People v. Valadovinos , 2021 IL App (1st) 182161-U ( 2021 )

2021 IL App (1st) 182161-UNo. 1-18-2161
Order filed June 30, 2021
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 5866
)
IGNACIO VALADOVINOS, ) Honorable
) Arthur F. Hill, Jr.,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Justices Pierce and Coghlan concurred in the judgment.
ORDER
¶1 Held: Circuit court’s second-stage dismissal of defendant’s postconviction petition is
affirmed over defendant’s claims of actual innocence based on newly discovered
eyewitness testimony and ineffective assistance of trial counsel.
¶2 Defendant Ignacio Valadovinos appeals the circuit court’s second-stage dismissal of his
postconviction petition. Valadovinos contends he made a substantial showing newly discovered
eyewitness testimony established actual innocence and the ineffectiveness of his trial counsel. We
affirm. The eyewitness affidavits neither support Valadovinos’s claim of actual innocence nor add
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anything to what the jury already heard. In addition, his trial counsel’s decisions do not establish
prejudice and his claim of ineffective assistance fails.
¶3 Background
¶4 The State proceeded to trial on one count each of attempted first-degree murder of Ernesto
Fernandez while personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)),
aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2010)), and aggravated battery
of a peace officer (720 ILCS 5/12-4(b)(18) (West 2010)). Valadovinos committed aggravated
battery of a peace officer after a foot chase that resulted in his arrest.
¶5 A jury convicted Valadovinos on all three counts and the trial court sentenced him to a
total of 43 years’ imprisonment. On direct appeal, we affirmed Valadovinos’s convictions over his
challenges to the jury instructions and sentence. People v. Valadovinos, 2014 IL App (1st) 130076.
¶6 This appeal concerns Valadovinos’s postconviction claims of actual innocence and
ineffective assistance of trial counsel concerning the attempted first-degree murder count. Thus,
we recite the trial evidence necessary to decide this appeal.
¶7 At trial, Ernesto Fernandez testified he, his brother Carlos Fernandez, and their cousin
Ebelia Ocampo were at Jean’s Restaurant at the intersection of West 25th Place and South
California Avenue at about 2:00 a.m. on February 28, 2010. (Both Ernesto and Carlos Fernandez
were trial witnesses. For clarity, we refer to them by either their first names or full names.) The
Fernandezes became involved in a fight with 10 to 12 people, which began inside Jean’s and
moved outside to the middle of California Avenue. Ernesto saw a Dodge Stratus driving “fast”
down California, and he “pulled back” to avoid being struck. The Stratus stopped 40 to 45 feet
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away from Ernesto, and he saw Valadovinos, whom he identified in court, leave the passenger side
holding a gun.
¶8 Valadovinos approached Ernesto and began firing. Ernesto “tr[ied] to dodge the bullets”
by “flipping” or “dancing” and never turned his back to Valadovinos. Ernesto heard four or five
gunshots. He “fell” near 25th and California and saw “the last bullet” “hit the ground,” then saw
Valadovinos run back to the car. Ernesto was 10 to 12 feet away the last time he saw Valadovinos.
The Stratus “fled away.” Ernesto identified Valadovinos to police in a show-up identification at
the scene.
¶9 On cross-examination, Ernesto testified he “took a couple of shots” of alcohol at Jean’s.
The fight stopped when the Stratus approached, and the crowd moved out of the way. Then, “some
of the people that were there started screaming at the car” and “threw a bottle at the car.” When
Valadovinos began shooting, Ernesto and “four more people” stood in the middle of California
Avenue. The four individuals near Ernesto were also 10 to 12 feet away from Valadovinos when
he began shooting. Ernesto was the only person Valadovinos aimed at and ran towards, but no
bullets struck him. Ernesto did not recognize Valadovinos at the time, and Valadovinos said
nothing before he began firing.
