hernandez explained that the spade is a symbol of the
Insane Deuces.
¶ 21 Hernandez stated that he was not testifying by choice but rather, was doing so pursuant to
a deal he made with the State. Specifically, Hernandez testified that, in exchange for his
testimony, he was accepting a five-year sentence for possession of a stolen motor vehicle (but
was hopeful that the court would instead impose five or six months in “boot camp”). He was not
charged with murder in connection with this case, but he was charged with possession of a
handgun and 12 misdemeanors. Pursuant to the agreement, he was pleading guilty to the
possession charge, and the 12 misdemeanor charges were to be dropped. Hernandez agreed that
when, on October 27, 2007, he gave a statement to police, he was reluctant to talk without a deal.
He was “begging” for a deal, because he had violated probation and was told that he would be
charged with murder. Nevertheless, at the time of his statement and without any offer of a deal,
Hernandez identified Barragan, Joshua, and Justin in photographic lineups. As part of the deal
he did eventually receive, he was required to testify truthfully in court. The State asked
Hernandez what would happen if he did not testify truthfully, and he responded, “I get charged
for first-degree murder.”
-7-
2015 IL App (2d) 120171¶ 22 On cross-examination, defense counsel reviewed with Hernandez his four-page
agreement with the State. Hernandez agreed that the deal required that he testify consistently
with what he told police on October 27, 2007, but that some of his testimony was not what he
told police that day. For example, at trial, he testified that the passengers wore gloves while in
the SUV, but initially he did not tell that to the police. Hernandez explained that initially he did
not trust the police and did not tell them everything because he did not have a deal and that he
was still a gang member at the time and the gang had rules against talking to the police.
Hernandez did not recall stealing more than one car with Barragan the night before the shooting,
but he had been “high.”
¶ 23 Jaime Barragan testified that he was 21 years old and, in January 2007, he was living in
De Kalb. Nevertheless, he had occasion to visit Aurora frequently, and, prior to moving to
De Kalb in early 2007, he had lived in Aurora. In 2006, Barragan became a member of the
Insane Deuces. Barragan testified to the colors and symbols used by the Insane Deuces and the
Latin Kings. He explained that the Insane Deuces and the Latin Kings were rivals and that “false
flagging” means throwing up the opposing gang’s sign to see if it is returned. Barragan provided
in-court identifications of Joshua and Justin and testified that they were Insane Deuces.
¶ 24 The evening of January 19, 2007, Barragan was at Caranza’s apartment with Justin,
Joshua, Rios, Montanez, and Hernandez. They were partying, smoking marijuana, and drinking
alcohol. In the early morning hours of January 20, 2007, Barragan and Hernandez left the
apartment, intending to steal radios. They stole a radio and came across a running Ford Taurus.
Barragan stole the Taurus, 2 and he and Hernandez eventually left the car at another gang
2
Barragan explained that stolen cars are referred to as “steamers” and are used to commit
shootings and robberies.
-8-
2015 IL App (2d) 120171member’s house. After leaving the car, Barragan and Hernandez went looking for more radios,
but came across a running black TrailBlazer. Barragan told Hernandez that it was his turn to
steal a vehicle, but Hernandez refused. Barragan stole the TrailBlazer and, with Hernandez
riding along, drove it back to Caranza’s apartment. They went inside the apartment, saw that
Joshua, Justin, and Rios were still there, and went to bed.
¶ 25 The next morning, Barragan and Hernandez told Rios about the TrailBlazer, and the three
of them went outside to see it. When they returned, Justin and Joshua were awake. Joshua told
Justin, Rios, and Barragan that he wanted to “put in work.” According to Barragan, “putting in
work” means shooting someone. They were in a bedroom, and Hernandez was in the living
room. Justin showed them that he had a gun, specifically, a .40-caliber semiautomatic, and said
that “that’s the gun they want to put in work with.” Barragan and Rios told the brothers about
the “steamer” in the parking lot. Hernandez confirmed that the SUV had a temporary license
plate. Later, they wanted to get something to eat and Hernandez wanted to go home, so
Barragan, Joshua, Justin, and Hernandez left in the SUV. Consistent with Hernandez’s
testimony, Barragan testified that he drove, Joshua sat next to him, Hernandez sat behind Joshua,
and Justin sat behind Barragan. Barragan drove to McDonald’s and then into Latin Kings
territory. Hernandez spoke about wanting to get rank in the gang.
¶ 26 They wound up on High Street and saw a boy and a girl walking down a sidewalk. The
driver’s side was closer to the sidewalk, and the boy was closer to the street and was wearing a
hooded sweatshirt. Justin started “gang banging with the boy,” or false flagging, by saying
“King love, Amore De Rey.” The boy then “represented” by throwing up the Latin Kings
crown. Barragan responded by flashing the Insane Deuces sign and saying “Deuce love, King
Killer.” Barragan continued driving, turned around, and drove back down High Street such that
-9-
2015 IL App (2d) 120171the passenger side was closer to the pedestrians. According to Barragan, he turned right at a stop
sign and pulled into a driveway, intending to jump out to go beat up “the guy.” However, he
looked back and saw Justin pass Hernandez some gloves and a gun. It was the same gun
Barragan saw earlier, in the apartment. Instead of getting out to “jump” the guy, Hernandez told
Barragan to “drive up.”
¶ 27 Barragan backed the car out of the driveway and returned to High Street, where he saw
the boy and the girl “walking like right next to each other,” with the boy closer to the street. He
slowed the car down. When asked what he thought was going to happen at that point, Barragan
responded, “I thought that most likely a shooting was going to happen.” According to Barragan,
Hernandez told him to slow down. Hernandez was supposed to do the shooting but Hernandez
said that he “wasn’t doing it” and passed the gun to Joshua. Hernandez passed the gun to Joshua
between Joshua’s seatbelt and the passenger door. Barragan saw Joshua with the gun; Joshua
started shooting. Barragan heard three to five gunshots. The gunshots “surprised” him and he
looked over and saw the boy fall. Barragan accelerated rapidly and drove away “recklessly,”
turning left onto Grove Street. Eventually, he stopped the car on Grove Street and used the
sleeve of his hooded sweatshirt to quickly wipe down the steering wheel, the door handles, and
everything he believed he had touched with his left hand (he was wearing only one glove).
Further, Barragan previously had two cigars on his person and had smoked one; he tried to locate
the other cigar before he left the TrailBlazer. They all exited the vehicle and split up, with
Barragan and Justin jogging to Barragan’s grandmother’s house and then returning to Caranza’s
apartment. Eventually, Hernandez and Joshua arrived, and Joshua and Justin bragged to Rios
about the shooting. Barragan testified that Joshua received a tattoo of a spade on his back after
the shooting.
- 10 -
2015 IL App (2d) 120171¶ 28 Barragan was asked, “[B]etween the boy and the girl, which was significant to you?” He
replied, “[T]he boy.” Asked, “I mean, were you targeting the girl at all?” He answered, “[U]m.”
Then, “[Y]ou were worried about the boy, right?” Answer, “[Y]es, sir.” He confirmed that the
girl never threw up the crown or did anything else. They were talking about the boy while
Barragan drove by and when he parked and was going to get out and beat “him” up. Barragan
testified that “the girl” (presumably, harming her) would not give him any rank in the gang.
After they turned around and returned toward the pedestrians, the boy walked toward the car
while the girl was on the sidewalk; she did not come toward the car. When the boy was shot, the
girl was on the sidewalk. Barragan did not see the gun pointed at her.
¶ 29 On October 29, 2007, Barragan was arrested in De Kalb. He lied, telling detectives that
he was in De Kalb on the day of the shooting. Later, with his attorney, he reviewed all discovery
and read every statement made by each witness in this case. Barragan knew that he was facing a
minimum of 35 years’ imprisonment for the first-degree murder of Rodriguez and a minimum of
21 years’ imprisonment for “the attempt first-degree murder of Claudia Lozano,” which he
expected would be served consecutively (for a 56-year minimum sentence). Barragan told the
State that he wished to talk, and he agreed that, when he so notified the State, he was informed
that he would not receive a deal if the State did not like what he had to say. Barragan agreed that
he wanted a deal.
