                                  Illinois Official Reports

                                          Supreme Court



                                 People v. Fernandez, 2014 IL 115527



Caption in Supreme           THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAVIER
Court:                       FERNANDEZ, Appellant.



Docket No.                   115527

Filed                        March 20, 2014



Held                         Evidence that defendant and his companion drove around looking for
(Note: This syllabus         cars to break into and that the companion shot at a policeman who
constitutes no part of the   discovered him in the act of breaking in was sufficient to convict the
opinion of the court but     defendant on an accountability theory for aggravated discharge of a
has been prepared by the     firearm in the direction of a peace officer, even though the defendant
Reporter of Decisions        claimed he did not know the companion was armed—common design
for the convenience of       rule.
the reader.)




Decision Under               Appeal from the Appellate Court for the First District; heard in that
Review                       court on appeal from the Circuit Court of Cook County, the Hon.
                             Michael Brown, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Michael James McDermott, of Chicago, for appellant.
Appeal
                             Lisa Madigan, Attorney General, of Springfield and Anita M. Alvarez,
                             State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
                             Kathleen Warnick, Assistant State’s Attorneys, of counsel), for the
                             People.
     Justices                  JUSTICE THOMAS delivered the judgment of the court, with
                               opinion.
                               Chief Justice Garman and Justices Freeman, Kilbride, Karmeier,
                               Burke, and Theis concurred in the judgment and opinion.




                                                OPINION

¶1         Following a bench trial, defendant Javier Fernandez was found guilty by accountability of
       one count of burglary (720 ILCS 5/19-1(a) (West 2008)) and two counts of aggravated
       discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West
       2008)). The trial court merged defendant’s convictions into a single count of aggravated
       discharge of a firearm in the direction of a peace officer and sentenced him to 12 years in
       prison. Defendant appealed, and the appellate court affirmed. 2012 IL App (1st) 101913-U.
       Defendant appealed again to this court, and we allowed his petition for leave to appeal. Ill. S.
       Ct. R. 315 (eff. Aug. 15, 2006). The sole issue before this court is whether the evidence
       supports defendant’s aggravated discharge of a firearm conviction. We hold that it does.

¶2                                            BACKGROUND
¶3         Officer Claudio Salgado of the Chicago police department testified that, on the morning of
       January 20, 2008, he pulled his car into a church parking lot located underneath the Dan Ryan
       Expressway. He was off-duty but wearing both his police badge and sidearm. As he exited his
       car, Officer Salgado heard the sound of breaking glass. He moved toward the sound and saw a
       man (Gonzalez) reaching into a parked car through a broken window. Officer Salgado
       displayed his badge and three times yelled “Chicago police.” Gonzalez pulled himself out of
       the parked car, faced Officer Salgado, and began walking backward toward a maroon SUV that
       defendant was driving. Defendant began driving the SUV slowly toward Gonzalez. When
       defendant stopped the SUV, Gonzalez ran to the passenger side, opened the door, and stepped
       up onto the running board. Gonzalez then pulled a gun and fired three shots over the SUV’s
       hood at Officer Salgado, who was now standing about 15 feet from Gonzalez. Officer Salgado
       immediately returned fire as the SUV sped away. Although Officer Salgado initially believed
       that he fired four or five shots, he later learned that he fired seven shots and that three of them
       struck defendant. After defendant and Gonzalez fled the scene, Officer Salgado returned to his
       car to give chase. Upon seeing a parked Cook County sheriff’s vehicle, Officer Salgado
       stopped, identified himself, and explained the situation. The sheriff’s officers told Officer
       Salgado to stay there and wait for backup while they pursued the SUV. Later that day and again
       the following evening, Officer Salgado identified both defendant and Gonzalez from a photo
       lineup.
¶4         Defendant’s sister, Marial Fernandez, testified that, on the morning of January 20, 2008,
       defendant borrowed her red Nissan Xterra to run some errands. That afternoon, she called
       defendant and told him that she needed her SUV back. Shortly thereafter, defendant returned
       home without the SUV and told her that some “gangbangers” had shot at him while he was
       driving it. Defendant appeared ill, was very pale, and was bleeding from his hand. Defendant

