2015 IL App (2d) 120444
No. 2-12-0444
Opinion filed March 31, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 08-CF-3323
)
JUSTIN CAVAZOS, ) Honorable
) Timothy Q. Sheldon,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Zenoff and Birkett concurred in the judgment and opinion.
OPINION
¶1 On January 20, 2007, 15-year-old Oscar Rodriguez and his girlfriend, Claudia Lozano,
were walking along High Street near Grove Street in Aurora. Gunshots were fired from a
passing sport utility vehicle (SUV), killing Rodriguez and injuring Lozano. Defendant, Justin
Cavazos (age 16 when the shooting occurred), and his brother, Joshua Cavazos (age 17 when the
shooting occurred), were charged in connection with the incident.
¶2 In 2011, the brothers were tried simultaneously (in adult court) by separate juries.
Justin’s jury convicted him of two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2)
(West 2006)), attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)),
unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2006)), and
2015 IL App (2d) 120444
aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). 1 Further, as to the
first-degree-murder and attempted-murder convictions, the jury found that Justin, or one for
whose conduct he was responsible, committed the crimes while armed with a firearm, thus
subjecting him to mandatory sentencing enhancements (730 ILCS 5/5-8-1(a)(1)(d) (West 2006)).
The trial court denied Justin’s posttrial motion and sentenced him to an aggregate of 60 years’
imprisonment.
¶3 On appeal, Justin argues that he was denied a fair trial where the State introduced
evidence: (1) of a subsequent bad act, which evidence he argues was relevant only for propensity
purposes; and (2) from a gang expert, which he argues was purely cumulative and served only to
characterize him as a bad person. In addition, through supplemental briefing, Justin argues that
Illinois law is unconstitutional where, together, the provisions for the mandatory transfer of
juveniles to adult court (705 ILCS 405/5-130 (West 2006)), the application to juveniles of
mandatory firearm enhancements (see 730 ILCS 5/5-8-1(a)(1)(d) (West 2006)), mandatory
consecutive sentencing (see 730 ILCS 5/5-8-4(d) (West 2006)), and “truth in sentencing” (730
ILCS 5/3-6-3(a)(2)(i), (ii) (West 2006) (requiring that Justin serve 100% of the murder sentence
and 85% of the attempted-murder sentence)) do not permit consideration of youthfulness at the
time of the offense. For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 In its opening statement, the State argued that Justin’s motive for the shooting of
Rodriguez and Lozano was to “hunt” and hurt rival gang members and that the evidence for that
motive was supported by what Justin did later that same night. Specifically, the State argued,
1
Joshua, who was also convicted, appeals in People v. Cavazos, 2015 IL App (2d)
120171.
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after the shooting, Justin got into another car with Insane Deuces gang members, found an
alleged rival gang member, and, at the urging of his fellow passengers, got out of the car and
fired shots at someone.
“And what does that show? That shows his motive, his intent. That as an Insane
Deuce street gang member, what he does is he goes out and he looks for rival gang
members and he looks to hurt them. And you can use that when evaluating this
defendant’s intentions when he was in the car with his brother and two other *** gang
members, just before Oscar Rodriguez was shot.”
¶6 A. State’s Case-In-Chief
¶7 Lozano testified that, on January 20, 2007, she and Rodriguez were in the ninth grade. At
around 2 p.m., they were walking down the sidewalk on High Street in Aurora. Rodriguez was
closer to the street. Lozano testified that she is nearsighted, which affects her ability to clearly
see things at a distance, and was not wearing her glasses that day. A dark, navy blue, four-door
SUV drove by, with the driver’s side of the SUV closer to the sidewalk. According to Lozano,
the passengers on the driver’s side started “throwing” gang signs and yelling gang slogans at
Lozano and Rodriguez. Lozano testified that, initially, the passengers were throwing signs
associated with the Insane Deuces street gang and were saying something similar to, “Deuce
love” and “[Latin] King killer.” She did not recall anyone in the SUV yelling anything
indicating a loyalty to the Latin Kings street gang. Rodriguez responded, “King love.”
Rodriguez might have known members of the Latin Kings, and his brothers used to wear Latin
King colors, but Lozano did not know if they were gang members.
¶8 The SUV passed Rodriguez and Lozano, but it did a quick U-turn and, when it returned,
the SUV’s passenger side was closer to the sidewalk. Lozano heard four or five gunshots come
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from the SUV. She and Rodriguez fell to the ground. Lozano was hit by a bullet on her left
thigh. She stood up, looked at Rodriguez, and saw that he had been shot and his head was
bleeding. Rodriguez could not stand up or talk and (as testified to by the medical examiner) died
from multiple gunshot wounds. The SUV drove south and made a left turn onto Grove Street.
¶9 Lozano testified that she could not identify the people who were inside the SUV, because
they were all wearing “hoodies” and her vision was blurry. She did, however, observe that there
were two people in the front seat, and she knew that there was at least one person in the backseat,
because, when the SUV returned, someone was hanging out of the backseat passenger-side
window. Lozano recalled that this person had the gun. Lozano told police that she thought that
the men in the SUV (she did not hear any female voices shouting from the SUV) were Hispanic,
that the driver had a beard or goatee, and that he appeared to be around 17 years old.
¶ 10 Felipe Rojo testified that, for 18 years, he had lived near the intersection of High and
Grove Streets in Aurora and he could see the intersection from his house. Around 2 p.m. on
January 20, 2007, Rojo was inside his house when he heard a sound “kind of like some
gunshots.” Rojo went to the front window and saw a car, similar to a Ford Explorer or Chevrolet
TrailBlazer, drive up High Street and turn east onto Grove Street. The SUV was driving “almost
as if it had been sliding, very fast.” Rojo could not recall the SUV’s color, but he remembered
that it had a yellow permit on its rear license plate.
¶ 11 Officer Ted Hunt responded to the scene. Dispatch informed him that the suspect
vehicle, a black Chevrolet TrailBlazer with a temporary license plate, was last seen going east
near Grove Street and High Street. Hunt proceeded in that direction and located, parked along
the curb at 1223 Grove Street, i.e., seven blocks from the scene of the shooting, a black
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Chevrolet TrailBlazer with a yellow temporary license plate. Hunt ran the vehicle’s information
through his computer system and learned that it was stolen.
¶ 12 Jorge Briesca testified that the recovered SUV was his and that he had reported it stolen.
When the SUV was processed for DNA, gunshot residue, and fingerprints, one of the items
tested was a cigar found in the cup holder on the front passenger-side of the vehicle. Briesca
testified that the cigar was not his, nor was the cigar in his SUV when it was stolen.
¶ 13 Katharine Mayland, a forensic scientist and latent fingerprint examiner, testified that
Joshua’s fingerprint was found on the cigar’s clear plastic cellophane wrapper.
¶ 14 Four shell casings were found at the scene. Jeff Parise, a forensic scientist specializing in
the fields of firearms and firearms identification, studied the casings and opined that they were
fired from the same .40-caliber automatic or semiautomatic firearm.
¶ 15 1. Gang Member Testimony
¶ 16 David Hernandez testified that he previously lived in Aurora. Hernandez joined the
Insane Deuces when he was 15 years old, because he was “bored.” In 2007, both Justin and
Joshua were members of that gang, as was Jaime Barragan (and Ignacio Rios, Trino Osorio,
Eddie Montanez, and Wesley Grant). The gang members would often stay at Manny Caranza’s
apartment in Aurora. Caranza, also an Insane Deuces member, kept firearms, including .40-
caliber weapons, in his apartment. The guns, known as “nation guns,” belonged to the gang and
were available for any gang member to use when “hunting” (i.e., looking for rival gang members
to shoot). At the time of the shooting, the Insane Deuces and the Latin Kings were rivals, and
the area of High and Grove Streets in Aurora was known Latin King territory. Generally,
“hunting” would be the only purpose for Insane Deuce members to enter that area.
