Appeal from the Circuit Court of Kendall County. No. 09-CF-508. Honorable John A. Barsanti Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.
[¶1] After a jury trial, defendant, Francisco Salazar, was convicted of one count of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and two counts of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1 (West 2008)). All three convictions were based upon a theory of accountability. Defendant was subsequently sentenced to 30 years' imprisonment on the first-degree murder conviction and 15 and 10 years' imprisonment on the attempted murder convictions. All sentences were ordered to be served consecutively. On appeal, defendant contends: (1) the State failed to prove him guilty of the offenses, because there was no evidence that he knew his codefendant had a gun and, therefore, shared any common criminal intent or design with the shooter, as necessary to make him legally accountable for the shooter's actions; and (2) the jury was improperly instructed on the attempted murder charges, where the names of the victims were not included in the instructions. For the following reasons, we affirm.
[¶2] I. BACKGROUND
[¶3] We initially note that after filing its brief in this case the State filed a motion to cite additional authority, the Fourth District's recent opinion in People v. Phillips, 2014 IL App. (4th) 120695, 383 Ill.Dec. 169, 14 N.E.3d 1. Defendant then filed a motion requesting to respond to the case and attaching his response. After reviewing both parties' motions, we grant the State's motion to cite Phillips as well as defendant's request to respond. The case as well as defendant's response will be discussed in the analysis portion of this disposition.
[¶4] At trial, defendant testified that around 10 p.m. on December 19, 2009, he received a telephone call from George Aguilar. Aguilar asked defendant to come to his house. Defendant texted his girlfriend to see if he could meet with her later that evening, and he then drove to Aguilar's house, near Montgomery, Illinois. When defendant got to the house, he saw Zachary Reyes, Eloy Sandoval, and Cesar Corral standing outside with Aguilar. Defendant knew Aguilar well and " hung out" with Sandoval frequently, although he did not have Sandoval's telephone number. He did not know Corral very well. Defendant had never met Reyes before that night. Defendant was not in a gang, but he knew that Aguilar and Sandoval were both Latin Kings gang members. He did not know if Reyes or Corral was a member of a gang.
[¶5] Defendant and the four other men got into defendant's Chevy Tahoe. Reyes was the front passenger, Corral sat behind Reyes, Sandoval sat in the middle of the backseat, and Aguilar sat behind defendant. They decided to go to a party in Oswego, but stopped at a 7-Eleven store on the way. Corral went into the store and bought alcohol and cigars. Corral, Aguilar and Sandoval made the cigars into marijuana-filled " blunts." The three people in the backseat smoked the blunts and Corral and Sandoval also drank, while defendant drove.
[¶6] Defendant testified that he was not familiar with the area and did not know where to go. Sandoval directed defendant to the party, and, when they arrived, Sandoval told Reyes and Corral to go in and see whether the party was worth the cover charge. When Reyes and Corral came back to the vehicle they said that the party might not be worth their time. Defendant began to drive away and Corral told him to wait. Defendant said that he looked at Corral and saw him " doing some hand gestures and flicking somebody off." Defendant then drove off.
[¶7] Sandoval told defendant that he had missed a turn and that he needed to turn around, so defendant did so. Defendant was trying to get out of the area, but Sandoval suggested going back to the party. Aguilar stated that he just wanted to go home. Defendant told them to make up their minds and did another U-turn. Defendant pulled up to the intersection at Douglas and Long Beach and stopped at the stoplight. Defendant planned to turn left and noticed the taillights of a vehicle turning right. He reached for his cell phone to text his girlfriend that he was on his way home and all of a sudden he heard big bangs and started to duck because he thought he was getting shot at.
[¶8] The evidence at trial established that Reyes had fired 11 .45-caliber rounds in the direction of a vehicle driven by Jason Ventura. In Ventura's vehicle were Eduardo Gaytan and Jorge Ruiz. After Ventura was shot in the head, he slumped over the steering wheel. The car continued to move and was headed toward a house. Ruiz, who was in the backseat of Ventura's vehicle, grabbed the steering wheel and turned it to the right as much as possible. The vehicle eventually hit a tree and stopped. Ruiz jumped out of the vehicle and began motioning to Deputy Bryan Harl of the Kendall County sheriff's office, who was driving in the area and witnessed the vehicle hit the tree. Harl called for an ambulance and told dispatch that the offending vehicle was a dark-colored Tahoe. Ventura died as a result of multiple gunshot wounds, including one to his forehead. Gaytan was shot in both his arm and his hip. Ruiz was unharmed, although the back window of the vehicle was shattered.