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     told Marial that he had left her SUV at the intersection of 51st Street and Winchester Avenue,
     but when Marial went to that location, the SUV was not there. Marial then called the police,
     who arrived at the location and spoke with her. The next day, Marial was called to police
     headquarters and informed that her brother had been arrested, that he had undergone surgery
     for being shot, and that her SUV had been recovered. When Marial went to retrieve her SUV,
     she saw that it had bullet holes in several places.
¶5       Florencio Diaz testified that, on January 20, 2008, defendant called him around noon and
     asked to meet at Diaz’s house. Diaz arrived at his house about 10 minutes later and found
     defendant and Gonzalez waiting for him. Diaz noticed that the tricep area of defendant’s arm
     was hanging open, and defendant explained that he had been in a shootout with gangbangers.
     Defendant also stated that he was not going to a hospital because he did want to get the police
     involved. When defendant and Gonzalez left Diaz’s house, they left the bullet-riddled SUV
     parked in Diaz’s backyard. Later that day, Diaz was taken into a police station and shown a
     photo array. He identified defendant and Gonzalez as the two men who had been in his house.
¶6       Chicago police detective Greg Swiderek testified that, at approximately 2 a.m. on January
     21, 2008, he was conducting surveillance outside an apartment belonging to Gonzalez’s
     girlfriend, Mylene Parks. When he saw Gonzalez exit the apartment, Detective Swiderek
     announced “police” and ordered Gonzalez to stop. Instead, Gonzalez ran back into the
     apartment and slammed the door. A few seconds later, and along with several other officers,
     Detective Swiderek entered the apartment by force. Inside the apartment, Detective Swiderek
     found and arrested both defendant and Gonzalez. Detective Swiderek also found “an IV that
     you’d seen in a hospital” hanging from the shower curtain rod in the apartment’s bathroom.
¶7       Chicago police detective Paul McDonagh testified that he interviewed defendant shortly
     after he was taken into custody. At the time of the interview, defendant had professional
     looking bandages covering his arm and finger. In reference to the bandages, Detective
     McDonagh asked defendant what had happened. Defendant replied that somebody had shot at
     his car, though he could not remember who or where. Detective McDonagh then asked
     defendant what hospital he had gone to for treatment. Defendant responded that he had not
     gone to a hospital but rather had his wounds treated by Mylene Parks. At that point, Detective
     McDonagh arranged for defendant to be transported to Mount Sinai Hospital.
¶8       After returning from Mount Sinai, defendant gave a signed written statement to the police.
     In that statement, defendant stated that, around 7 a.m. on January 20, 2008, Gonzalez came to
     defendant’s apartment asking for money. Defendant told Gonzalez that he didn’t have any
     money, and the two men left the apartment together in a burgundy SUV owned by defendant’s
     sister. Gonzalez asked defendant to drive to the Maxwell Street Market so that Gonzalez could
     break into parked cars to get money. Defendant drove to the Maxwell Street Market as
     requested, but there were no cars parked there because the market was closed. The two men
     continued driving and noticed a church parking lot under the Dan Ryan Expressway that had
     cars parked in it. Gonzalez told defendant to pull into the church parking lot, and defendant
     complied. Defendant then remained in the SUV while Gonzalez got out. Gonzalez then broke
     the window of a parked car and began trying to steal the car’s radio. As this was happening,
     defendant noticed that a man holding a gun was approaching the car that Gonzalez was
     breaking into. Gonzalez noticed this, too, and pulled himself out of the car he was breaking
     into and ran to the back of the SUV that defendant was driving. At that point, the man with the