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¶ 17 On January 19, 2007, Hernandez, Barragan, and both Cavazos brothers were at Caranza’s
apartment. Late in the evening, Hernandez and Barragan left the apartment to steal a car. While
Hernandez stood as lookout, Barragan stole a black TrailBlazer SUV. The license plate had a
“Dempsey” dealership decal. They drove the SUV back to Caranza’s apartment and stayed the
night.
¶ 18 The next morning, January 20, 2007, Hernandez and Barragan told the Cavazos brothers
about the SUV, and then they “hung out,” playing video games and talking. At some point,
Justin, Joshua, and Barragan, who had been having a conversation in the kitchen, entered the
living room and told Hernandez to come with them. The four men got into the SUV: (1)
Barragan drove; (2) Joshua sat in the front passenger seat; (3) Hernandez sat in the rear
passenger-side seat; and (4) Justin sat in the rear driver’s-side seat. They drove around, ate
McDonald’s food, and then went “hunting” in Latin King territory. On High Street, they saw a
“rival gang banger” walking with someone else. When asked if the “gang banger” was a “he” or
a “she,” Hernandez replied, “he.” When asked how he knew that “he” was a rival gang member,
Hernandez explained that he was wearing Latin King colors. Further, when the driver’s side of
the SUV was closer to the sidewalk, someone in the SUV “threw up” the Latin King crown
signal. The male pedestrian, who was closer to the street, threw the crown back, “so that notified
him as a Latin King.”
¶ 19 The SUV drove past the pedestrians, then turned around and came back toward “him.”
The passenger side of the SUV was now closer to the sidewalk. At that time, Justin handed
Hernandez a .40-caliber semiautomatic handgun. Hernandez looked at the gun, held it for a
second, and refused to pull the trigger. He passed the gun back to Justin. Justin then passed the
gun up front to Joshua. Joshua aimed the firearm out the window and shot three or four rounds.
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Hernandez looked out the window and saw the male lying on the ground. Hernandez did not
remember if, at that time, he was hanging out of the SUV’s back window. Barragan sped off and
turned left. A few blocks later, they “ditched” the car. They were wearing gloves while in the
car and did not wipe it down before running away. The four men split up; Barragan and Justin
ran off together, and Hernandez and Joshua ran through some fields until they arrived at a flea
market. They used the bathroom and then called Caranza for a ride. While they were waiting,
they hid the gun under some leaves and branches by Cowart Middle School.
¶ 20 Caranza picked up Hernandez and Joshua and they returned to his apartment. Eventually,
Joshua and Barragan returned too. At that time, Caranza, Joshua, Justin, and Barragan had a
conversation in the spare bedroom. Hernandez was not included in that discussion; he was
treated like a “coward” because he did not pull the trigger. As a result of the shooting, Joshua
had a tattoo of a spade placed on his back. Hernandez explained that the spade is a symbol of the
Insane Deuces.
¶ 21 Hernandez stated that he was not testifying by choice but rather, was doing so pursuant to
a deal he made with the State. Specifically, Hernandez testified that, in exchange for his
testimony, he was accepting a five-year sentence for possession of a stolen motor vehicle (but
was hopeful that the court would instead impose five or six months in “boot camp”). He was not
charged with murder in connection with this case, but he was charged with possession of a
handgun and 12 misdemeanors. Pursuant to the agreement, he was pleading guilty to the
possession charge, and the 12 misdemeanor charges were to be dropped. Hernandez agreed that
when, on October 27, 2007, he gave a statement to police, he was reluctant to talk without a deal.
He was “begging” for a deal, because he had violated probation and was told that he would be
charged with murder. Nevertheless, at the time of his statement and without any offer of a deal,
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Hernandez identified Barragan, Joshua, and Justin in photographic lineups. As part of the deal
he did eventually receive, he was required to testify truthfully in court. The State asked
Hernandez what would happen if he did not testify truthfully, and he responded, “I get charged
for first-degree murder.”
¶ 22 On cross-examination, defense counsel reviewed with Hernandez his four-page
agreement with the State. Hernandez agreed that the deal required that he testify consistently
with what he told police on October 27, 2007, but that some of his testimony was not what he
told police that day. For example, at trial, he testified that the passengers wore gloves while in
the SUV, but initially he did not tell that to the police. Hernandez explained that initially he did
not trust the police and did not tell them everything because he did not have a deal and that he
was still a gang member at the time and the gang had rules against talking to the police.
Hernandez did not recall stealing more than one car with Barragan the night before the shooting,
but he had been “high.”
¶ 23 Jaime Barragan testified that he was 21 years old and, in January 2007, he was living in
De Kalb. Nevertheless, he had occasion to visit Aurora frequently, and, prior to moving to
De Kalb in early 2007, he had lived in Aurora. In 2006, Barragan became a member of the
Insane Deuces. Barragan testified to the colors and symbols used by the Insane Deuces and the
Latin Kings. He explained that the Insane Deuces and the Latin Kings were rivals and that “false
flagging” means throwing up the opposing gang’s sign to see if it is returned. Barragan provided
in-court identifications of Joshua and Justin and testified that they were Insane Deuces.
¶ 24 The evening of January 19, 2007, Barragan was at Caranza’s apartment with Justin,
Joshua, Rios, Montanez, and Hernandez. They were partying, smoking marijuana, and drinking
alcohol. In the early morning hours of January 20, 2007, Barragan and Hernandez left the
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apartment, intending to steal radios. They stole a radio and came across a running Ford Taurus.
Barragan stole the Taurus, 2 and he and Hernandez eventually left the car at another gang
member’s house. After leaving the car, Barragan and Hernandez went looking for more radios,
but came across a running black TrailBlazer. Barragan told Hernandez that it was his turn to
steal a vehicle, but Hernandez refused. Barragan stole the TrailBlazer and, with Hernandez
riding along, drove it back to Caranza’s apartment. They went inside the apartment, saw that
Joshua, Justin, and Rios were still there, and went to bed.
¶ 25 The next morning, Barragan and Hernandez told Rios about the TrailBlazer, and the three
of them went outside to see it. When they returned, Justin and Joshua were awake. Joshua told
Justin, Rios, and Barragan that he wanted to “put in work.” According to Barragan, “putting in
work” means shooting someone. They were in a bedroom, and Hernandez was in the living
room. Justin showed them that he had a gun, specifically, a .40-caliber semiautomatic, and said
that “that’s the gun they want to put in work with.” Barragan and Rios told the brothers about
the “steamer” in the parking lot. Hernandez confirmed that the SUV had a temporary license
plate. Later, they wanted to get something to eat and Hernandez wanted to go home, so
Barragan, Joshua, Justin, and Hernandez left in the SUV. Consistent with Hernandez’s
testimony, Barragan testified that he drove, Joshua sat next to him, Hernandez sat behind Joshua,
and Justin sat behind Barragan. Barragan drove to McDonald’s and then into Latin Kings
territory. Hernandez spoke about wanting to get rank in the gang.
¶ 26 They wound up on High Street and saw a boy and a girl walking down a sidewalk. The
driver’s side was closer to the sidewalk, and the boy was closer to the street and was wearing a
2
Barragan explained that stolen cars are referred to as “steamers” and are used to commit
shootings and robberies.
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hooded sweatshirt. Justin started “gang banging with the boy,” or false flagging, by saying
“King love, Amore De Rey.” The boy then “represented” by throwing up the Latin Kings
crown. Barragan responded by flashing the Insane Deuces sign and saying “Deuce love, King
Killer.” Barragan continued driving, turned around, and drove back down High Street such that
the passenger side was closer to the pedestrians. According to Barragan, he turned right at a stop
sign and pulled into a driveway, intending to jump out to go beat up “the guy.” However, he
looked back and saw Justin pass Hernandez some gloves and a gun. It was the same gun
Barragan saw earlier, in the apartment. Instead of getting out to “jump” the guy, Hernandez told
Barragan to “drive up.”
