People v. Vega

• Decision Date: 21 December 2018
• Docket Number: No. 1-16-0619,1-16-0619
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brandon VEGA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 160619

123 N.E.3d 393

428 Ill.Dec. 664

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Brandon VEGA, Defendant-Appellant.

No. 1-16-0619

Appellate Court of Illinois, First District, SIXTH DIVISION.

DECEMBER 21, 2018

James E. Chadd, Patricia Mysza, and Gilbert C. Lenz, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, Annette Collins, and Marci Jacobs, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Following a jury trial, the defendant, Brandon Vega, was found guilty of two counts of attempted first degree murder ( 720 ILCS 5/8-4(a), 9-1 (West 2012) ) and received consecutive sentences of 35 and 26 years' imprisonment, for a total sentence of 61 years' imprisonment. Defendant's sentences included a 25-year minimum enhancement because he personally discharged a firearm which proximately caused great bodily harm to one victim (id. § 8-4(c)(1)(D) ), and a 20-year enhancement for personally discharging a firearm (id. § 8-4(c)(1)(C) ) with respect to the other victim. On appeal, the defendant argues that the evidence was insufficient to sustain his convictions for attempted first degree murder, that the trial court abused its discretion in sentencing him to 61 years' imprisonment, and that his sentence is unconstitutional. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 The defendant was charged with, inter alia , six counts of attempted first degree murder stemming from the October 26, 2013, shooting of Xazavier Little (Xazavier) and Edward Little (Edward). The defendant was 18 years old at the time of the shooting. At trial, the following evidence was presented.¹

¶ 4 Xazavier testified that, prior to October 2013, when he was 16 years old, he was a member of the Maniac Latin Disciples street gang. He knew several other people in the gang, including the defendant, with whom he attended grammar school. Xazavier explained that, in order to join the gang a person must be "violated in," which encompasses being beaten by fellow gang members for two minutes without fighting back. He was a member of the gang for two years before he decided to "quit" by not associating with the gang members anymore. Ordinarily, when a person leaves the gang, that person has to be "violated out," which entails a "more violent" beating by gang members for six minutes. Xazavier was not "violated out" of the gang.

¶ 5 In October 2013, Xazavier was living in a two-flat apartment building in the 2100 block of North Mulligan Avenue with his family, including his uncle Edward. Edward's bedroom was located on the first floor, in the back of the house, overlooking the patio. Xazavier lived on the second floor. There was a motion-activated light over the patio and garage.

¶ 6 On October 26, 2013, Xazavier was no longer in the gang and was at his cousin's house smoking marijuana. He left his cousin's house around 3 a.m. and walked home through the alley behind his house. As Xazavier approached his house, he saw the defendant and two other people drinking and talking near a blue van parked two garages down from his garage. Xazavier became nervous and walked closer to the garages in order to avoid being seen.

¶ 7 Xazavier entered his backyard, walked through the yard, and began climbing the back steps when he heard the defendant yell, "Zaza, come here." Xazavier continued to climb the stairs and observed the defendant walk into the backyard with codefendant Jacqueline Mendoza. As Xazavier was at his back door, the defendant began climbing the stairs behind Xazavier and told him to "come outside and handle [your] business like a man." Xazavier believed this meant to "come take a violation." He responded, "I am not on none of that."

¶ 8 The defendant was on the staircase when he pulled a handgun from his waistband. He then pointed the gun at Xazavier's uncle, Edward, who had awakened and was looking outside through a window. The defendant stated, "I will shoot your uncle in the head right now." The defendant then began to shoot, hitting Xazavier in his hand and abdomen.

¶ 9 Xazavier ran inside and told his mother that he had been shot. He then ran downstairs and saw Edward coming out of his bedroom holding his leg, which had a "hole" in it and was bleeding. Police eventually arrived, and Xazavier told them he had been shot by the defendant. Xazavier was taken to the hospital where surgery was performed because of internal bleeding. He later learned that a bullet pierced his lung and exited his back, and that there were bullet fragments left in his right hand. Xazavier remained hospitalized for about a week.

