People v. Cavazos

2025 IL App (2d) 240171-U

• Court: Appellate Court of Illinois
• Decided: March 31, 2025
• Docket: 2-24-0171
• Status: Unpublished

Opinion

2025 IL App (2d) 240171-U No. 2-24-0171 Order filed March 31, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

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 ) Elizabeth K. Flood, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment.

ORDER

¶1 Held: The trial court’s second-stage dismissal of defendant’s postconviction petition was not erroroneous, because, where the argument would not likely have succeeded, appellate counsel was not ineffective for failing to argue on direct appeal that the evidence was insufficient to sustain defendant’s attempted first degree murder conviction. In addition, defendant’s argument, raised for the first time in this appeal, that he was denied a fair trial, where the pattern jury instruction on attempted murder likely confused the jury and caused it to convict him based on a misunderstanding of the law, is forfeited and, in any event, fails. Affirmed.

¶2 Defendant, Justin Cavazos, appeals the trial court’s decision, granting the State’s motion

to dismiss his amended petition filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2018)). Defendant argues that he received ineffective assistance from 2025 IL App (2d) 240171-U

appellate counsel, where counsel did not argue on direct appeal that the evidence was insufficient

to sustain his conviction for attempted first degree murder. Alternatively, defendant argues for the

first time in this appeal that he was denied a fair trial, where the pattern attempted-murder jury

instruction likely confused the jury and caused it to convict him based on a misunderstanding of

the law. We affirm.

¶3 I. BACKGROUND

¶4 A. Charges and Trial

¶5 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

sports 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. Specifically, on December 31, 2008, the

grand jury charged defendant with first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2006)),

unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2006)), and

aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). Further, defendant was

charged with attempted first degree murder (id. §§ 5/8-4(a), 5/9-1(a)(1)) in that he, “without lawful

justification and with the intent to kill Claudia Lozano, shot at Claudia Lozano with a firearm.”

¶6 In 2011, the brothers were tried simultaneously but by separate juries. At the beginning of

jury selection in defendant’s case, the trial court informed the jury that defendant was charged with

the murder of Rodriguez and the attempted murder of Lozano. In its opening statement to

defendant’s jury, the State argued, in part, that defendant’s motive for the shootings was to “hunt”

and hurt rival gang members.

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¶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. An SUV drove by, and passengers started “throwing” gang signs and yelling

gang slogans at Lozano and Rodriguez. Rodriguez responded, “King love.” The SUV passed

Rodriguez and Lozano, but it did a quick U-turn and, when it returned, Lozano heard four or five

gunshots come from the SUV. She and Rodriguez fell to the ground. Lozano was hit by a bullet

on her left thigh. Rodriguez died from multiple gunshot wounds.

¶8 David Hernandez testified that, in 2007, he, defendant, and Joshua were members of the

Insane Deuces street gang, as was Jaime Barragan. 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 Kings territory. Generally,

“hunting” would be the only purpose for Insane Deuces members to enter that area.

¶9 On January 19, 2007, Hernandez, Barragan, and both Cavazos brothers were at Caranza’s

apartment, where they stayed overnight. At some point, defendant, 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 that Hernandez and Carragan stole the night before.

They went “hunting” in Latin Kings territory. On High Street, they saw a “rival gang banger”

walking with someone else. The male pedestrian was closer to the street. 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 Kings colors and threw a

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Latin Kings crown signal. The SUV drove past the pedestrians, turned around, and came back

toward “him.” Defendant 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

defendant. Defendant then passed the gun up front to Joshua. Joshua aimed the firearm out the

window and shot three or four rounds.

¶ 10 Barragan testified that, on the morning of January 20, 2007, Joshua told defendant 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. Defendant

showed Barragan and Joshua that he had a gun—specifically, a .40-caliber semiautomatic

firearm—and said that “that’s the gun they want to put in work with.” Barragan explained that he

drove the SUV and, on High Street, they saw a boy and a girl walking down a sidewalk, the boy

was closer to the street, and defendant started “gang banging with the boy.” Barragan saw

defendant pass Hernandez some gloves and the gun he had displayed earlier in the apartment.

When he turned the car around, the boy and the girl were “walking like right next to each other,”

with the boy closer to the street. According to Barragan, Hernandez said that he “wasn’t doing it”

and passed the gun to Joshua between Joshua’s seatbelt and the passenger door. Barragan saw

Joshua with the gun; Joshua started shooting, and Barragan heard three to five gunshots. They

returned to Caranza’s apartment, where Joshua and defendant bragged about the shooting. In

addition, defendant had earlier bragged about the shooting, saying, “we just handled business,”

which, in gang terms, meant that they shot somebody.

¶ 11 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

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girl neither threw up the crown nor did anything else. They were talking about the boy while

Barragan drove by, and 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.

¶ 12 Ignacio Rios testified that, on January 20, 2007, he was a member of the Insane Deuces

and was at Caranza’s apartment. Rios had a conversation with defendant, Joshua, Hernandez, and

Barragan. Defendant displayed a .40-caliber silver semiautomatic handgun. Barragan and

defendant spoke about finding a Latin Kings member to shoot. Defendant, Joshua, Hernandez,

and Barragan left the apartment, and Rios stayed in the apartment with Caranza. Later, when the

four men returned to the apartment, Joshua acted happy because he just “whacked a King,” and

defendant acted excited and threw up the crown and kissed it like he did when he was false

flagging.

¶ 13 Prior to trial, the court granted the State’s motion in limine to admit, pursuant to Illinois

Rule of Evidence 404(b) (eff. Jan. 1, 2011), evidence of a subsequent crime. Specifically, the State

introduced evidence that, after the shooting, defendant committed another attempted murder,

wherein another Insane Deuces gang member supplied a “nation gun” to defendant, who again

drove by people on a sidewalk in Aurora and targeted Latin Kings.

