2023 IL App (2d) 220066 No. 2-22-0066 Opinion filed June 22, 2023 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 08-CF-3321 ) JOSHUA CAVAZOS, ) Honorable ) Donald Tegeler Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Kennedy and Schostok concurred in the judgment and opinion. Justice Schostok also specially concurred, with opinion.

OPINION

¶1 In 2011, a jury convicted defendant, Joshua Cavazos, of two counts of first degree murder

(720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)), attempted first degree murder (id. §§ 8-4(a), 9-

1(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.

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¶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 (Cavazos I).

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, on the issue of whether defendant’s sentence constituted an unconstitutional de facto life sentence, warranting a different result. People v. Cavazos, No. 119208 (Ill. Mar. 25, 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

(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. 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.

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¶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’

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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 and, thus, his sentence was unconstitutional. We rejected his arguments. Cavazos I, 2015 IL App (2d) 120171, ¶¶ 92-102. 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)—on defendant’s sentence. Cavazos II, No. 119208

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(Ill. Mar. 25, 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. 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).

¶ 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,”

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¶ 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 impatience.

¶ 19 Defendant made a statement in allocution. In part, he apologized to Rodriguez’s family and his own. Defendant explained that he has learned from his mistakes and he hopes to rejoin society and deter youth from participating in gang activities.

¶ 20 The State stated that it would again rely on the evidence it had used at the original sentencing, as well as four impact statements from Rodriguez’s family. Further, it presented testimony from two officers, both describing encounters that they had with defendant in 2007, one

in which he asked when the last time was that an Aurora police officer had been killed and the other when he was present, but not the shooter, when shots were fired at a Latin Kings member.

¶ 21 The trial court noted the changes in juvenile sentencing since Judge Sheldon had imposed the original sentence. It noted that credit towards time served may be considered and that the new

parole statute for persons under the age of 21 at the time of the offense, section 5-4.5-115(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-115(b) (West 2020)), now offered

defendant a “meaningful opportunity” for release after serving 20 years. See Graham v. Florida, 560 U.S. 48, 75 (2010) (“[T]he State must *** give [a juvenile convicted of a nonhomicide

offense] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”). The court rejected defendant’s argument that, because parole, unlike day-for-day

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defendant possessed “a lot of control” over the parole opportunity because, even though the Prisoner Review Board (Board) ultimately votes and renders the decision, defendant controls how

he behaves, what he does while imprisoned, and how he rehabilitates. Further, the court noted that, unlike executive clemency, where defendant would not have the opportunity to argue to the governor, defendant would have a significant say before the Board. The court also noted that it could not address defendant’s argument concerning whether proposed legislative changes would restrict the ability to obtain release through parole, as the court could not know what the future holds.

¶ 22 The court adopted Judge Sheldon’s findings concerning the factors in aggravation and mitigation, finding those unchanged. The court also addressed each of the factors in section 5-4.5-

105 of the Code, which must be considered before sentencing a defendant who committed an

offense before age 18. See id. § 5-4.5-105. In relevant part, it noted first that, at the time of the offense, defendant was age 17, just three months shy of his 18th birthday, and, thus, was an older adolescent. The court acknowledged that defendant experienced peer pressure as a gang member and was “probably expected to be in a gang” and that “[i]t would take a lot for him to say no based upon where he was coming up from.” The court found that defendant had a decent family

environment and his family attempted to find him a school out of the area. As for rehabilitation, the court found that “there is some rehabilitation potential in this gentleman. His record up until the murder was basically nothing.” The court noted that, during the period the case remained

unsolved, defendant committed another gun offense and served some prison time; however, and in part due to family support, he did not violate the terms of his parole. The court read “word-for- word” the report submitted by Dr. Garbarino.