¶ 10 Later on the same day as the shooting, following surgery, Detectives Tekaki and Jensen met with Xazavier in his hospital room. Xazavier told them that he had been shot by the defendant and identified the defendant in a photo array. On January 1, 2014, Xazavier went to the police station and identified the defendant from a lineup. Xazavier was "[100%]" certain that the defendant was the person who shot him when he spoke with responding officers right after the shooting, when he picked the defendant out of a photo array, when he picked the defendant out of a lineup, and when he identified the defendant in court.

¶ 11 Xazavier testified that he knew brothers Michael and Matthew Berrones, having grown up with them. They were also members of the same gang as the defendant and Xazavier. Xazavier testified that Michael Berrones does not look like the defendant and that he would never confuse the two.

¶ 12 On cross-examination, Xazavier admitted that, on January 1, 2014, he told police that he did not know the people who were standing by the van in the alley on October 26, 2013. Xazavier further testified that he did not recall whether he told the detectives at the hospital that the defendant fired at his uncle before firing at him but admitted he "may have." Xazavier testified that he is not currently in a gang but admitted to posting pictures on his Facebook page after the shooting "throwing up" hand gang signs.

¶ 13 On redirect examination, Xazavier testified that, following his surgery, he told detectives at the hospital that the defendant was among the individuals standing by the van in the alley. Xazavier also explained that he was not in a gang but wanted to be in one. Because of this, he posted pictures of himself flashing gang signs, which was considered "false reporting," making him a "poser."

¶ 14 Edward testified that, on October 26, 2013, he was living at the same address on Mulligan Avenue as Xazavier. Around 3 a.m., Edward was asleep in the back bedroom when he heard both a male and female voice say, "come take your punishment, Jay-Jay, come take your punishment like a man." He looked out the window, which overlooked the back porch, and saw Xazavier standing in the doorway and a man on the porch holding a gun. Edward saw the left side of the man's face. The man, who he identified in court as the defendant, was illuminated by a motion-detecting light. There was also a woman walking around the yard, telling Xazavier to come take his punishment. Edward had not seen either the defendant or the woman prior to that day.

¶ 15 When Edward saw the defendant point the gun at Xazavier, he froze. The defendant then pointed the gun at Edward and said, "I'll kill your family." Edward next saw Xazavier begin to go up the stairs and the defendant shoot the gun toward Xazavier five times, hitting him as he entered the doorway.

¶ 16 Edward jumped to the floor and began crawling out of the bedroom. He heard five more shots and felt pain in his right calf. Edward realized that he had been shot and that he was bleeding. He took a towel and wrapped it around his leg. The police were called, and an ambulance took him to the hospital.

¶ 17 Edward was "in pain" and his "mind wasn't right or nothing because of what [he] had been through." At the hospital, he met with detectives, but was not able to identify the defendant in a photo array. When Edward went to the police station on January 1, 2014, he identified the defendant in a lineup as the individual who had shot him.

¶ 18 On cross-examination, Edward testified that he wears glasses for distance and reading and that he did not have them on when the shooting occurred. He explained that he did not need them because he could see "practically well without them." Edward denied telling Officer Angela Perez at the house that he was asleep when he awoke to gunshots and a "burning sensation." He explained that if a police officer wrote that down, "[s]omebody took a wrong report." Edward did not have a chance to talk to Xazavier about the shooting prior to speaking with the detectives at the hospital.

¶ 19 Chicago police officer Perez testified that, on October 26, 2013, she arrived at the apartment building on Mulligan Avenue shortly after the shooting. She observed Xazavier lying in blood in the hallway. Prior to his ambulance transport, Xazavier told her that he was shot by the defendant. Officer Perez also observed Edward with a gunshot wound

to his right leg, lying a few feet from Xazavier. Edward told her that he was asleep in bed, heard gunshots, and felt a burning sensation before realizing he had been shot. Edward did not tell Officer Perez that he saw the shooter or looked out of the window.

¶ 20 Chicago police Detective Tekaki testified that he arrived at the residence on Mulligan Avenue around 3:30 a.m. and proceeded to the backyard. He observed shell casings from a .40-caliber firearm around the deck area and bullet holes in a window and around the window frame. He further saw bullet holes in the door of the rear entrance. Detective Tekaki went into Edward's room and saw bullet holes in the blanket covering the window and on the walls, door, and dresser.

¶ 21 Later in...