People v. Cavazos

232 N.E.3d 80

2023 IL App (2d) 220066

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

v.Joshua CAVAZOS, Defendant-Appellant.

No. 2-22-0066

Appellate Court of Illinois, Second District.

Filed June 22, 2023

Appeal from the Circuit Court of Kane County. No. 08-CF-3321, Honorable Donald Tegeler Jr., Judge, Presiding.

James E. Chadd, Douglas R. Hoff, and Katie Anderson, of State Appellate Defender’s Office, of Chicago, for appellant.

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

OPINION

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

¶ 1 In 2011, a jury convicted defendant, Joshua Cavazos, of two counts of first degree murder (720 ILCS 5/9-l(a)(1), (a)(2) (West 2006)), attempted first degree murder (id. §§ 8-4(a), 94(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)) for crimes he committed in 2007, when he was 17 years old. Further, regarding the first degree murder and attempted-murder convictions, the jury found that defendant personally discharged the firearm used in those crimes. The trial court denied defendant’s posttrial motion, but granted, in part, his motion to reconsider his sentence and, ultimately, sentenced him to an aggregate of 75 years’ imprisonment.

¶ 2 On appeal, this court rejected defendant’s arguments concerning the sufficiency of the evidence, jury instructions, proof of specific intent for the attempted murder, and, overall, the constitutionality of his sentence. People v. Cavazos, 2015 IL App (2d) 120171, 396 Ill.Dec. 439, 40 N.E.3d 92 (Cavazos 7). However, our supreme court entered a supervisory order, directing us to vacate our prior judgment and to consider the effect of People v. Buffer, 2019 IL 122327, 434 Ill.Dec. 691, 137 N.E.3d 763, on the issue of whether defendant’s sentence constituted an unconstitutional de facto life sentence, warranting a different result. People v. Cavazos, 437 Ill.Dec. 576, 144 N.E.3d 1166 (Ill. 2020) (supervisory order) (Cavazos II). Pursuant to those instructions and upon further review, we affirmed defendant’s conviction but vacated his sentence and remanded for a new sentencing hearing. People v. Cavazos, 2020 IL App (2d) 120171-B, 442 Ill. Dec. 376, 159 N.E.3d 555 (Cavazos III).

¶ 3 Presently, defendant appeals from the trial court’s imposition of a 50-year aggregate sentence on remand. For the following reasons, we affirm.

¶ 4 I. BACKGROUND

¶ 5 A. Trial

¶ 6 Detailed facts concerning the trial proceedings were set forth in Cavazos I, 2015 IL App (2d) 120171, ¶¶ 7-61, 396 Ill.Dec. 439, 40 N.E.3d 92. For context, however, we summarize that, on January 20, 2007, 15-year-old Oscar Rodriguez and his girlfriend, Claudia Lozano, were walking along High Street near Grove Street in Aurora. A sport utility vehicle drove past, with occupants throwing gang signs and yelling gang slogans, and, then, four gunshots were fired, killing Rodriguez and injuring Lozano. Defendant, age 17, and his brother, Justin Cavazos, age 16, both members of the Insane Deuces street gang, were charged in connection with the incident. In 2011, the brothers were tried simultaneously (in adult court) by separate juries.

¶ 7 As previously noted, the jury convicted defendant of two counts of first degree murder and found that he personally discharged the firearm that proximately caused Rodriguez’s death. The jury also convicted defendant of attempted first degree murder and found that he personally discharged the firearm used in that crime. Finally, the jury found defendant guilty of aggravated discharge of a firearm and unlawful possession of a stolen motor vehicle.

¶ 8 B. Sentencing

¶ 9 On January 18, 2012, the trial court denied defendant’s motion for a new trial and proceeded to sentencing.

¶ 10 In announcing its sentence, the court noted that, while defendant was apparently a "very nice" young man and a gifted athlete in his early years, his behavior altered after a custody modification. The court recounted that defendant’s criminal history included a few minor offenses, but also a Class 3 felony; defendant had declined to participate in an interview concerning his background; and defendant had a young daughter and a family who would all be impacted by the imposed sentence. The court commented that, at a young age, defendant chose the Insane Deuces over many wonderful things in his life, including his freedom. It sentenced defendant to 25 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 25-year add-on for personally discharging the firearm that caused Rodriguez’s death (see id. § 5-8-1(a)(1)(d)(iii) (add-on may be 25 years to natural life)). The court sentenced defendant to 10 years’ imprisonment for attempted first degree murder (see id. § 5-8-1(a)(3) (providing range of 6 to 30 years)), with a 20-year add-on for personally discharging the firearm (see id. § 5-8-1(a)(1)(d)(ii)). The murder and attempted-murder sentences were to be served consecutively (see id. § 5-8-4(d)). Finally, the court sentenced defendant to three years’ imprisonment for possession of a stolen motor vehicle (see id. § 5-8-1(a)(5) (providing range of three to seven years)), to run concurrently with the attempted-murder sentence.