¶ 30 In exchange for his testimony against all codefendants, Barragan would plead guilty to
attempted armed violence and aggravated battery on a public way, for a total of 18 years’
imprisonment (at 50%). Under the agreement, Barragan expected that he would have around 5
more years left to serve, which he agreed was “better than” 56 years. Further, the State agreed
to: (1) recommend that Barragan receive substance abuse treatment in prison; (2) try to get
- 11 -
2015 IL App (2d) 120171Barragan an “S Visa” to help him with immigration issues; (3) write a letter to “ICE” to help
Barragan stay in the country; (4) try to house Barragan separately from the Cavazos brothers;
and (5) call the jail where Barragan was staying to check on his request to become a trustee,
which would allow him to move around the jail with more freedom than a typical inmate. The
agreement required that Barragan tell the truth. Barragan testified that the State decides what is
truthful.
¶ 31 Finally, Barragan testified that, on March 12, 2009, he shared a cell with Montanez in the
Kane County jail. Joshua was housed in the same cell block. By speaking through the
ventilation system, Barragan was able to communicate with Joshua from his cell. Through the
vents, Joshua told Barragan that Montanez was a “snitch” who gave evidence to the State and
that they should “whoop” him. Barragan replied that it would not look good for the case. Then,
Barragan and Joshua agreed to have Montanez complete an affidavit. Joshua sent an affidavit
form to Barragan’s cell, and Barragan gave it to Montanez. Through the vents, Montanez asked
Joshua what to say, and Joshua replied, essentially, that Montanez knew what he had said and
what he should write. Barragan said that the Insane Deuces do not like snitches; nevertheless, he
did not threaten Montanez.
¶ 32 Eddie Montanez testified that he was serving 10 years’ imprisonment for aggravated
discharge of a firearm within 1,000 feet of a school. Prior to his incarceration, he lived in Aurora
and was a member of the Insane Deuces. Montanez could not recall how he learned of the
January 2007 shooting on High Street. He was asked whether he recalled his August 19, 2008,
grand jury testimony, wherein he testified that he learned of the shooting from Joshua.
Montanez replied, “[E]verything what I said at the grand jury is a lie.” He apparently had told
the grand jury that: (1) three days after the shooting, at Caranza’s “crib” and with Justin present,
- 12 -
2015 IL App (2d) 120171Joshua told Montanez about the shooting; (2) Joshua told Montanez that Barragan and
Hernandez stole a car, that he sat in the front passenger seat while Barragan drove, and that
Justin and Hernandez sat in back; (3) Joshua said that the “mission” was to look for Latin Kings;
(4) Joshua saw the victim walking down the street with his girlfriend, Joshua threw up the crown,
and the victim returned the crown, so Joshua shot him; and (5) as a result of the shooting,
Caranza gave Joshua a spade tattoo.
¶ 33 Montanez identified Joshua and Justin in photographic lineups and, according to his
grand jury testimony, identified them, respectively, as the person who shot the gun on High
Street and a person who was present in the car during the shooting. At trial, Montanez agreed
that he stayed in the McHenry County jail at the same time as Joshua but said that he did not
remember if, while there, they talked about the shooting. According to Montanez’s grand jury
testimony, however, in the jail, Joshua told Montanez that he felt like he was going to “go down
for what he did.” On March 12, 2009, Montanez signed an affidavit asserting that his grand jury
testimony was a lie.
¶ 34 Wesley Grant testified that he was once a member of the Insane Deuces and he knew the
Cavazos brothers. In March 2007, at Justin’s girlfriend’s house, Grant had conversations with
Justin and Joshua about the January shooting on High Street. Joshua told Grant that he,
Hernandez, Justin, and Barragan were riding around looking for opposing gang members. On
High Street, they saw an individual walking and they “false flagged” him, meaning that they
flashed the Latin Kings sign to see how the individual would respond. The individual threw
back the sign, showing that he might be a King, so they shot him. Grant testified that Joshua did
not say who performed the false flagging or who shot the individual. In his grand jury
testimony, however, Grant stated that Joshua did tell him who shot the individual, and he agreed
- 13 -
2015 IL App (2d) 120171that, on May 20, 2008, he identified Joshua in a photo lineup. At trial, Grant testified that Joshua
had the gun.
¶ 35 Grant agreed that, in October 2007, he was charged with possession of a stolen motor
vehicle and attempted armed robbery. He knew that he could receive up to 7 years’
imprisonment for the possession of a stolen vehicle and another 15 years’ imprisonment for the
attempted armed robbery, sentences that could possibly run consecutively. When, in October
2007, the police asked Grant whether he knew anything about the shooting on High Street, he did
not tell them everything he knew, because he was not represented by an attorney. He did,
however, tell them at that time that Joshua was the shooter and that, when the car, full of Insane
Deuces, passed the victim, they threw up the crown. In May 2008, with an attorney present, he
spoke with the police. In August 2008, he testified before the grand jury in Joshua’s case, and in
December 2008, he pleaded guilty to the pending charges against him, receiving only four years’
imprisonment on each, to run concurrently.
¶ 36 Miguel De La Cruz testified that he was currently being housed in the Kane County jail
on charges of aggravated unlawful use of a weapon, two counts of first-degree murder, attempted
first-degree murder, and four counts of aggravated battery with a firearm. He testified that he did
not have an agreement with the State to testify in Joshua’s case. In January 2007, De La Cruz
was a member of the Latin Kings. The Kings and the Insane Deuces were rivals and “worked” to
shoot and cause harm to one another. It would not be safe for members of one gang to walk in
the area of a rival gang, and one of the few reasons for members of the Insane Deuces to be
walking or driving in Latin Kings territory would be to look for somebody to shoot. De La Cruz
testified that the area of High and Grove Streets in Aurora is considered Latin Kings territory.
¶ 37 De La Cruz read in the newspaper about the January 20, 2007, shooting on High Street.
- 14 -
2015 IL App (2d) 120171In January 2007, there was a courtroom on the second floor of the Aurora police department.
Sometimes gang members would be there for their own or other members’ cases. On those
occasions, De La Cruz would sometimes see rival gang members. A few weeks before March
2007, he was standing outside the courtroom with three other Latin Kings members, when he
encountered members of the Insane Deuces. Both groups began flashing gang signs and
shouting derogatory gang slogans at each other. According to De La Cruz, he and one of the
Insane Deuces “got into like a little argument and stuff,” and the Insane Deuces member asked
De La Cruz if he remembered what happened on High Street. De La Cruz responded that he
remembered, and the Insane Deuces member “said that High Street was his.” In addition, the
Insane Deuces member showed that there was a spade on his right hand. De La Cruz took the
comment to mean that the Insane Deuces member was claiming responsibility for the shooting
on High Street. He later identified Joshua in a photo lineup as the person he encountered outside
the courtroom.
¶ 38 Ignacio Rios, 23 years old, testified that he was born in Mexico and currently lived there.
He came to the United States when he was six years old and returned to Mexico about three
years prior to trial. Because Rios was a deported convicted felon, the State’s Attorney’s office
and the Aurora police department worked with Homeland Security to obtain Rios’s presence at
trial. On January 20, 2007, Rios lived in Aurora and was a member of the Insane Deuces. He
was at Caranza’s apartment and was smoking marijuana. Rios had a conversation with Joshua,
Justin, Hernandez, and Barragan. Justin displayed a .40-caliber silver semiautomatic handgun.
Barragan and Justin spoke about finding a Latin Kings member to shoot. Joshua, Justin,
Hernandez, and Barragan left the apartment, and Rios stayed in the apartment with Caranza.
Rios and Caranza turned on a police scanner so they could hear if a shooting took place. Later,
- 15 -
2015 IL App (2d) 120171when the four men returned to the apartment, Hernandez stood to the side and did not actively
participate in the conversation with the others. Joshua was acting happy and said that he wanted
to change his name to “Whacko” because he “just whacked a King.” Justin was acting excited
too and was throwing up the crown and kissing it like he did when he was false flagging.
¶ 39 Rios was arrested in October 2007, and he was charged with attempted robbery and
attempted unlawful possession of a motor vehicle. He gave a statement to police, hoping to get
those charges dropped. In the statement, he said that, during the High Street shooting, Barragan
was driving, with Justin in the front seat and Joshua and Hernandez in the back. At trial, he
testified that he knew Barragan was the driver, but he was not positive where the others were
sitting, because he was not there. Before the shooting, there was no discussion about who would
be the shooter. When they returned, there was discussion about Hernandez “punking out.” Rios
told the grand jury that, upon their return to the apartment, the men were talking about how
Justin saw a “guy” while they were driving by on High Street and Justin threw up the crown at
him. They drove by again and Justin was going to shoot, but instead he gave the gun to
Hernandez, who did not want to do it either. Hernandez gave the gun to Joshua. Rios confirmed
that, when the men returned to the apartment, they discussed that Joshua was the shooter. Rios
said that Joshua told him that he jumped out of the SUV to do the shooting. Barragan, Joshua,
and Justin were excited and bragging, but Hernandez was not.