¶ 14 Gang expert Sergeant Jeffrey Wiencek explained that, to protect gang territory, members

acquire guns and go “hunting” for rivals. “Hunting” is actively searching for rival gang members

to hurt or kill. When asked if he had any doubt that defendant was an Insane Deuces member,

Wiencek replied, “none.”

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¶ 15 The parties made closing arguments to defendant’s jury. The State argued that defendant’s

intent was to hunt, identify, and hurt a rival gang member and to “[p]ut that weapon in the hands

of another person so that they could take the life of another individual.” The State argued that,

even though he did not fire the gun, defendant was accountable and responsible for the actions of

the shooter. The State reviewed the accountability instruction with the jury:

“a person is legally responsible for the conduct of another person when, either

before or during the commission of the offense, and with the intent to promote or facilitate

the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or attempts

to aid the other person in the planning or commission of the offense.”

Further, it noted that “intent to promote or facilitate the commission of an offense may be shown

by evidence the defendant shared a criminal intent of the principal or evidence that there was a

common criminal design.” Here, the State argued, the common criminal design was to go hunt

and shoot rival gang members, an intent reflected by defendant’s conversations in Caranza’s

apartment; his display of a handgun; his decision to bring the handgun into the SUV; and his

decision, after he spotted Rodriguez and Lozano walking together, to begin “gang-banging” with

Rodriguez to “help the common purpose and design” of identifying a rival gang member and target.

Then, to “aid, abet, solicit the other people in the car in the commission of this crime,” defendant

supplied the gun and gloves to Hernandez and Joshua. The State argued that the inescapable

conclusion was that, when defendant provided the gun and it was used to fire four times at

Rodriguez and Lozano, they were using it “to kill someone, to hunt another gang member.” As to

Lozano, she was shot and “she’s standing right next to [Rodriguez]. She’s standing right there.

Why? There’s no rhyme or reason. *** but the intent was there. The intent to kill was there. In

the intent to kill an individual, Claudia Lozano was struck.”

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¶ 16 Defense counsel argued in closing that the important question in defendant’s case was

whether the evidence proved beyond a reasonable doubt that “[defendant] took part in this, that

[defendant] was in that car? *** What is the evidence beyond a reasonable doubt that [defendant]

was actually in that car?” Further, counsel argued that the subsequent-crime evidence, which the

State asserted was relevant to motive and intent, was irrelevant, because, “[i]f you believe

[defendant’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.” Counsel argued to the jury that

defendant was not guilty of attempted murder, because the evidence did not illustrate the requisite

intent to kill Lozano. Counsel asked the jury, “when was [Lozano] the subject of anything? When

did they say, ‘Hey, let’s get her. We’ll get rank or business’, or whatever the silly goal is of this

gang[?]” He argued that an intent to hurt one person, which then hurt someone else, reflected, in

these circumstances, not attempted murder but, instead, merely aggravated discharge of a firearm.

Counsel also explained that the phrase “an individual” in the attempted-murder instruction was not

referring to Rodriguez, who was the subject of the murder instruction. Counsel continued that,

while he and the jurors could agree that they did not like what happened to Lozano, that alone did

not establish an intent to murder her, and he referred the jury to the autopsy report to argue that

Lozano was hit by a bullet that went through Rodriguez and struck her. “You know, does that

mean someone was aiming the gun at [Lozano] with a plan or intent to kill her? No.”

¶ 17 With no objection, the jury in defendant’s case was provided two pattern instructions

related to attempted murder. The first stated, in relevant part, “[a] person commits the offense of

attempt first degree murder when he, without lawful justification and with the intent to kill an

individual, does any act which constitutes a substantial step toward the killing of an individual.”

Illinois Pattern Jury Instructions, Criminal, No. 6.05X (4th ed. 2000). The second instruction

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provided, in relevant part, that, to sustain the charge of attempted first degree murder, the State

needed to prove that defendant, “or one for whose conduct he is legally responsible”: (1)

“performed an act which constituted a substantial step toward the killing of an individual”; and (2)

“did so with the intent to kill an individual.” Illinois Pattern Jury Instructions, Criminal, No. 6.07X

(4th ed. 2000).

¶ 18 In contrast, for first degree murder, the jury was instructed that it had to find that defendant,

or one for whose conduct he was legally responsible, performed the acts “which caused the death

of Oscar Rodriguez.”

¶ 19 Defendant’s jury convicted him of two counts of first degree murder (720 ILCS 5/9-1(a)(1),

(2) (West 2006)), attempted first degree murder (id. §§ 5/8-4(a), 5/9-1(a)(1)), unlawful possession

of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2006)), and aggravated discharge of a

firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). Further, as to the first degree murder and

attempted-murder convictions, the jury found that defendant, 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

defendant’s posttrial motions and sentenced him to an aggregate of 60 years’ imprisonment.

¶ 20 B. Direct Appeals

¶ 21 i. Defendant’s Appeals

¶ 22 On appeal, this court rejected defendant’s arguments concerning the admissibility of

subsequent bad act evidence and gang expert testimony, as well as the constitutionality of his

sentence. People v. Cavazos, 2015 IL App (2d) 120444.

