People v. Garcia

1

2024 IL App (1st) 230325-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GIOVANNI GARCIA, Defendant-Appellee.

No. 1-23-0325

Court of Appeals of Illinois, First District, Second Division

August 30, 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 Cook County. No. 16 CR 8020 Honorable James M. Obbish, Judge Presiding.

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Cobbs concurred in the judgment.

ORDER

HOWSE PRESIDING JUSTICE

¶ 1 Held: We affirm the summary dismissal of defendant's postconviction petition where he failed to make an arguable claim of ineffective assistance of trial counsel.

¶ 2 Defendant Giovanni Garcia appeals from the circuit court's order summarily dismissing his petition for relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)). He argues his petition stated an arguable claim that he received ineffective assistance of trial counsel. For the following reasons, we affirm.

¶ 3 Following a 2019 jury trial, defendant was convicted of the first degree murder of Lauren Membreno and the attempted murder of Edwin Montano. He was sentenced to consecutive terms of 50 and 26 years' imprisonment, respectively. As we described the facts fully in our order from defendant's direct appeal (People v. Garcia 2021 IL App (1st) 192576-U), we recite them here only as necessary to resolve the issue on appeal.

¶ 4 At trial, Montano testified that in April 2016 he and Membreno were dating. Around 6:30 p.m. on April 8, 2016, the two went in Membreno's Volkswagen Beetle to a Jewel grocery store on 54th Street and Pulaski Avenue, in Chicago. The Jewel was about two blocks from Montano's house on Karlov Avenue. Membreno entered the store and Montano remained in the vehicle's passenger seat. Three men exited the Jewel. One was defendant. Montano had previously purchased marijuana from defendant, but stopped after defendant "shorted" him.

¶ 5 Since that time, Montano had seen defendant twice. Of those times, once, in October 2015, defendant and two other men "beat [him] up." Thus, Montano was nervous about seeing defendant in the Jewel parking lot. He exited Membreno's vehicle to move to the driver's seat so he could leave. However, when he exited, he and defendant began arguing and calling each other names. The two then went their "separate ways," and Montano returned to the passenger's seat of Membreno's vehicle. He then moved to the driver's seat from inside the vehicle to pick up Membreno when she exited the store.

¶ 6 After Montano picked up Membreno from the front of the store, he observed defendant and his companions in a silver Honda sedan. Montano followed the Honda in the parking lot to try and learn its license plate number and call the police. The Honda turned out of the parking lot onto Pulaski; Montano and Membreno turned out of the parking lot onto 54th, then turned south down Karlov. Montano parked about 15 to 20 yards from his home. Karlov was a one-way street, and Montano parked on the left side, with the driver's side toward the curb and the passenger side toward the street. He and Membreno remained in the vehicle for about 15 minutes talking while Membreno smoked a cigarette.

¶ 7 At the end of that time, Montano heard tires and brakes "screeching" as a vehicle stopped to his right. He turned and saw the silver Honda. The Honda was slightly ahead of Montano and Membreno's vehicle, and through the windshield Montano saw defendant pointing a revolver at him from the driver's seat. There were also two passengers in the Honda. Montano ducked and told Membreno to do the same. He heard a gunshot and shattering glass. He looked at Membreno and saw Membreno had been shot on the right side of her forehead through the passenger window. The silver Honda drove away. Montano ran inside his house for napkins and a charger for his cell phone, which was dying, to call the police. He returned to the vehicle about 30 seconds later applied pressure to Membreno's wound, and called the police.

¶ 8 When police officers arrived, Montano told an officer about the events at the Jewel and that "Gio" shot Membreno. Police took Montano back to the Jewel, where he viewed surveillance videos. They then took him to the police station, where he told a sergeant that "Giovanni Garcia" shot Membreno and identified defendant in a photograph array.

