People v. Urzua

Decision Date29 September 2021
Docket Number2-20-0231
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ernesto URZUA, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Douglas R. Hoff, and David Holland, of State Appellate Defender's Office, of Chicago, for appellant.

Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Defendant appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2010)). His sole contention on appeal is that he did not receive reasonable assistance from postconviction counsel, whom he retained after his appointed attorney withdrew after purporting to comply with People v. Greer , 212 Ill. 2d 192, 288 Ill.Dec. 153, 817 N.E.2d 511 (2004), and Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). We reverse and remand for further second-stage proceedings with the appointment of new counsel and compliance with Rule 651(c).

¶ 3 A. The Charges, Pretrial Proceedings, and Trial Evidence

¶ 4 Around 5 p.m. on March 1, 2002, the victim, Gerardo Contreras, was shot four times in his back and arm as he retrieved the mail from his mailbox in the front yard of his house, which was next to the parking lot of a church, on Columbia Street in Aurora. At the time, he was with his two-year-old daughter, whom Contreras shielded from injury. The injuries Contreras sustained were life threatening and left him paralyzed "from the mid-chest area down." Contreras spent approximately two months under daily care, first at Loyola University Medical Center in Maywood and then at the Rehabilitation Institute of Chicago. The case went unsolved for more than four years, and ultimately, Horatio "H" Morales and Jamaal "Ike" Garcia told investigators that defendant shot Contreras, which led to defendant being charged by indictment with attempted murder ( 720 ILCS 5/8-4(a), 9-1(a) (West 2002)), in relation to the shooting. The indictment also alleged defendant personally discharged a firearm that proximately caused great bodily harm, permanent disability, or permanent disfigurement to Contreras, which meant defendant was subject to a 25-year sentence enhancement if found guilty of attempted murder. See id. § 8-4(c)(1)(D).

¶ 5 Trial commenced on January 7, 2008. That day, the State moved in limine to bar defendant from eliciting evidence of Contreras's prior adjudication as a delinquent minor and conviction of felony offenses. The trial court granted the motion.

¶ 6 The State's theory of the case was that defendant, a member of the Latin Kings street gang, shot Contreras under an order from Andres "Oso" Ramirez, who was the leader of the Latin Kings in Aurora, and that the shooting was motivated by (1) a rivalry between the Latin Kings street gang and the Ambrose and Insane Deuces street gangs, with which Contreras was affiliated, and (2) Contreras's purported disrespect toward the Latin Kings. During opening statements, the State told the jury it expected the evidence to establish defendant "committed [this] horrendous, cowardly crime."

¶ 7 Other than Contreras's daughter, whose testimony the State did not present at trial, and Contreras himself, there were no eyewitnesses to the shooting, and no physical evidence directly connected defendant to the crime. However, the State presented the testimony of three of Contreras's neighbors, all of whom heard five or six gunshots. Two of those neighbors, Jose Acevedo Jr. and Jose Caballero, looked out their windows and saw a man, who was wearing dark clothing, including a black hooded sweatshirt, running south through the parking lot of the church, toward Claim Street. The third neighbor, JoAnn Howard, heard the gunshots but did not look out her window. Rather, she called the police and, while on the phone, heard a man yelling, "help me, I've been shot."

¶ 8 At the time, Contreras's house was located in a neighborhood "belong[ing] to" the Latin Kings. The Latin Kings were known to enforce with violence the boundaries of their neighborhood. At the time of the shooting, Contreras "affiliate[d] with" members of the Ambrose and Insane Deuces street gangs, which were friendly with each other but rivals of the Latin Kings. The Latin Kings congregated at a "nation house" on Claim Street, which was the next street south of Columbia Street. On some date before the shooting, Contreras and Ramirez flashed gang signs at each other.

¶ 9 Shortly after he was shot, Contreras told a responding police officer a man shot him and then ran toward Claim Street through the church parking lot. Though asked, Contreras could not provide a description. On March 13, 2002, while in the hospital, Contreras spoke to investigator Robert Wallers and described the shooter as an 18- to 21-year-old Hispanic man, who had a light complexion, was five feet seven or eight inches tall, and weighed 145 to 150 pounds. Contreras also told Wallers the man was wearing a black crewneck sweatshirt, black pants, and a black beanie with an "English style" letter "D" on it. Contreras told Wallers the man used a silver or chrome handgun. Wallers had Contreras look through a "gang affiliate book," which contained photographs of known gang affiliates, in hopes of identifying the shooter. Contreras could not do so.