¶ 40 2. Officers’ Testimony
¶ 41 Detective Angel Nieves testified that he investigated the High Street shooting. On
October 23, 2007, when the police were interviewing him on unrelated charges, Rios gave them
a lead about the High Street shooting. Upon review of four different photo arrays, Rios
identified: (1) Joshua as the person who shot Rodriguez; (2) Barragan as the person who stole
- 16 -
2015 IL App (2d) 120171and drove the vehicle used in the shooting; (3) Justin as the individual who, just before the
incident, displayed a handgun and, later, produced in the vehicle the handgun that was used in
the shooting; and (4) Hernandez as having been present with the three other individuals in the
vehicle during the shooting. On October 27, 2007, Nieves interviewed Hernandez and showed
him multiple photo arrays. Hernandez identified Joshua as the person who shot Rodriguez,
Justin as the person who provided the handgun that was used in the shooting, and Barragan as the
driver of the stolen vehicle used in the shooting.
¶ 42 On November 2, 2007, Nieves interviewed Montanez at the McHenry County jail; he
showed Montanez four photo arrays. Montanez identified Joshua and explained to Nieves that
Joshua had admitted to him that he shot Rodriguez. Montanez identified Justin as having been
with Joshua at the time of the shooting. In addition, on May 20, 2008, Nieves interviewed Grant
at the Kendall County jail and showed him a photo array. Grant identified Joshua and told
Nieves that Joshua had admitted to Grant that he shot Rodriguez.
¶ 43 Joseph Accardi testified that he was employed by the Aurora police department and that,
on March 29, 2007, he spoke with De La Cruz and showed him a photo array. De La Cruz
identified Joshua as the person near the courtroom who had boasted that he did the High Street
shooting.
¶ 44 Before trial, the State had moved in limine to introduce gang expert testimony through
Sergeant Jeffrey Wiencek. The court granted the motion, primarily on the basis that the expert’s
testimony might aid the jury’s understanding of an otherwise unexplainable act.
¶ 45 At trial, Wiencek testified that, in Aurora, gangs typically create symbols and slogans to
identify themselves. For example, the Insane Deuces use the slogans “Deuce Love” and “Amor
De Deus,” and they use a hand signal that looks like an exaggerated peace sign. The Latin Kings
- 17 -
2015 IL App (2d) 120171use the slogans “King Love” and “Amor De Rey,” and they use a hand signal that resembles a
three-point crown. Further, each gang wears different colors: black and green for the Insane
Deuces and black and gold for the Latin Kings.
¶ 46 Street gangs in Aurora are classified into two umbrella organizations. The “People
Nation” includes the Latin Kings, and the “Folk Nation” includes the Insane Deuces. They do
not get along. Although gang members typically display their gang signs to other members to
signify their membership in that gang, on “very, very rare” occasions gang members use a sign
of another gang. For example, to show disrespect for the Latin Kings, an Insane Deuces member
might exhibit the Latin King sign upside down. Also, an Insane Deuces member might use the
Latin King sign when “false flagging.” False flagging is:
“basically baiting another gang to figure out if a person is going to be a member of that
street gang; and then what they could do is they could throw up the rival gang’s hand sign
to see if that member would then throw it back to them. If they do, they can then confirm
their gang affiliation; and then based upon that, they could decide what’s going to happen
afterwards. It could be a beat-down, it could be a shooting, it could be other things.”
¶ 47 Wiencek further testified that the gangs claimed territories within Aurora and that, in
2007, the area of High Street and Grove Street was “definitely the Latin King territory.”
Wiencek explained that, generally, gang activities are aimed at helping the gang flourish. For
example, gang members commit robberies and sell drugs to acquire money for the gang. To
protect gang territory, members acquire guns and go “hunting” for rivals. “Hunting” is actively
searching for rival gang members to hurt or kill. The purpose behind hunting is to: (1) take out
enemies who are hunting members of one’s own gang; (2) hold territory by showing the rival
gang that one’s own gang is strong; (3) show the rival gang the location and boundaries of one’s
- 18 -
2015 IL App (2d) 120171own gang’s territory; and (4) show members of one’s own gang that he or she is “down for the
cause” or has love for and commitment to the gang. Wiencek testified that gang members often
wear gloves to avoid leaving evidence, such as fingerprints or DNA, behind at a crime scene. In
addition, gangs in Aurora operate with a “code of silence,” where gang activities are not shared
with people outside of the gang or with law enforcement. That code is sometimes broken and, as
a consequence, the code violator is kicked out of the gang and might be threatened or treated
with violence.
¶ 48 The Aurora police department gathers information about street gangs and prepares
reports, classifying gang affiliates as either members, associates, or “others.” “Others” is a
default category encompassing persons who might be involved in some form of gang activity.
“Associates” are persons with whom the police have had at least one contact, with the presence
of two or more criteria (for example, wearing gang colors, wearing clothing in a manner
indicative of gang involvement, using gang slogans, etc.). Individuals are classified as
“members” by personal admission, by gang tattoos on their bodies, or if, within a one-year
period, the police have three contacts, with two or more criteria present. Through his
professional experience in the Aurora police department’s gang unit, Wiencek knew that, in
2007, Carranza was classified as an Insane Deuces member who owned an apartment that was
used as a gang hangout and a base for missions. In addition, Justin and Joshua were Insane
Deuces members. Wiencek was aware that Joshua had two tattoos of spades, the primary
symbol of the Insane Deuces, one on his right hand on or between his fingers, and a large one on
his back. Wiencek identified photographs thereof and testified that the police first observed the
tattoo on Joshua’s hand in 2005 or 2006 and first noticed the tattoo on Joshua’s back around May
2007. When asked if he had any doubt that Justin was an Insane Deuces member, Wiencek
- 19 -
2015 IL App (2d) 120171replied, “none.” Justin had numerous contacts with the police department between February
2006 and July 2007, was found in Insane Deuce hangouts, was in the presence of numerous gang
members, wore the gang’s colors, and admitted to Officer Jay Ellis that he was an Insane Deuces
member. Finally, Wiencek testified that Rodriguez was not classified as a street gang member
but that he was affiliated with the Latin Kings and his older brother was a Latin Kings member.
¶ 49 The State rested. The court denied Joshua’s motion for a directed verdict.
¶ 50 B. Defense Case, Rebuttal, Closing, and Instructions
¶ 51 Nieves testified that, when he interviewed Hernandez in October 2007, Hernandez stated
that he did not want to be a “snitch” unless he was guaranteed a deal. Nevertheless, Nieves
testified, that day Hernandez was not offered a deal, he talked without a deal, and, despite
talking, he was taken into custody. Nieves testified that Hernandez did not immediately
recognize the SUV from a photograph; however, Hernandez did recognize it when shown a
photo of the back of the car with the temporary plate and dealership decal.
¶ 52 Vicki Lefter Dieter testified that, on January 20, 2007, she was driving and turning left
onto Grove Street in Aurora when she and her sister “could have died in a very bad accident
because the driver of the car was going at a high rate of speed, and he didn’t stop at his stop sign.
He just proceeded through it going as fast as he could get the vehicle to move.” The car was a
large, new, black SUV. The driver was a “large female with a lot of hair” and was Hispanic. At
trial, Dieter remembered that the driver was wearing glasses and had long hair that was pulled up
and hanging; “you could see that she had used a product on her hair. Her hair was shiny, and
you could just tell when somebody is using a product on their hair.” The driver was dressed in
dark clothing, which Dieter believed was a black coat. Dieter also saw a small-framed Hispanic
man in the front passenger seat. She did not see anyone else in the car. Dieter continued driving
- 20 -
2015 IL App (2d) 120171and saw a boy lying on the street and a girl trying to revive him. Dieter told her sister to call
911, and she got out of the car to help. Police arrived and, ultimately, took Dieter down Grove
Street to identify a car. The car looked like the one that almost struck her in the intersection.