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¶ 23 The court found the circumstances of the offense “horrendous. Plain and simple,” adding, “I have never understood, I probably never will understand, why if you throw a gang sign one way or the other that gives somebody the right to put a bullet in your head.” The court disagreed that the crime was impulsive, finding that it was planned in that the four participants wanted to go shoot someone from a rival gang, they drove to the area where that could be accomplished, they made a conscious decision to pass a gun around, and defendant made the decision to pull the trigger.

Defendant was an adolescent at the time, but he “absolutely knew what he was doing”; afterwards, he was proud of it and changed his nickname and got a tattoo. “He may not be proud of it now, which shows that he does have rehabilitation potential, and it shows that he might be a decent human being and a productive member of society[.]” However, “[t]hey did plan this. They just didn’t plan who it was going to be because they didn’t care who it was. They just wanted to do it.”

And, with respect to defendant’s degree of participation, defendant was the shooter.

¶ 24 The court noted that the State did not argue that defendant was “irretrievable” or “incorrigible,” and it agreed that defendant did not meet that criteria. It recognized that defendant had rehabilitative potential and that he had virtually no serious infractions during the roughly 13 years he had been imprisoned. “They have not found him with any weapons and he’s not done anything violent, so I find that that is another factor that goes to his potential rehabilitation.”

However, the court found that a “stiff sentence” remained appropriate, where four gunshots were

fired, with three hitting and killing Rodriguez, including one to his head, and the fourth hitting and injuring Lozano. Finally, the court noted that defendant was able to participate in his defense.

¶ 25 The court recognized that the imposition of firearm enhancements is now discretionary (see id. § 5-4.5-105(b), (c)) and that Buffer held that anything more than 40 “actual years” is a de facto life sentence, “before the parole issue.” It did not find any reason to increase defendant’s sentence

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from that previously imposed. Ultimately, it sentenced defendant to 20 years’ imprisonment for first degree murder, to be served at 100%, but declined to impose the 25-year firearm enhancement.

The court imposed a 10-year sentence for attempted murder, to be served at 85%, and elected to

also impose the 20-year firearm enhancement, as was applied in defendant’s original sentence. The court explained, “This wasn’t one bullet. This was four bullets. This wasn’t one victim. This was two victims. Had there not been a gun in this case, we would not have a victim most likely. ***

[H]ad a gun not been involved *** we probably don’t have four bullets flying around the City of Aurora and two people being shot, one fatally.”

¶ 26 Next, the court explained that, although the aggregate sentence totaled 50 years, part of the sentence would be served at 85% and, thus, “actual time served” would be a little over 45 years.

Although it acknowledged that figure exceeded the 40-year mark announced in Buffer, it found that, for two reasons, the sentence was not a de facto life sentence. First, “I find that that is acceptable in this case because of the new parole statute where he has a meaningful opportunity to ask for parole after serving 20 years[.]” The court again noted that defendant was in control over whether he receives parole.

¶ 27 Further, the court continued, defendant would receive credit for the time he had already served, which was just over 13 years, and it noted:

“So actual time from this sentence, and as I read Buffer, it’s from when I sentence him, the actual time in cannot be more than 40, actual time in from this case. Because as I read the law, the original sentence is void. It is gone. It’s history. This is his sentence.

Actual time in, therefore, is about 32 years, eight years under Buffer and he’s still eligible for parole under the new statute.

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Now, I know there may some argument in relation to that that it is still more than

40, but I find that, number one, the parole statute is a meaningful opportunity and I find that 45-and-a-half years here because that meaningful opportunity under the parole statute does not violate Buffer and I believe that when you look at the time served since arguably

at this point he had to start from zero, so I have to assume he’s been in custody for 13 years, I am not giving him day-for-day credit because, quite frankly, on the murder, he would not have gotten it anyway. At 13 years, the actual time in the department of corrections is 32- and-a-half years.”