¶ 23 Later, the case returned to us following our supreme court’s entry of a supervisory order,

directing us to vacate our prior judgment, consider the effect of People v. Buffer, 2019 IL 122327,

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on the issue of whether defendant’s sentence constituted an unconstitutional de facto life sentence

and to determine if a different result was warranted. People v. Cavazos, No. 119139 (Ill. Nov. 24,

2021) (supervisory order). However, defendant also filed an unopposed motion, asking that we

dismiss as moot his sentencing argument, since the State had agreed in postconviction proceedings

that he should receive a new sentencing hearing. Accordingly, we affirmed defendant’s conviction

and dismissed as moot his sentencing arguments. People v. Cavazos, 2022 IL App (2d) 120444-

B.

¶ 24 On March 18, 2022, defendant received a new sentencing hearing, and the trial court

imposed a 41-year aggregate sentence. This court affirmed. People v. Cavazos, 2023 IL App (2d)

220182-U, ¶ 5.

¶ 25 ii. Joshua’s 2015 Direct Appeal

¶ 26 Separately, as it is relevant to defendant’s arguments in this appeal, we note that Joshua

raised numerous issues in his direct appeal, including that (1) the jury was improperly instructed

on the attempted-murder charge, where the instruction did not state that, to be found guilty, he had

to specifically intend to kill Lozano, as opposed to merely “an individual”; and (2) the attempted-

murder conviction must be reversed because no evidence established that he specifically intended

to kill Lozano. People v. Cavazos, 2015 IL App (2d) 120171, ¶ 3. In rejecting his arguments, we

noted that, in closing arguments to Joshua’s jury, the State emphasized that the wording of each

jury instruction was important and, as to attempted murder,

“the evidence we’ve already talked about supports the attempted murder as well.

The defendant fired shots in the direction of both [Rodriguez] and [Lozano]. He had

specific intent to kill both. He successfully completed the killing of [Rodriguez]. He did

not successfully complete the killing of [Lozano]. He took a substantial step though by

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shooting and by hitting her with the bullet on her thigh. Although she was not seriously

injured, we know from the facts that the defendant tried to kill her as well.” Id. ¶ 55.

We held that the record belied Joshua’s assertion that there was a serious risk that the attempted-

murder instruction misled the jury, such that it convicted Joshua based on a misunderstanding of

the law. Id. ¶¶ 80-81. We found confusion not probable, where

“Lozano testified that she was next to Rodriguez when he was shot and that she was

shot in the leg. There were only two people on the sidewalk when Joshua opened fire: one

died, and one was injured. *** [W]e do not believe that the evidence could have confused

the jury as to who was the subject of the attempted-murder charge such that the trial court

erred by not deviating from the pattern instruction. Again, the court should deviate from

the pattern instruction only where necessary to conform to unusual facts or new law. We

disagree that either existed here.” Id. ¶ 80.

¶ 27 Further, we rejected Joshua’s argument that the evidence failed to establish that he

specifically intended to kill Lozano, such that the attempted-murder conviction could not stand.

As defendant raises similar arguments on appeal here and references our holding in Joshua’s

appeal, we quote at length our former decision, to give context to our statements therein.

Specifically, we wrote:

“Joshua argues that attempted murder is a specific-intent crime but that the only

evidence presented reflected an intent to kill a rival gang member and, specifically, ‘the

boy’ who was wearing gang colors and returned the Latin King[s] sign. Further, he argues

that we should find that the doctrine of transferred intent does not apply and therefore

cannot cure the State’s lack of evidence regarding a specific intent to kill Lozano. Joshua

concludes that the evidence supported only that his knowing discharge of a firearm in

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Lozano’s direction constituted aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2)

(West 2006)), of which the jury also found him guilty.

Preliminarily, we agree with the State that the doctrine of transferred intent is not

at issue here and, therefore, we need not resolve its applicability to inchoate offenses.

Transferred intent generally concerns an unintended victim, such that the actor’s intent to

injure or kill one person may be transferred to a different victim who was injured or killed.

See People v. Migliore, 170 Ill. App. 3d 581, 589 (1988). Here, the State did not pursue a

theory at trial that Joshua’s intent to kill Rodriguez transferred to Lozano, who was an

unintended victim. Rather, the State maintained that Joshua also intended to kill Lozano.

The question is simply whether the evidence was sufficient for the jury to find, beyond a

reasonable doubt, that Joshua also intended to kill Lozano.

Joshua’s argument regarding transferred intent is premised on his belief that there

was no evidence that he intended to kill Lozano (such that, he concludes, he was convicted

by virtue of transferred intent only). However, we disagree with his premise. It is fair to

say that the evidence speaking to Joshua’s intent to kill Lozano was not as detailed as that

supporting his intent to kill Rodriguez. As Joshua points out, the witnesses testified that

they were ‘hunting,’ looking to shoot a rival gang member. They testified that the rival

gang member they found was a ‘he’ and that ‘he’ was walking with a girl. Rodriguez was

the person wearing gang colors and who returned the gang sign, signifying himself as a

Latin King. Barragan testified that [defendant] was ‘gang banging with the boy’ and that

he intended to get out of the car to beat up ‘the guy.’ Further, according to Barragan,

between the boy and the girl, the boy was the one who was significant, and harming the

girl would not necessarily provide any clear reward within the gang in terms of rank or

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otherwise. Barragan did not see the gun pointed at Lozano, and he testified that, when

Rodriguez was shot, he was closer to the street and Lozano was still on the sidewalk.”

(Emphases in original.) Cavazos, 2015 IL App (2d) 120171, ¶¶ 84-86.

¶ 28 However, we noted that the standard of review required us to consider the evidence in the

light most favorable to the State, as well as the fact that intent to kill is rarely demonstrable through

direct evidence and may, therefore, be inferred from surrounding circumstances. Id. ¶ 88.