¶ 27 Barragan backed the car out of the driveway and returned to High Street, where he saw
the boy and the girl “walking like right next to each other,” with the boy closer to the street. He
slowed the car down. When asked what he thought was going to happen at that point, Barragan
responded, “I thought that most likely a shooting was going to happen.” According to Barragan,
Hernandez told him to slow down. Hernandez was supposed to do the shooting but Hernandez
said that he “wasn’t doing it” and passed the gun to Joshua. Hernandez passed the gun to Joshua
between Joshua’s seatbelt and the passenger door. Barragan saw Joshua with the gun; Joshua
started shooting. Barragan heard three to five gunshots. The gunshots “surprised” him and he
looked over and saw the boy fall. Barragan accelerated rapidly and drove away “recklessly,”
turning left onto Grove Street. Eventually, he stopped the car on Grove Street and used the
sleeve of his hooded sweatshirt to quickly wipe down the steering wheel, the door handles, and
everything he believed he had touched with his left hand (he was wearing only one glove).
Further, Barragan previously had two cigars on his person and had smoked one; he tried to locate
the other cigar before he left the TrailBlazer. They all exited the vehicle and split up, with
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Barragan and Justin jogging to Barragan’s grandmother’s house and then returning to Caranza’s
apartment. Eventually, Hernandez and Joshua arrived, and Joshua and Justin bragged to Rios
about the shooting. Barragan testified that Joshua received a tattoo of a spade on his back after
the shooting.
¶ 28 Barragan testified that, on the drive back from his grandmother’s house, Justin was
bragging to Mitch Ayala (who had picked them up) about the shooting, saying, “we just handled
business,” which, in gang terms, means that they shot somebody. Barragan told Ayala to drive
back to High and Grove Streets because Justin wanted to check out the area. They saw that the
area was blocked by police tape and that there were police cars and a forensic truck. Justin then
indicated to Barragan that, with respect to his former statement about handling business, they
should tell Ayala that they were referring to something else, as if Justin then did not want
anybody to know what just happened and that they were responsible for it.
¶ 29 Barragan was asked, “[B]etween the boy and the girl, which was significant to you?” He
replied, “[T]he boy.” Asked, “I mean, were you targeting the girl at all?” He answered, “[U]m.”
Then, “[Y]ou were worried about the boy, right?” Answer, “[Y]es, sir.” He confirmed that the
girl never threw up the crown or did anything else. They were talking about the boy while
Barragan drove by and when he parked and was going to get out and beat “him” up. Barragan
testified that “the girl” (presumably, harming her) would not give him any rank in the gang.
After they turned around and returned toward the pedestrians, the boy walked toward the car
while the girl was on the sidewalk; she did not come toward the car. When the boy was shot, the
girl was on the sidewalk. Barragan did not see the gun pointed at her.
¶ 30 On October 29, 2007, Barragan was arrested in De Kalb. He lied, telling detectives that
he was in De Kalb on the day of the shooting. Later, with his attorney, he reviewed all discovery
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and read every statement made by each witness in this case. Barragan knew that he was facing a
minimum of 35 years’ imprisonment for the first-degree murder of Rodriguez and a minimum of
21 years’ imprisonment for “the attempt first-degree murder of Claudia Lozano,” which he
expected would be served consecutively (for a 56-year minimum sentence). Barragan told the
State that he wished to talk, and he agreed that, when he so notified the State, he was informed
that he would not receive a deal if the State did not like what he had to say. Barragan agreed that
he wanted a deal.
¶ 31 In exchange for his testimony against all codefendants, Barragan would plead guilty to
attempted armed violence and aggravated battery on a public way, for a total of 18 years’
imprisonment (at 50%). Under the agreement, Barragan expected that he would have around 5
more years left to serve, which he agreed was “better than” 56 years. Further, the State agreed
to: (1) recommend that Barragan receive substance abuse treatment in prison; (2) try to get
Barragan an “S Visa” to help him with immigration issues; (3) write a letter to “ICE” to help
Barragan stay in the country; (4) try to house Barragan separately from the Cavazos brothers;
and (5) call the jail where Barragan was staying to check on his request to become a trustee,
which would allow him to move around the jail with more freedom than a typical inmate. The
agreement required that Barragan tell the truth. Barragan testified that the State decides what is
truthful.
¶ 32 Wesley Grant testified that he was once a member of the Insane Deuces and he knew the
Cavazos brothers. In March 2007, Grant had a conversation with Justin at Justin’s girlfriend’s
house. Other people, including Joshua and “Manny,” were present and possibly within earshot.
Justin and Grant were sharing “war stories,” and Justin told Grant about the shooting on High
Street. Justin told Grant that his brother was the shooter. Justin said that he, Joshua, Hernandez,
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and “Jaime” were riding around certain neighborhoods, looking for Latin Kings and “false
flagging.” Justin told Grant that the victim returned the sign and then they shot him. Justin said
that Hernandez had the gun first but that then, perhaps because he was afraid or intimidated, he
gave the gun to Joshua.
¶ 33 Grant agreed that, in October 2007, he was charged with possession of a stolen motor
vehicle and attempted armed robbery. He knew that he could receive up to 7 years’
imprisonment for the possession of a stolen vehicle and 15 years’ imprisonment for the
attempted armed robbery, which could possibly run consecutively. When, in October 2007, the
police asked Grant if he wanted to speak with them, he agreed. They asked Grant whether he
knew anything about the shooting on High Street, and he initially did not tell them everything he
had learned in his alleged March 2007 conversation with Justin. Grant did not have an attorney
present, but he told the police that he knew that Joshua was the shooter, that the victim was
walking with his girlfriend, and that he did not want to say more. In May 2008, however, with
his attorney present, he “elaborated” and offered the police more information. When, in August
2008, he testified before the grand jury in Justin’s case, he was aware that the charges against
him remained pending. A few months later, in December 2008, he pleaded guilty to the charges
and received the minimum sentence. He did not, however, ever have a formal agreement with
the State’s Attorney’s office.
¶ 34 Ignacio Rios, 23 years old, testified that he was born in Mexico and currently lived there.
He came to the United States when he was six years old and returned to Mexico about three
years prior to trial. Because Rios was a deported convicted felon, the State’s Attorney’s office
and the Aurora police department worked with Homeland Security to obtain Rios’s presence at
trial. On January 20, 2007, Rios lived in Aurora and was a member of the Insane Deuces. He
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was at Caranza’s apartment and was smoking marijuana. Rios had a conversation with Joshua,
Justin, Hernandez, and Barragan. Justin displayed a .40-caliber silver semiautomatic handgun.
Barragan and Justin spoke about finding a Latin Kings member to shoot. Joshua, Justin,
Hernandez, and Barragan left the apartment, and Rios stayed in the apartment with Caranza.
Rios and Caranza turned on a police scanner so they could hear if a shooting took place. Later,
when the four men returned to the apartment, Hernandez stood to the side and did not actively
participate in the conversation with the others. Joshua was acting happy and said that he wanted
to change his name to “Whacko” because he “just whacked a King.” Justin was acting excited
too and was throwing up the crown and kissing it like he did when he was false flagging.
¶ 35 Rios was arrested in October 2007 and charged with attempted robbery and attempted
unlawful possession of a motor vehicle. He gave a statement to police, hoping to get those
charges dropped. In the statement, he said that, during the High Street shooting, Barragan was
driving, with Justin in the front seat and Joshua and Hernandez in the back. At trial, he testified
that he knew Barragan was the driver, but he was not positive where the others were sitting,
because he was not there. Before the shooting, there was no discussion about who would be the
shooter. When they returned, there was discussion about Hernandez “punking out.” Rios told
the grand jury that, upon their return to the apartment, the men were talking about how Justin
saw a “guy” while they were driving by on High Street and Justin threw up the crown at him.
