People v. Rodriguez, 1-16-0030

Citation2018 IL App (1st) 160030,118 N.E.3d 557,427 Ill.Dec. 356
Decision Date28 September 2018
Docket NumberNo. 1-16-0030,1-16-0030
Parties The PEOPLE of the State of Illinois, Respondent-Appellee, v. Daniel RODRIGUEZ, Petitioner-Appellant.
CourtUnited States Appellate Court of Illinois

2018 IL App (1st) 160030
118 N.E.3d 557
427 Ill.Dec.
356

The PEOPLE of the State of Illinois, Respondent-Appellee,
v.
Daniel RODRIGUEZ, Petitioner-Appellant.

No. 1-16-0030

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed September 28, 2018


JUSTICE GORDON delivered the judgment of the court, with opinion.

427 Ill.Dec. 358

¶ 1 Defendant Daniel Rodriguez appeals from the second-stage dismissal of two of the claims in his petition for postconviction relief. A third claim in his petition proceeded to a third-stage evidentiary hearing. However, defendant does not appeal the dismissal of the third claim. Thus, procedurally, our review on appeal is as if the appeal were from a second-stage dismissal.

¶ 2 Defendant, who was 15 years old at the time of the offense, was tried as an adult and convicted by a jury of first degree murder in connection with the drive-by shooting of 18-year-old Ricardo Vasquez on April 1, 2000. Additionally, the jury found that defendant personally discharged the firearm that proximately caused Vasquez's death. On December 28, 2006, defendant was sentenced to 45 years with the Illinois Department of Corrections (IDOC), which was the mandatory minimum sentence he could have received and which included a 25-year enhancement for personally discharging the firearm.

118 N.E.3d 560
427 Ill.Dec. 359

¶ 3 At the 2006 sentencing in this case, the trial court observed that defendant's 45-year sentence in the case at bar was required to run consecutively to a prior sentence. On June 9, 2005, defendant had been sentenced in an unrelated case to 20 years for attempted first degree murder. Defendant claims that, as a result, he will not be released until he is 83 years old.1

¶ 4 On this appeal, defendant makes two claims: (1) that he made a substantial showing of ineffective assistance of trial counsel because counsel failed to investigate an alibi witness and failed to call her to testify that defendant was at a gang meeting with her at the time of the shooting; and (2) that his case should be remanded for resentencing because de facto life imprisonment, imposed against a juvenile offender as the result of mandatory sentencing laws, violates the eighth amendment and the proportionate penalties clause. For the following reasons, we do not find his first claim persuasive, but we remand for resentencing.

¶ 5 BACKGROUND

¶ 6 In sum, the State's evidence at trial established that the murder of 18-year-old Vasquez was the result of a gang-related, drive-by shooting on April 1, 2000, at 9:20 p.m. on South Escanaba Street in Chicago. Defendant was stopped by police a mile from the crime scene, only two hours later, in a vehicle that matched the description provided by eyewitnesses of the shooter's vehicle. At a show-up identification held on the street shortly after defendant was stopped, two eyewitnesses identified defendant as the shooter. Another eyewitness, although unable to identify the shooter, was able to identify defendant's vehicle as the shooter's vehicle. The parties stipulated that a gunshot reside test performed, shortly after the stop, on defendant's hands was positive for the presence of gunshot residue. In addition, another witness testified that defendant told him that defendant was seeking a gun because another gang had hit his vehicle.

¶ 7 This court already described in detail the evidence at trial when we reviewed this case on appeal. See People v. Rodriguez , 387 Ill. App. 3d 812, 327 Ill.Dec. 194, 901 N.E.2d 927 (2008). As a result, we will not repeat that level of detail here, and we incorporate our prior opinion by reference. We set forth below a description of the evidence at trial sufficient to understand the issues on this appeal.

¶ 8 At the trial, Carlos Luna testified that he was 25 years old and that, in 2000 when the shooting occurred, he was a member of the Latin Dragons gang. On April 1, 2000, the night of the shooting, he was standing with a group of friends, including six gang members, in front of a house on South Escanaba Avenue, when he observed a four-door grey Cadillac Sevilla approaching slowly with a driver and passenger. Luna approached the vehicle and was 15 feet away from it when the driver leaned back and the passenger opened fire, hitting Vasquez. Later that night, when Luna viewed a photo array at the police station, he was not able to identify either the driver or passenger of the vehicle.