Accordingly, we concluded that the evidence was clearly sufficient to establish Joshua’s intent to

kill Lozano. Specifically, we explained,

“Here, although the evidence speaks more directly to Joshua’s intent to kill

Rodriguez, there nevertheless clearly exists sufficient evidence from which the jury could

have reasonably found that Joshua also intended to kill Lozano. Again, the jury heard

evidence regarding the circumstances of the shooting, which included that the vehicle

drove up close to the victims, who were walking right next to each other, and that Joshua

fired at least four rounds from a .40-caliber semiautomatic weapon. See [People v.]

Teague, 2013 IL App (1st) 110349, ¶ 25 (evidence of intent to kill sufficient where the

defendant fired, from a distance of 40 feet, a semiautomatic weapon at three police officers

sitting in a vehicle, even though there was no damage to the vehicle except the windshield

and no officer was injured). Thus, the evidence reflects that Joshua pointed the gun in the

direction of two people standing together and fired four shots at relatively close range.

Lozano was, in fact, shot in the leg. ‘The very fact of firing a gun at a person supports the

conclusion that the person doing so acted with an intent to kill.’ (Internal quotation marks

omitted.) Teague, 2013 IL App (1st) 110349, ¶ 2 (quoting People v. Ephraim, 323 Ill. App.

3d 1097, 1110 (2001)); see also People v. Garcia, 407 Ill. App. 3d 195, 201-02 (2011)

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(intent to kill reasonably inferred from firing two bullets in the direction of an occupied car

and crowded street); People v. Bailey, 265 Ill. App. 3d 262, 273 (1994) (intent to kill

reasonably inferred from shooting down a breezeway in which several people were

running).

Further, there exists other evidence in the record from which the jury could have

found an intent to kill Lozano or, at least, from which it could have discounted testimony

suggesting that she was not a target. For example, although Barragan testified that he did

not see the gun aimed at Lozano, he also testified that the gunshots surprised him and he

was focused on driving away ‘recklessly.’ Although Barragan claimed that, during the

shooting, Rodriguez had stepped forward toward the SUV and Lozano was still on the

sidewalk, Hernandez testified that, after the car returned and approached them, Rodriguez

and Lozano were ‘walking like right next to each other.’ Thus, the jury could have resolved

any discrepancies in the testimony by crediting that which reflected an intent to kill Lozano,

as well as Rodriguez. In sum, we conclude that the jury could have reasonably found that,

based on the circumstances of the shooting, Joshua intended to kill Lozano. Thus, Joshua’s

argument fails.” Id. ¶¶ 89-90.

¶ 29 C. Postconviction Proceedings

¶ 30 Defendant petitioned for postconviction relief. In an amended petition, filed with the

assistance of counsel, defendant argued, among other things, that his appellate counsel was

ineffective for failing to raise an argument on direct appeal that the State had not proved him guilty

of attempted murder. He argued that the evidence showed only an intent to shoot a rival gang

member, not a specific intent to kill Lozano.

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¶ 31 In response, the State argued that defendant’s argument lacked credibility and an

understanding of law, because to prove the specific intent necessary for attempted first degree

murder, the State did not necessarily have to prove a specific intent to kill “the victim.” It

referenced the pattern jury instructions, which explained it was necessary only that the defendant

have an intent to kill “an individual.” In addition, the State noted that defendant did not challenge

the proof of intent to kill Rodriguez and ignored the legal theory of transferred intent, which

established, with each shot fired, an intent to kill Rodriguez legally transferred to Lozano.

¶ 32 On February 9, 2024, the trial court granted the State’s motion to dismiss. As to

defendant’s claim that appellate counsel was ineffective for failing to argue on direct appeal that

the State had not proved him guilty of attempted first degree murder, the court found,

“the [State’s] argument that the only requirement of the State at trial was to prove

[defendant’s] specific intent to kill an individual, using the theory of transferred intent in

Illinois, to be a correct statement of the law as evidenced by the Illinois Pattern Jury

Instructions and the cases cited in the [State’s] motion to dismiss.”

¶ 33 Defendant appeals.

¶ 34 II. ANALYSIS

¶ 35 The Act “provides a remedy to a criminal defendant whose federal or state constitutional

rights were substantially violated in [his or her] original trial or sentencing hearing.” People v.

Pitsonbarger, 205 Ill. 2d 444, 455 (2002). The Act establishes a three-stage process for the

adjudication of a postconviction petition and, at the second stage of proceedings, as here, counsel

for the defendant may be appointed under section 122-4 of the Act. 725 ILCS 5/122-4 (West

2016). The State may then answer or move to dismiss the postconviction petition. Id. § 122-5.

The relevant inquiry at the second stage is “whether the petition and any accompanying

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documentation make a substantial showing of a constitutional violation.” People v. Johnson, 2018

IL 122227, ¶ 15. A substantial showing is made when the petition’s allegations, if proven at an

evidentiary hearing, would entitle the defendant to relief. People v. Moore, 2023 IL App (1st)

220919, ¶ 25. The trial court does not engage in fact-finding or credibility determinations at the

second stage of proceedings; rather, only the legal sufficiency of the petition is tested. Id. ¶ 27.

Therefore, a motion to dismiss filed at the second stage raises the sole issue of whether the petition

is proper as a matter of law and, if the petition fails to make a substantial showing of a

constitutional violation, it is dismissed. Id. ¶¶ 26, 39.

¶ 36 Moreover, we note that the purpose of the Act is to allow inquiry into constitutional issues

involved in the original conviction and sentence that were not, and could not have been,

adjudicated previously on direct appeal. People v. English, 2013 IL 112890, ¶ 22. As such, issues

that could have been raised on direct appeal, but were not, are forfeited, although forfeiture may

be relaxed where fundamental fairness so requires or where the forfeiture stems from the

ineffective assistance of appellate counsel. Id.

