People v. Salazar , 2014 IL App (2d) 130047 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Salazar, 2014 IL App (2d) 130047
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption FRANCISCO SALAZAR, Defendant-Appellant.
District & No. Second District
Docket No. 2-13-0047
Filed November 20, 2014
Held Defendant was properly found guilty beyond a reasonable doubt of the
(Note: This syllabus first-degree murder of one victim and the attempted first-degree
constitutes no part of the murder of two other victims under a theory of accountability,
opinion of the court but notwithstanding defendant’s contention that he did not know the
has been prepared by the actual shooter had a firearm when the gang-related shooting occurred,
Reporter of Decisions where defendant was the driver of the vehicle in which the shooter was
for the convenience of a passenger, defendant and the shooter were members of the same
the reader.) gang, he assisted in the commission of the shooting by giving a
“go-ahead” signal, “piloting” the vehicle to allow the shooter to fire
straight at the vehicle in which rival gang members were riding, and
then fleeing the scene; furthermore, defendant’s actions showed that
he shared a common design with the shooter.
Decision Under Appeal from the Circuit Court of Kendall County, No. 09-CF-508; the
Review Hon. John A. Barsanti, Judge, presiding.
Judgment Affirmed.
Counsel on Alan D. Goldberg and Emily S. Wood, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Eric C. Weis, State’s Attorney, of Yorkville (Lawrence M. Bauer and
Diane L. Campbell, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Presiding Justice Burke and Justice Hutchinson concurred in the
judgment and opinion.
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. 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
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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.1 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
1
Aguilar was deceased at the time of trial, and the details surrounding his death were not disclosed.
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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.
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¶ 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 trial2 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 eventually stopped by the
police, everyone was arrested.
¶ 19 Sandoval told the police that he “kind of knew where the gun was” and that he wished to
cooperate. By testifying against a fellow gang member, he was no longer a Latin King. Also,
cooperating with the police could result in a “violation,” or punishment, from other gang
members, meaning that he could be beaten, shot, or killed. However, he had not received a
violation for testifying at defendant’s first trial.
¶ 20 Corral testified that he had met Reyes around three times before the night of the shooting
but did not know defendant. Before they went to the party that evening, they all met at
Aguilar’s house. He could not remember when Reyes came to Aguilar’s house. When he and
Reyes returned from checking out the party, Aguilar pointed out two men coming outside
who got into an Impala next to them. Corral did not remember testifying at defendant’s first
trial that Aguilar identified the two men as belonging to the Ambrose gang. Corral admitted
that he made a sign disrespectful to the Ambrose gang and then “flipped them off.” He
claimed that he was not a gang member, although he was familiar with the gangs in the area
and he knew that Sandoval was a member of the Latin Kings.
¶ 21 Corral said that defendant drove away after he flipped off the men in the Impala. He then
rolled another blunt. He was not paying attention to anything–he had his head down and was
concentrating on filling a cigar casing with marijuana. However, he admitted that he had
previously testified that he heard Aguilar say that someone in the Impala made a sign
disrespectful to the Latin Kings.
¶ 22 Defendant pulled up to an intersection. Corral said that he could not recall anyone talking
at that time. Corral heard shots ring out, and he ducked. He was high at the time, and he
2
Defendant’s first trial resulted in a deadlocked jury.
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could not feel whether the Tahoe was moving. On cross-examination, Corral admitted that he
told detectives on the night of the shooting that defendant had turned down the radio and
asked which way would get them home.
¶ 23 After the shooting, defendant, Aguilar, and Sandoval appeared shocked. Corral could not
see Reyes’s expression. Defendant was driving and Corral did not know where they were, but
it looked like a type of “condo place.” Defendant made two stops. Reyes got out of
defendant’s vehicle both times, and the second time he returned without wearing his hoodie
sweatshirt. As they drove out of the complex, defendant did not say anything. However,
Corral acknowledged that he testified at defendant’s first trial that he told the detectives that
defendant said, “just chill, just chill, we all got lawyers.”
¶ 24 Gaytan testified that on the night of the shooting he was at the party with Ventura and
Ruiz. They left the party and decided to go to a different party. Ventura was going to drive
them to the party. As Gaytan walked toward Ventura’s Impala, he saw a driver and a
passenger in a black Tahoe.