¶ 9 Camelia Prado testified that she was 29 years old and that, in 2000, she was also

427 Ill.Dec. 360
118 N.E.3d 561

a member of the Latin Dragons gang. She was on the porch of the house on South Escanaba Avenue, when she observed a Cadillac approaching slowly, with the driver's window down. The driver leaned back, and the passenger started shooting, hitting Vasquez. Prado called the police, and when they arrived, she provided a description of the vehicle. An hour later, Prado, Antoine Lacy and Joseph Gonzalez went to view defendant's vehicle, which she identified as the shooter's vehicle. However, she could not identify the shooter.

¶ 10 Gonzalez testified that he had been convicted of possession of a handgun and that, in 2000, he was a member of the Latin Dragons. On April 1, 2000, at 9:20 p.m., he was on the steps in front of a house on South Escanaba Avenue, when he observed a "short-body," four-door vehicle approach slowly, with a driver and one passenger. The driver leaned back, and the passenger, whom Gonzalez identified as defendant, fired shots, hitting Vasquez. After the police arrived, Gonzalez provided a description of both the shooter and the vehicle. Another 10 or 20 minutes later, the police asked him to travel to another location where he identified both the shooter and his vehicle. At the time of the identification, Gonzalez was sitting in the back seat of a vehicle with Prado and another individual, while the police shined a light on the suspect. On cross, Gonzalez admitted that he had lied when he testified in front of the grand jury that he was not a member of a gang.

¶ 11 Lacy testified that he was currently incarcerated due to felony convictions for aggravated assault and weapons possession and that, in April 2000, he was 17 or 18 years old and a member of the Latin Dragons. Lacy testified that, in 2000, the rivals of the Latin Dragons were the Latin Kings. On April 1, 2000, he was with a group of his friends, including the victim, Vasquez, whom Lacy described as "[o]ne of my gang-affiliated friends." At 9:20 p.m., Lacy was standing on the sidewalk, when he observed a Buick or Cadillac approaching slowly. Lacy was 12 to 13 feet away from the vehicle when he looked into the vehicle and recognized the passenger because he had "seen him in the mall before." The passenger, whom Lacy identified as defendant, started firing through the driver's side window as the driver leaned back. Later the police informed him "that they had caught the shooter," and he traveled with Prado and Gonzalez to that location. Lacy identified the vehicle as the shooter's vehicle and defendant as the shooter. During the identification, the police placed defendant in front of their vehicle and focused their high beams on him.

¶ 12 Officer Edward Maras of the Chicago police department testified that on April 1, 2000, at 10:20 p.m., he was approximately a mile from the shooting when he observed defendant alone in a vehicle that matched the description of the shooter's vehicle. After Officer Maras stopped defendant's vehicle, he asked other officers to bring the witnesses to his location, and they subsequently conducted a show-up identification.

¶ 13 Prior to the testimony of Francisco Ortiz, defense counsel moved in limine to bar the State from asking Ortiz whether defendant was a member of the Latin Kings, which Lacy had already testified were the rivals of the Latin Dragons at the time of the shooting. The trial court ruled that, if the defense "open[ed] the door," then the trial court would permit the State to ask about defendant's gang affiliation.

¶ 14 When moving to bar defendant's gang membership, defense counsel argued:

"Although it's not the next witness, the next witness after that is going to be a yound man by the name of Francisco Ortiz * * *. One of the things I believe
427 Ill.Dec. 361
118 N.E.3d 562
he may testify to is that [defendant] is a member of the Latin Kings. I would ask as an in limine motion that Mr. Ortiz not be able to indicate that [defendant] is a member of the Latin Kings."

¶ 15 The State responded:

"We believe that it is relevant as the statement that [defendant] makes to Mr. Ortiz is that he was upset, blasting a rival gang for damaging his car; therefore, he wanted to take some sort of action against the rival gang and that he was speaking to a fellow gang member and asking him for a gun."

¶ 16 After listening to the attorneys for both sides, the trial court ruled:

"I really don't see any reason why you have to say that the defendant belongs to a gang. If there's anything, however, [defense counsel],
...

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