People v. Cavazos

• Citation: 40 N.E.3d 92
• Decision Date: 31 March 2015
• Docket Number: No. 2–12–0171.,2–12–0171.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Joshua CAVAZOS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

40 N.E.3d 92

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Joshua CAVAZOS, Defendant–Appellant.

No. 2–12–0171.

Appellate Court of Illinois, Second District.

March 31, 2015.

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.

OPINION

Justice JORGENSEN

delivered the judgment of the court, with 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)).¹ 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...