¶ 53 Dieter agreed that, because the car was going extremely fast and “blew through” a stop
sign, she had only a split second to look at the driver. She did not recall telling an officer
immediately after the incident that she saw only a Hispanic male in the speeding car. She did not
recall telling officers that the driver had shoulder-length hair with possible curls or a coarse look.
Joshua rested.
¶ 54 On rebuttal, the State called Officer Richard Galarza, who testified that, on January 20,
2007, he interviewed Dieter near the intersection of High and Grove Streets. She told him that
the driver of the vehicle had shoulder-length, possibly curly or coarse hair. In addition, she
stated that she saw only one person in the car, the driver. She did not mention seeing a Hispanic
male in the car.
¶ 55 In closing argument, the State emphasized that the jury should read the jury instructions
because “[t]hey are very important in this case. Every word of every instruction is there for a
reason.” In addition, the State mentioned that Joshua fired the gun, killing Rodriguez and hitting
Lozano. Further, the State noted that Rodriguez was hit three times and Lozano was hit once in
her leg. Finally, as to attempted murder, the State argued:
“the evidence we’ve already talked about supports the attempted murder as well. The
defendant fired shots in the direction of both Oscar and Claudia. He had specific intent to
kill both. He successfully completed the killing of Oscar. He did not successfully
complete the killing of Claudia. He took a substantial step though by shooting and by
- 21 -
2015 IL App (2d) 120171hitting her with the bullet on her thigh. Although she was not seriously injured, we know
from the facts that the defendant tried to kill her as well.”
¶ 56 The court instructed the jury that neither opening nor closing statements are evidence. As
to attempted murder, the jury was instructed:
“A person commits the offense of attempt first degree murder when he, without
lawful justification and with the intent to kill an individual, does any act which
constitutes a substantial step toward the killing of an individual. The killing attempted
need not have been accomplished. To sustain the charge of attempt first degree murder,
the State must prove the following propositions:
First proposition: That the defendant, or one for whose conduct he is legally
responsible, performed an act which constituted a substantial step toward the killing of an
individual; and
Second proposition: That the defendant, or one for whose conduct he is legally
responsible, did so with the intent to kill an individual.” (Emphases added.)
¶ 57 In contrast, the jury was informed that, to convict Joshua of murder, it had to find that
Joshua performed the acts “which caused the death of Oscar Rodriguez.”
¶ 58 C. Jury Verdict and Sentence
¶ 59 The jury convicted Joshua of two counts of first-degree murder and found that he
personally discharged the firearm that proximately caused Rodriguez’s death. The jury also
convicted Joshua of attempted first-degree murder and found that he personally discharged the
firearm used in that crime. Finally, the jury found Joshua guilty of aggravated discharge of a
firearm and unlawful possession of a stolen motor vehicle.
- 22 -
2015 IL App (2d) 120171¶ 60 The court denied Joshua’s motion for a new trial. The court considered mitigating and
aggravating evidence and found that Joshua “decided in his very young life to choose the Insane
Deuces” over his freedom. The court sentenced Joshua to 25 years’ imprisonment for first-
degree murder (see 730 ILCS 5/5-8-1(a)(1)(a) (West 2006) (providing range of 20 to 60 years)),
with a 25-year add-on for personally discharging the firearm that caused the death (see 730 ILCS
5/5-8-1(a)(1)(d)(iii) (West 2006) (add-on may be 25 years to natural life)). The court sentenced
Joshua to 10 years’ imprisonment for attempted first-degree murder (see 730 ILCS 5/5-8-1(a)(3)
(West 2006) (providing range of 6 to 30 years)), with a 20-year add-on for personally
discharging the firearm (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2006)). The murder and
attempted-murder sentences are to be served consecutively (see 730 ILCS 5/5-8-4(d) (West
2006)). Finally, the court sentenced Joshua to three years’ imprisonment for possession of a
stolen motor vehicle (see 730 ILCS 5/5-8-1(a)(5) (West 2006) (providing range of three to seven
years)), to run concurrently with the attempted-murder sentence.
¶ 61 Joshua moved to reconsider the sentences, asking that the court grant the minimum
aggregate sentence (which in these circumstances was 71 years’ imprisonment) rather than the
80 years imposed. The court granted the motion in part, reducing the murder sentence by 5 years
(i.e., to the minimum of 20 years), resulting in an aggregate sentence of 75 years’ imprisonment.
Joshua appeals.
¶ 62 II. ANALYSIS
¶ 63 A. Sufficiency of the Evidence
¶ 64 Joshua argues first that the evidence was insufficient to sustain any of his convictions.
He asserts that no physical or other evidence directly linked him to the shooting and that Lozano,
the only eyewitness, could not identify anyone in the SUV. Instead, Joshua argues, the evidence
- 23 -
2015 IL App (2d) 120171against him came from convicted felons who agreed to implicate him only after they were
arrested for other offenses and threatened with murder charges. Joshua notes that Barragan made
his statements to police after the State charged him with murder and offered an extremely
generous plea agreement. Similarly, Hernandez “begged” for a deal and received a generous
agreement in exchange for his testimony. Both Barragan and Hernandez admitted that they were
using drugs at the time of the incident and were inconsistent in their accounts of the shooting
itself. For example, Hernandez claimed that Justin false flagged Rodriguez with a Latin Kings
gang sign and Barragan said that Justin flashed the Latin Kings sign and used the slogans “King
love, Amor De Rey,” while Lozano testified that someone in the SUV yelled “Deuce love, King
killer.” Further, while Barragan said that he pulled the SUV into a driveway and was going to
get out to beat up Rodriguez but drove back at Hernandez’s instructions, Hernandez said that
they immediately drove past Rodriguez after turning around and he denied giving instructions to
Barragan. Finally, Lozano testified that someone was hanging out of the rear passenger window
and recalled that person as having the gun, but Hernandez, who was in that seat, denied doing so.
Joshua concludes that Rios, Grant, Montanez, and De La Cruz were similarly incredible due to
their motives to lie to law enforcement, admitted lies to law enforcement, and drug use. We
disagree.
¶ 65 When reviewing a challenge to the sufficiency of the evidence, the standard of review is
whether, viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the defendant guilty beyond a reasonable doubt. People v. Wheeler, 226 Ill. 2d
92, 114 (2007). It is the jury’s function to determine witness credibility, weigh and resolve
conflicts in the evidence, and draw reasonable inferences therefrom. People v. Ortiz, 196 Ill. 2d
236, 259 (2001). “[D]ue consideration must be given to the fact that it was the trial court and
- 24 -
2015 IL App (2d) 120171jury that saw and heard the witnesses.” Wheeler, 226 Ill. 2d at 114-15. Accordingly, we will not
substitute our judgment for that of the trier of fact (Ortiz, 196 Ill. 2d at 259), and we will reverse
a conviction only where the evidence is so unreasonable, improbable, or unsatisfactory as to
justify a reasonable doubt as to the defendant’s guilt (Wheeler, 226 Ill. 2d at 114).
¶ 66 Here, Joshua’s argument, which rests almost entirely on the credibility of the witnesses
against him, must fail. The witnesses’ criminal histories, their agreements with the State, and
their general motivations to curry favor with the State were thoroughly exposed at trial. Defense
counsel cross-examined each witness about these details and argued to the jury that the witnesses
had strong motivations to lie, and the jury was instructed that it should view testimony from
codefendants with due skepticism. There is no question that the witnesses, particularly Barragan,
benefitted greatly from their willingness to testify against Joshua. However, as Joshua
acknowledges, the fact that a witness has been promised leniency in exchange for testimony does
not automatically raise doubt as to the defendant’s guilt. People v. Roy, 172 Ill. App. 3d 16, 22
(1988). Even though the primary witnesses against Joshua were gang members who benefitted
from providing testimony, “the jury heard the testimony of each of these witnesses, was made
aware of the infirmities in each witness’s testimony[,] and chose to believe these witnesses. We
cannot now substitute our judgment for that of the trier of fact.” People v. Thompson, 313 Ill.
App. 3d 510, 520 (2000). We note, too, that Hernandez and Barragan arguably had motives not
to lie, as they testified that their agreements with the State required that they tell the truth to
receive the benefit of their bargains. The jury, as it was completely aware of the weaknesses in
the witnesses’ testimony, was entitled to find the evidence credible in its totality. In re Jonathon
C.B., 2011 IL 107750, ¶ 60 (trier of fact need not believe every piece of evidence, but need find
only that the evidence taken together establishes guilt beyond a reasonable doubt).
