                                       2014 IL 115527



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 115527)

             THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAVIER
                           FERNANDEZ, Appellant.


                                Opinion filed March 20, 2014.



        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 told Marial that he had left her SUV at the
     intersection of Fifty-first 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
                                              -2-
     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.
                                            -3-
       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 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
       Fifty-first 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, 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
                                               -4-
       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 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).



           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.”

                                                       -5-
¶ 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.

¶ 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

                                               -6-
       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


                                                -7-
       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, 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.
                                                -8-
       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 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.



                                               -9-
       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, and we
       hereby correct that mistake so that similar missteps are avoided going forward.




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¶ 22                                CONCLUSION

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



¶ 24   Affirmed.




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