¶ 10 Carlos Fernandez testified he, Ernesto, and Ocampo were at Jean’s. A fight involving about
10 people began inside, then moved outside to California Avenue. Carlos was fighting another
individual in a “grass parkway” across California when he heard someone yell out and he stopped
fighting. Carlos saw a green Dodge Stratus driving northbound “toward where [his] brother was.”
The Stratus stopped in front of a gyros restaurant at the northwest corner of 25th Place and
California Avenue.
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¶ 11 Carlos saw Valadovinos, whom he identified in court, step out of the front passenger side
of the Stratus holding a gun, walk around the car, point the gun at Ernesto, approach within four
feet, and fire at him. Carlos heard five or six gunshots. Ernesto was “zigzagging trying to avoid
the shots.” He did not see Valadovinos point the gun at anyone else.
¶ 12 Valadovinos stopped firing and ran back toward the Stratus. Valadovinos pointed the gun
at Carlos, and Carlos heard a “click.” Valadovinos got in the front passenger side of the Stratus,
which drove northbound on California. Carlos later identified Valadovinos to police in a show-up
identification at the scene.
¶ 13 On cross-examination, Carlos testified (i) he did not see Ernesto take any shots of alcohol
at Jean’s; (ii) the Stratus passed by Carlos before it stopped in front of the gyros restaurant; (iii)
Ernesto was “standing by himself” when Valadovinos fired the gun at him; and (iv) a bullet gazed
Ernesto’s arm, but he did not go to the hospital.
¶ 14 Ebelia Ocampo testified she saw Ernesto and Carlos in a fight involving some 10 people
inside Jean’s. The fight moved out to California Avenue; Ocampo went to the corner of 25th and
California but did not go into the street. She saw a dark-colored car traveling northbound, which
stopped in front of the gyros restaurant. A man stepped out of the passenger side; she did not “get
a good look at him” because she “went behind a truck.” She saw “the fire” and heard shouting and
gunshots as she hid behind the truck. She did not see who was shooting or where the shooting
occurred. When the gunshots stopped, Ocampo “heard Ernesto screaming he had gotten shot” and
saw the car “spe[e]d off.” When police arrived, Ocampo was “unable to identify” the shooter.
¶ 15 On cross-examination, Ocampo testified three other men stood around Ernesto “in the
street” when the shooting began.
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¶ 16 Chicago police lieutenant Paul Kane testified he was on duty, in uniform, and driving a
marked police car. At about 2:20 a.m., he saw a crowd in the street on California Avenue near 25th
Place “around” a green Dodge Stratus and heard four or five gunshots from the direction of the
crowd. A second or two later, he saw the Stratus drive away quickly. Kane followed the Stratus. It
stopped near West 24th Street and South Rockwell Street, and Valadovinos, whom he identified
in court, got out of the front passenger side and ran northbound on Rockwell. Assisting units were
approaching and, later, he saw Valadovinos in officers’ custody.
¶ 17 Chicago police officer Rocco Pruger testified he was on duty, in uniform, and using a
marked police car. He and his partner Officer Todd Mueller arrested Valadovinos, whom he
identified in court, on the 2600 block of West 24th Street. Pruger tackled Valadovinos to the
ground after a foot chase, and Valadovinos headbutted him.
¶ 18 Chicago police officer Todd Mueller testified he responded to a radio dispatch regarding
shots fired and a green Dodge Stratus near West 26th Street and South California Avenue. Mueller
saw Valadovinos, whom he identified in court, throw a handgun on the 2600 block of West 24th
Street during a foot chase. Shortly afterward, Mueller assisted in arresting Valadovinos.
¶ 19 Chicago Police evidence technician Theodore Delis testified he recovered an unloaded
semiautomatic pistol from the 2600 block of West 24th Street and inventoried it. He also recovered
five fired cartridge cases from the 2500 block of South California Avenue and inventoried them.
The State moved photographs of the pistol and cartridge cases into evidence.
¶ 20 Illinois State Police forensic scientist Tonia Brubaker testified she performed testing on the
pistol and cartridge cases recovered and concluded the same pistol fired all five cartridge cases.