They drove by again and Justin was going to shoot, but instead he gave the gun to Hernandez,
who did not want to do it either. Hernandez gave the gun to Joshua. Rios confirmed that, when
the men returned to the apartment, they discussed that Joshua was the shooter. Rios said that
Joshua told him that he jumped out of the SUV to do the shooting. Barragan, Joshua, and Justin
were excited and bragging, but Hernandez was not.
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¶ 36 2. Other-Crimes Evidence
¶ 37 Prior to trial, the State moved in limine to admit, pursuant to Illinois Rule of Evidence
404(b) (eff. Jan. 1, 2011), evidence of a subsequent crime. Specifically, the State wished to
introduce evidence that, after the shooting, Justin committed another attempted murder, wherein
another Insane Deuces gang member supplied a “nation gun” to Justin, who again drove by
people on a sidewalk in Aurora and targeted Latin Kings. Justin objected (presenting oral
argument and case authority for his position). The court weighed the evidence’s prejudicial
effect against its probative value and ruled, over Justin’s objection, that, with some minor
distinctions, the similarities between the crimes were “so great” that the subsequent crime was
admissible to show intent and motive.
¶ 38 At trial, the jury was informed:
“You will hear evidence that the defendant has been involved in conduct other
than that charged in the indictment. This evidence will be received on the issues of the
defendant’s intent and motive and may be considered by you only for that limited
purpose. It is for you to determine whether the defendant was involved in that conduct,
and if so, what weight should be given to this evidence on the issues of intent and
motive.”
¶ 39 Without objection, Trino Osario testified that he was currently serving a 20-year sentence
for murder and that he was testifying pursuant to an agreement with the State. Once Osario
testified in Justin’s case, a pending murder count would be dropped. Osario testified that the
State had already dropped one count of attempted murder, for which he had been facing 21 to 35
years’ imprisonment that would have been served consecutively to his current 20-year term.
Further, Osario had admitted to his sentencing judge that he had personally discharged the
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firearm in the murder, which would have added on another 25 years (which, it was implied, his
agreement with the State avoided).
¶ 40 Osario testified that, in 2007, he was a member of the Insane Deuces and knew both
Cavazos brothers. In addition, he confirmed that the “nation guns” in Caranza’s apartment
included .22-, .40-, and .357-caliber and 9-millimeter guns. Osario testified that, in the evening
of January 20, 2007 (after Rodriguez and Lozano were shot), he was at Caranza’s apartment with
Caranza and Justin. Osario testified that, although he was not sure, he thought that at that time
Justin was wearing a black, hooded sweatshirt and had a short goatee. According to Osario, who
is about 6 feet 1 inch tall, Justin is shorter, approximately 5 feet 9 inches tall. The three men left
the apartment, and Caranza drove his black Nissan Titan truck to take Justin to his girlfriend’s
house. Before they reached her house, when they were less than one block away, they saw a
group of people standing in front of a bar (the Head Stone Inn). Caranza said that the people
looked like Latin Kings members. Caranza made a U-turn, drove by the bar again, and repeated
his belief that the people were Latin Kings members. Osario disagreed, but Caranza drove
behind the bar and stopped his truck less than one block away. Caranza told Justin to shoot the
“guys” in front of the bar. Justin had a .22-caliber gun with him (which Osario saw immediately
before they left Caranza’s apartment). Justin exited the truck and headed toward the bar.
Caranza did not drive away because he wanted to hear gunshots first. Osario and Caranza lost
sight of Justin, and then they heard four or five gunshots coming from the front of the bar.
Caranza drove off; Osario looked behind him and saw Justin running up the street toward his
girlfriend’s house. Osario testified that, eventually, the .22-caliber weapon was returned to
Caranza’s apartment and that Osario later used it for an attempted murder and hid it in his
uncle’s basement. Osario eventually told police where it was located.
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¶ 41 Without objection, Juan Leon testified that, in the evening of January 20, 2007, he was
outside with some friends in front of the Head Stone Inn when a black Nissan Titan truck slowly
drove by them (at least twice, maybe three or four times). Leon took notice of the truck because
he was considering buying one. The truck turned around a corner and, shortly thereafter, a man,
possibly Hispanic, with a black, hooded sweatshirt and a goatee, shot at him. Leon was hit by a
bullet in his right calf. Leon is approximately 5 feet 10 inches tall. The shooter appeared to be
shorter.
¶ 42 The jury retired for the day, and, upon its return the next day, it was again instructed that
it would hear other-crimes evidence that was to be considered only for the limited purpose of
Justin’s intent and motive. The State then re-called Barragan.
¶ 43 Without objection, Barragan testified that, around January 23, 2007, at Caranza’s
apartment, he had a conversation with Justin and Joshua about a shooting that occurred on
January 20, 2007, after the Rodriguez and Lozano shooting. Barragan asked where the .22-
caliber handgun was located, because he wanted to use it. Joshua said that Justin had used it to
shoot some Latin Kings in front of a bar. Justin stated that he had burned the shoes and the
hooded sweatshirt that he was wearing on January 20, 2007. Further, Justin said that he went to
his girlfriend’s house after the second shooting. Barragan testified that Justin’s girlfriend lived
down the street from the bar where the shooting occurred.
¶ 44 The parties stipulated that five .22-caliber spent cartridge casings were found on the
sidewalk outside of the Head Stone Inn and that all were fired from the same firearm. A .22-
caliber handgun was found in the basement crawlspace in a home in Aurora; the spent casings
were determined to have been fired from that gun.
¶ 45 3. Officers’ Testimony
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¶ 46 Detective Angel Nieves testified that he investigated the High Street shooting. On
October 23, 2007, when the police were interviewing him on unrelated charges, Rios gave them
a lead about the High Street shooting. Upon review of four different photo arrays, Rios
identified: (1) Joshua as the person who shot Rodriguez; (2) Barragan as the person who stole
and drove the vehicle used in the shooting; (3) Justin as the individual who, just before the
incident, displayed a handgun and, later, produced in the vehicle the handgun that was used in
the shooting; and (4) Hernandez as having been present with the three other individuals in the
vehicle during the shooting. On October 27, 2007, Nieves interviewed Hernandez and showed
him multiple photo arrays. Hernandez identified Joshua as the person who shot Rodriguez,
Justin as the person who provided the handgun that was used in the shooting, and Barragan as the
driver of the stolen vehicle used in the shooting. On May 20, 2008, Nieves interviewed Grant at
the Kendall County jail and showed him a photo array. Grant picked out Justin as having been
with Joshua during the shooting
¶ 47 Before trial, the State had moved in limine to introduce gang expert testimony through
Sergeant Jeffrey Wiencek. Justin objected (again, presenting oral argument and case authority
for his position). Over Justin’s objection, the court granted the motion, primarily on the basis
that the expert’s testimony might aid the jury’s understanding of an otherwise unexplainable act.
¶ 48 At trial, without objection, Wiencek testified that, in Aurora, gangs typically create
symbols and slogans to identify themselves. For example, the Insane Deuces use the slogans
“Deuce Love” and “Amor De Deus,” and they use a hand signal that looks like an exaggerated
peace sign. The Latin Kings use the slogans “King Love” and “Amor De Rey,” and they use a
hand signal that resembles a three-point crown. Further, each gang wears different colors: black
and green for the Insane Deuces and black and gold for the Latin Kings.
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¶ 49 Street gangs in Aurora are classified into two umbrella organizations. The “People
Nation” includes the Latin Kings, and the “Folk Nation” includes the Insane Deuces. They do
not get along. Although gang members typically display their gang signs to other members to
signify their membership in that gang, on “very, very rare” occasions gang members use a sign
of another gang. For example, to show disrespect for the Latin Kings, an Insane Deuces member
might exhibit the Latin King sign upside down. Also, an Insane Deuces member might use the
Latin King sign when “false flagging.” False flagging is:
“basically baiting another gang to figure out if a person is going to be a member of that
street gang; and then what they could do is they could throw up the rival gang’s hand sign
to see if that member would then throw it back to them. If they do, they can then confirm
their gang affiliation; and then based upon that, they could decide what’s going to happen
afterwards. It could be a beat-down, it could be a shooting, it could be other things.”