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       gun yelled, “Police. Stop.” Defendant pulled out of the parking lot and heard gunshots as he
       drove away. As he reached the street, defendant noticed that Gonzalez was now back in the
       front seat of the SUV.
¶9         Defendant further stated that, once out of the parking lot, he realized for the first time that
       he had been shot. Gonzalez told defendant not to go to the hospital. Instead, the two men went
       to pick up Gonzalez’s car. After doing so, defendant and Gonzalez drove to Diaz’s house,
       where they parked the SUV. Defendant then called his sister, Mariel, and told her that gang
       members had shot at him and that her SUV was parked at 51st and Winchester, both of which
       were lies. Gonzalez then drove defendant home, where defendant again told Mariel the same
       lies. At that point, Mariel called the police. Later that day, Gonzalez called defendant and told
       defendant that he would pick him up so that Mylene Parks could treat his wounds. The two
       men then went together to an apartment at Foster and Damen Avenues, where Mylene cleaned
       defendant’s wounds and gave him an IV to hydrate him. Eventually the police arrived, and
       after trying unsuccessfully to pretend that they were not there, defendant and Gonzalez were
       arrested.
¶ 10       Based on this evidence, the circuit court of Cook County found defendant guilty by
       accountability of one count of burglary and two counts of aggravated discharge of a firearm in
       the direction of a peace officer. The trial court merged defendant’s convictions into a single
       count of aggravated discharge of a firearm in the direction of a peace officer and sentenced him
       to 12 years in prison. Defendant filed a timely appeal, and the appellate court affirmed. 2012 IL
       App (1st) 101913-U. We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315
       (eff. Aug. 15, 2006).

¶ 11                                           DISCUSSION
¶ 12       In this court, defendant argues that we must reverse his conviction for aggravated
       discharge of a firearm in the direction of a peace officer. In support, defendant maintains that in
       order to prove him guilty of that offense under a theory of accountability, the State was
       required to prove that defendant possessed the specific intent to promote, solicit, aid, or
       attempt to aid the commission of that particular offense. Here, however, the State failed to
       produce any evidence showing that defendant even knew Gonzalez had a gun, let alone that he
       knew that Gonzalez would discharge that gun in the direction of a police officer. According to
       defendant, if he did not know that Gonzalez was armed, “it must logically and legally follow
       that [he] could not have specifically intended to promote, solicit, aid, or attempt to aid an
       offense which—by necessity—the principal must be armed in order to commit, to wit
       Aggravated Discharge of a Firearm.”1
¶ 13       We reject defendant’s argument. Section 5-2(c) of the Criminal Code of 1961 provides that
       a person is legally accountable for the criminal conduct of another if “[e]ither before or during
       the commission of an offense, and with the intent to promote or facilitate such commission, he
       [or she] solicits, aids, abets, agrees or attempts to aid, such other person in the planning or

           1
            In making this argument, defendant does not contest his burglary conviction, which was also
       established by accountability. On the contrary, defendant concedes that his signed statement is “clear
       evidence of guilt as to Burglary” because it “clearly illustrates that Gonzalez announced his intention to
       burglarize cars before arriving at the church parking lot.”