¶ 28 Defendant moved the court to reconsider, in part asking the court to impose a 30-year sentence. On March 2, 2022, the court denied the motion. Defendant timely appeals.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant raises numerous arguments challenging his sentence. First, defendant argues that the trial court erred where, to determine whether the “actual time” served would constitute a de facto life sentence, it subtracted the time he served prior to resentencing. He contends that, in doing so, the court misapprehended applicable law, violating his right to due process. Second, defendant argues that, where the court made no finding that he is permanently

incorrigible, its decision to impose a de facto life sentence violated both this court’s mandate and the eighth amendment to the federal constitution (U.S. Const., amend VIII), the latter, in part

because the parole statute does not afford him a meaningful opportunity for release. Third, defendant argues that, where the court made no finding that he is permanently incorrigible, its decision to impose a de facto life sentence violated the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11). Fourth, defendant contends that his sentence violates both the eighth amendment and the proportionate penalties clause because the court’s findings

- 10 - 2023 IL App (2d) 220066 contradicted Miller v. Alabama, 567 U.S. 460 (2012), were incompatible with Illinois law and evolving standards of decency, and were improper, requiring reversal. Fifth, defendant argues that his 50-year sentence is excessive, in light of his youth, significantly diminished moral culpability, and potential for rehabilitation. ¶ 31 The State responds, with respect to defendant’s first, second, and third arguments, that defendant did not receive a de facto life sentence in violation of the eighth amendment, proportionate penalties clause, or this court’s mandate, because the new parole statute affords defendant a meaningful opportunity for release. Moreover, with respect to defendant’s fourth and fifth arguments, the State responds that, even though defendant did not receive a de facto life sentence without the possibility of parole, the court nevertheless properly applied Miller and did not consider improper factors and, thus, defendant’s sentence cannot, in light of the aggravating and mitigating factors, be characterized as excessive. ¶ 32 A. Subtraction of Time Served from 40-Year Calculation ¶ 33 Generally, we review for an abuse of discretion a trial court’s sentencing decision. See, e.g., People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). However, when the issue is whether a sentencing court misapprehended applicable law, our review is de novo. See, e.g., People v. Moore, 207 Ill. 2d 68, 75 (2003). ¶ 34 We agree with defendant that the trial court apparently misapprehended applicable law. Specifically, the court imposed a 50-year sentence, comprised of (1) 20 years at 100% for first degree murder, to be served consecutively to (2) 10 years for attempted murder, plus 20 years for personally discharging a firearm during the attempted murder, both to be served at 85%. The court noted that defendant would therefore serve an aggregate term of 45 years but concluded that it was not imposing a de facto life sentence, in part, because defendant would receive credit for the 13 - 11 - 2023 IL App (2d) 220066 years that he had already served prior to resentencing and his “[a]ctual time in, therefore, is about 32 years, eight years under Buffer.” As defendant notes, the court apparently mistakenly believed that, in considering whether the sentence exceeded the 40-year limit set forth in Buffer, it should first subtract any time defendant had already served and then simply assess whether the “actual time” remaining to be served exceeds 40 years. The State does not respond to defendant’s argument substantively, instead suggesting only that he misrepresents the record. We disagree. One of the court’s expressed reasons for believing that the 50-year sentence did not exceed Buffer’s 40-year threshold was that only 32 years of “actual time” remained. While Buffer did concern the amount of time a juvenile offender serves, and held that more than 40 years is equivalent to a life sentence, nothing in the decision suggests that the figure is derived by subtracting the time already served and considering only the time to be served going forward. As defendant notes, the court in Buffer performed no such calculation when holding that the 50-year sentence in that case exceeded 40 years and, thus, was a de facto life sentence, nor did it suggest that the trial court should so calculate at resentencing on remand. See Buffer, 2019 IL 122327, ¶¶ 42-49. Indeed, the State cites no authority to suggest that