People v. Fernandez

• Decision Date: 20 March 2014
• Docket Number: No. 115527.,115527.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Javier FERNANDEZ, Appellant.
• Court: Illinois Supreme Court

2014 IL 115527

6 N.E.3d 145

379 Ill.Dec. 68

The PEOPLE of the State of Illinois, Appellee,

v.Javier FERNANDEZ, Appellant.

No. 115527.

Supreme Court of Illinois.

March 20, 2014.

Michael James McDermott, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield and Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Annette Collins and Kathleen Warnick, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Javier Fernandez was found guilty by accountability of one count of burglary (720 ILCS 5/19–1(a) (West 2008)) and two counts of aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24–1.2(a)(3) (West 2008)). The trial court merged defendant's convictions into a single count of aggravated discharge of a firearm in the direction of a peace officer and sentenced him to 12 years in prison. Defendant appealed, and the appellate court affirmed. 2012 IL App (1st) 101913–U, 2012 WL 6950236. Defendant appealed again to this court, and we allowed his petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Aug. 15, 2006). The sole issue before this court is whether the evidence supports defendant's aggravated discharge of a firearm conviction. We hold that it does.

¶ 2 BACKGROUND

¶ 3 Officer Claudio Salgado of the Chicago police department testified that, on the morning of January 20, 2008, he pulled his car into a church parking lot located underneath the Dan Ryan Expressway. He was off-duty but wearing both his police badge and sidearm. As he exited his car, Officer Salgado heard the sound of breaking glass. He moved toward the sound and saw a man (Gonzalez) reaching into a parked car through a broken window. Officer Salgado displayed his badge and three times yelled “Chicago police.” Gonzalez pulled himself out of the parked car, faced Officer Salgado, and began walking backward toward a maroon SUV that defendant was driving. Defendant began driving the SUV slowly toward Gonzalez. When defendant stopped the SUV, Gonzalez ran to the passenger side, opened the door, and stepped up onto the running board. Gonzalez then pulled a gun and fired three shots over the SUV's hood at Officer Salgado, who was now standing about 15 feet from Gonzalez. Officer Salgado immediately returned fire as the SUV sped away. Although Officer Salgado initially believed that he fired four or five shots, he later learned that he fired seven shots and that three of them struck defendant. After defendant and Gonzalez fled the scene, Officer Salgado returned to his car to give chase. Upon seeing a parked Cook County sheriff's vehicle, Officer Salgado stopped, identified himself, and explained the situation. The sheriff's officers told Officer Salgado to stay there and wait for backup while they pursued the SUV. Later that day and again the following evening, Officer Salgado identified both defendant and Gonzalez from a photo lineup.

¶ 4 Defendant's sister, Marial Fernandez, testified that, on the morning of January 20, 2008, defendant borrowed her red Nissan Xterra to run some errands. That afternoon, she called defendant and told him that she needed her SUV back. Shortly thereafter, defendant returned home without the SUV and told her that some “gangbangers” had shot at him while he was driving it. Defendant appeared ill, was very pale, and was bleeding from his hand. Defendant told Marial that he had left her SUV at the intersection of 51st Street and Winchester Avenue, but when Marial went to that location, the SUV was not there. Marial then called the police, who arrived at the location and spoke with her. The next day, Marial was called to police headquarters and informed that her brother had been arrested, that he had undergone surgery for being shot, and that her SUV had been recovered. When Marial went to retrieve her SUV, she saw that it had bullet holes in several places.

¶ 5 Florencio Diaz testified that, on January 20, 2008, defendant called him around noon and asked to meet at Diaz's house. Diaz arrived at his house about 10 minutes later and found defendant and Gonzalez waiting for him. Diaz noticed that the tricep area of defendant's arm was hanging open, and defendant explained that he had been in a shootout with gangbangers. Defendant also stated that he was not going to a hospital because he did want to get the police involved. When defendant and Gonzalez left Diaz's house, they left the bullet-riddled SUV parked in Diaz's backyard. Later that day, Diaz was taken into a police station and shown a photo array. He identified defendant and Gonzalez as the two men who had been in his house.

