People v. Calderon

1

2024 IL App (3d) 230071-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN C. CALDERON, Defendant-Appellant.

No. 3-23-0071

Court of Appeals of Illinois, Third District

October 9, 2024

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

Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois, Appeal No. 3-23-0071 Circuit No. 18-CF-2643 Honorable Michael W. Reidy, Judge, Presiding.

JUSTICE HETTEL delivered the judgment of the court. Justices Brennan and Albrecht concurred in the judgment.

ORDER

HETTEL, JUSTICE

¶ 1 Held: (1) Counsel was not ineffective for failing to object to an accountability instruction. (2) The statement at issue was properly admitted as a statement by a coconspirator. (3) The court did not rely on an improper factor in sentencing defendant.

¶ 2 Defendant, Juan C. Calderon, appeals from his conviction for first degree murder. Defendant argues (1) counsel was ineffective for failing to object to the accountability jury instruction; (2) the Du Page County circuit court erred in admitting statements made by a coconspirator; and (3) the court relied on an improper factor in sentencing defendant. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged with five counts of first degree murder (720 ILCS 5/9-1(a)(1), (2), (3) (West 2018)). The charges alleged defendant, along with Fredi Bautista and Emilio Guillen, shot and killed Alexander Nicholas on November 8, 2018.

¶ 5 The State filed a motion for a joint trial for defendant and Guillen. The State also filed a pretrial motion in limine to admit several statements as statements made by coconspirators, including a statement from Guillen encouraging defendant to shoot Nicholas. At the hearing on the motions, the court asked whether the defenses put forth by defendant and Guillen would be antagonistic. Counsel for defendant stated that he and Guillen's counsel had not shared their strategies with each other. The court inquired whether either defendant made a statement to the police implicating the other, which counsel denied. The court granted both motions. In permitting the coconspirator statements, the court found there was circumstantial evidence of a conspiracy because defendant and the coconspirators were in the vehicle together, exited the vehicle together returned to the vehicle together following the murder before absconding together, and then destroyed evidence with the same common plan or design.

¶ 6 Defendant waived his right to a 12-panel jury and the joint trial proceeded with two 6- member juries. The juries were instructed that in the event they remained in the courtroom while the other defendant's attorney conducted cross-examination of a witness, the juries could consider any evidence they heard. The court further instructed the juries "[a]ny evidence which is limited to one defendant should not be considered by you as to any other defendant." The juries were instructed not to have "any discussions of any kind with any members of the other jury."

¶ 7 At trial, Detective Daniel Herbert of the West Chicago Police Department was certified as an expert in gang crimes. Herbert testified the Latin Counts and Satan Disciples had been engaged in a longtime rivalry. He identified La Raza and Two Six as other gangs in the area. On November 9, 2018 Herbert responded to the discovery of a body. He identified the body as Nicholas. Herbert obtained video from surveillance cameras at a residence. The footage showed a vehicle park on the side of the road at approximately 11:15 p.m. on November 8, 2018. Four men exited the vehicle before approaching another man on the sidewalk. The five men stood around for approximately two minutes before they engaged in a brief physical altercation. Three of the men from the vehicle surrounded the victim while the fourth individual from the vehicle stood several feet away. The four men then ran back to the vehicle and drove away. The footage was admitted without objection.

¶ 8 Herbert identified Jesus Favela from the footage as one of the men exiting the vehicle. Herbert had prior interactions with Favela and knew he was affiliated with La Raza. During Favela's interview, he identified the three other men as defendant, Guillen, and Bautista. Herbert verified all three men were members of the Satan Disciples and made in-court identifications of Guillen and defendant.

