People v. Rosalez
| Decision Date | 15 September 2021 |
| Docket Number | 2-20-0086 |
| Citation | 2021 IL App (2d) 200086,194 N.E.3d 929 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony ROSALEZ, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
2021 IL App (2d) 200086
194 N.E.3d 929
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Tony ROSALEZ, Defendant-Appellant.
No. 2-20-0086
Appellate Court of Illinois, Second District.
Filed September 15, 2021
Leonard C. Goodman and Melissa A. Matuzak, of Len Goodman Law Office LLC, of Chicago, for appellant.
Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Katrina M. Kuhn, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BRENNAN delivered the judgment of the court, with opinion.
¶ 1 The State charged defendant, Tony Rosalez, with first degree murder for the January 2009 shooting death of the victim, Paola Rodriguez. 720 ILCS 5/9-1(a)(1), (2) (West 2008). The State alleged that defendant was the shooter, and it did not pursue an accountability theory at trial. The jury convicted defendant of first degree murder. However, it answered a special interrogatory, which the State had submitted in order to seek a sentencing enhancement, by finding that the State did not prove beyond a reasonable doubt that defendant personally discharged the firearm that proximately caused the victim's death. The trial court sentenced defendant to 35 years’ imprisonment for first degree murder but, given the jury's answer to the special interrogatory, did not impose a sentencing enhancement for personally discharging a firearm that proximately caused the victim's death.
¶ 2 We affirmed the conviction and sentence on direct appeal. In relevant part, defendant unsuccessfully argued that the trial court committed plain error by restricting his cross-examination of a codefendant, Manith Vilayhong. People v. Rosalez , 2016 WL 5266369, 2016 IL App (2d) 140431-U, ¶ 28.
¶ 3 Defendant now appeals the trial court's stage-two dismissal of his postconviction petition, filed pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)). He argues that he made a substantial showing of (1) actual innocence based on newly discovered evidence that Vilayhong actually committed the charged offense and (2) ineffective assistance of appellate counsel, where appellate counsel failed to raise a plain-error argument concerning the trial court's response to a jury question and where appellate counsel failed to challenge the sufficiency of the evidence. For the reasons that follow, we agree with defendant's first argument, but we reject his second argument. We remand the case for a stage-three evidentiary hearing on the issue of actual innocence.
¶ 4 I. BACKGROUND
¶ 5 A. Pretrial Proceedings and Other Matters
¶ 6 In February 2009, the State charged defendant with first degree murder, alleging that he personally discharged the firearm that killed the victim. The State indicated its intent to seek an enhancement of defendant's sentence of 25 years to life in prison, based on the allegation that he personally discharged the firearm.
¶ 7 In 2010, the State entered into a plea agreement with two codefendants, Vilayhong and Raul Perez-Gonzalez. Vilayhong was a leader of the Maniac Latin Disciples gang, and he claimed to have ordered the shooting while in the vehicle from which the shots were fired. Perez-Gonzalez drove
the vehicle. Each pled guilty to first degree murder in exchange for a sentence of 35 years’ imprisonment, which would be reduced to 20 years’ imprisonment if they testified truthfully for the State at defendant's trial. The factual bases for each of the codefendant's pleas were premised on an accountability theory.
¶ 8 At an October 2011 status hearing, the State informed the court that Perez-Gonzalez was refusing to testify at defendant's upcoming trial, in contravention of his plea agreement. See People v. Perez-Gonzalez , 2014 IL App (2d) 120946, ¶ 5, 382 Ill.Dec. 947, 13 N.E.3d 360. At the State's request, the court called Perez-Gonzalez before it, placed Perez-Gonzalez under oath, and asked Perez-Gonzalez whether he intended to testify against defendant. Perez-Gonzalez, while represented by counsel, informed the court that he intended to refuse to answer any questions related to the January 2009 shooting death, both at the status hearing and at the upcoming trial. The court ordered Perez-Gonzalez to answer questions pertaining to the shooting death:
"THE COURT: *** So this is the court's order that you answer the questions, sir. Do you wish to have the questions read again?
[PEREZ-GONZALEZ]: No, because I'm not gonna answer.
THE COURT: All right, sir, the court would find you in direct contempt. Remove that person now."
In November 2011, the State petitioned for an adjudication of criminal contempt against Perez-Gonzalez, alleging that Perez-Gonzalez was persisting in his refusal to testify at defendant's upcoming trial. Id. ¶ 7. In May 2012, the court found Perez-Gonzalez in contempt for refusing to testify at defendant's trial as ordered by the court. Id. ¶ 10.