- 25 -
2015 IL App (2d) 120171¶ 67 Further, the jury could have reasonably found that the inconsistencies between the
witnesses’ testimony were minor in comparison to their overall consistency. We simply disagree
with Joshua that the testimony differed “dramatically.” Indeed, the witnesses were, essentially,
consistent in their testimony: (1) regarding their description of the vehicle and the weapon used
in the shooting; (2) regarding the identities of the vehicle’s passengers and their locations inside
the vehicle; (3) that gang symbols or slogans were exchanged before the shooting; (4) that Justin
provided the gun, Hernandez refused to shoot, and Joshua wound up with the gun; (5) that
Joshua shot the victims; and (6) that Joshua took credit for the shooting and received a spade
tattoo as his reward.
¶ 68 Finally, we note that Joshua’s fingerprint was found on a cigar wrapper recovered from
the SUV. Joshua argues that this is not necessarily indicative of guilt, because it is unknown
when his fingerprint got on the wrapper. However, Barragan testified that the cigar was on his
person when he got in the SUV and that he looked for it after the shooting. Briesca testified that
the cigar was not in his SUV when it was stolen, and the cigar was found in the cup holder near
the passenger side of the vehicle, where Joshua was allegedly sitting. As such, the jury could
have reasonably found, in light of the evidence in its entirety, that Joshua’s fingerprint on the
wrapper placed him in the SUV at the time of the shooting and, further, that it corroborated the
witnesses’ testimony regarding his presence and location in the vehicle. We also note that,
despite his contention, the cigar wrapper was not the only evidence that corroborated the
witnesses’ testimony about the events. Four .40-caliber casings were found at the scene
(corroborating that a .40-caliber “nation gun” was used), the recovered SUV matched almost
exactly the description given by all witnesses, including Lozano, Rojo, and Dieter, and
photographs of a large spade tattoo on Joshua’s back, which police did not notice in 2006 but did
- 26 -
2015 IL App (2d) 120171see in May 2007, corroborated the witnesses’ testimony that Joshua received the tattoo because
he committed the shooting. Joshua argues that none of the foregoing evidence directly links him
to the shooting. The question, however, is whether the evidence, viewed in its totality and in the
State’s favor, was sufficient for the jury to find him guilty. Simply put, viewed in the light most
favorable to the State, the evidence was more than sufficient for the jury to find Joshua guilty
beyond a reasonable doubt.
¶ 69 B. Attempted-Murder Jury Instruction
¶ 70 Joshua argues next that his right to a properly instructed jury was violated where the
attempted-murder instruction stated that the jury could find Joshua guilty if it found that he
intended to kill “an individual” but not, specifically, that he intended to kill Lozano. The court
gave the pattern jury instruction for attempted murder. Illinois Pattern Jury Instructions,
Criminal, No. 6.07X (4th ed. 2000). Joshua argues that, although the State had to prove that he
specifically intended to kill Lozano, the pattern instruction relieved the State of its burden of
proof because the jury could have found him guilty based not on a finding that he specifically
intended to kill Lozano but, rather, on an intent to kill any individual, including Rodriguez. In
other words, Joshua argues, the instruction permitted the jury to find him guilty of both murder
and attempted murder based solely on the shooting of Rodriguez. Joshua argues that the
erroneous instruction created a serious risk that he was incorrectly convicted of attempted
murder because the jury did not understand the applicable law, thus threatening the fairness of
his trial. Joshua requests that we review this issue for plain error, as it was not raised below. See
People v. Enoch, 122 Ill. 2d 176, 186 (1988) (failure to object at trial and in a posttrial motion
generally results in forfeiture of the issue for review). Alternatively, he argues that his counsel
was ineffective for failing to raise this issue below.
- 27 -
2015 IL App (2d) 120171¶ 71 Plain-error review permits us to consider a forfeited claim of clear error where the
evidence is so closely balanced that the error alone might have resulted in the defendant’s
conviction, or where, regardless of the closeness of the evidence, the error is so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.
People v. Sargent, 239 Ill. 2d 166, 189 (2010). The plain-error clause of Illinois Supreme Court
Rule 615(a) (eff. Jan. 1, 1967) (any error that does not affect substantial rights shall be
disregarded; plain errors affecting substantial rights may be noticed even if not brought to the
trial court’s attention) is co-extensive with and interpreted identically to Illinois Supreme Court
Rule 451(c) (eff. July 1, 2006) (“substantial defects” in criminal jury instructions “are not waived
by failure to make timely objections thereto if the interests of justice require”). Sargent, 239 Ill.
2d at 189. Plain-error review first requires consideration of whether error occurred. People v.
Herron, 215 Ill. 2d 167, 184 (2005); see also People v. Hillier, 237 Ill. 2d 539, 545 (2010).
¶ 72 In considering Joshua’s argument that giving the pattern instruction constituted error, we
remain mindful that “Supreme Court Rule 451(a) requires that in a criminal case, if the court
determines the jury should be instructed on a subject, and the Illinois Pattern Jury Instruction
(IPI), Criminal, contains an applicable instruction, then the IPI instruction ‘shall’ be given unless
the court determines it does not accurately state the law.” People v. Hopp, 209 Ill. 2d 1, 7
(2004). “Illinois pattern instructions have been painstakingly drafted” and “[t]rial judges should
not take it upon themselves to second-guess the drafting committee where the instruction in
question clearly applies.” (Internal quotation marks omitted.) People v. Durr, 215 Ill. 2d 283,
301 (2005). Thus, the trial court is “allowed to deviate from the suggested instruction and format
only where necessary to conform to unusual facts or new law.” (Internal quotation marks
omitted.) People v. Anderson, 2012 IL App (1st) 103288, ¶ 40.
- 28 -
2015 IL App (2d) 120171¶ 73 Nevertheless, the purpose of jury instructions is to inform the jury of the correct
principles of law applicable to the evidence, and, therefore, the instructions should not be
misleading or confusing. Whether an instruction is correct depends on whether “ordinary
persons acting as jurors would fail to understand them.” Herron, 215 Ill. 2d at 187-88. A
defendant claiming an instructional error need not prove that the instructional error actually
misled the jury (id. at 193), but he or she must show that the claimed error “creates a serious risk
that the jurors incorrectly convicted the defendant because they did not understand the applicable
law, so as to severely threaten the fairness of the trial.” Hopp, 209 Ill. 2d at 8; see also People v.
Young, 2013 IL App (2d) 120167, ¶ 20.
¶ 74 Based on the foregoing, we are asked to consider whether: (1) giving the attempted-
murder pattern instruction constitutes error because the facts required a deviation from the
instruction; and (2) if so, whether the error created a serious risk that the jury convicted Joshua of
attempted murder because it did not understand the applicable law, thus depriving him of a fair
trial.
¶ 75 We reject Joshua’s arguments and note that, after briefing in this case was finished, this
court, in People v. Salazar, 2014 IL App (2d) 130047, ¶¶ 59-65, rejected the same arguments
Joshua raises here. For example, in support of his position, Joshua relies on Anderson, where the
defendant was charged with first-degree murder of one victim (Hart) and attempted first-degree
murder of a second victim (Hazziez). Anderson, 2012 IL App (1st) 103288, ¶ 1. The charges
arose from an incident wherein at a restaurant Hazziez witnessed an argument between the
defendant and Hart. Outside the restaurant, Hazziez saw the defendant shoot Hart. Hazziez,
who was about 10 feet away from the defendant at the time of the shooting, “took off in his car”
and heard three more gunshots. Id. ¶ 7. He was not sure in which direction the shots were fired.
- 29 -
2015 IL App (2d) 120171The only other eyewitness testified that the defendant fired at “another man, who had been in the
restaurant and who had been standing outside when defendant” shot the victim. Id. ¶ 15. There
were no bullet holes in Hazziez’s car.
¶ 76 At trial, the jury was given the attempted-murder pattern instruction, which stated that, to
find the defendant guilty of attempted murder, it had to find that he intended to kill “an
individual” and that he took a substantial step toward the killing of “an individual.” (Emphasis
and internal quotation marks omitted.) Id. ¶ 24. It convicted the defendant of both attempted
murder and murder. On appeal, the court held that, “under the narrow set of facts of this case,”
the trial court’s attempted-murder instruction, which instructed the jury that the subject of the
attempted murder was “an individual” rather than Hazziez specifically, constituted plain error.