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       commission of the offense.” 720 ILCS 5/5-2(c) (West 2008). This court has long recognized
       that the underlying intent of this statute is to incorporate the principle of the common-design
       rule. People v. Terry, 99 Ill. 2d 508, 515 (1984). Thus, to prove that a defendant possessed the
       intent to promote or facilitate the crime, the State may present evidence that either (1) the
       defendant shared the criminal intent of the principal, or (2) there was a common criminal
       design. In re W.C., 167 Ill. 2d 307, 337 (1995). Under the common-design rule, if “two 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 design
       or agreement and all are equally responsible for the consequences of the further acts.” Id.
       “Evidence 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.” Id. at 338. Upon review of a
       question as to a defendant’s accountability for an offense, we must determine whether, after
       viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime beyond a reasonable doubt. People v.
       Cooper, 194 Ill. 2d 419, 424-25 (2000).
¶ 14        A textbook application of the common-design rule can be found in People v. Kessler, 57
       Ill. 2d 493 (1974). In Kessler, the evidence showed that Kessler planned with two other men to
       burglarize a tavern after hours. Kessler waited in the front passenger seat of a car outside the
       tavern while his two unarmed companions entered the building. While inside the tavern, the
       two companions were surprised by the tavern’s owner, and one of them shot and wounded him
       with a gun found during the burglary. The two companions then returned to the car where
       Kessler was waiting, and the three men sped away. The police gave chase, and eventually the
       fleeing car was forced off the road. At that point, the two companions exited the car and
       attempted to flee on foot, while Kessler continued to remain in the car. While attempting to flee
       on foot, one of the companions shot at a pursuing police officer. Kessler was arrested and
       found guilty by accountability of both the burglary and the attempted murders of the tavern
       owner and the pursuing police officer. Id. at 494-95.
¶ 15        Kessler appealed, and the appellate court reversed his attempted murder convictions.
       People v. Kessler, 11 Ill. App. 3d 321 (1973). The court framed the issue as “whether Kessler
       can be found guilty on accountability principles without proof of his specific intent to commit
       the attempt murders perpetrated by [his companions.]” Id. at 325. In holding that he could not,
       the court first looked at section 5-2(c) of the Code and determined that “[u]nder the plain
       language of the statute, one cannot be held accountable unless found to have the specific intent
       to commit or aid in the commission of the substantive crime for which he is being held
       accountable.” Id. The court then went on to say that “except in felony-murder cases, the Code
       does not impose liability on accountability principles for all consequences and further crimes
       which could flow from participation in the initial criminal venture, absent a specific intent by
       the accomplice being held accountable to commit, or aid and abet the commission of, such
       further crimes.” Id. at 325-26. Finally, the court held that “application of the ‘common design’
       principle is not justified by the language of section 5-2 to hold a defendant accountable for
       crimes committed by an accomplice which the defendant was not shown to have intended.” Id.
       at 327.



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¶ 16       The State appealed to this court, and this court rejected the appellate court’s reasoning in its
       entirety. Indeed, this court held that, “as it reads,” section 5-2 of the Code “means that where
       one aids another in the planning or commission of an offense, he is legally accountable for the
       conduct of the person he aids; and that the word ‘conduct’ encompasses any criminal act done
       in furtherance of the planned and intended act.” (Emphasis added.) Kessler, 57 Ill. 2d at 497.
       Applying that principle to the facts before it, the court then concluded that Kessler’s attempted
       murder convictions were proper:
                “[T]he burglary was the offense which [Kessler and his companions] had jointly
                planned and were jointly committing, and each was legally accountable for the conduct
                of the other in connection therewith. The result was the offense of attempted murder of
                Louis Cotti, the tap owner, and of State Trooper Max L. Clevenger, who answered a
                report of the incident and who tried to apprehend the fleeing parties.” Id. at 499.
       In other words, once Kessler agreed to participate in burglary, he was liable under section
       5-2(c) for every criminal act committed “in connection therewith,” including the unplanned
       shootings committed by his initially unarmed companions.
¶ 17       We see no material distinction between the facts of Kessler and the facts presently before
       us. More than that, we find it difficult to conceive of two unrelated cases that are more
       factually alike than these two. As in Kessler, defendant here entered into a plan to commit a
       burglary with a companion he claims he did not know was armed. As in Kessler, defendant
       here waited in the car while his companion committed the actual burglary. As in Kessler,
       defendant’s companion was interrupted unexpectedly during the commission of the burglary
       and shot at the person who happened upon the scene. And as in Kessler, defendant and his
       companion sped away from the scene together in a car traveling at high speed. Indeed, as we
       see it, the only meaningful differences between the facts of this case and the facts of Kessler
       involve what happened after the shooting, and without question those differences make things
       worse for defendant, not better. Kessler was a passenger in the getaway car and remained at all
       times in the car, even while his companions attempted to flee on foot. Defendant, by contrast,
       drove the getaway car and kept in close company with Gonzalez for several hours up until the
       time of their arrests. During those hours, defendant not only failed to report the shooting but
       also took several steps to conceal it, including lying to both his sister and Diaz about how he’d
       been shot, hiding the bullet-riddled SUV, and seeking medical attention from Mylene Parks
       rather than going to a hospital. All of these facts are relevant to the determination of whether a
       common criminal design exists, and none of them undermines the trial court’s conclusion that
       there was. See People v. Perez, 189 Ill. 2d 254, 267 (2000) (“Proof that the defendant was
       present during the perpetration of the offense, that he fled from the scene, that he maintained a
       close affiliation with his companions after the commission of the crime, and that he failed to
       report the crime are all factors that the trier of fact may consider in determining the defendant’s
       legal accountability.”).
¶ 18       In its brief before this court, the State begins by arguing that, “by conceding his guilt for the
       burglary, under the facts of this case, defendant has effectively conceded his guilt for
       aggravated discharge of a firearm.” This is exactly right. As Kessler clearly establishes, section
       5-2(c) means that where one aids another in the planning or commission of an offense, that
       person is legally accountable for the conduct of the person he aids; and that the word “conduct”
       encompasses any criminal act done in furtherance of the planned and intended act. Here,