¶ 11 Defendant moved to reconsider the sentence, asking that the court grant the minimum aggregate sentence (which, at the time and under these circumstances, was 71 years’ imprisonment), rather than the 80 years imposed, as the imposed sentence did not adequately take into account his rehabilitative potential. On February 12, 2012, the court granted the motion in part, reducing the murder sentence by 5 years (i.e., to the minimum of 20 years), resulting in an aggregate 75-year sentence.

¶ 12 C. Appellate Proceedings

¶ 13 On direct appeal, defendant raised multiple arguments, including a challenge to the constitutionality of the statutory provisions that resulted in his trial in adult court and his ultimate sentence. He argued that the confluence of his mandatory transfer to adult court and the application to juveniles of mandatory firearm enhancements, mandatory consecutive sentencing, adult sentencing ranges, and "truth in sentencing" provisions did not permit consideration of his youthfulness at the time of the offense; thus, his sentence was unconstitutional. We rejected his arguments. Cavazos I, 2015 IL App (2d) 120171, ¶¶ 92-102, 396 Ill.Dec. 439, 40 N.E.3d 92. However, we questioned whether the General Assembly should revisit the juvenile sentencing scheme, and we found "particularly troubling" the limitations placed upon a sentencing court’s discretion when mandatory sentencing enhancements applied to a juvenile offender. Id. ¶¶ 101-02.

¶ 14 Thereafter, our supreme court denied defendant’s petition for leave to appeal, but, as noted, it directed this court to vacate our prior decision and to consider the effect, if any, of Buffer—which held that a term of imprisonment exceeding 40 years constitutes a de facto life sentence for a juvenile (Buffer, 2019 IL 122327, ¶¶ 41-42, 434 Ill.Dec. 691, 137 N.E.3d 763)—on defendant’s sentence. Cavazos II, 144 N.E.3d 1166 (Ill. 2020) (supervisory order). Upon review, we summarized the evolution of juvenile sentencing law, determined that defendant’s sentence violated the eighth amendment, vacated the sentence, and remanded for a new sentencing hearing. Cavazos III, 2020 IL App (2d) 120171-B, ¶¶ 23-26, 442 Ill.Dec. 376, 159 N.E.3d 555. In our concluding paragraphs, we noted that, consistent with the prevailing juvenile-sentencing standards at the time of remand, " ‘[o]n remand, the trial court could once again impose a de facto life sentence only if it determines that the defendant is beyond rehabilitation.’" Id. ¶ 25 (quoting People v. Reyes, 2020 IL App (2d) 180237, ¶ 32, 443 Ill.Dec. 668, 162 N.E.3d 302).

¶ 15 D. Sentencing on Remand

¶ 16 On February 16, 2022, defendant’s new sentencing hearing commenced before Judge Donald J. Tegeler (the original sentencing judge, Timothy Sheldon, had retired).

¶ 17 The presentence investigation reflected that defendant is a father figure to two children (one his biological child) and speaks to them multiple times per week. He is no longer affiliated with the Insane Deuces or any street gang, and he wishes to work with at-risk youth. Defendant submitted 12 letters of support from family members and friends; numerous certificates, reflecting his completion of several courses while incarcerated; GED results, reflecting that he has passed the language arts, reading, and social studies sections of that exam; and a perfect score on a computer programming exam. In addition, defendant submitted an academic paper concerning juvenile development for sentencing purposes and a report of an evaluation of defendant by Dr. James Garbarino, a psychologist and child and adolescent development consultant. Dr. Garbarino opined that the circumstances of defendant’s youth contributed to his immature impulsiveness and entry into a street gang. Further, Garbarino opined that defendant had matured since the offense, his adult development has taken a "decidedly positive direction," he is not "irreparably corrupt," and he is "well positioned developmentally and socially to make the transition from prison to success in the outside world."

¶ 18 Defendant’s stepfather, Mike Loken, testified that defendant had lived with him and defendant’s mother prior to his arrest in this case. Defendant worked two jobs—a full-time day job as a carpenter with Loken and a part-time night job at a movie theater—while caring for his one-year-old daughter, who also lived with them. According to Loken, defendant has matured and, over the years, has improved his ability to handle anger and...