¶ 25 Gaytan got into the front passenger seat in Ventura’s vehicle and they followed his friend
Arnulfo Carillo, who was driving a different vehicle. They drove to the intersection and
stopped at the light. Carillo was turning right, but they were turning left. Gaytan then heard
gunshots and the windows of the Impala shattered. He was hit in his arm and hip. Later, at
the hospital, Gaytan spoke to Officer Steve Kaus and viewed a photo array. He identified
Reyes as the shooter. He admitted that at defendant’s first trial he testified that he could not
identify who was in the Tahoe.
¶ 26 Gaytan said that he was not in a gang but had family who were members of the Ambrose
gang. On the night of the shooting he never flashed the Ambrose sign and he never saw
Ventura or Ruiz make any gang signs. He admitted that he used to “claim” Ambrose and got
into trouble at school for drawing gang signs that were disrespectful to the Latin Kings.
¶ 27 Ruiz testified that when he left the party he got into the back of Ventura’s Impala. He saw
a black sport utility vehicle (SUV) stop right next to them, going in the same direction. He
saw a hand rise with a middle finger extended, but he could not see who made the gesture.
Ventura was following Carillo’s vehicle. Ruiz then saw the SUV back up. Ventura and
Carillo both arrived at the stoplight. Ruiz then heard gunshots from behind and he ducked
down. The Impala’s windows were shattered. He saw the SUV go straight through the
intersection.
¶ 28 Ruiz said that Ventura was unconscious and that the Impala was moving through the
intersection. Ruiz then grabbed the wheel from the backseat and turned to the right as much
as possible. The Impala hit a tree and Ruiz jumped out of the vehicle. Ruiz was physically
unharmed. Ruiz denied that he was a member of a gang and that anyone in the Impala was
doing anything to represent the Ambrose gang.
¶ 29 Officer Jeffrey Hahn testified and offered expert testimony regarding gang investigation,
motivation, and membership. He said that the Aurora police department regularly gathered
gang information. He said there were three ways to become an official gang member: (1) to
be beaten into the gang; (2) to be “blessed” into membership; or (3) to commit a criminal
offense, typically a shooting or a murder, which was the most common method of
membership. The police, however, had nine criteria for their own three classifications of
gang membership, which were based on the type of “gang contact” that officers have with
suspected gang members. Depending on how many of the nine criteria the police observed, a
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suspected member could be classified as a member, an associate, or an “other.” If there was
no gang contact in 12 months, the person was considered inactive.
¶ 30 Hahn said that the Aurora police department considered Ruiz to be an Ambrose associate
with four prior gang contacts. Gaytan was considered an “other.” Aguilar, Reyes, and
Sandoval were all self-admitted members of the Latin Kings. Sandoval had 28 prior gang
contacts. Corral and defendant were considered Latin King members by criteria. This meant
that each of them had three gang contacts within a 12-month period and that during each
contact, two criteria were present.
¶ 31 Hahn testified about defendant’s prior gang contacts. In June 2006 he wore his hat turned
to the left and was in the company of known Latin King members. In July 2006 he was a
passenger in a vehicle that was stopped by the police. Programmed into the digital face plate
of the car’s stereo was “V-L-K, Vice Lord Killer” and “2K, Deuce Killer.” In August 2006
the police stopped him along with two known gang members, one of whom was wearing
Latin Kings colors. Defendant, however, was not wearing gang colors at that time. Hahn said
that the Latin Kings colors were gold and black. In April 2009, eight months before the
shooting, defendant was seen wearing a white, gold, and black shirt and a gold and black
Chicago Bulls hat. Although defendant had never admitted that he was in a gang, and Hahn
was not aware that he had any gang tattoos, defendant had admitted to an officer in April
2009 that the Aurora police department would most likely consider him to be a Latin King
and that he hung out with them very regularly. Finally, Hahn said that he had read
defendant’s text messages from the night of the shooting and that there was nothing about
planning the shooting. Hahn also verified that defendant did text his girlfriend that evening.
¶ 32 The gun, several spent bullets, and 11 shell casings were recovered from the scene. A
black hoodie sweatshirt was also recovered, and it tested positive for gunshot residue. DNA
testing excluded Sandoval, Aguilar, Corral, and defendant, but not Reyes. Gunshot residue
tests on all five men were negative. Two out of three gunshot residue tests on defendant’s
vehicle came back positive.