¶ 50 Wiencek further testified that the gangs claimed territories within Aurora and that, in
2007, the area of High Street and Grove Street was “definitely the Latin King territory.”
Wiencek explained that, generally, gang activities are aimed at helping the gang flourish. For
example, gang members commit robberies and sell drugs to acquire money for the gang. To
protect gang territory, members acquire guns and go “hunting” for rivals. “Hunting” is actively
searching for rival gang members to hurt or kill. The purpose behind hunting is to: (1) take out
enemies who are hunting members of one’s own gang; (2) hold territory by showing the rival
gang that one’s own gang is strong; (3) show the rival gang the location and boundaries of one’s
own gang’s territory; and (4) show members of one’s own gang that he or she is “down for the
cause” or has love for and commitment to the gang. Wiencek testified that gang members often
wear gloves to avoid leaving evidence, such as fingerprints or DNA, behind at a crime scene. In
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addition, gangs in Aurora operate with a “code of silence,” where gang activities are not shared
with people outside of the gang or with law enforcement. That code is sometimes broken and, as
a consequence, the code violator is kicked out of the gang and might be threatened or treated
with violence.
¶ 51 The Aurora police department gathers information about street gangs and prepares
reports, classifying gang affiliates as either members, associates, or “others.” “Others” is a
default category, encompassing persons who might be involved in some form of gang activity.
“Associates” are persons with whom the police have had at least one contact, with the presence
of two or more criteria (for example, wearing gang colors, wearing clothing in a manner
indicative of gang involvement, using gang slogans, etc.). Individuals are classified as
“members” by personal admission, by gang tattoos on their bodies, or if, within a one-year
period, the police have three contacts, with two or more criteria present. Through his
professional experience in the Aurora police department’s gang unit, Wiencek knew that, in
2007, Carranza was classified as an Insane Deuces member who owned an apartment that was
used as a gang hangout and a base for missions. In addition, Justin and Joshua were Insane
Deuces members. Wiencek was aware that Joshua had two tattoos of spades, the primary
symbol of the Insane Deuces, one on his right hand on or between his fingers, and a large one on
his back. Wiencek identified photographs thereof and testified that the police first observed the
tattoo on Joshua’s hand in 2005 or 2006 and first noticed the tattoo on Joshua’s back around May
2007. When asked if he had any doubt that Justin was an Insane Deuces member, Wiencek
replied, “none.” Justin had numerous contacts with the police department between February
2006 and July 2007, was found in Insane Deuce hangouts, was in the presence of numerous gang
members, wore the gang’s colors, and admitted to Officer Jay Ellis that he was an Insane Deuces
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member. Finally, Wiencek testified that Rodriguez was not classified as a street gang member
but that he was affiliated with the Latin Kings and his older brother was a Latin Kings member.
¶ 52 The State rested. The court denied Justin’s motion for a directed verdict.
¶ 53 B. Defense Case, Rebuttal, Closing, and Instructions
¶ 54 Nieves testified that, when he interviewed Hernandez in October 2007, Hernandez stated
that he did not want to be a “snitch” unless he was guaranteed a deal. Nevertheless, Nieves
testified, that day Hernandez was not offered a deal, he talked without a deal, and, despite
talking, he was taken into custody. Nieves testified that Hernandez did not immediately
recognize the SUV from a photograph; however, Hernandez did recognize it when shown a
photo of the back of the car with the temporary plate and dealership decal.
¶ 55 Vicki Lefter Dieter testified that, on January 20, 2007, she was driving and turning left
onto Grove Street in Aurora when she and her sister “could have died in a very bad accident
because the driver of the car was going at a high rate of speed, and he didn’t stop at his stop sign.
He just proceeded through it going as fast as he could get the vehicle to move.” The car was a
large new black SUV. The driver was a “large female with a lot of hair” and was Hispanic. At
trial, Dieter remembered that the driver was wearing glasses and had long hair that was pulled up
and hanging; “you could see that she had used a product on her hair. Her hair was shiny, and
you could just tell when somebody is using a product on their hair.” The driver was dressed in
dark clothing, which Dieter believed was a black coat. Dieter also saw a small-framed Hispanic
man in the front passenger seat. She did not see anyone else in the car. Dieter continued driving
and saw a boy lying on the street and a girl trying to revive him. Dieter told her sister to call
911, and she got out of the car to help. Police arrived and, ultimately, took Dieter down Grove
Street to identify a car. The car looked like the one that almost struck her in the intersection.
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¶ 56 Dieter agreed that, because the car was going extremely fast and “blew through” a stop
sign, she had only a split second to look at the driver. She did not recall telling an officer
immediately after the incident that she saw only a Hispanic male in the speeding car. She did not
recall telling officers that the driver had shoulder-length hair, possibly with curls or a coarse
look. Justin rested.
¶ 57 On rebuttal, the State called Officer Richard Galarza, who testified that, on January 20,
2007, he interviewed Dieter near the intersection of High and Grove Streets. She told him that
the driver of the vehicle had shoulder-length, possibly curly or coarse hair. In addition, she
stated that she saw only one person in the car, the driver. She did not mention seeing a Hispanic
male in the car.
¶ 58 In closing arguments, the State argued that Justin’s intent to hunt and murder a rival gang
member was reflected by his conversations in Caranza’s apartment, his display of a handgun, his
bringing the handgun into the SUV, and his decision to hand the gun and the gloves to
Hernandez after “gang-banging” with Rodriguez. Accordingly, the State argued, Justin was
accountable for Joshua’s actions and shared his intent and the common criminal design to shoot
members of the Latin Kings. Further, it noted: “How do we know that when this defendant was
given the opportunity to shoot at a rival gang member, he will do it? Why? Because he did it
again later that night with more senior members of his gang.” Also, “[a]nd that’s what this
defendant does as an Insane Deuce street gang member. He looks to hunt and kill rival street
gang members. He had a busy day on January 20th, 2007.”
¶ 59 Defense counsel argued in closing that, while the question in the State’s case against
Joshua was whether he fired the gun, the important question in its case against Justin was
whether the evidence proved beyond a reasonable doubt that “Justin took part in this, that Justin
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was in that car? *** What is the evidence beyond a reasonable doubt that Justin was actually in
that car?” Further, counsel argued that the evidence regarding the second shooting, which the
State asserted was relevant to motive and intent, was actually irrelevant: “if you believe Justin
was in the car, then you don’t need to know about the second shooting. *** Motive and intent is
all you can use it for. If you believe Justin’s in the car in the first place, then you already have
motive and intent established by every other gang member and gang evidence that came in.”
¶ 60 C. Jury Verdict and Sentence
¶ 61 The jury convicted Justin of two counts of first-degree murder and found that, for both
counts, the State had proved that he, or one for whose conduct he was legally responsible, did so
while armed with a firearm. In addition, the jury convicted Justin of attempted first-degree
murder and found that he, or one for whose conduct he was legally responsible, did so while
armed with a firearm. Finally, the jury convicted Justin of aggravated discharge of a firearm and
unlawful possession of a stolen motor vehicle.
¶ 62 The court denied Justin’s motion for a new trial. At sentencing, the trial court reviewed
its “170 pages of notes” from the trial, the presentence report, “which because of Justin’s age has
mostly his juvenile record,” the financial impact of incarceration, and the aggravating and
mitigating evidence. The court sentenced Justin to 20 years’ imprisonment for first-degree
murder (see 730 ILCS 5/5-8-1(a)(1)(a) (West 2006) (providing range of 20 to 60 years)), with a
firearm add-on of 15 years (see 730 ILCS 5/5-8-1(a)(1)(d)(i) (West 2006)). For attempted first-
degree murder, the court sentenced Justin to 10 years’ imprisonment (see 730 ILCS 5/5-8-1(a)(3)
(West 2006) (providing range of 6 to 30 years)), with a firearm add-on of 15 years. The murder
and attempted-murder sentences are to be served consecutively (see 730 ILCS 5/5-8-4(d) (West
2006)). Finally, the court sentenced Justin to five years’ imprisonment for possession of a stolen
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motor vehicle (see 730 ILCS 5/5-8-1(a)(5) (West 2006) (providing range of three to seven
years)), to run concurrently with the attempted-murder sentence. The sentences total 60 years’
imprisonment.
