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People v. Fernandez

Supreme Court of Illinois

March 20, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
JAVIER FERNANDEZ, Appellant

Affirmed.

SYLLABUS

Evidence that defendant and his companion drove around looking for cars to break into and that the companion shot at a policeman who discovered him in the act of breaking in was sufficient to convict the defendant on an accountability theory for aggravated discharge of a firearm in the direction of a peace officer, even though the defendant claimed he did not know the companion was armed--common design rule.

For Javier Fernandez, Appellant: Mr. Michael James McDermott, Attorney at Law, Chicago, IL.

For the People, Appellee: Hon. Lisa Madigan, Attorney General, Criminal Appeals Division, Chicago, IL; Ms. Kathleen Warnick, Assistant State's Attorney, Chicago, IL.

JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

THOMAS, JUSTICE

Page 146

[¶1] Following a bench trial, defendant Javier Fernandez was found guilty by accountability of one count of burglary (720 ILCS 5/19-1(a) (West 2008)) and two counts of aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)). The trial court merged defendant's convictions into a single count of aggravated discharge of a firearm in the direction of a peace officer and sentenced him to 12 years in prison. Defendant appealed, and the appellate court affirmed. 2012 IL App (1st) 101913-U. Defendant appealed again to this court, and we allowed his petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Aug. 15, 2006). The sole issue before this court is whether the evidence supports defendant's aggravated

Page 147

discharge of a firearm conviction. We hold that it does.

[¶2] BACKGROUND

[¶3] Officer Claudio Salgado of the Chicago police department testified that, on the morning of January 20, 2008, he pulled his car into a church parking lot located underneath the Dan Ryan Expressway. He was off-duty but wearing both his police badge and sidearm. As he exited his car, Officer Salgado heard the sound of breaking glass. He moved toward the sound and saw a man (Gonzalez) reaching into a parked car through a broken window. Officer Salgado displayed his badge and three times yelled " Chicago police." Gonzalez pulled himself out of the parked car, faced Officer Salgado, and began walking backward toward a maroon SUV that defendant was driving. Defendant began driving the SUV slowly toward Gonzalez. When defendant stopped the SUV, Gonzalez ran to the passenger side, opened the door, and stepped up onto the running board. Gonzalez then pulled a gun and fired three shots over the SUV's hood at Officer Salgado, who was now standing about 15 feet from Gonzalez. Officer Salgado immediately returned fire as the SUV sped away. Although Officer Salgado initially believed that he fired four or five shots, he later learned that he fired seven shots and that three of them struck defendant. After defendant and Gonzalez fled the scene, Officer Salgado returned to his car to give chase. Upon seeing a parked Cook County sheriff's vehicle, Officer Salgado stopped, identified himself, and explained the situation. The sheriff's officers told Officer Salgado to stay there and wait for backup while they pursued the SUV. Later that day and again the following evening, Officer Salgado identified both defendant and Gonzalez from a photo lineup.

[¶4] Defendant's sister, Marial Fernandez, testified that, on the morning of January 20, 2008, defendant borrowed her red Nissan Xterra to run some errands. That afternoon, she called defendant and told him that she needed her SUV back. Shortly thereafter, defendant returned home without the SUV and told her that some " gangbangers" had shot at him while he was driving it. Defendant appeared ill, was very pale, and was bleeding from his hand. Defendant told Marial that he had left her SUV at the intersection of Fifty-first Street and Winchester Avenue, but when Marial went to that location, the SUV was not there. Marial then called the police, who arrived at the location and spoke with her. The next day, Marial was called to police headquarters and informed that her brother had been arrested, that he had undergone surgery for being shot, and that her SUV had been recovered. When Marial went to retrieve her SUV, she saw that it had bullet holes in several places.

[¶5] Florencio Diaz testified that, on January 20, 2008, defendant called him around noon and asked to meet at Diaz's house. Diaz arrived at his house about 10 minutes later and found defendant and Gonzalez waiting for him. Diaz noticed that the tricep area of defendant's arm was hanging open, and defendant explained that he had been in a shootout with gangbangers. Defendant also stated that he was not going to a hospital because he did want to get the police involved. When defendant and Gonzalez left Diaz's house, they left the bullet-riddled SUV parked in Diaz's backyard. Later that day, Diaz was taken into a police station and shown a photo array. He identified defendant and Gonzalez as the two men who had been in his house.

[¶6] Chicago police detective Greg Swiderek testified that, at approximately 2 a.m. on January 21, 2008, ...


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