¶ 10 Using the description Contreras gave him, Wallers compiled a photographic array, which included defendant's photograph, and, on April 5, 2002, showed it to Contreras. Contreras did not identify anyone in the photographs as his shooter. The investigation stalled and, on May 6, 2002, was administratively closed pending further leads or developments.

¶ 11 Approximately four years later, in February 2006, after receiving information about the shooting from a special agent with the Federal Bureau of Investigation (FBI), Detectives Michael Nilles and Jeff Sherwood of the Aurora Police Department spoke to Morales, who was in the custody of the Illinois Department of Corrections, about the shooting. In May 2007, Garcia also came forward and spoke to police about the shooting.

¶ 12 At trial, Morales testified that he was currently serving 10- and 3-year sentences for his 2005 armed robbery and unlawful use of a weapon by a felon convictions, respectively. He also acknowledged he had illegally reentered the country after having been previously deported, which he knew was a federal crime. He also knew that, at the conclusion of his state sentence, he could be prosecuted for that crime, the penalty for which was "possibly" 10 years in federal prison. However, at the time of trial, Morales had not been told, nor had anyone even indicated, he would not be prosecuted or deported as a result of his testimony against defendant.

¶ 13 On March 1, 2002, Morales, an associate of the Latin Kings, had recently been released from prison. He lived at the "nation house" with defendant, whom he knew only by his nickname "Limon," and Garcia, both of whom were members of the Latin Kings. According to Morales, Garcia had a "darker" complexion than him. In the short time Morales lived with defendant and Garcia, Morales twice heard them talking about the fact Contreras, a rival gang member, lived in the Latin Kings’ neighborhood.

¶ 14 On the day of the shooting, Morales was drinking alcohol and smoking marijuana. He did not know whether someone was "pulling security" at the time. At some point, Ramirez, Michael Reyes, and Paul Benevides, all members of the Latin Kings, came to the nation house. Five or six minutes later, Morales heard Ramirez tell defendant to "go get" Contreras and saw Benevides give defendant what looked like a chrome revolver. Defendant then put on a black hooded sweatshirt, left the nation house, and ran through the church parking lot toward Columbia Street. Morales watched through the front window of the nation house and lost sight of defendant as he made a left turn. Morales then heard five or six gunshots and saw defendant running back toward the nation house. When defendant got back inside, he took off his sweatshirt and gave the gun to Garcia, who then ran downstairs and put the gun away. Everyone then left the house.

¶ 15 The next day, Morales saw defendant, who was with self-admitted Latin King Orlando Delgado, carrying from the basement of the nation house a gun-shaped object wrapped in a newspaper. Defendant left with Delgado and then went to Mexico for two or three months.

¶ 16 Morales did not report what he saw to the police in 2002, 2003, or 2004, but while in the Kane County jail in 2005, Morales decided to "turn [his] life around." Accordingly, on February 16, 2006, Morales spoke with Detectives Nilles and Sherwood. At the time, the detectives told Morales they believed defendant was the shooter. Morales identified defendant in a photographic array as the person who shot Contreras. At that time, he requested that his brother, who was also in custody, be transferred to the same prison he was in, because he was concerned for his brother's safety, as the Latin Kings had already made threats against him and his family. At the time of trial, Morales's brother was housed in the same facility as Morales. Thereafter, Morales began writing letters to Nilles, whom he considered a friend.

¶ 17 Morales also testified that Garcia was inside the nation house when the shooting occurred. He did not recall if Garcia was "pulling security" that day and did not recall him leaving the house with Damon "Malo" Jones to buy cigarettes before the shooting. After the shooting, Garcia took the gun into the basement to hide it and then left the house. On February 16, 2006, the detectives showed Morales "a number of newspapers" and then showed him two photographic...

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