Id. ¶ 64. The court agreed with the defendant that the jury could have found him guilty of the
attempted murder of Hart, rather than of Hazziez, because an “ordinary person” in the jury would
probably not understand that the subject of the attempted-murder charge was only Hazziez. Id.
¶ 61. Although the trial court informed the jury prior to trial that the attempted-murder charge
pertained to Hazziez, and although the State also informed the jury as such in closing arguments,
the appellate court did not find this to cure the error, because the jury was also instructed that the
indictment and closing arguments were not evidence. Id. ¶ 62. The court held that the evidence
regarding the attempted murder of Hazziez was closely balanced, particularly given that no
witness testified that the defendant actually shot at Hazziez, and, so, the court reversed and
remanded for a new trial on the attempted-murder charge. Id. ¶¶ 65-67.
¶ 77 The State disagrees that Anderson is applicable, and it relies instead on People v. Malone,
37 Ill. App. 3d 185 (1976). In Malone, the defendant fired two shots at a group and injured a
victim. Later, when a police officer went to arrest the defendant, he fired two shots at the officer.
- 30 -
2015 IL App (2d) 120171The defendant was charged with attempted murder of the victim and aggravated assault of the
officer. At trial, the pattern instruction, permitting conviction if the jury found attempted murder
of “an individual,” was provided. Id. at 190.
¶ 78 On appeal, the court rejected the defendant’s argument that the instruction should have
specified that the victim, not the officer, was the subject of the attempted-murder charge. Id. at
190-91. Noting that the pattern instruction should be modified only where the facts make it
inadequate, that the name of the victim is not an element of the offense, and that the instruction
does not leave a place for the victim’s name, the court found simply that the jury understood that
the officer was not the subject of the attempted-murder charge and held that reversal was
unnecessary. Id. at 191.
¶ 79 As we did in Salazar, we disagree with Joshua that Anderson renders the instruction here
erroneous. We find Anderson, which, again, found error based on the “narrow set of facts”
before it, distinguishable. Anderson, 2012 IL App (1st) 103288, ¶ 64. The Anderson court held
that, when the pattern instruction was given, it was “probable” that the jury did not understand
that the subject of the attempted-first-degree-murder charge was only Hazziez, which the trial
court could have easily clarified. Id. ¶ 61. We disagree, however, that Anderson should be
interpreted as holding that, anytime the subject of an attempted murder is not the subject of
another charge, juror confusion is “probable” and the pattern instruction must be modified.
Indeed, although the court first found error and then found that the evidence was closely
balanced, we nevertheless believe that the court’s entire analysis was shaped by the fact that the
evidence was closely balanced. That evidence was unclear whether there even was a victim
other than Hart. As such, when considering whether the lack of specificity in the instruction
- 31 -
2015 IL App (2d) 120171could have caused the jury to misapply the law, the court concluded that, given the evidence and
“narrow set of facts before it” (id. ¶ 64), confusion was “probable” (id. ¶ 61).
¶ 80 Here, in contrast, Joshua’s argument that the jury could have convicted him based on a
misunderstanding of the law is speculative. Therefore, we do not think that juror confusion here
was “probable.” Unlike in Anderson, the evidence here left no question as to whether shots were
fired in Lozano’s direction. Indeed, Lozano testified that she was next to Rodriguez when he
was shot and that she was shot in the leg. There were only two people on the sidewalk when
Joshua opened fire: one died, and one was injured. As in Malone, we do not believe that the
evidence could have confused the jury as to who was the subject of the attempted-murder charge
such that the trial court erred by not deviating from the pattern instruction. Again, the court
should deviate from the pattern instruction only where necessary to conform to unusual facts or
new law. We disagree that either existed here.
¶ 81 Further, while Joshua does not have to show that the jury was actually misled, he needs to
show that there is a “serious risk” that he was convicted because the jury did not understand the
applicable law. Viewed as a whole, the record belies any such serious risk. Initially, the trial
court and the State informed the jury that Joshua was charged with the murder of Rodriguez and
the attempted murder of Lozano. In closing, the State specified that the attempted-murder charge
pertained to Lozano. We acknowledge that similar “clarifications” were rejected by the
Anderson court on the basis that the jury was also informed that the indictment and the closing
arguments are not evidence (id. ¶ 62), but we respectfully disagree that this is in any way
dispositive. The question is whether there exists a serious risk that the jury instruction misled the
jury, such that it convicted Joshua based on a misunderstanding of the law. Hopp, 209 Ill. 2d at
8. Whether evidence or not, the clarifications at the opening and at the close of trial provided
- 32 -
2015 IL App (2d) 120171explanation or guidance that informed the jury before its deliberations (again, on an issue that
was not disputed by the defense). Thus, we conclude that Joshua’s plain-error claim fails.
¶ 82 For similar reasons, Joshua’s alternative argument, that his counsel was ineffective for
not challenging the attempted-murder instruction, also fails. An ineffective-assistance claim
requires a defendant to show that his or her counsel’s performance was objectively unreasonable
(performance prong) and a reasonable probability―sufficient to undermine confidence in the
outcome―that, but for counsel’s errors, the jury’s verdict would have been different (prejudice
prong). Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To succeed on the
ineffective-assistance claim, both prongs must be satisfied. Id. at 687; People v. Williams, 181
Ill. 2d 297, 320 (1998). Here, we have determined that the pattern jury instruction was properly
provided to the jury. As such, counsel’s failure to argue otherwise was not objectively
unreasonable, and the ineffective-assistance claim fails. See People v. Phipps, 238 Ill. 2d 54, 65
(2010); People v. Lewis, 88 Ill. 2d 129, 156 (1981) (counsel is not required to raise losing
arguments to avoid an ineffective-assistance claim).
¶ 83 C. Evidence of Specific Intent for Attempted Murder
¶ 84 Next, Joshua argues (separately from his general sufficiency argument, which we rejected
above) that his attempted-murder conviction must be reversed because there was no evidence
presented that he specifically intended to kill Lozano. Joshua argues that attempted murder is a
specific-intent crime but that the only evidence presented reflected an intent to kill a rival gang
member and, specifically, “the boy” who was wearing gang colors and returned the Latin King
sign. Further, he argues that we should find that the doctrine of transferred intent does not apply
and therefore cannot cure the State’s lack of evidence regarding a specific intent to kill Lozano.
Joshua concludes that the evidence supported only that his knowing discharge of a firearm in
- 33 -
2015 IL App (2d) 120171Lozano’s direction constituted aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West
2006)), of which the jury also found him guilty.
¶ 85 Preliminarily, we agree with the State that the doctrine of transferred intent is not at issue
here and, therefore, we need not resolve its applicability to inchoate offenses. Transferred intent
generally concerns an unintended victim, such that the actor’s intent to injure or kill one person
may be transferred to a different victim who was injured or killed. See People v. Migliore, 170
Ill. App. 3d 581, 589 (1988). Here, the State did not pursue a theory at trial that Joshua’s intent
to kill Rodriguez transferred to Lozano, who was an unintended victim. Rather, the State
maintained that Joshua also intended to kill Lozano. The question is simply whether the
evidence was sufficient for the jury to find, beyond a reasonable doubt, that Joshua also intended
to kill Lozano.
¶ 86 Joshua’s argument regarding transferred intent is premised on his belief that there was no
evidence that he intended to kill Lozano (such that, he concludes, he was convicted by virtue of
transferred intent only). However, we disagree with his premise. It is fair to say that the
evidence speaking to Joshua’s intent to kill Lozano was not as detailed as that supporting his
intent to kill Rodriguez. As Joshua points out, the witnesses testified that they were “hunting,”
looking to shoot a rival gang member. They testified that the rival gang member they found was
a “he” and that “he” was walking with a girl. Rodriguez was the person wearing gang colors and
who returned the gang sign, signifying himself as a Latin King. Barragan testified that Justin
was “gang banging with the boy” and that he intended to get out of the car to beat up “the guy.”
Further, according to Barragan, between the boy and the girl, the boy was the one who was
significant, and harming the girl would not necessarily provide any clear reward within the gang
- 34 -
2015 IL App (2d) 120171in terms of rank or otherwise. Barragan did not see the gun pointed at Lozano, and he testified
that, when Rodriguez was shot, he was closer to the street and Lozano was still on the sidewalk.