¶ 63 Justin moved to reconsider the sentences, particularly in light of his age and the fact that
he was not the shooter. He asked that the court reduce to their respective minimums the
sentences for attempted murder and possession of a stolen motor vehicle. The court denied
Justin’s motion, noting that it had given the sentences a great deal of thought and had tried to
make the sentences close to those received by Joshua (which totaled 75 years’ imprisonment (20
years for murder with a 25-year add-on, 10 years for attempted murder with a 20-year add-on,
and 3 years for possession of a stolen motor vehicle)). Justin appeals.
¶ 64 II. ANALYSIS
¶ 65 A. Evidentiary Arguments
¶ 66 Justin’s first two arguments on appeal concern evidentiary rulings. Specifically, he
argues that the trial court erred in admitting: (1) evidence of subsequent bad acts; and (2)
Wiencek’s gang-related testimony. We note that, in their briefs, the parties debate whether
Justin forfeited these issues because, although he objected to and argued against the State’s
motions in limine to admit the evidence and he raised the issues in his posttrial motion, he did
not, when the evidence was introduced at trial, contemporaneously object. However, after
briefing in this case was complete, we granted Justin’s motion to cite our supreme court’s recent
decision in People v. Denson, 2014 IL 116231, ¶¶ 18, wherein the court confirmed that, in
criminal cases, even absent a trial objection, issues may be preserved where the defendant raises
them in response to motions in limine and again raises them in a posttrial motion. Accordingly,
Justin has not forfeited these arguments.
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¶ 67 1. Evidence of Subsequent Crime
¶ 68 As noted above, before trial, the State moved in limine to introduce evidence that, on
January 20, 2007, after the charged shooting of Rodriguez and Lozano, Justin was involved in
another gang-related shooting (the shooting of Leon). The State argued that the other-crimes
evidence was relevant to establish Justin’s motive and intent in committing the charged shooting.
The trial court granted the State’s motion, finding that the subsequent crime was similar to those
charged and that it was relevant for purposes of establishing motive and intent.
¶ 69 On appeal, Justin argues that the court erred because motive and intent were not at issue.
Specifically, Justin asserts that his trial defense was that the evidence was insufficient to
establish that he was present in the SUV during the charged shooting. He did not contend at trial
that the shooting was not gang related or that there was no intent to kill. Further, Justin argues
that the evidence was neither relevant for any purpose besides propensity nor sufficiently similar
to the charged crimes and, accordingly, was unduly prejudicial. Justin notes that the evidence
took the jury’s focus off of the charged crimes, creating a trial within a trial, and he asserts that
the State effectively conceded that the evidence was relevant only for propensity when it argued
to the jury, “How do we know that when this defendant is given the opportunity to shoot at a
rival gang member, he will do it? Why? Because he did it again later that night.”
¶ 70 Evidence of other crimes is inadmissible if its only relevance is to establish a defendant’s
propensity to commit crimes. Ill. R. Evid. 404 (eff. Jan. 1, 2011); People v. Donoho, 204 Ill. 2d
159, 170 (2003); People v. Bartall, 98 Ill. 2d 294, 309-10 (1983). However, such evidence, even
concerning crimes that occur after the charged crime (Bartall, 98 Ill. 2d at 309-10), may be
admitted if: (1) it is relevant for a purpose other than propensity, such as motive or intent (Ill. R.
Evid. 404(b) (eff. Jan. 1, 2011)); (2) it bears “some threshold similarity to the crime charged”
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(People v. Cruz, 162 Ill. 2d 314, 348-49 (1994)); and (3) its probative value outweighs its
prejudicial impact (People v. Chapman, 2012 IL 111896, ¶ 19). If it is admitted, the State should
avoid putting on “a trial within a trial” on the other crime. Bartall, 98 Ill. 2d at 315. Although
other-crimes evidence is prejudicial, “[e]rroneous admission of other-crimes evidence calls for
reversal only if the evidence was ‘a material factor in the defendant’s conviction such that,
without the evidence, the verdict likely would have been different.’ ” People v. Adkins, 239 Ill.
2d 1, 23 (2010) (quoting People v. Hall, 194 Ill. 2d 305, 339 (2000)). A trial court’s decision to
admit other-crimes evidence is reviewed for an abuse of discretion. People v. Morgan, 197 Ill.
2d 404, 455 (2001). An abuse of discretion occurs where the decision is arbitrary or fanciful or
no reasonable person would adopt the trial court’s view. People v. Becker, 239 Ill. 2d 215, 234
(2010).
¶ 71 We conclude that the trial court did not abuse its discretion in admitting the other-crimes
evidence. First, Justin asserts that motive and intent were not truly at issue and were improper
bases for admitting the evidence. He notes that the only issue he challenged was whether he was
present in the SUV at the time of the shooting. However, we agree with the State that Justin’s
view of intent is too restricted. For example, in People v. Heard, 187 Ill. 2d 36, 59-60 (1999),
our supreme court rejected the defendant’s argument that, where he denied involvement in the
crime, only the identity of the perpetrator, not the motive and intent of the perpetrator, was at
issue and, accordingly, the other-crimes evidence was improperly admitted to show motive and
intent. The court held:
“This argument is not persuasive. Although the evidence readily demonstrated that the
shooter intended to kill the victims, the prosecution had to prove that defendant was the
shooter. The prosecution introduced other-crimes evidence to prove defendant’s motive
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and intent to kill the victims, thus providing further proof of defendant’s identity as the
shooter.” (Emphasis in original.) Id. at 60.
Similarly, here, Justin’s argument ignores that, regardless of his defense, the State had to prove
Justin’s intent beyond a reasonable doubt. Specifically, the State had to prove that Justin was in
the SUV and that, for purposes of accountability, he shared Joshua’s intent to commit first-
degree and attempted murder. See People v. Henderson, 142 Ill. 2d 258, 319 (1990) (“[W]hen a
defendant in a murder trial pleads not guilty, the prosecution is allowed to prove every element
of the crime charged and every relevant fact, even if the defendant offers to stipulate to those
same facts”). Accordingly, the subsequent crime, reflecting that Justin was responsible for
shooting a rival gang member―indeed, a purported Latin Kings member―later that same
evening, was relevant to the State’s theory that, at the time of the charged shooting, Justin shared
Joshua’s intent.
¶ 72 Second, we disagree that the evidence improperly created a trial within a trial or that the
subsequent crime was not sufficiently similar to the charged crimes to be relevant. This case is
unlike People v. Bedoya, 325 Ill. App. 3d 926, 940-41 (2001), a case upon which Justin relies,
where the court found that the State’s presentation of 7 witnesses and 27 exhibits to establish the
defendants’ other crimes was “overkill” and served no purpose other than to inflame the jury.
The other-crimes evidence here was not excessive, as the State presented only three witnesses
with respect thereto and Justin stipulated to a few facts related to the subsequent crime. Further,
although the subsequent shooting occurred on foot and several hours after the first shooting,
“threshold similarity” or “general areas of similarity” will suffice to render the other-crimes
evidence relevant. People v. Cruz, 162 Ill. 2d 314, 348-49 (1994); see Bartall, 98 Ill. 2d at 310
(evidence of a shooting that occurred 20 hours after the charged crime admissible to show the
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defendant’s intent in the charged murder); People v. McKibbins, 96 Ill. 2d 176, 185-86 (1983)
(evidence of a robbery that occurred two days after the charged crimes admissible to show the
defendant’s intent in the charged murder and robbery); cf. People v. Hansen, 313 Ill. App. 3d
491, 501-02 (2000) (evidence of subsequent crimes that occurred in the 1960s and 1970s
inadmissible to show the defendant’s motive in 1955 murder). The trial court here
acknowledged that there existed “minor distinctions” between the crimes; however, it properly
determined that the similarities, including that, after driving by and identifying alleged Latin
Kings members on the street, Insane Deuces members supplied a “nation gun” to Justin to
commit a shooting, sufficed to render it relevant. As the evidence was relevant and not excessive
or unduly prejudicial, we cannot find that the court abused its discretion in admitting it.