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¶ 21 In closing, Valadovinos argued there was no evidence he intended to kill Ernesto because
he announced no intent to do so. Moreover, “eight to ten people [were] around” the Stratus when
the shooting occurred. In rebuttal, the State argued Valadovinos intended to kill Ernesto because
photographs of the cartridge cases formed a “trail” “right to where Ernesto fell.”
¶ 22 The jury found Valadovinos guilty of attempted first-degree murder while personally
discharging a firearm, aggravated discharge of a firearm, and aggravated battery of a peace officer.
¶ 23 Valadovinos filed a motion for new trial, which the trial court denied.
¶ 24 The trial court merged the aggravated discharge of a firearm count into the attempted first-
degree murder count. It sentenced Valadovinos to 43 years’ imprisonment, to run concurrently
with a 5-year sentence on the aggravated battery of a peace officer count.
¶ 25 The trial court denied Valadovinos’s a motion to reconsider sentence.
¶ 26 On direct appeal, Valadovinos challenged the jury instructions and his sentence.
Valadovinos, 2014 IL App (1st) 130076, ¶ 2. We affirmed but corrected the mittimus to reflect
credit for time in custody before sentencing. Id. ¶ 3.
¶ 27 Valadovinos filed a petition for relief under the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2014)). In relevant part, this petition alleged the newly discovered testimony
of eyewitnesses Rudolfo Zarco and Melinda Duran established Valadovinos was actually innocent
of attempted first-degree murder. Valadovinos also argued trial counsel was ineffective for failing
to impeach Ernesto Fernandez with his prior inconsistent statement to an Assistant State’s Attorney
and for failing to interview and call Zarco.
¶ 28 Duran’s affidavit, which Valadovinos attached to his petition, attests Duran went to a bar
near 25th and California in January or February 2010. She left the bar between 2:00 and 2:15 a.m.
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and saw people fighting in the street on California. A car, driving slowly, tried to pass through the
crowd fighting. People threw bottles at the car, which sped up and stopped about 50 yards away
from the crowd. Duran saw “someone” get out of the car and fire a gun toward the crowd. No one
was standing alone when the shooting started. Duran thought the shooter was shooting to scare the
crowd. Duran later heard from Valadovinos’s family about the shooting for which Valadovinos
was “incarcerated.” She believed it to be “the same thing [she] saw” when “the guy [got] out and
start shooting.”
¶ 29 Zarco’s affidavit, which Valadovinos appended to his petition as a supplement with leave
of court, attests he and Valadovinos were driving on the evening of February 28, 2010, when he
saw a group of people fighting in the street near 25th and California. Zarco honked his horn and
tried to drive through the crowd slowly; the crowd threw bottles at the car in response. Zarco
parked some 50 yards away from the crowd, Valadovinos left the car, and Zarco heard gunshots.
He did not see who was shooting. Zarco was willing to speak with Valadovinos’s attorney, and
was present at one of Valadovinos’s court dates. On that date, Zarco spoke to defense counsel’s
“assistant,” who said the “lead attorney” wanted to talk to him. Zarco never spoke to Valadovinos’s
“lead attorney.”
¶ 30 Valadovinos also attached the affidavit of Eric Bisby, an associate at the firm representing
Valadovinos in postconviction proceedings. He attests that he reviewed trial counsel’s file and it
contained Ernesto Fernandez’s statement to an Assistant State’s Attorney. The statement, attached
to Valadovinos’s petition, indicates Ernesto spoke to ASA Shawn McCarthy at 11:30 a.m. on
February 28, 2010. Ernesto stated he was drinking at Jean’s Restaurant at about 2:20 a.m. that
morning when he was involved in fight that began in the restaurant and was “pushed” outside. In
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addition, Ernesto saw a Dodge Stratus traveling northbound on California, which almost hit his
brother Carlos, then stopped on California a few feet north of 25th Place.