¶ 33 During closing arguments, the State acknowledged that the shooting was not planned, but
it argued that the shooting presented an opportunity for the occupants of the Tahoe to boost
their reputation in the Latin Kings street gang. The State emphasized that by driving the
vehicle, and facilitating the escape, defendant aided and abetted Reyes such that the jury
could infer that they had a shared intent to kill Ventura, Gaytan, and Ruiz. The State also
alleged that defendant’s intent could be inferred from his “gang mentality,” because, “[w]hen
you are a King, you’re not just along for the ride.”
¶ 34 The jury returned guilty verdicts for the first-degree murder of Ventura and the attempted
first-degree murders of Gaytan and Ruiz. Defendant filed a motion for a new trial. At the
hearing on the motion, the trial court noted that accountability was the crux of the case and
commented:
“I believe the facts showed it was a reasonable verdict based on the evidence that the
defendant piloted that car in position in order to further or promote or facilitate a
crime, and I believe that that satisfies the common design rule under Illinois.”
¶ 35 The motion for a new trial was denied. Defendant was subsequently sentenced to 30
years’ imprisonment for Ventura’s murder and 15 and 10 years’ imprisonment on the two
attempted murder convictions. All sentences were to be served consecutively.
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¶ 36 II. ANALYSIS
¶ 37 Defendant raises two arguments on appeal: (1) the guilty verdicts should be reversed
because the evidence was legally insufficient to hold him accountable for Reyes’s actions;
and (2) the jury received an insufficient instruction on the attempted murder charges because
the instruction stated that the mens rea of the offense was satisfied if the jury found that
defendant intended to kill “an individual” and not specifically Gaytan or Ruiz.
¶ 38 A. Evidence of Accountability
¶ 39 Defendant first argues that the guilty verdicts should be reversed because the evidence
was insufficient to hold him accountable for Reyes’s actions. Specifically, defendant argues
that the State failed to prove him guilty beyond a reasonable doubt of any of the charges,
because he had no prior knowledge that Reyes had a gun or that Reyes had planned any
criminal activity on the night of the shooting and, therefore, he could not share with Reyes
any common criminal intent or design.
¶ 40 One commits first-degree murder if, in performing the acts that cause the death, he
intends to kill or do great bodily harm to a person or knows that such acts will cause such
death or great bodily harm. 720 ILCS 5/9-1(a)(1) (West 2008). One commits attempted first
degree murder if he, with the intent to kill a specific individual, does any act that constitutes
a substantial step toward the killing of that individual. 720 ILCS 5/8-4, 9-1(a)(1) (West
2008).
¶ 41 Under Illinois law, a person is legally accountable for the conduct of another person
when either before or during the commission of an offense, and with the intent to promote or
facilitate such commission, he solicits, aids, abets, or agrees or attempts to aid, such other
person in the planning or commission of the offense. 720 ILCS 5/5-2(c) (West 2008). It is
well settled that under the Illinois accountability statute the State may prove a defendant’s
intent to promote or facilitate an offense by showing either: (1) that the defendant shared the
criminal intent of the principal; or (2) that there was a common criminal design. People v.
Fernandez, 2014 IL 115527, ¶ 21. In a common-design case, the rule is that, where a person
aids another in the planning or commission of an offense he is legally accountable for the
conduct of the person he aids. “ ‘[T]he word “conduct” encompasses any criminal act done in
furtherance of the planned and intended act.’ ” Id. (quoting People v. Kessler, 57 Ill. 2d 493,
497 (1974)). A conviction based on accountability does not require proof of a preconceived
plan if the evidence indicates involvement by the defendant in the spontaneous acts of the
group. People v. Cooper, 194 Ill. 2d 419, 436 (2000). Also, a common design can be inferred
from the circumstances surrounding the perpetration of the unlawful conduct. People v.
Taylor, 164 Ill. 2d 131, 141 (1995).
¶ 42 When presented with a challenge to the sufficiency of the evidence, the relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Craigen, 2013 IL App (2d) 111300, ¶ 32.