[¶9] Defendant testified that immediately after the shooting Sandoval said, " [G]o, go, go, what the fuck are you still doing here?" Defendant drove away. He asked Sandoval where to go, and Sandoval directed him to a parking spot in an apartment complex. The subdivision where defendant was driving was known as the " spaghetti bowl" because it was a tangle of streets with very few entrance and exit points. Defendant began to argue with Sandoval because he thought Sandoval knew that Reyes was going to shoot at the other car. Defendant asked Sandoval why he did not warn him. Defendant testified that he said, " [W]hy the hell you doing this, this is stupid shit out of the truck that I am driving?" Sandoval replied, " calm the fuck down" and said that defendant was no one to him. Sandoval told Reyes to get out of the vehicle and get rid of the gun, and Reyes did so. Sandoval then directed defendant to another apartment complex and told defendant to stop. Sandoval told Reyes to get rid of the hoodie-type sweatshirt he was wearing. Again, Reyes did so. Sandoval took one of his shirts off and gave it to Reyes to wear.
[¶10] Defendant drove out of the apartment complex and passed a squad car. The squad car followed defendant's vehicle to Aurora, and, at some point, Reyes threw a small bag of marijuana out of the window. Defendant was frightened. Sandoval told him to try to evade the police through one of the side streets. Defendant refused to do so. Officer Shane Burgwald of the Oswego police department pulled defendant's vehicle over and, with his weapon drawn, ordered each passenger out of the vehicle.
[¶11] Defendant testified that he did not speak with Reyes, Sandoval, or Corral before they met at Aguilar's home that evening. When he arrived at Aguilar's house, there was no discussion about committing any violence, and there was no " gang talk" whatsoever on the way to the party. Defendant never saw a gun prior to the shooting and did not hear anyone talking about a gun or any weapon. In rebuttal, the State introduced a certified copy of defendant's burglary conviction.
[¶12] Sandoval and Corral were not charged with any crimes and both testified for the State. The men, who were best friends, both testified that no one saw a gun or talked about guns prior to the shooting. Sandoval disagreed, however, with other aspects of defendant's testimony, including his account of Sandoval's actions during the incident.
[¶13] Sandoval testified and admitted that in 2009 he had been a member of the Latin Kings street gang for four or five years. Corral was a longtime friend of his and Aguilar was a fellow gang member. Defendant was both a friend and a fellow gang member. Reyes was considered a " gang contact" of Sandoval's.
[¶14] Sandoval said that on December 19, 2009, he was with Corral at Aguilar's home when he saw defendant and Reyes arrive together in a vehicle. Sandoval admitted that he and Corral drank alcohol and smoked blunts with Aguilar. Defendant did not know how to get to the party, so Sandoval directed him. When they arrived at the party, Reyes and Corral went inside the house. They returned about five minutes later and the five men discussed whether they should go inside. At that point they saw two men come outside. Aguilar and Reyes recognized them as belonging to the Ambrose street gang, a rival gang of the Latin Kings. The two men got into a Chevy Impala. Defendant pulled his vehicle up alongside the Impala and Reyes made gang signs that were disrespectful to the Ambrose gang. Sandoval did not see any response from the people in the Impala. He did not want anything to happen that night, because the party was thrown by his sister's friends.
[¶15] According to Sandoval, no one told defendant to make a U-turn, but he did. As they passed the Impala going the opposite direction, defendant said that he saw someone make a gang sign disrespectful to the Latin Kings. No one in defendant's vehicle responded. Defendant did another U-turn and pulled his vehicle up next to the Impala at an intersection. Defendant then made a hand gesture that Sandoval interpreted as a " go ahead" signal. It was not a gang sign, and Sandoval could not remember if defendant used one hand or two. Sandoval demonstrated the gesture at trial. The State described it on the record as Sandoval taking both of his hands in front of him and moving them to the right side of his body several times.
[¶16] On cross-examination, Sandoval agreed with defense counsel that the gesture was a cupping of both hands and then a motion like he was carrying or throwing something with his hands. Sandoval admitted that it could have been with just one hand. He also admitted that he had testified at defendant's first trial that the hand gesture was not really a signal at all and that it meant nothing. However, he explained that at the first trial he thought the attorney was asking him if the gesture had gang significance, which it did not. He confirmed that he thought the gesture was a " go ahead" signal.
[¶17] Sandoval said that Reyes then leaned halfway out of the vehicle's window and that Sandoval heard gunshots. He could tell that Reyes fired shots at the Impala. Sandoval said that it " just happened out of nowhere." After the shots were fired, defendant drove straight off. Sandoval did not direct defendant where to go. After defendant stopped at an apartment complex, everyone was talking and panicking because the shooting had not been planned. Defendant parked his vehicle, and Sandoval suggested that they call someone to pick them up because he was pretty sure that someone would have a description of the Tahoe. They all argued about how they could get back home. They discussed getting rid of the gun, but Aguilar, Reyes, and defendant started the discussion. Reyes then got out of the vehicle to hide the gun. They made another stop in a different apartment complex, and, when Aguilar told Reyes to get rid of his sweatshirt, he did.
[¶18] Sandoval said that they drove out of the apartment complex and passed a squad car that soon began to follow them. Aguilar and Corral wanted to jump out of the vehicle. Defendant did not stop the Tahoe or say anything. When the vehicle was ...