¶ 31 Ernesto saw Valadovinos get out of the passenger side of the Stratus. Ernesto walked
toward Valadovinos to confront him about nearly hitting Carlos. Valadovinos pulled out a gun,
and Ernesto ran away as Valadovinos started shooting at him. Ernesto ran in a “zig-zag pattern
looking over his shoulder at the guy shooting at him.” Valadovinos shot at him eight times. Ernesto
fell at the corner of 25th Place and California, and Valadovinos ran back to the Stratus, which
drove away northbound on California. Ernesto described Valadovinos and the Stratus to police; he
“later saw the police had the guy who shot at him.”
¶ 32 The circuit court docketed the petition for second stage proceedings. The State filed a
response to Valadovinos’s postconviction petition and moved to dismiss it. Valadovinos filed a
reply.
¶ 33 The circuit court dismissed Valadovinos’s postconviction petition. The court found Zarco’s
and Duran’s affidavits did not establish Valadovinos’s actual innocence because they did not
provide “total exoneration” of Valadovinos. The court also rejected Valadovinos’s ineffective
assistance claims, finding Zarco provided “potentially another identification of this defendant as
the shooter.” Hence, trial counsel’s decision not to call him was reasonable. In addition, the court
characterized trial counsel’s decision not to impeach Ernesto with his statement to the ASA to be
reasonable trial strategy.
¶ 34 Analysis
¶ 35 Valadovinos contends the trial court should not have dismissed his petition because it made
a substantial showing newly discovered testimony from Zarco and Duran established Valadovinos
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was actually innocent of attempted first-degree murder because he did not have the requisite intent
to commit the offense. Valadovinos also argues that trial counsel was ineffective for failing to
interview and call Zarco and failing to impeach Ernesto Fernandez with his prior inconsistent
statement to the Assistant State’s Attorney.
¶ 36 Affidavits of Zarco and Duran
¶ 37 “The [Post-Conviction Hearing] Act provides a remedy to a criminal defendant whose
federal or state constitutional rights were substantially violated at trial or sentencing.” People v.
Dupree, 2018 IL 122307, ¶ 28. Proceedings under the Act consist of three stages of review. People
v. Johnson, 2018 IL 122227, ¶ 14.
¶ 38 The circuit court dismissed Valadovinos’s petition at the second stage. “The question raised
in an appeal from an order dismissing a postconviction petition at the second stage is whether the
allegations in the petition, liberally construed in favor of the petitioner and taken as true, are
sufficient to invoke relief under the Act.” People v. Sanders, 2016 IL 118123, ¶ 31. We take as
true all well-pleaded allegations in the petition and supporting documentation that are not
positively rebutted by the trial record. People v. Robinson, 2020 IL 123849, ¶ 45. “[C]redibility is
not an issue at the second stage of postconviction proceedings.” Sanders, 2016 IL 118123, ¶ 42.
We review the second-stage dismissal of a postconviction petition de novo. Id.¶ 39 Valadovinos first argues he made a substantial showing of actual innocence of attempted
first degree murder. Specifically, he contends Zarco’s and Duran’s testimony was newly
discovered, material, and would probably result in a different outcome on retrial.
¶ 40 To determine whether Valadovinos’s actual innocence claim should have advanced to
third-stage proceedings, we review whether he made “a substantial showing of actual innocence
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such that an evidentiary hearing is warranted.” Id., ¶ 37. A defendant must show the evidence in
question is newly discovered, material, and of such conclusive character that it would probably
change the result on retrial. Id., ¶ 46. Newly discovered means the evidence was discovered after
trial and the defendant could not have discovered it earlier through the exercise of due diligence.
Robinson, 2020 IL 123849, ¶ 47. Evidence is material when relevant to and probative of the
defendant’s innocence and “adds to the information that the fact finder heard at trial.” Id. Evidence
need not conclusively prove the defendant’s innocence; rather, it is sufficient if the new evidence
would probably change the result on retrial. People v. Davis, 2012 IL App (4th) 110305, ¶ 62.