¶ 43 Here, defendant argues that the evidence indicated that no one except Reyes himself
knew that he had a gun. Without knowledge of the gun, defendant contends, he could not
have formed any intent to participate in the shooting, and Illinois courts have refused to hold
defendants accountable for their codefendants’ gun crimes where the defendants did not
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know that the codefendants were armed. As support for this contention, defendant cites
People v. Johnson, 2013 IL App (1st) 122459. Defendant also notes that the Johnson court
cited People v. Phillips, 2012 IL App (1st) 101923, and People v. Taylor, 186 Ill. 2d 439
(1999), two cases in which accountability did not attach to defendants whose codefendants
fired guns.
¶ 44 In Johnson, the defendant was driving around the neighborhood with another man. They
were smoking marijuana, drinking, and intending to pick up women. At some point, the
defendant picked up Clayton Sims. They stopped at Brandon Baity’s vehicle to see if he had
any marijuana to sell. Johnson, 2013 IL App (1st) 122459, ¶ 6. Sims got out of the
defendant’s vehicle and shot Baity several times, killing him. There was no evidence that,
prior to the shooting, the defendant knew that Sims had a gun or that Sims intended to shoot
Baity. Id. ¶¶ 132, 134, 137, 159. However, there was conflicting evidence on whether the
defendant blocked Baity’s escape route with his vehicle. Id. ¶ 144. The jury found the
defendant guilty of first-degree murder, based on accountability. Id. ¶ 123.
¶ 45 On appeal, the Johnson court reversed the defendant’s conviction. In doing so, it
addressed several aspects of the State’s case. The court found that, because there was no
evidence that the defendant knew that Sims was armed or that Baity was going to be shot,
there could be no evidence of prior intent or advance planning by the defendant. Id.
¶¶ 132, 134. The court held that consent to, or mere knowledge of, the commission of an
offense is insufficient to constitute aiding or abetting. Id. ¶¶ 131, 135. The court also found
that, even if the defendant blocked Baity’s escape route, there was no evidence that this was
done intentionally so that Sims could murder him. Id. ¶ 144. Thus, the court found that the
evidence, at most, supported a charge of being an accessory after the fact. Id. ¶ 149.
¶ 46 Defendant argues that this case is strikingly similar to Johnson and that the same result is
therefore warranted here. However, in the exercise of its supervisory authority, our supreme
court recently ordered the First District to vacate its order in Johnson and reconsider the
matter in light of the supreme court’s recent decision in People v. Fernandez, 2014 IL
115527. People v. Johnson, No. 117292 (Ill. May 28, 2014) (supervisory order).
¶ 47 In Fernandez, our supreme court affirmed the appellate court’s judgment upholding the
defendant’s convictions of burglary and aggravated discharge of a firearm, under a theory of
accountability. The supreme court rejected the defendant’s argument that, if he did not know
that his codefendant was armed, he could not have had the specific intent to promote or aid
an offense for which the principal was required to be armed and therefore he could not have
been proven guilty beyond a reasonable doubt under a theory of accountability. Fernandez,
2014 IL 115527, ¶¶ 12-13. Instead, the court noted that it had long recognized the
common-design rule, which holds that where a person aids another in the planning or
commission of an offense he is legally accountable for the conduct of the person he aids. Id.
¶ 21.
¶ 48 The Fernandez court specifically overruled Phillips, 2012 IL App (1st) 101923, which
the Johnson court relied upon. The Fernandez court also distinguished Taylor, 186 Ill. 2d
439, stating that Taylor did not hold that a person could not be held accountable for a crime
that he did not know would occur and therefore could not have intended to facilitate.
Fernandez, 2014 IL 115527, ¶ 20. Instead, the Fernandez court said, in Taylor the defendant
was the driver of a vehicle whose passenger, wholly unbeknownst to the defendant, intended
to commit a crime, and the defendant was convicted of the passenger’s crime by
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accountability based principally on the fact that the defendant drove the passenger away from
the scene of the crime after its commission. Id. The court noted that Taylor was a
specific-intent case, not a common-design case, and that the common-design rule, that a
defendant will be held legally accountable for another’s conduct if he aids that person in the
planning or commission of an offense, still applied. Id. ¶ 21.
