Appeal from the Circuit Court of Kane County. No. 08-CF-3321. Honorable Timothy Q. Sheldon, Judge, Presiding.
Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of State Appellate Defender's Office, of Chicago, for appellant.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Zenoff and Birkett, Justices concurred in the judgment and 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 aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). 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 first-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.
[¶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 tested 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.
[¶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 market. 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."
[¶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, and he and Hernandez eventually left the car at another gang member'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 the 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.
[¶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 ...