“Ultimately, the question is whether the evidence supporting the postconviction petition places the
trial evidence in a different light and undermines the court’s confidence in the judgment of guilt.”
Robinson, 2020 IL 123849, ¶ 48.
¶ 41 Regardless of whether Zarco and Duran’s testimony is newly discovered, their affidavits
do not support Valadovinos’s claim of actual innocence. The affidavits are not material in several
respects and add nothing to what the jury already heard. See Id., ¶ 47. Both affidavits confirm
someone fired a gun near 25th and California, consistent with the State’s witnesses’ testimony.
Zarco corroborates Ernesto and Carlos Fernandez’s testimony that Valadovinos got out of a car
near 25th and California, just before shots were fired. Zarco and Duran do not deny Valadovinos
was the shooter and do not identify anyone else as the shooter.
¶ 42 Zarco and Duran do offer three facts that were not presented at trial. These facts, however,
do not support Valadovinos’s claim of actual innocence. First, both witnesses claim the car drove
slowly through the crowd and did not attempt to hit anyone. This fact is immaterial as Valadovinos
was not charged with vehicular crimes. Second, Duran states, and Zarco suggests, the shooter fired
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toward the crowd from 50 yards away, contradicting Ernesto and Carlos Fernandez’s testimony
that Valadovinos fired at Ernesto from 50 or fewer feet away. Despite this discrepancy about
distance, Zarco and Duran do not claim Valadovinos did not fire the gun and was innocent.
¶ 43 Third, Duran claims no one was standing alone when the shooting started, and she therefore
“thought” that the shooter fired at the crowd generally, i.e., not at Ernesto specifically. But, the
jury already heard evidence Ernesto was not standing alone when Valadovinos shot at him. Ernesto
and Ocampo testified other people were near Ernesto when Valadovinos began firing, and Kane
testified the crowd was “around” the Stratus when he heard gunshots.
¶ 44 More importantly, even if the jury were to accept Duran’s claim on retrial, it could still
find Valadovinos guilty, so the result of trial would not probably be different. See Davis, 2012 IL
App (4th) 110305, ¶ 62. Specific intent to kill for attempted murder “has routinely been found in
cases where a defendant shoots someone while firing into a crowd, even if he or she was not aiming
at the person who was shot.” People v. Willingham, 2020 IL App (1st) 162250, ¶ 68 (“A specific
intent to kill must be shown but not the intent to kill a particular person.”). Thus, Zarco’s and
Duran’s proposed testimony is not material to Valadovinos’s claim of actual innocence and
probably would not change the result upon retrial.
¶ 45 Valadovinos argues Duran and Zarco’s affidavits establish he “did not have the required
specific intent to kill” to support the conviction for attempted first-degree murder of Ernesto
because the affidavits show he “shot towards a crowd of people in order to scare them,” not toward
any specific individual. As explained, that is not the law of specific intent. Moreover, this argument
challenges the sufficiency of the evidence of intent, not an assertion of actual innocence. A
challenge to the sufficiency of the evidence does not pose a constitutional question and, thus, is
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not proper in postconviction proceedings. People v. Dunn, 52 Ill. 2d 400, 402 (1972). Accordingly,
we find the trial court properly dismissed Valadovinos’s petition.
¶ 46 Ineffective Assistance of Counsel Claim
¶ 47 Valadovinos also contends the circuit court should not have dismissed his petition because
he made a substantial showing trial counsel rendered ineffective assistance by failing to impeach
Ernesto with his statement to ASA McCarthy and failing to interview and call Zarco.
¶ 48 A criminal defendant has the right to effective assistance of trial counsel. U.S. Const.,
amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984); People v. Albanese, 104 Ill. 2d
504, 526 (1984). At the second stage of postconviction proceedings, a defendant must make a
“substantial showing of a constitutional violation” to avoid dismissal. (Internal quotations
omitted.) People v. Tate, 2012 IL 112214, ¶ 19. Specifically, the defendant must show counsel’s
deficient performance prejudiced him or her. Id.¶ 49 To satisfy the deficient performance prong, a defendant must show trial counsel’s
performance was so inadequate “that counsel was not functioning as the counsel guaranteed by the
sixth amendment” and must overcome the strong presumption that any challenged inaction was
the product of sound trial strategy. (Internal quotations omitted.) Dupree, 2018 IL 122307, ¶ 44.