¶ 49 Defendant argues that Fernandez is distinguishable from the instant case because in
Fernandez the defendant helped the codefendant commit a burglary, during which the
codefendant fired a gun at a police officer. Defendant claims that, since the defendant in
Fernandez had intentionally set out to promote or facilitate the commission of a crime (the
burglary), the defendant was accountable for the aggravated discharge of a firearm. In
contrast, defendant claims, there is no evidence here that defendant had any knowledge of, or
intent to commit, any offense.
¶ 50 We are not persuaded. A reading of Fernandez makes clear that the supreme court was
not holding that a defendant can be accountable for an unanticipated crime only if he
intentionally set out to promote or facilitate another crime. Instead, the court explicitly held
that, “where one aids another in the planning or commission of an offense, he is legally
accountable for the conduct of the person he aids.” (Emphasis added and internal quotation
marks omitted.) Id.
¶ 51 In its motion to cite additional authority, the State cites Phillips, 2014 IL App (4th)
120695, where the court upheld the defendant’s conviction under the common-design rule of
accountability. In Phillips, the defendant intended to give a woman named Frazier a black
eye in retaliation for injuries Frazier inflicted on the defendant’s ex-girlfriend. Id. ¶¶ 1, 9.
Grimes came along to identify Frazier and perform “crowd control” while armed with a rifle.
Id. ¶ 1. When the defendant and Grimes arrived at Frazier’s house, they realized that the
crowd was too big to approach. The defendant was ready to leave when Grimes fired a single
shot and killed a member of the crowd. Id. ¶¶ 10-11. The defendant helped Grimes get rid of
the rifle by throwing it into a river. He later admitted his involvement and was convicted of
first-degree murder and unlawful possession of a weapon by a felon, under a theory of
accountability. Id. ¶¶ 12, 14.
¶ 52 In affirming the defendant’s murder conviction (he did not appeal the other conviction),
the court found that the defendant could not escape liability for the murder merely because
his original intention was only to give Frazier a black eye. Id. ¶¶ 31, 34. It held, “[b]y
attaching himself to a group bent on illegal acts, defendant became accountable for all the
crimes of his companions, including the shooting of [the victim].” Id. ¶ 34. The court also
noted that, to be accountable for the shooting, under the common-design theory, the
defendant need not have shared Grimes’s intent to fire the rifle; instead, “[b]y setting out to
commit a crime with Grimes, defendant rendered himself legally accountable for Grimes’s
shooting.” Id. ¶ 44.
¶ 53 Defendant argues that Phillips is distinguishable because in the instant case no one except
Reyes planned any criminal activity on the night of the shooting. We agree with defendant
that the facts in Phillips are distinguishable because here we have no evidence that defendant
attached himself to a group “bent on illegal acts” when he set out on that night. However, we
again note that one does not have to intentionally set out to promote or facilitate a crime to be
held accountable for another’s actions under the common-design rule. Here, it is clear from
the evidence that defendant aided Reyes in the commission of the shooting, and that alone is
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sufficient to hold him accountable for Reyes’s actions under the common-design rule. 720
ILCS 5/5-2(c) (West 2008).
¶ 54 The Phillips court, however, cited a case that we find instructive. People v. Tarver, 381
Ill. 411 (1942), involved two feuding groups of young people, the Tarver group and the
Walker group. Id. at 412. After a member of the Tarver group, Glenn, got into a fight with a
member of the Walker group, Smiley, eight members of the Tarver group agreed to ride
together in a truck to confront the Walker group. Id. at 413. A member of the Tarver group,
Mack, agreed to come along if he was promised that there would be no shooting. Id. at 412.
However, Mack and another member of the Tarver group brought guns. When the two
groups confronted each other, Tarver took Mack’s gun and fatally shot Walker. Id. at 413.
Mack and some other members of the Tarver group were convicted of murder on a theory of
accountability. Id. at 412. In affirming their convictions, the supreme court said that there
was abundant evidence that the Tarver group “banded together” for the purpose of avenging
Glenn’s beating. Id. at 415. It also noted that it was evident that there was ill feeling between
the two groups and that the defendants were “members of a gang assembled for the purpose
of disturbing the peace and doing unlawful acts.” Id. at 415-16.