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       defendant concedes that he aided Gonzalez in the planning and commission of the burglary.
       That being the case, defendant is legally accountable for any criminal act that Gonzalez
       committed in furtherance of the burglary, which in this case was the aggravated discharge of a
       firearm in the direction of a peace officer. Under well-settled accountability principles, the
       evidence in this case more than supports defendant’s conviction.
¶ 19        In reaching this result, we readily acknowledge that though defendant’s argument is utterly
       precluded by Kessler and its progeny, it is not without legal support. On the contrary,
       defendant relies heavily upon People v. Phillips, 2012 IL App (1st) 101923, a recent decision
       that effectively resurrects the appellate court’s reasoning in Kessler. In Phillips, the defendant
       was driving his car when he nearly collided with another car that was making a U-turn. The
       two cars then stopped and faced each other, each blocking the other’s way. At that point, the
       defendant’s passenger, Sanders, got out of the defendant’s car and began shooting at the other
       car. When the shooting was over, Sanders got back into the defendant’s car, and the two men
       drove away. In reversing the defendant’s convictions for aggravated battery with a firearm and
       aggravated discharge of a firearm, both of which were obtained under a theory of
       accountability, the appellate court initially held that the State’s evidence was insufficient to
       show that the defendant knew Sanders intended to commit a crime when Sanders exited the
       defendant’s car. Id. ¶¶ 20-21. From there, the court went on to add:
                “Even if we were to assume that defendant intended to help Sanders commit some
                crime against the victims, he cannot logically have intended to help Sanders commit a
                crime that he does not know is possible. If defendant did not know that Sanders had a
                gun, then regardless of what else defendant may have done he cannot have intended to
                help Sanders commit a crime that necessarily requires a firearm, and he therefore
                cannot be accountable for it.” (Emphasis added.) Id. ¶ 22.
       Not surprisingly, defendant here attaches a great deal of weight to this latter statement from
       Phillips. The problem is, this statement reflects the very reasoning that this court rejected 40
       years ago in Kessler, and it is flatly at odds with this court’s well-settled accountability
       jurisprudence. Again, in Kessler, this court expressly held that, under section 5-2(c), “where
       one aids another in the planning or commission of an offense, he is legally accountable for the
       conduct of the person he aids; and that the word ‘conduct’ encompasses any criminal act done
       in furtherance of the planned and intended act.” And significantly, in Kessler, just as in
       Phillips, the defendant was convicted by accountability of firearm offenses committed by
       someone the defendant did not know was armed. Similarly, in People v. Tarver, 381 Ill. 411
       (1942), this court held that where there is a common design to do an unlawful act, then
       “whatever act any one of them [does] in furtherance of the common design is the act of all, and
       all are equally guilty of whatever crime was committed.” (Emphasis added.) Id. at 416; see also
       People v. Rodriguez, 229 Ill. 2d 285, 289-91 (2008) (collecting cases, including Kessler and
       Tarver). In other words, 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. To the extent that Phillips holds or suggests otherwise, it is
       hereby overruled.
¶ 20        As a final matter, we wish to address briefly our decisions in People v. Dennis, 181 Ill. 2d
       87 (1998), and People v. Taylor, 186 Ill. 2d 439 (1999), as a fundamental misunderstanding of
       those decisions drove the errant analysis in Phillips. In essence, Phillips reads Dennis and