a court should subtract from the aggregate term the amount of time already served to determine whether the sentence complies with Buffer. In our view, “actual time” served, and whether that amount exceeds 40 years, includes all time served, not just the amount remaining to be served after a sentence is imposed. ¶ 35 However, we disagree with defendant that the trial court’s misapprehension of applicable law warrants a new sentencing hearing. A misapprehension of applicable law warrants a new sentencing hearing only where the mistake arguably influenced the sentencing decision. People v. Eddington, 77 Ill. 2d 41, 48 (1979) (but holding, in that case, that the sentencing court’s mistaken understanding of law was harmless and did not arguably influence the sentence, because it clearly - 12 - 2023 IL App (2d) 220066 had not served as the court’s “reference point” in fashioning the sentence); see also People v. Myrieckes, 315 Ill. App. 3d 478, 484 (2000) (a sentencing court’s mistaken belief influenced the sentencing decision if the court’s comments reflect it relied on the mistake as a reference point in fashioning the sentence; holding the record “suggests” that the sentencing court fashioned the sentence mistakenly believing that the defendant was eligible for extended-term sentencing when he was not, which might have contributed to an excessive sentence, even though within the nonextended range); People v. Hausman, 287 Ill. App. 3d 1069, 1072 (1997) (remanding for a new sentence hearing where the record was not clear whether the trial court sentenced the defendant to three years’ imprisonment believing that was the minimum sentence or because it found it a proper sentence). Here, consideration of time already served was only one piece of the court’s analysis, and we disagree that it served as the court’s reference point for fashioning the sentence. Indeed, the record is clear that the court was focused on an alternative basis for its decision, and we may affirm the court’s decision on any basis supported by the record. See, e.g., People v. Boyd, 2021 IL App (1st) 182584, ¶ 70. Specifically, for the reasons described below, we agree with the court’s assessment that, despite the number of years, the sentence here does not constitute an unconstitutional de facto life sentence, because the new parole statute, section 4-4.5-115, offers defendant a meaningful opportunity for release before 40 years are served. ¶ 36 B. Permanent Incorrigibility and the Eighth Amendment ¶ 37 Defendant next raises numerous arguments concerning the court’s decision to impose, absent a finding of permanent incorrigibility, a “de facto life sentence,” as well as arguments concerning whether the new parole statute provides the “meaningful opportunity” (Graham, 560 U.S. at 75) for a juvenile offender’s release contemplated by the federal and state constitutions. Defendant notes that, according to Buffer, a life sentence for a juvenile is one exceeding 40 years - 13 - 2023 IL App (2d) 220066 and, here, he received 50 years. Further, he notes that the court expressly found that he is not permanently incorrigible and that he has rehabilitative potential. As such, defendant argues, the court’s imposition of a de facto life term violated this court’s mandate and the eighth amendment, which, according to People v. Holman, 2017 IL 120655, ¶ 40, overruled by People v. Wilson, 2023 IL 127666, ¶ 42, 1 prohibits a life term for a juvenile without a finding of permanent incorrigibility. ¶ 38 We review de novo the question whether a sentence violates the eighth amendment. See e.g., People v. Johnson, 2018 IL App (1st) 140725, ¶¶ 97-98. For the following reasons, we disagree that the sentence here violates the eighth amendment. ¶ 39 i. Permanent Incorrigibility ¶ 40 Preliminarily, as context for addressing defendant’s arguments, it is important to remember that Buffer, coupled with the state and federal case law preceding it, derived from the concern that juvenile offenders cannot be sentenced to death and cannot be sentenced to life imprisonment without parole without any meaningful consideration of the attendant circumstances of youth. See Miller, 567 U.S. at 483 (even for those convicted of homicide, the eighth amendment prohibits “a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders”; however, a court may sentence a juvenile to life without parole if it first adequately considers youth and its “attendant circumstances” (emphasis added)); Graham v. Florida, 560 U.S. 48, 74 (2010) (when imposed on juvenile offenders for crimes other than homicide, a life sentence without the possibility of parole violates the eighth amendment); Roper v. Simmons, 543 U.S. 551, 568-73 (2005) (capital punishment for juvenile offenders violates the eighth amendment); Holman, 2017