¶ 55 Again, although there was no evidence that, before the shooting, defendant “banded
together” with Reyes to engage in unlawful acts (unlike in Tarver, where there was evidence
that Mack actually brought a gun to the scene despite a claim of seeking to establish
“peace”), it is clear that, from the time the men in both vehicles began flashing gang symbols
at each other, defendant was aiding Reyes in the commission of the shooting. Specifically,
the evidence indicated that defendant, a Latin King, aided Reyes, also a Latin King, in the
shooting by giving a “go-ahead” signal and “piloting” his vehicle in such a way that Reyes
could shoot straight at the Impala. At oral argument, both the State and the defense
acknowledged that defendant’s vehicle remained stationary while Reyes fired his gun, a
semiautomatic weapon requiring each round to be fired individually, 11 separate times at the
Impala. Those shots hit Ventura in the head, hit Gaytan in the arm and hip, and shattered the
rear window of the Impala. Given these facts, the jury could infer that, after piloting his
vehicle to put Reyes in a good position to shoot at the Impala, defendant waited until the
shooting was over before fleeing the scene. People v. Sutherland, 223 Ill. 2d 187, 242 (2006)
(it is the responsibility of the jury, as the trier of fact, to determine the credibility of the
witnesses and the weight to be given to their testimony, to resolve any inconsistencies and
conflicts in the evidence, and to draw reasonable inferences therefrom).
¶ 56 Defendant claims that the fact that Sandoval was not charged with any involvement in the
shooting suggests that he was attempting to repay the State by settling on a story of which it
approved. However, the lack of any charges against Sandoval could also be due to the fact
that he was cooperative with the police after the shooting, specifically, that he was the one
who guided the police to the location where Reyes hid the gun. The jury was aware that
Sandoval aided the police after the shooting, and it was for the jury, as the trier of fact, to
assess the credibility of all the witnesses. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007)
(the trier of fact is best equipped to judge the credibility of the witnesses, and due
consideration must be given to the fact that it was the trial court and the jury that saw and
heard the witnesses).
¶ 57 We agree with the trial court that the evidence supported the jury’s guilty verdicts under a
theory of accountability. Again, it was clear from the testimony that defendant piloted his
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vehicle in such a manner as to aid in the commission of the shooting and kept the vehicle in a
stationary position until the firearm was emptied. Defendant shared a common design with
Reyes, as demonstrated by his making multiple U-turns, pulling up next to the Impala at the
intersection, and giving the “go ahead” gesture right before Reyes began shooting. Defendant
complains that, although the State argued at trial that defendant’s alleged gang membership
constituted a general common design to commit the unlawful acts, on appeal the State has
abandoned this argument and advanced no alternative basis to apply the common-design
theory. We disagree. On appeal the State specifically argues that defendant was an active
participant and that his actions demonstrated that he shared a common design with Reyes.
The State refers to defendant’s piloting his vehicle in a manner to aid in the commission of
the shooting, as well his making multiple U-turns after the men started using gang symbols,
his giving the “go-ahead” gesture, and his pulling up alongside the Impala before Reyes fired
the shots. Viewing all this evidence in the light most favorable to the prosecution, we find
that defendant was proven guilty beyond a reasonable doubt of the first-degree murder of
Ventura, as well as the attempted first-degree murders of Gaytan and Ruiz, under a theory of
accountability.
¶ 58 B. Jury Instruction
¶ 59 Defendant next argues that the jury was improperly instructed on the charges of
attempted first-degree murder. Specifically, he contends that the instruction the jury was
given erroneously stated that the mens rea of the offense was satisfied if the jury found that
defendant intended to kill “an individual” and not specifically Gaytan or Ruiz. Defendant
concedes that this alleged error was not properly preserved for review because he did not
object at trial. However, he argues that we should address this issue as plain error. In the
alternative, defendant contends that we should find that his trial attorney provided ineffective
assistance when he failed to notice the flaw and seek to correct it.
¶ 60 In response, the State argues: (1) defendant forfeited review of the alleged jury
instruction error; (2) the alleged error is not a substantial defect, as necessary to avoid the
consequences of forfeiture; (3) no error occurred, so this issue cannot be reviewed as plain
error; and (4) since no error occurred, defendant’s ineffective-assistance argument should be
rejected.