                                                   -7-
       Taylor as establishing a blanket principle that a person cannot be held accountable for a crime
       that he or she did not know would occur and therefore could not have intended to facilitate.
       However, this is not what these cases say. In both Dennis and Taylor, the defendant was the
       driver of a car whose passenger, wholly unbeknownst to the defendant, intended to commit a
       crime. And in both cases, the defendant was convicted of the passenger’s crime by
       accountability based principally on the fact that the defendant drove the passenger away from
       the scene of the crime after its commission. In reversing Dennis’s conviction, this court
       explained:
                “Holding a defendant who neither intends to participate in the commission of an
                offense nor has knowledge that an offense has been committed accountable does not
                serve the [accountability] rule’s deterrent effect. Further, the attachment of liability in
                such situations contravenes general concepts of criminal culpability.” Dennis, 181 Ill.
                2d at 105.
       In reversing Taylor’s conviction, this court invoked Dennis and further explained both that “a
       person may not be held accountable for a crime merely for being present, even when that
       person knows that a crime is being committed,” and that “a person generally will not be
       deemed accountable for acquiescing to the criminal activities of another.” Taylor, 186 Ill. 2d at
       446.
¶ 21       From these and related principles, the court in Phillips concluded that a defendant may
       never be held accountable for a crime that he did not specifically intend to promote or
       facilitate. See Phillips, 2012 IL App (1st) 101923, ¶ 30 (“[e]ven if the evidence showed that
       defendant deliberately trapped the victims and plotted to commit some crime against them,
       there is no evidence that he intended to help Sanders attack them with a firearm” (emphasis in
       original)). As we have demonstrated, however, this is an erroneous characterization of the law.
       What Phillips overlooked is that, while Taylor and Dennis are indeed accountability cases,
       they are not common-design rule cases. Rather, they are specific intent cases. Again, it is well
       settled that, under the Illinois accountability statute, the State may prove a defendant’s intent to
       promote or facilitate an offense by showing either (1) that the defendant shared the criminal
       intent of the principal, or (2) that there was a common criminal design. In re W.C., 167 Ill. 2d at
       337. Taylor and Dennis are cases involving the first of these categories, namely shared intent.
       In both of those cases, the evidence clearly showed that the defendants had no idea that any
       crime was going to be committed, let alone the one that actually was committed. See Dennis,
       181 Ill. 2d at 92, 105; Taylor, 186 Ill. 2d at 446. Thus, in these two cases, the court
       appropriately focused upon what these defendants knew about their passengers’ criminal
       intentions, as one cannot share an intent to promote or facilitate the commission of a crime
       when one doesn’t even know that a crime is going to be committed. However, this
       emphatically is not the rule in common-design rule cases, where by definition the defendant
       intentionally sets out to promote or facilitate the commission of a crime. In common-design
       rule cases, the rule is and remains that of Kessler, namely, that “where one aids another in the
       planning or commission of an offense, he is legally accountable for the conduct of the person
       he aids; and that the word ‘conduct’ encompasses any criminal act done in furtherance of the
       planned and intended act.” Kessler, 57 Ill. 2d at 497. Conflating these two distinct
       accountability schemes—shared intent and common design—is where Phillips went astray,



                                                    -8-
       and we hereby correct that mistake so that similar missteps are avoided going forward.

¶ 22                                        CONCLUSION
¶ 23      For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 24      Affirmed.




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