¶ 37 A. Ineffective Assistance of Appellate Counsel

¶ 38 Defendant argues first that his petition made a substantial showing of a constitutional

violation because appellate counsel on direct appeal was ineffective. Specifically, defendant

contends that the State did not pursue at trial a theory of transferred intent (i.e., that the intent to

kill Rodriguez was transferred to Lozano, who was “accidentally” hurt) and, further, the evidence

demonstrated only an intent to kill a rival gang member, not specific intent to kill Lozano.

Therefore, he argues that his appellate counsel should have argued on direct appeal that the

evidence was insufficient to sustain his attempted-first-degree-murder conviction.

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¶ 39 As to transferred intent, defendant elaborates that the postconviction court erred in agreeing

with the State that defendant was accountable for Joshua’s shooting of Lozano, based on the theory

of transferred intent. He points out that this court held in Joshua’s direct appeal that transferred

intent has no application in the case. Therefore, defendant contends, because transferred intent did

not apply, the court also erred in agreeing with the State that the jury was properly instructed that,

to be guilty of attempted murder, defendant had to possess intent only that “an individual” be

killed, an individual who did not necessarily have to be Lozano. Defendant argues that, where

transferred intent did not apply to Joshua’s shooting of Lozano, it cannot be the basis of his

accountability conviction for the same shooting.

¶ 40 Therefore, defendant explains, the State needed to prove, but failed to do so, that he had

the specific intent to kill Lozano. Rather, the State argued and the evidence established only that

his “mission was to hunt and shoot a rival gang member.” There was no evidence that he believed

Lozano was in a rival gang, and the evidence reflected the “boy” was significant but the “girl”

would not have earned them any rank or recognition within their gang. Defendant argues that we

must conclude, based on the evidence and arguments presented at trial, that he did not have any

intent to kill or injure Lozano and, consequently, could not be convicted for the offense of

attempted first degree murder. Consequently, appellate counsel was ineffective because, had the

sufficiency of evidence for the attempted murder been raised on direct appeal, it would likely have

been successful. He therefore requests that we reverse outright his conviction for attempted first

degree murder or, alternatively, vacate the dismissal order and remand the claim for additional

postconviction proceedings.

¶ 41 To succeed on a claim of ineffective assistance of appellate counsel, a defendant must show

both that appellate counsel’s performance was deficient and that, but for counsel’s errors, there is

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a reasonable probability that the appeal would have been successful. English, 2013 IL 112890,

¶ 33; see also Strickland v. Washington, 466 U.S. 668, 685-87 (1984). A reasonable probability is

one sufficient to undermine confidence in the outcome. People v. Moore, 356 Ill. App. 3d 117,

121 (2005). Appellate counsel is not required to raise every issue on appeal and, where an

appellate attorney presents one argument on appeal rather than another, a defendant must

demonstrate that the issue not presented “was clearly stronger than the issues that counsel did not

present.” English, 2013 IL 112890, ¶¶ 33, 58 (Freeman, J., specially concurring); Smith v.

Robbins, 528 U.S. 259, 288 (2000).

¶ 42 Here, appellate counsel’s decision to not pursue a sufficiency-of-the-evidence argument

was not outside the wide range of reasonable professional assistance, nor did it prejudice

defendant, because there is no reasonable probability that, if raised, it would have been successful.

Indeed, given our holding rejecting that argument in Joshua’s case, it is almost puzzling that

defendant would suggest that, if his appellate counsel had raised the argument on appeal, it likely

would have been successful. As noted, Joshua raised an almost identical argument that, because

the evidence reflected only an intent to hunt or hurt a rival gang member, the evidence did not

suffice to support an intent to kill Lozano, and this court rejected that argument. Cavazos, 2015

IL App (2d) 120171, ¶¶ 86-89. Defendant, therefore, hangs his hat on our statement that

transferred intent was not the theory the State pursued in Joshua’s case and did not apply (id. ¶

85), such that, he contends, the postconviction court’s decision that transferred intent applied to

him on an accountability theory was erroneous. He notes this case is different than People v. Hill,

276 Ill. App. 3d 683, 687-89 (1995), or People v. Barrage, 269 Ill. App. 3d 67, 76 (1994), where

attempted-murder convictions were properly sustained on a theory of transferred intent, but where

that theory applied to both the principals and accomplices. In contrast, he contends, it would be

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unjust to find that the State here sufficiently established his guilt for murder and attempted murder,

based on his intent to harm only Rodriguez, where, for Joshua, the principal, the State was required

to establish the intent to kill both Rodriguez and, separately, Lozano. For the following reasons,

we reject defendant’s arguments.

¶ 43 Preliminarily, we remain mindful that, while they had a shared trial, defendant and Joshua

had separate juries and different arguments were made (indeed, by different attorneys for both

defendants and the State) to their respective juries. As such, defendant is incorrect that our

conclusion that the State did not pursue a transferred-intent theory in Joshua’s case would

necessarily require us to make the same conclusion here. In any event, although defendant

contends it is unjust that he could be convicted based on transferred intent when that theory did

not apply to Joshua, transferred intent is simply not necessary to sustain defendant’s attempted-

murder conviction on an accountability theory. Indeed, we conclude, like we did in Joshua’s case,

that defendant’s conviction may be sustained without relying on transferred intent; in other words,

the “higher burden” he notes we found satisfied for Joshua was also satisfied in defendant’s case.

