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Appeal from the Circuit Court of Kane County. No. 11-CF-1979. Honorable David R. Akemann, Judge, Presiding.
The appellate court upheld defendant's convictions arising from a shooting spree during which he was shooting at two rival gang members, since the State proved beyond a reasonable doubt that defendant acted " knowingly" for purposes of his armed violence and aggravated discharge of a firearm convictions and that he discharged a firearm within 1,000 feet of a school that was operating at the time of the offense, and even though IPI Criminal 4th Nos. 18.11 and 18.12 do not mirror section 24-1.2(a)(1) of the Criminal Code, no plain error or ineffective assistance of counsel occurred, especially when an examination of the evidence by a rational trier of fact would show beyond a reasonable doubt that defendant acted with a " knowing" mental state, that he shot " at or into" the buildings that he hit, that he knew or should have known the buildings were occupied, and his counsel's failure to argue the discrepancy between the language of the instructions and the statute with respect to whether defendant was shooting " at or into" or " in the direction of" the buildings did not amount to deficient performance.
Thomas A. Lilien, Kerry Goettsch, State Appellate Defender's Office, of Elgin, for Appellant.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer, Jay Paul Hoffmann, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.
BURKE, PRESIDING JUSTICE
[¶1] Defendant, Alejandro Rodriguez, was charged with eight crimes in connection with two shootings in Aurora on September 3, 2011. The State's theory at trial was that defendant, riding as a passenger in a car driven by Fernando Arroyo, fired several shots at two rival gang members, Marcos Gonzalez and Ignacio Perez, intending to kill them. Neither Gonzalez nor Perez was struck, but two houses and two vehicles were damaged.
[¶2] The jury found defendant guilty of (1) armed violence predicated on felony criminal damage to property, that property being Jose Martinez's 2006 Ford Fusion parked at 759 Columbia Street (see 720 ILCS 5/33A-2(b) (West 2010)); (2) armed violence predicated on felony criminal damage to property, that property being Miguel Hernandez's Ford pickup truck parked at 736 Kane Street (see 720 ILCS 5/33A-2(b) (West 2010)); (3) aggravated discharge of a firearm for firing at an occupied building at 763 Columbia Street, which was within 1,000 feet of Brady Elementary School (see 720 ILCS 5/24-1.2(a)(1), (b) (West 2010)); (4) aggravated discharge of a firearm for firing at an occupied building at 736 Kane Street (see 720 ILCS 5/24-1.2(a)(1) (West 2010)); and (5) unlawful possession of a firearm by a street gang member who lacked a valid firearm owner's identification (FOID) card (see 720 ILCS 5/24-1.8(a)(1) (West 2010)).
Defendant appeals all but the unlawful-possession-of-a-firearm conviction.
[¶3] First, defendant challenges the sufficiency of the evidence supporting the " knowingly or intentionally" mental state element shared by armed violence and aggravated discharge of a firearm. Defendant advocates outright reversal of the convictions on the ground that the State failed to prove that he acted " knowingly or intentionally," because there was no evidence that he " purposefully" shot at any of the property specified in the charging instrument. We conclude that the State proved beyond a reasonable doubt that defendant discharged the firearm knowingly and that the absence of evidence that he intentionally targeted the houses and vehicles that were actually struck does not compel reversal.
[¶4] Second, defendant argues that the State failed to prove the locality enhancement for aggravated discharge of a firearm, and therefore the conviction must be reduced from a Class X felony to a Class 1 felony. We conclude that the State proved beyond a reasonable doubt that Brady Elementary was operating as a school on the date of the offense and that defendant committed the offense within 1,000 feet of the school.
[¶5] Third, defendant contends that the jury was incorrectly instructed on the elements of aggravated discharge of a firearm. The trial court used Illinois Pattern Jury Instructions, Criminal, Nos. 18.11 and 18.12 (4th ed. 2000) (hereinafter, IPI Criminal 4th), which do not mirror section 24-1.2(a)(1) of the Criminal Code of 1961. Defendant points out that a person commits the offense when he shoots " at or into" an occupied building (720 ILCS 5/24-1.2(a)(1) (West 2010)), not " in the direction of or into" the building, as the jury was instructed. Defendant acknowledges that he has procedurally defaulted the issue but argues that he is entitled to a new trial on the two charges because the court committed plain error in using the IPI instructions and that his counsel rendered ineffective assistance for failing to object to them. We conclude that, even though the IPI instructions do not mirror the language of section 24-1.2(a)(1), the phrases " in the direction of or into" and " at or into" are synonymous for purposes of proving defendant guilty beyond a reasonable doubt. Thus, the court did not commit plain error in using the IPI instructions, and defense counsel was not ineffective for failing to raise the issue.