¶ 87 However, we are mindful that our standard of review requires us to consider the evidence
in the State’s favor, to not substitute our judgment for that of the trier of fact, and to question
whether any rational trier of fact could have found beyond a reasonable doubt that Joshua
intended to kill Lozano. Wheeler, 226 Ill. 2d at 114; Ortiz, 196 Ill. 2d at 259. As such, for the
following reasons, we conclude that Joshua’s attempted-murder conviction must be affirmed.
¶ 88 Where a defendant is charged with attempted murder, the State must prove beyond a
reasonable doubt that the defendant intended to kill the victim and that he or she took a
substantial step toward doing so. 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006); Migliore, 170 Ill.
App. 3d at 586. Here, Joshua challenges the State’s proof regarding only the intent element. An
intent to kill is rarely demonstrable through direct evidence and may, therefore, be inferred from
surrounding circumstances, such as the “character of the assault, the use of a deadly weapon, and
the nature and extent of the victim’s injuries.” People v. Teague, 2013 IL App (1st) 110349,
¶ 24; see Migliore, 170 Ill. App. 3d at 586. Further, “[s]uch intent may be inferred if one
wilfully does an act, the direct and natural tendency of which is to destroy another’s life.”
Migliore, 170 Ill. App. 3d at 586. Finally, “[i]t is the function of the trier of fact to determine the
existence of the requisite intent, and that determination will not be disturbed on review unless it
clearly appears that there exists a reasonable doubt as to the defendant’s guilt.” Id.
¶ 89 Here, although the evidence speaks more directly to Joshua’s intent to kill Rodriguez,
there nevertheless clearly exists sufficient evidence from which the jury could have reasonably
found that Joshua also intended to kill Lozano. Again, the jury heard evidence regarding the
circumstances of the shooting, which included that the vehicle drove up close to the victims, who
- 35 -
2015 IL App (2d) 120171were walking right next to each other, and that Joshua fired at least four rounds from a .40-
caliber semiautomatic weapon. See Teague, 2013 IL App (1st) 110349, ¶ 25 (evidence of intent
to kill sufficient where the defendant fired, from a distance of 40 feet, a semiautomatic weapon at
three police officers sitting in a vehicle, even though there was no damage to the vehicle except
the windshield and no officer was injured). Thus, the evidence reflects that Joshua pointed the
gun in the direction of two people standing together and fired four shots at relatively close range.
Lozano was, in fact, shot in the leg. “The very fact of firing a gun at a person supports the
conclusion that the person doing so acted with an intent to kill.” (Internal quotation marks
omitted.) Teague, 2013 IL App (1st) 110349, ¶ 26 (quoting People v. Ephraim, 323 Ill. App. 3d
1097, 1110 (2001)); see also People v. Garcia, 407 Ill. App. 3d 195, 201-02 (2011) (intent to kill
reasonably inferred from firing two bullets in the direction of an occupied car and crowded
street); People v. Bailey, 265 Ill. App. 3d 262, 273 (1994) (intent to kill reasonably inferred from
shooting down a breezeway in which several people were running).
¶ 90 Further, there exists other evidence in the record from which the jury could have found an
intent to kill Lozano or, at least, from which it could have discounted testimony suggesting that
she was not a target. For example, although Barragan testified that he did not see the gun aimed
at Lozano, he also testified that the gunshots surprised him and he was focused on driving away
“recklessly.” Although Barragan claimed that, during the shooting, Rodriguez had stepped
forward toward the SUV and Lozano was still on the sidewalk, Hernandez testified that, after the
car returned and approached them, Rodriguez and Lozano were “walking like right next to each
other.” Thus, the jury could have resolved any discrepancies in the testimony by crediting that
which reflected an intent to kill Lozano, as well as Rodriguez. In sum, we conclude that the jury
- 36 -
2015 IL App (2d) 120171could have reasonably found that, based on the circumstances of the shooting, Joshua intended to
kill Lozano. Thus, Joshua’s argument fails.
¶ 91 D. Constitutional Arguments
¶ 92 We choose to combine our analysis of Joshua’s remaining two arguments, as both
concern the constitutionality of the statutory provisions that resulted in his trial in adult court and
his ultimate sentence. First, Joshua argues that the “exclusive jurisdiction” provision of the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2006)), which
excludes 17-year-old minors from juvenile court, violates juveniles’ constitutional rights by
subjecting them to adult prosecution and sentencing without any consideration of their
youthfulness and its attendant circumstances. See 705 ILCS 405/5-120 (West 2006).
Specifically, he contends that this provision violates the eighth amendment to the United States
Constitution (U.S. Const., amend. VIII) as well as both substantive and procedural due process.
¶ 93 Second, Joshua argues that, by virtue of being tried in adult court, he was subject to the
combined application of provisions for mandatory firearm enhancements, mandatory consecutive
sentencing, and “truth in sentencing,” which was unconstitutional because it did not permit
consideration of his youth at the time of the offenses. Joshua contends that the confluence of
these provisions violates the eighth amendment and the proportionate-penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11) (which are read co-extensively (see In re
Rodney H., 223 Ill. 2d 510, 518 (2006))).
¶ 94 We review de novo arguments concerning the constitutionality of statutes. People v.
McCarty, 223 Ill. 2d 109, 135 (2006). Further, we presume that all statutes are constitutional
and, where possible, must construe a statute to uphold its constitutionality. People v. Vasquez,
2012 IL App (2d) 101132, ¶ 53.
- 37 -
2015 IL App (2d) 120171¶ 95 Joshua argues that his constitutional arguments must be assessed in light of recent United
States Supreme Court decisions, which, he argues, have significantly changed the law
concerning the treatment and sentencing of minors. Those cases, he asserts, make clear that
there exist fundamental differences between juveniles and adults, such that juveniles may not be
prosecuted and sentenced in the same manner as adults without consideration of youth and its
attendant circumstances. See Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012); J.D.B. v.
North Carolina, __ U.S. __, 131 S. Ct. 2394 (2011); 3 Graham v. Florida, 560 U.S. 48 (2010);
Roper v. Simmons, 543 U.S. 551, 569-73 (2005).
¶ 96 Indeed, there is really no question from those cases that there exists a growing trend to
acknowledge that juvenile offenders are inherently different from adult offenders and that,
therefore, what might be constitutional as applied to an adult might not meet constitutional
muster when applied to a juvenile. See, e.g., People v. Willis, 2013 IL App (1st) 110233, ¶ 47.
Specifically, in Roper, the Court held that capital punishment for juvenile offenders violates the
eighth amendment. Roper, 543 U.S. at 568. In Graham, the Court held that, when imposed on a
juvenile offender for a crime other than homicide, a life sentence without the possibility of parole
violates the eighth amendment. Graham, 560 U.S. at 74. The Graham Court nevertheless noted
that “[t]he Eighth Amendment does not foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will remain behind bars for life.” Id. at 75.
Most recently, in Miller, the Court held that, even for those convicted of homicide, the eighth
amendment prohibits “a sentencing scheme that mandates life in prison without possibility of
3
We choose not to discuss J.D.B., as it concerned custodial interrogation of minors and
therefore implicates the fifth amendment and not, as relevant here, the eighth amendment.
J.D.B., ___ U.S. at ___, 131 S. Ct. at 2406.
- 38 -
2015 IL App (2d) 120171parole for juvenile offenders.” Miller, ___ U.S. at ___, 132 S. Ct. at 2469. The Court noted that,
under the sentencing scheme at issue, the sentencing court was prevented from considering that
the juvenile was not as culpable and had a “greater capacity for change” than an adult in similar
circumstances. (Internal quotation marks omitted.) Id. at ___, 132 S. Ct. at 2460. The Court
continued that “[b]y making youth (and all that accompanies it) irrelevant to imposition of that
harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.”
Id. at ___, 132 S. Ct. at 2469. Roper, Graham, and Miller all considered that, as compared with
adults, juveniles lack maturity, have an underdeveloped sense of responsibility, and are more
easily influenced by peer pressure, and, because the character of a juvenile is not yet fully
formed, his or her personality traits remain susceptible to change. Roper, 543 U.S. at 569-70;
Graham, 560 U.S. at 68; Miller, ___ U.S. at ___, 132 S. Ct. at 2464-65.