¶ 73 We further note that, even if we were to accept Justin’s argument that the evidence was
erroneously admitted, reversal remains unwarranted. Again, the erroneous admission of other-
crimes evidence generally requires reversal only where, without the evidence, the verdict likely
would have been different. Adkins, 239 Ill. 2d at 23. Here, the testimony of four witnesses
(Hernandez, Barragan, Grant, and Rios) established that Justin was present during and provided
the gun used in the charged shooting. Defense counsel vigorously challenged the credibility of
those witnesses, but the jury nevertheless chose to credit their testimony. As such, we do not
agree that, absent the evidence of the later shooting, Justin would likely have been acquitted.
¶ 74 2. Gang Expert Testimony
¶ 75 Justin argues next that the court erred in admitting Wiencek’s testimony, because it was
cumulative to that of other witnesses and because his status as a police officer and gang expert
served only to bolster the credibility of the other witnesses.
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¶ 76 Generally, gang evidence is admissible to show common purpose or design, or to provide
a motive for an otherwise inexplicable act. People v. Smith, 141 Ill. 2d 40, 58 (1990). Before
admitting the evidence, however, the court must weigh its probative value against its prejudicial
effect. People v. Morales, 2012 IL App (1st) 101911, ¶ 39. A court’s decision to admit expert
testimony is reviewed for an abuse of discretion. Becker, 239 Ill. 2d at 234.
¶ 77 Here, gang membership was clearly relevant; indeed, it was at the heart of the charged
crimes. As the trial court noted, Wiencek’s expertise and knowledge regarding gangs in Aurora,
their operations, and their motives for committing certain crimes were relevant to explain an
otherwise inexplicable act, i.e., why a group of young men would drive by and shoot, for no
apparent reason, two young people whom they did not know. While Justin cites People v.
Howard, 305 Ill. App. 3d 300, 309 (1999), for the proposition that the State should not be
permitted to use expert testimony to bolster witness credibility, that case involved an expert
witness on the subject of battered-woman syndrome who testified that there was no evidence that
a witness was lying, which the court found invaded the province of the jury to make credibility
determinations. Id. at 308-09. Here, Wiencek’s testimony did not comment on the credibility of
the other witnesses but, again, was offered to help explain the environment that would lead to an
otherwise inexplicable act.
¶ 78 Further, we disagree that the fact that the evidence was partly cumulative rendered it
more prejudicial than probative. Under the facts of this case, we think that the extent to which
Wiencek’s testimony was cumulative to that of other witnesses served, if anything, to reduce its
prominence. See, e.g., People v. Denson, 2013 IL App (2d) 110652, ¶ 24 (applying harmless-
error analysis, but noting that, where the improperly admitted evidence was merely cumulative
or duplicated properly admitted evidence, the error was harmless).
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¶ 79 Finally, Wiencek’s testimony that Justin was a member of the Insane Deuces was proper.
While bare testimony from lay witnesses is not sufficient to establish gang membership,
testimony of gang membership may be received from “a police officer specializing in gang
crimes, where the basis of the officer’s assertion is presented to the fact finder.” People v.
Williams, 262 Ill. App. 3d 808, 820 (1994). Justin argues that the testimony from gang witnesses
here was not “bare testimony,” but clearly came from personal knowledge that was arguably
superior to Wiencek’s. Nevertheless, the question is whether no reasonable person would agree
with the trial court’s decision to admit Wiencek’s testimony, a question we answer in the
negative because, again, it helped to explain an otherwise inexplicable act. Accordingly, the
court did not abuse its discretion in admitting Wiencek’s testimony. 3 People v. Herron, 215 Ill.
2d 167, 184 (2005).
¶ 80 B. Constitutional Arguments
¶ 81 Justin’s final argument on appeal is that the confluence of various statutes that led to his
convictions and sentences is unconstitutional. Specifically, Justin argues that the “excluded
jurisdiction” provision of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-
1 et seq. (West 2006))―which provides that minors 15 years old or older who commit certain
crimes, including first-degree murder, be excluded from juvenile court―unconstitutionally
subjects minors to adult prosecution and sentencing without any consideration of their
youthfulness and its attendant circumstances. See 705 ILCS 405/5-130(1)(a)(i) (West 2006).
Justin further notes that section 5-130 of the Juvenile Court Act, while not a sentencing statute,
3
We note that Justin argues that the cumulative effect of the evidentiary errors deprived
him of a fair trial. Again, however, we have found no error and, therefore, his cumulative-error
argument fails.
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has sentencing implications because subjecting minors to adult court subjects them to the
combined application of provisions for mandatory firearm enhancements, mandatory consecutive
sentencing, and “truth in sentencing.” Justin contends that the confluence of these provisions
was unconstitutional because it did not permit consideration of his youth at the time of the
offense and that the provisions violate the eighth amendment and the proportionate-penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) (which are read co-extensively
(see In re Rodney H., 223 Ill. 2d 510, 518 (2006))). 4
¶ 82 A challenge to the constitutionality of a statute may be raised at any time. In re J.W., 204
Ill. 2d 50, 61 (2003). We review de novo arguments concerning the constitutionality of statutes.
People v. McCarty, 223 Ill. 2d 109, 135 (2006). Further, we presume that all statutes are
constitutional and, where possible, must construe a statute to uphold its constitutionality. People
v. Vasquez, 2012 IL App (2d) 101132, ¶ 53.
¶ 83 Justin argues that his constitutional arguments must be assessed in light of recent United
States Supreme Court decisions, which, he argues, have significantly changed the law
concerning the treatment and sentencing of minors. Those cases, he asserts, make clear that
there exist fundamental differences between juveniles and adults, such that juveniles may not be
prosecuted and sentenced in the same manner as adults without consideration of youth and its
attendant circumstances. See Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012); Graham v.
Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551, 569-73 (2005).
4
Justin’s constitutional arguments essentially mirror those raised in Joshua’s appeal, and
we reject them for the same reasons. See Cavazos, 2015 IL App (2d) 120171, ¶¶ 92-102. We
note, however, that, unlike Joshua, Justin does not argue that the statutes violate due process.
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¶ 84 Indeed, there is really no question from those cases that there exists a growing trend to
acknowledge that juvenile offenders are inherently different from adult offenders and that,
therefore, what might be constitutional as applied to an adult might not meet constitutional
muster when applied to a juvenile. See, e.g., People v. Willis, 2013 IL App (1st) 110233, ¶ 47.
Specifically, in Roper, the Court held that capital punishment for juvenile offenders violates the
eighth amendment. Roper, 543 U.S. at 568. In Graham, the Court held that, when imposed on a
juvenile offender for a crime other than homicide, a life sentence without the possibility of parole
violates the eighth amendment. Graham, 560 U.S. at 74. The Graham Court nevertheless noted
that “[t]he Eighth Amendment does not foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will remain behind bars for life.” Id. at 75.
Most recently, in Miller, the Court held that, even for those convicted of homicide, the eighth
amendment prohibits “a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.” Miller, ___ U.S. at ___, 132 S. Ct. at 2469. The Court noted that,
under the sentencing scheme at issue, the sentencing court was prevented from considering that
the juvenile was not as culpable and had a “greater capacity for change” than an adult in similar
circumstances. (Internal quotation marks omitted.) Id. at ___, 132 S. Ct. at 2460. The Court
continued that “[b]y making youth (and all that accompanies it) irrelevant to imposition of that
harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.”