[¶6] We hold that (1) the State proved beyond a reasonable doubt that defendant committed the shootings " knowingly" as required to sustain the convictions of armed violence and aggravated discharge of a firearm; (2) the State proved the locality enhancement that defendant committed aggravated discharge of a firearm within 1,000 feet of Brady Elementary, which was operating as a school on the date of the offense; and (3) even though IPI Criminal 4th Nos. 18.11 and 18.12 do not mirror section 24-1.2(a)(1), neither plain error nor ineffective assistance occurred and, therefore, defendant is not entitled to a new trial on the charges of aggravated discharge of a firearm.
[¶7] I. BACKGROUND
[¶8] Defendant was charged by indictment with two counts of attempted first-degree murder (see 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)); three counts of armed violence (see 720 ILCS 5/33A-2(b) (West 2010)); and one count each of aggravated discharge of a firearm within 1,000 feet of a school (see 720 ILCS 5/24-1.2(a)(1), (b) (West 2010)); aggravated discharge of a firearm (see 720 ILCS 5/24-1.2(a)(1) (West 2010)); and unlawful possession of a firearm by a street gang member
(see 720 ILCS 5/24-1.8(a)(1) (West 2010)).
[¶9] At trial, Gonzalez testified that, on the afternoon of September 3, 2011, he was walking down Kane Street in Aurora when a car pulled up with defendant in the passenger seat. Gonzalez was a member of the Latin Kings street gang, and he knew that defendant was a member of the Insane Deuces street gang. Gonzalez and defendant were arguing when defendant drew a pistol and started shooting. Gonzalez heard the shots but did not see the gun. The police stopped Gonzalez 10 to 15 minutes later to ask about the shooting, but Gonzalez denied any knowledge of the incident at the time.
[¶10] Perez testified that he had an " association" with the Latin Kings, he lived in the Latin Kings' territory in Aurora, and he had friends who were members. About 3:30 p.m. on September 3, 2011, Perez was walking to a store near Columbia Street when he noticed a car driven by Arroyo. The car passed Perez twice, and on the second pass a passenger fired three shots at Perez. Perez heard the shots but did not see them. At trial, Perez denied seeing the shooter, but he acknowledged that he had previously told the police that " Rat Face," who was defendant, was the shooter.
[¶11] Mary Nino testified that, on the date of the shootings, she lived at 768 Columbia Street. Nino was sitting on her porch around 3:30 p.m. when she noticed a gray four-door car pull up from her left. Nino testified that she saw defendant, whom she knew from the streets, partially climb out the passenger-side window, cover his face with a red bandana, and fire a silver gun three or four times. The car traveled 10 to 15 feet past her porch, so the bullets traveled toward the house " kitty corner" to hers. Nino saw a 15- to 16-year-old boy emerge from the rear of the house a few minutes later. Nino called 911 and saw the police go to the house. Later, the police told Nino that they had someone in custody, and she went with them to a nearby street, where she identified defendant as the shooter. Nino also identified a car in police possession as the car from which the shots were fired.
[¶12] Officer William Sullivan testified that he responded to the shooting. As he was driving, he saw a vehicle matching the description of the car from which the shots were fired and he followed it. Once Officer Sullivan was behind the car, the driver pulled into the first available driveway and waited for the patrol car to pass. By the time Officer Sullivan turned around, the car had pulled out of the driveway and sped away. Officer Sullivan identified defendant as the driver of the car.
[¶13] The car eventually stopped at an intersection, and a passenger ran from the car. The car drove away in the opposite direction, and Officer Sullivan followed the person running. The person wore a glove and appeared to have something in his waistband. Officer Sullivan apprehended the person running, whom he identified as Arroyo. Arroyo led Officer Sullivan to a bush along the route he had run. Officer Sullivan testified that an evidence technician recovered a .22-caliber revolver from the bush.