¶ 9 During the course of his investigation, Herbert learned the group fled to an apartment complex in Aurora. Surveillance footage from the apartment complex was stipulated to and admitted into evidence. It showed four men enter the apartment shortly after midnight on November 9, 2018. Approximately 45 minutes later, two men exited a side door. One was holding a filled trash bag. The two men returned 10 minutes later without the trash bag. The following morning, the four men exited the apartment together shortly after 8 a.m. ¶ 10 The State next called Favela as a witness. Prior to beginning his testimony, counsel for Guillen again raised his objections to the admission of the coconspirator statements. Counsel explained he understood the court's earlier ruling, but wanted to ensure his objection was on the record. The court stated that any objections and arguments made during the motions in limine would stand throughout the entirety of the case. Counsel for defendant stated that he wished to adopt the other defense counsel's motions to obviate the need to object during the trial. The court stated, "[t]hat will be the same ruling."

¶ 11 Favela testified he was a member of La Raza. The night of the murder, he went to a bar at approximately 4 p.m. where he saw Guillen, Bautista, and defendant outside. Favela had known Bautista for 10 years and had met Guillen several times. Favela had never met defendant. Favela knew Guillen and Bautista were members of the Satan Disciples. The four men began consuming alcohol. Later, at approximately 11 p.m., Favela asked for a ride to a party. While the group was riding together, Bautista said "there goes that two-six." Bautista was referring to Nicholas who was affiliated with the rival Two Six gang. Bautista parked, exited the vehicle, and approached Nicholas. The other three men followed. Guillen and Nicholas exchanged insults before Guillen and Bautista physically attacked Nicholas. Guillen instructed defendant to "[m]uke him[,]" which Favela interpreted to mean "[s]hoot him." Defendant then approached Nicholas and put a gun to the back of his head and shot him. The group ran back to the vehicle and drove away. They drove to an apartment Favela was unfamiliar with. Defendant changed clothes, showered, and burned the clothes he had worn. Favela testified that earlier in the night at the bar, Bautista said he had a gun outside ready to shoot rival gang members.

¶ 12 Bautista testified on behalf of the State in exchange for a guilty plea to aggravated battery with a firearm and a sentence of 15 years' imprisonment. Bautista had known defendant and Guillen since 2012. Bautista testified it was Favela who initially pointed out Nicholas while they were driving. Guillen punched Nicholas, and they began fighting. Nicholas began to overpower Guillen. Bautista saw defendant holding a gun. Guillen said "something along the lines of, Get him," before defendant shot Nicholas. Bautista had taken two Xanax earlier in the night which caused "[a] lot of blacking in, blacking out ***."

¶ 13 The State introduced several witnesses to establish that (1) a burn pile was found near the apartment identified by Favela, (2) a hat at the scene of the murder contained defendant's DNA, and (3) Guillen was apprehended attempting to sell his vehicle two days after the murder. The medical examiner also testified Nicholas died of a single gunshot wound to the head.

¶ 14 During closing arguments, defense counsel argued defendant did not shoot Nicholas and attempted to shift the blame to Bautista and Favela. Counsel described Bautista as "a liar and a man desperate to save his own skin." Counsel attacked Favela's credibility by pointing out Bautista and Favela were longtime friends, and that Favela did not remember everything from that night because of his drug and alcohol use. Counsel argued Favela's and Bautista's accounts of the incident were inconsistent with the physical evidence: namely, defendant could only have lost his hat during the altercation if he was involved in the fight, as opposed to standing to the side prior to shooting Nicholas as the State's witnesses testified. Counsel further argued defendant was the only one who needed to shower and change clothes, "[n]ot because he shot [Nicholas], but because he is much closer than the arm's length away that the shooter is."

¶ 15 Defendant's jury was given the following accountability instruction:

"A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.

The word conduct includes any criminal act done in furtherance of the planned and intended act." Defendant's counsel did not object to the instruction.

¶ 16 Defendant's jury found him guilty of first degree murder but found the State did not prove that he personally discharged a firearm that proximately caused the death of another person. Defendant's counsel filed a motion for a new trial arguing the State did not prove his guilt beyond a reasonable doubt, the court committed error in granting the motion in limine...