¶ 6 Chicago police detective Greg Swiderek testified that, at approximately 2 a.m. on January 21, 2008, he was conducting surveillance outside an apartment belonging to Gonzalez's girlfriend, Mylene Parks. When he saw Gonzalez exit the apartment, Detective Swiderek announced “police” and ordered Gonzalez to stop. Instead, Gonzalez ran back into the apartment and slammed the door. A few seconds later, and along with several other officers, Detective Swiderek entered the apartment by force. Inside the apartment, Detective Swiderek found and arrested both defendant and Gonzalez. Detective Swiderek also found “an IV that you'd seen in a hospital” hanging from the shower curtain rod in the apartment's bathroom.

¶ 7 Chicago police detective Paul McDonagh testified that he interviewed defendant shortly after he was taken into custody. At the time of the interview, defendant had professional looking bandages covering his arm and finger. In reference to the bandages, Detective McDonagh asked defendant what had happened. Defendant replied that somebody had shot at his car, though he could not remember who or where. Detective McDonagh then asked defendant what hospital he had gone to for treatment. Defendant responded that he had not gone to a hospital but rather had his wounds treated by Mylene Parks. At that point, Detective McDonagh arranged for defendant to be transported to Mount Sinai Hospital.

¶ 8 After returning from Mount Sinai, defendant gave a signed written statement to the police. In that statement, defendant stated that, around 7 a.m. on January 20, 2008, Gonzalez came to defendant's apartment asking for money. Defendant told Gonzalez that he didn't have any money, and the two men left the apartment together in a burgundy SUV owned by defendant's sister. Gonzalez asked defendant to drive to the Maxwell Street Market so that Gonzalez could break into parked cars to get money. Defendant drove to the Maxwell Street Market as requested, but there were no cars parked there because the market was closed. The two men continued driving and noticed a church parking lot under the Dan Ryan Expressway that had cars parked in it. Gonzalez told defendant to pull into the church parking lot, and defendant complied. Defendant then remained in the SUV while Gonzalez got out. Gonzalez then broke the window of a parked car and began trying to steal the car's radio. As this was happening, defendant noticed that a man holding a gun was approaching the car that Gonzalez was breaking into. Gonzalez noticed this, too, and pulled himself out of the car he was breaking into and ran to the back of the SUV that defendant was driving. At that point, the man with the gun yelled, “Police. Stop.” Defendant pulled out of the parking lot and heard gunshots as he drove away. As he reached the street, defendant noticed that Gonzalez was now back in the front seat of the SUV.

¶ 9 Defendant further stated that, once out of the parking lot, he realized for the first time that he had been shot. Gonzalez told defendant not to go to the hospital. Instead, the two men went to pick up Gonzalez's car. After doing so, defendant and Gonzalez drove to Diaz's house, where they parked the SUV. Defendant then called his sister, Mariel, and told her that gang members had shot at him and that her SUV was parked at 51st and Winchester, both of which were lies. Gonzalez then drove defendant home, where defendant again told Mariel the same lies. At that point, Mariel called the police. Later that day, Gonzalez called defendant and told defendant that he would pick him up so that Mylene Parks could treat his wounds. The two men then went together to an apartment at Foster and Damen Avenues, where Mylene cleaned defendant's wounds and gave him an IV to hydrate him. Eventually the police arrived, and after trying unsuccessfully to pretend that they were not there, defendant and Gonzalez were arrested.

¶ 10 Based on this evidence, the circuit court of Cook County found defendant guilty by accountability of one count of burglary and two counts of aggravated discharge of a firearm in the direction of a peace officer. The trial court merged defendant's convictions into a single count of aggravated discharge of a firearm in the direction of a peace officer and sentenced him to 12 years in prison. Defendant filed a timely appeal, and the appellate court affirmed. 2012 IL App (1st) 101913–U, 2012 WL 6950236. We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Aug. 15, 2006).

¶ 11 DISCUSSION

¶ 12 In this court, defendant argues that we must reverse his conviction for aggravated discharge of a firearm in the direction of a peace officer. In support, defendant maintains that in order to prove him guilty of that offense under a theory of accountability, the State was required to prove that defendant possessed the specific intent to promote, solicit, aid, or attempt to aid the commission of that particular offense. Here, however, the State failed to produce any evidence showing that defendant even knew Gonzalez had a gun, let alone that he knew that Gonzalez would discharge that gun in the direction of a police officer. According to defendant, if he did not know that Gonzalez was armed, “it must logically...