[¶14] Arroyo testified for the State in exchange for prosecutorial leniency. For his testimony, Arroyo would receive a one-year prison term for mob action, to run consecutively to a three-year term for unlawful possession of a firearm by a street gang member. According to Arroyo, he had known defendant since their youth and they lived near each other. The two remained friends even after Arroyo became a member of the Latin Kings and defendant became a member of the Insane Deuces.
[¶15] Arroyo testified that, in the morning on the day of the shootings, he went to defendant's house to hang out and clean their cars. At one point, Arroyo asked defendant if he knew anyone with guns for sale. Defendant responded by showing Arroyo a gun he had purchased from someone at work. Defendant complained that his bullets were the wrong size, and Arroyo said that he could get the correct bullets at his aunt's house. Arroyo's aunt was hosting a party at her house that day.
[¶16] Arroyo drove his car to his aunt's house and defendant rode along. According to Arroyo, defendant had a glove on his right hand at the time. Arroyo noticed Gonzalez near the corner of State and Kane Streets. When defendant noticed Gonzalez, he said " there goes that flake," which was meant as a disrespectful term toward the Latin Kings. Arroyo stopped at a stop sign and Gonzalez started throwing gang signs toward defendant. Defendant and Gonzalez argued for several seconds, and defendant drew a gun from his waistband and fired three times out the window. Arroyo testified that defendant pointed the gun at Gonzalez when he fired.
[¶17] Arroyo sped away from the scene, driving in a circular route until they arrived near Perez, who was riding a bicycle. At defendant's direction, Arroyo followed him. Arroyo stopped the car near Perez, and defendant put his body halfway outside the car and reached over the top. Arroyo looked through the sunroof and saw defendant fire the gun three times, pointing the gun at Perez, not into the air. Arroyo sped away again and drove to defendant's house.
[¶18] Defendant took the gun and the glove into his house while Arroyo stayed in the car smoking marijuana. Defendant came back outside wearing a different shirt and not wearing the glove. Arroyo sat in the passenger seat and defendant drove the two to McDonald's for some food. When leaving the restaurant, Arroyo noticed a " narco," an undercover police car, following them. Defendant pulled into a driveway and waited for the car to pass. Defendant backed out and started driving the other way and the police car chased them. Defendant threw the gun and the glove at Arroyo, who put on the glove, grabbed the gun, and exited the car. Arroyo ran and threw the gun and the glove along the way. The police arrested Arroyo and defendant. Arroyo testified that defendant told him in jail that he had urinated on his hand to remove any gunshot residue.
[¶19] Guadalupe Reyes, the owner of the home at 736 Kane Street, testified that the siding of the home was damaged by bullets during the shooting involving Gonzalez. Miguel Hernandez, who was renting the home from Reyes, testified that his Ford pickup truck, which was parked in the driveway, sustained damage to the driver's-side door. Reyes testified that Hernandez was home at the time of the shooting.
[¶20] Eric Cepeda, who lived at 763 Columbia Street, was home at the time of the shooting involving Perez. After hearing a loud noise, Cepeda went outside and noticed a bullet hole in the siding. Cepeda's next-door neighbor, Jose Martinez, lived at 759 Columbia Street and his tan Ford Fusion was parked in the driveway between the two houses. The car sustained damage from the shooting.
[¶21] The trial court admitted evidence from an evidence technician who took photographs of the damage to the houses and the vehicles. The parties stipulated to several recorded inculpatory statements made by defendant while in custody, including that he was concerned that " the old lady saw me."
[¶22] Officer Sullivan testified about the building and property described as Brady Elementary. Officer Sullivan testified that he was familiar with the area because he had been employed by the Aurora police department for seven years and currently served as a general patrol officer on the east side. Officer Sullivan was familiar with Brady Elementary because it was in his district. He identified Brady Elementary as the building inside a purple rectangle drawn on the State's exhibit No. 28A, which was an aerial photograph of the area. When asked whether Brady Elementary " is just a building that is not in operation or is ...