¶ 44 Specifically, as the State argues on appeal, transferred intent is not necessary to sustain

defendant’s conviction, so long as a reasonable jury could find that the evidence established

beyond a reasonable doubt that defendant either shared Joshua’s intent or there was a common

criminal design. Indeed, the State argued to defendant’s jury that, for purposes of accountability,

defendant could be found liable if either he shared the criminal intent of the principal, i.e., Joshua,

or through evidence that there was a common criminal design. The State contends that defendant’s

sufficiency-of-the-evidence argument would not have succeeded, and the ineffective-assistance

claim fails, because his participation rendered him criminally liable for Joshua’s acts, given the

existence of a common criminal design. We agree with the State.

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¶ 45 We note that, although defendant suggests that the State has abandoned its claim that

transferred intent applied, such that it is tacitly admitting that the postconviction court erred in

granting the motion to dismiss on that basis, we disagree. Although the State does not argue on

appeal that transferred intent applies, we read the State’s argument not so much as an admission

as, instead, a decision to point out that it is not needed and alternative bases support the conviction

and, thus, the court’s dismissal of the petition. And, regardless of the State’s argument or the

rationale for the court’s dismissal, this court may affirm for any basis supported by the record. 1

People v. Gomez, 2021 IL App (1st) 192020, ¶ 65 (“it is well settled that this court may affirm the

circuit court’s judgment on any basis appearing in the record, whether or not the circuit court relied

on that basis or whether or not the circuit court’s ruling was correct”); People v. Olsson, 2015 IL

App (2d) 140955, ¶ 17 (“[w]e review the trial court’s judgment rather than its reasoning, and we

may affirm on any basis supported by the record”). Further, when reviewing a challenge to the

sufficiency of evidence on appeal, this court must decide whether, viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the elements of the

offense proven beyond a reasonable doubt. People v. Pollack, 202 Ill. 2d 189, 217 (2002). In

doing so, all reasonable inferences are drawn “in favor of a finding of guilt,” and, as it is the trier

of fact who “determines the credibility of the witnesses, decides what weight to give their

testimony, resolves conflicts in the evidence, and draws reasonable inferences from that evidence,”

and the trier of fact’s credibility determinations are entitled to great weight. People v. Baker, 2022

1 For this reason, defendant’s suggestion in his appellate brief that postconviction counsel provided

unreasonable assistance where counsel might have implied that he understood that transferred intent

applied, fails, because, again, the petition was properly dismissed regardless of whether transferred intent

applied.

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IL App (4th) 210713, ¶¶ 34-35. In that regard, we conclude that, viewed in the light most favorable

to the State, a rationale jury could have found beyond a reasonable doubt that defendant both

shared Joshua’s intent and that there was a common criminal design. See Baker, 2022 IL App

(4th) 210713, ¶ 39 (rejecting the defendant’s argument that only a shared-intent theory of

accountability, not the common-design theory, was pursued by the State, and concluding that the

evidence was sufficient to support the defendant’s conviction under both theories).

¶ 46 Again, we previously held that, despite the evidence establishing the goal of hunting a rival

gang member and the lack of evidence reflecting that the group believed Lozano was a rival gang

member, the evidence nevertheless sufficed to establish that Joshua intended to kill her. Cavazos,

2015 IL App (2d) 120171, ¶ 89. We noted, in part, that he fired four shots at two people walking

right next to each other. Id. For the same reasons, the jury could have reasonably found evidence

reflecting that defendant shared Joshua’s intent and knew Joshua intended to murder both people.

For example, defendant proceeded to “gang bang” with Rodriguez even after noticing that Lozano

was right next to him. The evidence did not reflect, for example, that defendant hesitated or

refrained from gang banging, when he noticed Lozano’s presence. Similarly, the evidence

reflected that, after seeing Rodriguez return a gang slogan, and despite Lozano’s presence right

next to him, defendant handed the gun to Hernandez and, then, purportedly to Joshua. Again,

nothing in the record suggested that defendant was reluctant to give up the weapon out of concern

that Lozano, too, would be murdered. Rather, two people, not one, became the targets of the hunt

and resultant gunfire. “A defendant’s mental state is ordinarily proved circumstantially by

inferences reasonably drawn from the evidence.” (Internal quotation marks omitted.) People v.

Grimes, 386 Ill. App. 3d 448, 455 (2008). “Intent may be inferred from the character of

defendant’s acts as well as the circumstances surrounding the commission of the offense.” People

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v. Perez, 189 Ill. 2d 254, 266 (2000). Here, a reasonable jury viewing the evidence in the light

most favorable to the State could have found the evidence sufficient to establish that, under these

circumstances, defendant, who, despite Lozano’s presence, proceeded to gang bang and produce

the weapon, shared Joshua’s specific intent to also murder Lozano.

¶ 47 Similarly, we also agree with the State that the evidence was sufficient for a reasonable

jury to find the existence of a common criminal design to murder Lozano. Common criminal

design establishes intent by proving a defendant’s participation in the offense. See, e.g., People v.