¶ 9 In June 2012, the court conducted the contempt sentencing hearing. The parties stipulated that Perez-Gonzalez had pled guilty to first degree murder for his role in the 2009 shooting. His 35-year sentence had not been reduced to 20 years as originally contemplated, because he had refused to testify at defendant's trial. The court found that Perez-Gonzalez's refusal to testify had hindered the State's prosecution of defendant in that the State had been unable to secure the sentencing enhancement. The court reasoned that Perez-Gonzalez's contempt sentence should serve as a deterrent to other similar conduct. Thus, the court sentenced Perez-Gonzalez to 10 years’ imprisonment for contempt, consecutive to his 35-year sentence for first degree murder. Id. ¶¶ 11-12.
¶ 10 B. Defendant's Trial
¶ 11 Meanwhile, in February 2012, defendant's trial commenced. As an overview, the evidence established that, on January 30, 2009, the victim was visiting her cousin, Sara Almanza. Almanza's boyfriend, Omar Zavala, was a member of the Insane Deuces street gang. The victim and Almanza were spending time with Zavala and another man. The group drove in two different cars to a BP gas station.
¶ 12 While at the gas station, a white Ford Expedition drove by containing defendant, age 18, the driver, Perez-Gonzalez, age 18, Vilayhong, age 22, Jose Gonzalez, age 21, and Jose Pellot, age 15. Vilayhong shouted gang slogans and threw gang signs at the victim's group.
¶ 13 Zavala responded with competing gang slogans, and the victim's group disbanded. The two women left in a Pontiac, and the two men left in a Durango. The Expedition followed the Durango and the Pontiac. Ultimately, the Expedition pulled up alongside the Pontiac and one of the occupants shot the victim, who was driving. The Expedition then sped away.
¶ 14 Most relevant to the instant appeal is the testimony of the occurrence witnesses (Almanza, Vilayhong, Gonzalez, and Pellot) and of the lead investigator, Jim Lalley, which we recount below.
¶ 15 1. Almanza
¶ 16 Almanza testified that, after the Expedition pulled alongside the Pontiac, where she was in the front passenger seat, she heard a gunshot and the driver's window shattered. She also saw a flash and observed that the Expedition's front passenger window was open. The victim was struck and slumped over the steering wheel. Almanza moved her foot over the center console to hit the brakes and stop the car.
¶ 17 Almanza acknowledged that she did not see the person who shot the victim. She said "I couldn't see anything because the [Expedition] was higher than the car that we were in." Also, she explained, "I was like in a daze for a second *** I mean I did see the [Expedition] drive off, and then I stopped the vehicle." When asked whether the Expedition's back passenger window was open, she answered, "I don't remember. I don't think that was open."
¶ 18 2. Vilayhong
¶ 19 Vilayhong testified that, in 2009, he was a "governor" of the Maniac Latin Disciples street gang. He was "in charge of" nonranking members, like defendant. On the evening in question, Perez-Gonzalez had driven Vilayhong's group in the Expedition to the Stop and Shop to buy beer. Vilayhong and defendant went inside the Stop and Shop. Upon leaving the store and returning to the Expedition, defendant got into the front passenger seat and Vilayhong sat behind him. Vilayhong saw a group of people across the street (Zavala and the other man), whom he believed to be in a rival gang. Vilayhong ordered Perez-Gonzalez to drive the Expedition closer to the rival gang members. Upon confirming that they were members of the Insane Deuces, Vilayhong threw gang signs and yelled gang slogans, including "Deuce killer," which meant that he was "letting them know [he's] gonna kill ‘em." None of the other people in the Expedition participated:
"Q. The other people that are in your Expedition, what are they doing?
A. Nothin’.
Q. Was the Defendant saying anything?
A. No."
¶ 20 The rival gang members responded with gang signs and slogans of their own, such as "Deuce love, Maniac killer," before driving away.
¶ 21 Vilayhong ordered Perez-Gonzalez to follow them. Vilayhong ordered defendant to "shoot ‘em, shoot ‘em" and threatened him with a gang violation if he did not. Defendant initially refused to comply. Vilayhong ordered defendant to give him the gun. Defendant again refused to comply. Vilayhong then "reached [his] body out the window" and screamed "Maniac" to the other car. He believed that defendant, or at least defendant's arm, was also hanging out of the window. When the people inside the other car did not respond to his gang slogans, he realized that they were "innocent." However, at that moment, he heard a shot and it was too late. Vilayhong clarified that both defendant's and his windows were down when the shot was fired.
¶ 22 After the shooting, defendant left the group and went home. Vilayhong and the others went to a car wash to remove gunshot residue. Vilayhong then called his friend, Andres Garza, for a ride home.
¶ 23 Vilayhong...
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