Id. at ___, 132 S. Ct. at 2469. Roper, Graham, and Miller all considered that, as compared with
adults, juveniles lack maturity, have an underdeveloped sense of responsibility, and are more
easily influenced by peer pressure, and, because the character of a juvenile is not yet fully
formed, his or her personality traits remain susceptible to change. Roper, 543 U.S. at 569-70;
Graham, 560 U.S. at 68; Miller, ___ U.S. ___, 132 S. Ct. at 2464-65.
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¶ 85 Nevertheless, we reject Justin’s constitutional arguments. Simply put, despite the
foregoing Supreme Court decisions, courts in this state have consistently rejected the arguments
he raises here. We will not repeat the same analyses that have, essentially, been set forth at
length multiple times. Suffice it to say, however, that section 5-130 of the Juvenile Court Act
has consistently been upheld as constitutional, generally on the basis that, unlike the statutes at
issue in Roper, Graham, and Miller, it is not itself a sentencing statute and, therefore, imposes no
sentence. Rather, section 5-130 determines only where a juvenile is to be tried. Thus, courts
have held that section 5-130 is not subject to and does not violate the eighth amendment or
proportionate penalties clause. See, e.g., People v. Patterson, 2014 IL 115102, ¶¶ 89-111
(section 5-130 of the Juvenile Court Act does not violate due process, the eighth amendment, or
the proportionate-penalties clause); People v. Harmon, 2013 IL App (2d) 120439, ¶¶ 54-56, 59-
62 (despite holdings in Miller, Roper, and Graham, neither section 5-120 nor section 5-130 of
Juvenile Court Act violates eighth amendment); People v. Willis, 2013 IL App (1st) 110233, ¶ 53
(despite holdings in Miller, Roper, and Graham, section 5-130 does not violate eighth
amendment or proportionate-penalties clause); People v. Pacheco, 2013 IL App (4th) 110409, ¶¶
55, 65 (same); 5 People v. Jackson, 2012 IL App (1st) 100398, ¶¶ 17, 19 (despite holdings in
5
On June 26, 2014, this court entered an order holding our disposition of this case in
abeyance until our supreme court rendered a decision in Pacheco, 2013 IL App (4th) 110409,
appeal allowed, No. 116402 (Sept. 25, 2013), or People v. Jenkins, 2013 IL App (1st) 103006-U,
appeal allowed, No. 115979 (Sept. 25, 2013). On January 27, 2015, however, the supreme court
found that those petitions for leave to appeal were improvidently granted and, therefore, it
vacated those orders and denied the petitions. Accordingly, this disposition no longer needs to
be held in abeyance.
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Roper and Graham, section 5-130 does not violate eighth amendment or proportionate-penalties
clause); People v. Salas, 2011 IL App (1st) 091880, ¶¶ 66, 76-80 (same).
¶ 86 Further, courts have also rejected the argument that section 5-130’s sentencing
implications, whereby juveniles are subject to automatic application of adult sentences and “truth
in sentencing” provisions, are unconstitutional. See, e.g., Patterson, 2014 IL 115102, ¶¶ 100-11;
Pacheco, 2013 IL App (4th) 110409, ¶¶ 57-58, 60. The court in Pacheco noted that, taken to its
logical extension, the argument suggests that it is unconstitutional to subject a juvenile to the
same mandatory minimum sentence as an adult, a result not warranted by the Miller, Graham,
and Roper holdings, which concerned only the harshest possible penalties. Pacheco, 2013 IL
App (4th) 110409, ¶ 58. Indeed, Miller states that “Graham, Roper, and our individualized
sentencing decisions make clear that a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for juveniles.”
(Emphasis added.) Miller, ___ U.S. ___, 132 S. Ct. at 2475. Further, the Miller court expressly
declined to foreclose a life sentence without parole for a juvenile in a homicide case (although it
suggested that the occasions whereby such sentences would be appropriate would be
“uncommon”). Id. at ___, 132 S. Ct. at 2469.
¶ 87 Here, Justin did not receive the “harshest possible penalty,” i.e., he did not receive a
natural-life sentence without the possibility of parole. Indeed, he received the minimum
sentence possible for murder, only four years more than the minimum for attempted murder, and
only two years more than the minimum for possession of a stolen motor vehicle. Justin argues,
in part relying on life-expectancy tables, that the 60 years imposed nevertheless constitute a “de
facto” life sentence. However, courts have rejected such an argument, noting that there are
distinct differences between a sentence of natural life without parole and a sentence of a
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determinate, albeit lengthy, number of years. See, e.g., Patterson, 2014 IL 115102, ¶¶ 107-11;
People v. Gay, 2011 IL App (4th) 100009, ¶¶ 19-20, 22-25 (the defendant’s aggregate 97-year
sentence was not a de facto life sentence without parole).
¶ 88 Further, to the extent that the Supreme Court decisions can be read broadly as requiring
that, before sentencing a juvenile, the sentencing body must have an opportunity to take into
account the juvenile’s youth at the time of the crime, that requirement was satisfied here. See
Harmon, 2013 IL App (2d) 120439, ¶¶ 54, 62. The court in this case expressly acknowledged
Justin’s youth and considered mitigating factors before imposing the sentence. Again, after
doing so, the court imposed the minimum term of imprisonment for murder, only four years
above the minimum for attempted murder, and only two years above the minimum for
possession of a stolen motor vehicle. Moreover, while the aggregate number of years is indeed
significant, it must be remembered that Justin was convicted of murdering one 15-year-old and
attempting to murder a second one.
¶ 89 The fact that consistent with our sister courts we reject Justin’s arguments regarding the
sentencing scheme at issue is not to say that we take his arguments lightly. The Supreme Court
has, indeed, made very clear that, for constitutional purposes, some consideration must be made
of the fact that juveniles and adults are inherently different. The courts in Patterson, Willis, and
Pacheco note that whether the current sentencing scheme in Illinois, which requires certain
juveniles to be tried and sentenced as adults, continues to be sound policy in this State is for the
General Assembly, not courts, to decide, and they suggest that a renewed discussion on the
subject might be warranted. Patterson, 2014 IL 115102, ¶ 111; Willis, 2013 IL App (1st)
110233, ¶¶ 54-58; Pacheco, 2013 IL App (4th) 110409, ¶¶ 67-68. We do not disagree, and we
join that call.
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¶ 90 In that vein, we note that we find particularly troubling the current limitations placed
upon a sentencing court’s discretion when mandatory sentencing enhancements are at play for a
juvenile offender. Although the sentencing court is aware that it must apply the enhancements,
the fact remains that, even if the court determines that, due to the attendant circumstances of
youth, a minimum sentence for a juvenile is warranted, it cannot deviate from the mandatory
add-ons that might be greater punishment than it found appropriate for the underlying crime. For
example, here, the court determined that 20 years’ imprisonment was appropriate for Justin’s
decision to take another’s life. However, it was required to impose another 15 years to that
sentence because Justin (or one for whose conduct he was responsible) did so with a firearm.
730 ILCS 5/5-8-1(a)(1)(d)(i) (West 2006). Similarly, the court determined that 10 years’
imprisonment should be imposed for Justin’s attempted murder of a young girl. However, it was
required to impose another 15 years, indeed more than the underlying sentence, because Justin
(or one for whose conduct he was responsible) did so with a firearm. Id. We do not suggest that
the crimes at issue here or the use of a firearm during those crimes should be punished lightly, or
that the instant sentence is inappropriate, but where there exists an evolving trend that the
attendant circumstances of youth must be considered at sentencing, the court’s restricted
discretion and required imposition of an add-on that is more than what the court determines is
reasonable for the underlying offense should, in our opinion, be revisited.
¶ 91 III. CONCLUSION
¶ 92 For the forgoing reasons, we affirm the judgment of the circuit court of Kane County.
¶ 93 Affirmed.
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