¶ 61 Generally, a defendant forfeits review of any alleged jury instruction error if he does not
object to the instruction or offer an alternative instruction at trial and does not raise the
instruction issue in a posttrial motion. People v. Herron, 215 Ill. 2d 167, 175 (2005). Under
Illinois Supreme Court Rule 451(c) (eff. July 1, 2006), however, where a jury instruction
suffers from a substantial defect, claims of error are not subject to forfeiture on appeal.
People v. Young, 2013 IL App (2d) 120167, ¶ 20. “ ‘An erroneous instruction constitutes a
substantial defect, or plain error, when the instruction created a serious risk that the defendant
was incorrectly convicted because the jury did not understand the applicable law, so as to
threaten the fundamental fairness of the defendant’s trial.’ ” Id. (quoting People v. Johnson,
2013 IL App (2d) 110535, ¶ 76). Plain error arises in this context in two circumstances: (1)
when the erroneous instruction was provided in a case where the evidence was closely
balanced; or (2) when the flaw in the instruction is so serious that it denied the defendant a
substantial right and undermined the integrity of the judicial process. Id. (citing Herron, 215
Ill. 2d at 178-79). Although jury instructions are generally reviewed for an abuse of
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discretion, our standard of review is de novo when the question is whether the applicable law
was accurately explained to the jury. People v. Anderson, 2012 IL App (1st) 103288, ¶ 34.
¶ 62 Here, defendant argues that People v. Anderson, 2012 IL App (1st) 103288, is directly on
point. In that case, the defendant was charged with the first-degree murder of one individual
and the attempted first-degree murder of a second individual. The jury was instructed that it
could find the defendant guilty of attempted murder if it found that the defendant intended to
kill “ ‘an individual,’ ” but the instruction did not specifically name the individual. Id. ¶ 56.
The defendant was convicted of first-degree murder and attempted first-degree murder. On
appeal, the First District reversed the attempted murder conviction and remanded for a new
trial on that charge. In doing so, it concluded that the failure of the instruction to specifically
name the second individual was confusing and that the verdict might have resulted from the
instructional error and not the evidence. Id. ¶¶ 64-67. The court noted that, although the
instruction was taken from the Illinois Pattern Jury Instructions, Criminal, it was probable
that the “ordinary person” in the jury would not understand that the subject of the attempted
first-degree murder charge was only the second individual and not the first. Id. ¶ 61.
Therefore, it held that “the confusing nature of the jury instruction, which failed to specify
that the subject of the attempted murder charge was only [the second individual], rendered
the instruction erroneous under the narrow set of facts of this case.” (Emphasis added.) Id.
¶ 64.
¶ 63 Defendant claims that the same error occurred here. Based on the plain meaning of the
attempted-murder jury instruction, he contends that the jury could have found him guilty of
attempted murder based, not on an intent to kill Gaytan or Ruiz, but on an intent to kill any
individual, in particular, Ventura.
¶ 64 We are not persuaded. Since defendant forfeited this issue by failing to raise it below, we
need to first determine whether the jury instruction constituted a substantial error. We find
that the instruction was not, because it did not create “a serious risk that the defendant was
incorrectly convicted because the jury did not understand the applicable law, so as to threaten
the fundamental fairness of the defendant’s trial.” (Internal quotation marks omitted.) Young,
2013 IL App (2d) 120167, ¶ 20.
¶ 65 Indeed, the language denoting “an individual” was appropriate here because there were
two attempted murder charges involving two different victims. In addition, the signed guilty
verdict forms, as well as the unsigned not-guilty verdict forms, specifically listed the names
of the attempted murder victims–Ruiz and Gaytan. Accordingly, the jury could not have been
confused or misled by the attempted-murder instruction. Based upon our determination that
the jury was not improperly instructed, we need not review defendant’s claim of ineffective
assistance of counsel predicated upon this alleged error.
¶ 66 III. CONCLUSION
¶ 67 In sum, the evidence presented was sufficient for the jury to find defendant accountable
for the first-degree murder of Ventura and the attempted first-degree murders of Gaytan and
Ruiz. Also, the jury was not improperly instructed on the attempted murder charges.
Accordingly, the judgment of the circuit court of Kendall County is affirmed.
¶ 68 Affirmed.
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