Fernandez, 2014 IL 115527, ¶ 19 (“[e]vidence that a defendant voluntarily attached himself to a

group bent on illegal acts with knowledge of its design supports an inference that he shared the

common purpose and will sustain his conviction for an offense committed by another.” (Internal

quotation marks omitted.)); 720 ILCS 5/5-2(c) (West 2008) (“[w]hen 2 or more persons engage in

a common criminal design or agreement, any acts in the furtherance of that common design

committed by one party are considered to be the acts of all parties to the common design or

agreement and all are equally responsible for the consequences of those further acts”). Indeed,

“there is no question that one can be held accountable for a crime other than the one that was

planned or intended, provided it was committed in furtherance of the crime that was planned or

intended.” (Emphasis in original.) Fernandez, 2014 IL 115527, ¶ 19. Importantly, “the offense

which a defendant may intend to ‘promote’ or ‘facilitate’ need not be the offense for which he is

convicted by accountability.” People v. Cole, 253 Ill. App. 3d 603, 609 (1993). Rather, “all that

is required for a defendant to be legally accountable in a common-design case is for the evidence

to show that (1) the group was intending to engage in some form of criminal behavior and (2) the

defendant was aware of the group’s intentions.” People v. Jackson, 2020 IL App (4th) 170036,

¶ 49. “[N]othing more specific is required.” Id. And, “[o]nce the evidence shows that a defendant

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has voluntarily attached himself to a group bent on illegal activities with knowledge of its design,

the only question remaining is whether the evidence shows any criminal act was done by any

member of the group in furtherance of the group’s common design.” (Emphasis in original.) Id.

¶ 63.

¶ 48 Defendant, nevertheless, argues that the only crime intended by common design was to

shoot a rival gang member and that Lozano’s shooting was not in furtherance of that common

criminal purpose. He contends that his awareness of the group’s intent to engage in criminal

behavior was, therefore, limited to shooting a rival gang member, not shooting Lozano. Defendant

further argues that the evidence simply does not support that shooting Lozano was in furtherance

of the common design to kill a rival gang member, as the evidence reflects she was not the person

closest to the street or between the SUV and Rodriguez, such that she necessarily had to be shot in

order to accomplish the killing of Rodriguez. Indeed, he notes, the bullet apparently struck Lozano

after going through Rodriguez. Thus, he contends that Joshua decided at the last minute to shoot

both a rival gang member and his companion, reflecting he engaged in two separate acts, not a

shooting of Lozano in furtherance of the plan to shoot Rodriguez. Again, we disagree.

¶ 49 We find defendant’s reliance on People v. James, 2017 IL App (1st) 143391, unpersuasive.

There, defendant notes, a defendant was accountable for a robbery but not for the principal’s

decision to commit sexual assault to an occupant in the home, because, where it was not committed

in furtherance of the robbery, there was no common-design accountability for the sexual assault.

Id. ¶¶ 47-51. However, we note that the defendant in James nevertheless remained guilty of sexual

assault because he assisted in the sexual assault and, thus, the court found that a second common

design arose to sexually assault the victim. Id. ¶¶ 47, 52-57. Here, a reasonable jury could have

found from the evidence that defendant assisted and participated in a common design to shoot both

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Rodriguez and Lozano. 2 Defendant exchanged gang slogans with Rodriguez when Lozano was

right beside him, and he passed along a gun to accomplish the shootings. Again, unlike two

different crimes like sexual assault and robbery, the group here worked together to fire four

gunshots at two young people walking right next to each other. As the State argued to the jury in

closing, intent to kill is the inescapable conclusion when defendant produced a gun used to fire

four times at Rodriguez and Lozano, who was “standing right next to [Rodriguez]. She’s standing

right there. *** [T]he intent was there. The intent to kill was there. In the intent to kill an

individual, Claudia Lozano was struck.” The evidence sufficed to establish that, in furtherance of

their goal to shoot and kill a rival gang member, four shots were fired at two people standing next

to one another, reflecting a willingness to kill Lozano, too, if it meant killing Rodriguez. Defendant

and his group intended to kill a gang member, as well as Lozano, to effectuate that plan. Again,

proof of intent is often circumstantial. See e.g., Teague, 2013 IL App (1st) 110349, ¶ 88; James,

2017 IL App (1st) 143391, ¶ 56 (“a common purpose or design sufficient for accountability may

be inferred from the circumstances of a defendant’s conduct.”). As such, the jury could have

reasonably found beyond a reasonable doubt that the attempted murder of Lozano was committed

in furtherance of the planned and intended act of shooting Rodriguez, the rival gang member.

¶ 50 Finally, we must point out that the jury flatly rejected the argument that the State failed to

prove intent for attempted murder. Defense counsel argued to the jury that defendant was not

2 Indeed, similar to the facts in James, we think an argument could also be made that, while the

original common design might have been to hunt and shoot only a rival gang member, a jury could have

found a second common design arose, namely, to shoot both Rodriguez and Lozano, as evidenced by the

group proceeding with the shooting after having seen both individuals right next to each other on the

sidewalk.

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guilty of attempted murder because the evidence did not illustrate the requisite intent to kill

Lozano. Again, counsel asked the jury, “when was [Lozano] the subject of anything? When did

they say, ‘Hey, let’s get her. We’ll get rank or business’, or whatever the silly goal is of this

gang[?]” He argued that, in these circumstances, an intent to hurt one person, which then hurt

someone else, was not attempted murder but, instead, only aggravated discharge of a firearm.

Counsel continued that, while what happened to Lozano was unfortunate, he questioned whether

it established an intent to murder her, and he referred the jury to the autopsy report to argue that

Lozano was hit by a bullet that went through Rodriguez and struck her. “You know, does that

mean someone was aiming the gun at [Lozano] with a plan or intent to kill her? No.” Accordingly,

the jury clearly and reasonably, given the evidence, did not find that argument credible and rejected

that the evidence was insufficient to establish an intent to kill Lozano. See Baker, 2022 IL App

(4th) 210713, ¶ 35 (a jury’s credibility findings are given great weight). On appeal, therefore,

viewing the evidence in the State’s favor, appellate counsel would not have faced a reasonable

probability of success, had he argued that no rational jury could have found an intent to kill Lozano.

See Pollack, 202 Ill. 2d at 217.