To satisfy the prejudice prong, a defendant must demonstrate “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
(Internal quotations omitted.) People v. Veach, 2017 IL 120649, ¶ 30. A “reasonable probability”
means “a probability sufficient to undermine confidence in the outcome.” (Internal quotations
omitted.) Id. A court need only address that prong when it is easier to resolve an ineffective
assistance claim based on a failure to demonstrate prejudice. Strickland, 466 U.S. at 697.
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¶ 50 Valadovinos has not made a substantial showing trial counsel’s decision not to impeach
Ernesto with his statement to ASA McCarthy prejudiced him. We acknowledge inconsistencies
between Ernesto’s trial testimony and his statement to McCarthy, such as who the Stratus almost
struck and how Ernesto avoided the bullets. But, Ernesto’s statement to McCarthy would not have
undermined the most important aspect of his testimony: Valadovinos pointed a gun at him and
fired multiple times before fleeing in the Stratus.
¶ 51 Valadovinos argues he was prejudiced because the State’s case relied heavily on Ernesto’s
credibility. Still, even if trial counsel had damaged Ernesto’s credibility with his statement to
McCarthy, Ernesto’s testimony was not the only evidence establishing Valadovinos’s guilt. Carlos
identified Valadovinos as the shooter. Kane saw Valadovinos run out of the Stratus involved in
the shooting. Pruger and Mueller saw Valadovinos throw a gun during the foot chase and arrested
him within 20 minutes of the shooting and two blocks from the scene. Cartridge cases recovered
matched the gun Valadovinos threw during the chase.
¶ 52 We acknowledge there are some inconsistencies between Ernesto’s trial testimony and his
statement to McCarthy, such as who the Stratus almost struck and how Ernesto avoided the bullets.
But, Ernesto’s statement to McCarthy would not have undermined the most important aspect of
his testimony, which is that Valadovinos pointed a gun at him and fired multiple times before
fleeing in the Stratus.
¶ 53 Similarly, Valadovinos has not made a substantial showing trial counsel’s decision not to
interview or call Zarco prejudiced him. Zarco’s testimony was as favorable to the State as it was
to Valadovinos. Zarco placed Valadovinos at the time and location of the shooting. He
corroborated Ernesto and Carlos Fernandez’s testimony that Valadovinos got out of a car near 25th
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and California shortly before the shooting started. Zarco did not see the shooting itself. The
absence of Zarco’s testimony at trial, circumstantially inculpatory of Valadovinos, could not have
prejudiced Valadovinos.
¶ 54 The only potential prejudice Valadovinos identifies is his claim “Zarco’s testimony would
have impeached Ernesto’[s] testimony that he was almost struck by the car driving through the
crowd and how far away the car stopped from Ernesto.” The absence of these relatively minor
points of contradiction do not amount to prejudice. Whether the car nearly struck anyone is
immaterial, as explained. In addition, a dispute about how far Valadovinos was from Ernesto when
he fired a gun would not create doubt as to whether Valadovinos fired a gun.
¶ 55 Valadovinos suggests trial counsel should have called Zarco to imply Valadovinos did
shoot at Ernesto, but from 50 yards away. We cannot see how that strategy would have changed
the jury’s conclusion, especially given that the jury could have found Valadovinos guilty of
attempted first-degree murder for firing into a crowd. See Willingham, 2020 IL App (1st) 162250,
¶ 68 (specific intent to kill for attempted murder is found where defendant “shoots someone while
firing into a crowd, even if he or she was not aiming at the person who was shot”). Accordingly,
Valadovinos has not established prejudice and his claim of ineffective assistance fails.
¶ 56 Affirmed.
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