¶ 97 Nevertheless, we reject Joshua’s constitutional arguments. Simply put, despite the
foregoing Supreme Court decisions, courts in this state have consistently rejected the arguments
he raises here. We will not repeat the same analyses that have, essentially, been set forth at
length multiple times. Suffice it to say, however, that section 5-120 of the Juvenile Court Act
has consistently been upheld as constitutional, generally on the basis that, unlike the statutes at
issue in Roper, Graham, and Miller, it is not itself a sentencing statute and, therefore, imposes no
sentence. 4 Rather, section 5-120 determines only where a juvenile is to be tried. Thus, courts
4
As noted, Joshua asserts that section 5-120 of the Juvenile Court Act is unconstitutional
because it automatically excludes 17-year-olds from juvenile court. Similarly, however, section
5-130 of the Juvenile Court Act, the “excluded jurisdiction” provision, excludes from juvenile
court jurisdiction minors 15 years old or older charged with certain offenses, including first-
degree murder. 705 ILCS 405/5-130 (West 2006). Accordingly, courts have applied to both
- 39 -
2015 IL App (2d) 120171have held that section 5-120 is not subject to and does not violate the eighth amendment or the
proportionate-penalties clause. Further, courts have also consistently held that section 5-120
does not, by virtue of determining where juveniles will be tried, deprive juveniles of substantive
or procedural due process. See, e.g., People v. Patterson, 2014 IL 115102, ¶¶ 89-111 (section 5-
130 of the Juvenile Court Act does not violate due process, the eighth amendment, or the
proportionate-penalties clause); People v. M.A., 124 Ill. 2d 135, 147 (1988) (section 5-130 does
not violate due process); People v. J.S., 103 Ill. 2d 395, 405 (1984) (same); Harmon, 2013 IL
App (2d) 120439, ¶¶ 54-56, 59-62 (despite holdings in Miller, Roper, and Graham, neither
section 5-120 nor section 5-130 violates eighth amendment or due process); Willis, 2013 IL App
(1st) 110233, ¶ 53 (despite holdings in Miller, Roper, and Graham, section 5-130 does not
violate eighth amendment, proportionate-penalties clause, or substantive or procedural due
process); People v. Pacheco, 2013 IL App (4th) 110409, ¶¶ 55, 65 (same); 5 People v. Jackson,
sections the same analysis and, in doing so, have upheld their constitutionality. See, e.g., People
v. Harmon, 2013 IL App (2d) 120439, ¶¶ 55-56, 59, 62 (rejecting arguments regarding section 5-
120 for reasons applicable to section 5-130). As such, and because the authority on this issue is
interchangeable, we also cite cases considering section 5-130 here.
5
On June 26, 2014, this court entered an order holding our disposition of this case in
abeyance until our supreme court rendered a decision in Pacheco, 2013 IL App (4th) 110409,
appeal allowed, No. 116402 (Sept. 25, 2013), or People v. Jenkins, 2013 IL App (1st) 103006-U,
appeal allowed, No. 115979 (Sept. 25, 2013). On January 27, 2015, however, the supreme court
found that those petitions for leave to appeal were improvidently granted and, therefore, it
vacated those orders and denied the petitions. Accordingly, this disposition no longer needs to
be held in abeyance.
- 40 -
2015 IL App (2d) 1201712012 IL App (1st) 100398, ¶¶ 17, 19 (despite holdings in Roper and Graham, section 5-130 does
not violate eighth amendment, proportionate-penalties clause, or substantive or procedural due
process); People v. Salas, 2011 IL App (1st) 091880, ¶¶ 66, 76-80 (same).
¶ 98 Further, courts have also rejected the argument that the Juvenile Court Act’s sentencing
implications, whereby juveniles are subject to automatic application of adult sentences and “truth
in sentencing” provisions, are unconstitutional. See, e.g., Patterson, 2014 IL 115102, ¶¶ 100-11;
Pacheco, 2013 IL App (4th) 110409, ¶¶ 57-58, 60. The court in Pacheco noted that, taken to its
logical extension, the argument suggests that it is unconstitutional to subject a juvenile to the
same mandatory minimum sentence as an adult, a result not warranted by the Miller, Graham,
and Roper holdings, which concerned only the harshest possible penalties. Pacheco, 2013 IL
App (4th) 110409, ¶ 58. Indeed, Miller states that “Graham, Roper, and our individualized
sentencing decisions make clear that a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for juveniles.”
(Emphasis added.) Miller, ___ U.S. at ___, 132 S. Ct. at 2475. Further, the Miller Court
expressly declined to foreclose a life sentence without parole for a juvenile in a homicide case
(although it suggested that the occasions whereby such sentences would be appropriate would be
“uncommon”). Id. at ___, 132 S. Ct. at 2469.
¶ 99 Here, Joshua did not receive the “harshest possible penalty,” i.e., he did not receive a
natural-life sentence without the possibility of parole. Indeed, he received the minimum
sentence possible for murder and possession of a stolen motor vehicle, and he received only four
years more than the minimum for attempted murder. Joshua argues that the 75 years imposed
nevertheless constitutes a “de facto” life sentence. However, courts have rejected such an
argument, noting that there are distinct differences between a sentence of natural life without
- 41 -
2015 IL App (2d) 120171parole and a sentence of a determinate, albeit lengthy, number of years. See, e.g., Patterson,
2014 IL 115102, ¶¶ 107-11; People v. Gay, 2011 IL App (4th) 100009, ¶¶ 19-20, 22-25 (the
defendant’s aggregate 97-year sentence was not a de facto life sentence without parole).
¶ 100 Further, to the extent that the Supreme Court decisions can be read broadly as requiring
that, before sentencing a juvenile, the sentencing body must have an opportunity to take into
account the juvenile’s youth at the time of the crime, that requirement was satisfied here. See
Harmon, 2013 IL App (2d) 120439, ¶¶ 54, 62. The court in this case expressly acknowledged
Joshua’s youth and considered all mitigating evidence before imposing the sentence. Again,
after doing so, the court imposed the minimum term of imprisonment for murder, only four years
above the minimum for attempted murder, and the minimum for possession of a stolen motor
vehicle. Moreover, while the aggregate number of years is indeed significant, it must be
remembered that Joshua was convicted of murdering one 15-year-old and attempting to murder a
second one.
¶ 101 The fact that consistent with our sister courts we reject Joshua’s arguments regarding the
sentencing scheme at issue is not to say that we take his arguments lightly. The Supreme Court
has, indeed, made very clear that, for constitutional purposes, some consideration must be made
of the fact that juveniles and adults are inherently different. The courts in Patterson, Willis, and
Pacheco note that whether the current sentencing scheme in Illinois, which requires certain
juveniles to be tried and sentenced as adults, continues to be sound policy in this State is for the
General Assembly, not courts, to decide, and they suggest that a renewed discussion on the
subject might be warranted. Patterson, 2014 IL 115102, ¶ 111; Willis, 2013 IL App (1st)
110233, ¶¶ 54-58; Pacheco, 2013 IL App (4th) 110409, ¶¶ 67-68. We do not disagree, and we
join that call.
- 42 -
2015 IL App (2d) 120171¶ 102 In that vein, we note that we find particularly troubling the current limitations placed
upon a sentencing court’s discretion when mandatory sentencing enhancements are at play for a
juvenile offender. Although the sentencing court is aware that it must apply the enhancements,
the fact remains that, even if the court determines that, due to the attendant circumstances of
youth, a minimum sentence for a juvenile is warranted, it cannot deviate from the mandatory
add-ons that might be greater punishment than it found appropriate for the underlying crime. For
example, here, the court determined that 20 years’ imprisonment was appropriate for Joshua’s
decision to take another’s life. However, it was required to impose another 25 years to that
sentence because Joshua did so with a firearm. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006).
Similarly, the court determined that 10 years’ imprisonment should be imposed for Joshua’s
attempted murder of a young girl. However, it was required to impose another 20 years, indeed
twice the underlying sentence, because Joshua did so with a firearm. 730 ILCS 5/5-8-
1(a)(1)(d)(ii) (West 2006). We do not suggest that the crimes at issue here or the use of a firearm
during those crimes should be punished lightly, or that the instant sentence is inappropriate, but
where there exists an evolving trend that the attendant circumstances of youth must be
considered at sentencing, the court’s restricted discretion and required imposition of an add-on
that is more than what the court determines is reasonable for the underlying offense should, in
our opinion, be revisited.
¶ 103 III. CONCLUSION
¶ 104 For the forgoing reasons, we affirm the judgment of the circuit court of Kane County.
¶ 105 Affirmed.
- 43 -