¶ 9 Surveillance video footage from the Jewel was published at trial and Montano narrated the events depicted. The video is not included in the record on appeal in the instant case, but we described its contents in our order from defendant's direct appeal. See Garcia, 2021 IL App (1st) 192576-U, ¶¶ 16-17. We stated that the video depicted a silver vehicle park near a Beetle that Montano identified as Membreno's. Id. ¶ 16. Three individuals exit that vehicle and walk past the Beetle, and two men later return past the Beetle. Id. Montano identified one as defendant and testified he was carrying dry cleaning. Id. The video then depicted Montano "standing next to" the Beetle and approaching defendant. Id. He follows defendant around the vehicle next to the Beetle. Id. Montano then reenters the passenger's side of the Beetle while defendant gestures towards him and "walks toward the next line of vehicles." Id. Montano testified that during this interaction he had an 18-inch "mini bat" tucked in his pants. Id. Montano testified that he moved from the passenger's seat to the driver's seat of the Beetle. Id.

¶ 10 Shortly thereafter, the Beetle backs out of its parking spot, drives offscreen, and reappears in front of the store. Id. ¶ 17. While it is offscreen, defendant enters the silver vehicle that had previously parked near the Beetle. Id. At the front of the store, Membreno reenters the Beetle, which drives offscreen again but then reappears and drives up to the silver vehicle defendant entered. Id. The silver vehicle backs out of its parking spot and drives "quickly" out of the parking lane, "with the Beetle following closely behind." Id. Both vehicles turn down the next parking lane and disappear offscreen. Id.

¶ 11 An employee of a dry cleaner's business next to the Jewel testified that, around 6:40 p.m. on April 8, 2016, someone picked up dry cleaning that had been dropped off under defendant's name. Two police officers testified that they went to the scene of the shooting and Montano told them the shooter was named "Giovanni." Another detective testified that defendant was arrested on April 21, 2016, and the men with him at the Jewel could not be identified. A medical examiner testified that Membreno died of homicide from a gunshot wound to the head.

¶ 12 Before the defense presented its witnesses, the court asked defendant if he understood that he had the right to testify, and defendant said yes. Defendant also understood that he had the right to choose not to testify. Defendant stated he did not wish to testify. Defendant understood that whether to testify was something he should discuss with his attorneys but was ultimately his choice. No one had forced or threatened him not to testify. The court asked if anybody had promised defendant anything not to testify, and defendant answered "Yes, sir." The court then asked whether he was deciding not to testify of his own free will, and defendant answered that he was. Asked by the court whether he had any questions about what the court had said, defendant stated he did not.

¶ 13 Two defense witnesses testified regarding the shooting. One was in her house on Karlov and heard a noise like "thunder." She looked out a window and saw a man standing outside a gray Volkswagen "looking nervous" and walking around "as if looking for help." The man went into a home a few doors down, the police arrived, and the man returned to the Volkswagen. The other witness was walking his dog on Karlov and saw a man park a silver Volkswagen. As the man exited the Volkswagen, the witness heard a "shooting sound," breaking glass, and wheels squealing. The witness saw a dark sedan driving fast and entering an alley. The man who had parked the Volkswagen ran toward a house and asked the witness to call the police. Police arrived and the man returned.

¶ 14 The circuit court then asked defendant if it was still his decision not to testify. Defendant confirmed it was.

¶ 15 Following argument, the jury found defendant guilty of first degree murder and attempted murder. Defendant's counsel filed a motion and supplemental motion for a new trial.

¶ 16 On September 10, 2019, the date set for hearings on the posttrial motions and sentencing, defendant informed the court that he was firing his attorneys, would adopt the motion for a new trial, and wanted "to trigger" a hearing for ineffective assistance of counsel pursuant to People v. Krankel, 102 Ill.2d 181 (1984). Defendant claimed his attorneys provided ineffective assistance by failing to contact alibi witnesses, prepare him for trial, and file a motion to quash his arrest. The court then allowed defendant to argue regarding counsels' alleged ineffective assistance.

¶ 17 Defendant informed the court the alibi witnesses were David Lozano and Adrian Ramos, who were the men appearing with defendant in the video from the Jewel. Defendant argued Lozano and Ramos would testify that, after the incident at the Jewel, the three went to Lozano's house and remained there the rest of the day. Under questioning by the court defendant stated he did not tell his attorneys that he was at Lozano's house at the time of the shooting. Defendant stated he felt unprepared for trial because his attorneys...