¶ 51 In sum, we have discussed multiple theories upon which the jury could have reasonably

found defendant accountable for the attempted first degree murder of Lozano. Although some of

those theories, such as defendant sharing Joshua’s intent or the development of a second common

design, were not advocated by the State in the motion to dismiss or on appeal, we note, as did the

court in James, that it is “of no import that the theory of accountability on which we affirm

defendant’s conviction is not the one the State urges on appeal. We are not bound by a party’s

particular argument or concession on appeal.” James, 2017 IL App (1st) 143391, ¶ 60. And, of

course, we also agree with the State’s argument regarding accountability through common design.

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In short, defendant’s ineffective-assistance argument requires us to review the judgment and ask

whether a properly instructed jury could have rationally found defendant guilty beyond a

reasonable doubt and, as the court noted in James, “[t]he jury was not required to accept any

particular theory of the prosecution. As long as it was properly instructed (it was), and the

evidence, taken in the light most favorable to the State, supports its verdict (it does), we will affirm

that judgment.” Id.

¶ 52 Here, we have concluded that the jury could have reasonably found beyond a reasonable

doubt that defendant was guilty of attempted murder. Accordingly, appellate counsel’s failure to

raise on direct appeal an argument challenging the sufficiency of the evidence sustaining the

attempted-murder conviction did not prejudice defendant, because there was no reasonable

probability of success. Therefore, his ineffective-assistance claim failed to make a substantial

showing of a constitutional violation, and the postconviction court did not err in granting the

State’s motion to dismiss the amended petition.

¶ 53 B. Jury Instructions

¶ 54 Alternatively, defendant argues that the unmodified attempted-murder jury instruction

likely confused the jury and caused it to convict him based on a misunderstanding of the law;

namely, an incorrect belief that he did not have to intend that Lozano be killed. He contends that

the pattern instruction, stating that he needed an intent to kill only “an individual,” denied him a

fair trial because, while the evidence showed he had the intent to kill Rodriguez, it did not show

he had the intent to kill Lozano. As such, defendant argues, the jury might have been confused

and believed that, to be guilty of attempted murder, he needed an intent to kill only Rodriguez.

Because this case presented unusual facts, defendant argues that the pattern instruction should have

been modified to more accurately state the law and reflect that the State had to prove that defendant

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intended to kill Lozano. Defendant acknowledges that this argument was not raised at trial, on

direct appeal, or in his postconviction petition. Therefore, he alleges ineffective assistance was

provided by trial and appellate counsel and unreasonable assistance was provided by

postconviction counsel. Defendant requests that we remand for a new trial or for new, second-

stage postconviction proceedings.

¶ 55 Defendant has clearly forfeited this issue on multiple occasions. Postconviction

proceedings are not meant to address issues that could have been, but were not, raised earlier; any

such issues are forfeited. English, 2013 IL 112890, ¶ 22. Nevertheless, because forfeiture may be

relaxed where fundamental fairness so requires or where the forfeiture stems from the ineffective

assistance of counsel, defendant frames his issue as one of ineffective assistance. As previously

explained, to succeed on a claim of ineffective assistance of trial or appellate counsel, a defendant

must show both that counsel’s performance was deficient and that, but for counsel’s errors, there

is a reasonable probability that the result of the proceeding would have been different. Id. ¶ 33.

A reasonable probability is one sufficient to undermine confidence in the outcome. Moore, 356

Ill. App. 3d at 121. Postconviction counsel, however, is required to provide a defendant with a

reasonable level of assistance. People v. Suarez, 224 Ill. 2d 37, 42 (2007).

¶ 56 We note first that, to the extent that defendant’s argument is premised on his contention

that the evidence demonstrating his intent to kill Lozano was lacking, we rejected that argument

above. Moreover, as to any serious risk of the jury being confused regarding whether the

attempted-murder instruction’s reference to “an individual” pertained to Rodriguez, as opposed to

Lozano, the record rebuts any such likelihood. Although defense counsel did not object to the

attempted-murder instruction, he explained to the jury that the phrase “an individual” in the

instruction was not referring to Rodriguez, who was the subject of the murder. He argued that

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there was no evidence that defendant intended to kill Lozano and, thus, that there was reasonable

doubt for the attempted-murder charge. In addition, in this case, the instructions themselves were

also clear, collectively, because while the attempted-murder instruction referenced “an individual,”

the murder instruction specified it pertained to Rodriguez. And, prior to trial, the court informed

the prospective jurors that defendant was charged with murder as to Rodriguez, but attempted

murder as to Lozano. Again, here, two people were shot: one died, one was injured. Given the

facts of the case, the instructions, and the additional comments made to the jury by the court and

attorneys, we disagree that there was any serious risk the jury was confused or did not understand

that the attempted-murder instruction required it to find defendant intended to kill Lozano, as

opposed to Rodriguez.

¶ 57 Moreover, as explained earlier, we rejected a virtually identical argument in Joshua’s

appeal, where we determined that the pattern attempted-murder instruction used here did not

warrant modification to conform to unusual facts or new law, there was no serious risk that the

jury instruction misled the jury, and the instruction was properly presented to the jury. Cavazos,

2015 IL App (2d) 120171, ¶¶ 79-82. As such, where the same facts are at issue here, we have

rejected defendant’s claim that the record was devoid of sufficient evidence to sustain his

attempted-murder conviction, and the attempted-murder instruction at issue is the same that we

found appropriate in Joshua’s case, the failure of trial, appellate, or postconviction counsel to raise

the argument was not objectively unreasonable, nor did it create a reasonable probability that, had

counsel raised the issue, it would have been successful such that the result of the proceeding would

have been different.

¶ 58 III. CONCLUSION

¶ 59 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

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¶ 60 Affirmed.

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