Filed 5/16/17 P. v. Prudente CA3
NOT TO BE PUBLISHED


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS PRUDENTE,

Defendant and Appellant.


C074631

(Super. Ct. No. 13F01774)







A jury convicted defendant Luis Prudente of first degree murder, assault with a firearm, and taking or driving a vehicle without the consent of the owner. The jury also found true certain enhancement allegations. The trial court sentenced defendant to life without the possibility of parole for the murder with an additional 25 years to life for a firearm enhancement plus a determinate term of 17 years 8 months.
Defendant now contends (1) the verdicts should be set aside based on juror misconduct, (2) joinder of certain counts denied defendant due process, and (3) the trial court erred in allowing the People’s gang expert to testify that the murder was retaliation for a prior shooting.
We will affirm the judgment.
BACKGROUND
Someone threw a brick through the front window of Julian Dearcos’s house in 2009. Julian’s brother Leo heard someone yell “Southside.” Southside referred to the Sureño gang.
Julian lived in an area that was part of the Howe Park Sureño gang territory. Although Leo testified that he did not know whether Julian was a gang member, Julian had a “XIV” tattooed on his body. “XIV” was a symbol associated with the Norteño gang. The Norteño and Sureño gangs were rivals.
More objects were thrown at Julian’s house. Leo saw a white, four-door car drive slowly by his house hours later, prompting him and Julian to go outside. The car eventually drove toward Julian, ran over him and dragged him. Julian’s nephew Christopher heard someone yell “Surtrece” and “Chap killer.” “Surtrece” was a term associated with the Sureño gang. “Chap killer” referred to a person who killed Norteños. Julian died from his injuries.
Sheriff’s deputies located a suspect vehicle within a mile of Julian’s house. There was blood on the hood, front bumper and other parts of the car. Deputies determined the vehicle was taken from the owners without permission. Fingerprints belonging to defendant, Jaime Toledo and Wilberto Padilla were found on the car.
Sacramento County Sheriff’s Department Detective Paul Belli interviewed Jaime on August 25, 2010. Jaime said defendant (known as Rata or Luis) was the driver and Wilberto (known as Willie G.) was a passenger. Jaime identified defendant by photograph.
Jaime testified at defendant’s trial pursuant to an immunity agreement. He said defendant was a Howe Park Sureño gang member and the driver of the car who repeatedly ran over the victim. Jaime said days earlier he and others threw items at Julian’s house following accusations that Norteños had thrown items at their car. Jaime said Norteños lived in the targeted house.
A year after Julian’s murder, Carla S. and her boyfriend Jesse Jones were walking in the area of Encina High School. Jesse and his friends were trying to start a gang called Bell Block Norteños. Jesse and Carla wore red, a color associated with the Norteño gang. A car sped around the corner and the passenger told Jesse and Carla they were in Howe Park Sureño territory, asked if Jesse was a “gang banger,” and fired two shots from a shotgun when Jesse said he did not care. Jesse died from a shotgun wound to his pelvis and Carla suffered a gunshot wound to her left heel. Carla identified defendant as the shooter in a photographic lineup and at trial.
Sacramento County Sheriff’s Department Detective Matt Tamayo testified as the People’s gang expert. He explained that the Howe Park Sureño’s were a subset of the Sureño gang. Detective Tamayo described the territory, commons signs and symbols, and color associated with the Howe Park Sureño gang.
Detective Tamayo said the primary activities of the Howe Park Sureño gang were vehicle theft, weapons possession, felony assault, and assault with firearms. He testified about two predicate crimes involving Howe Park Sureño gang members. Detective Tamayo explained the concept of fear and respect among the Hispanic street gangs and the expected response to a challenge such as dressing in red in a Howe Park Sureño gang territory.
The trial court admitted evidence of text messages from an individual named Rata. That person asked someone “do you bang.” And he spelled the word “how” as “howe.” Detective Tamayo opined based on the spelling of the word “how” in the text messages that the person sending the text was a Howe Park Sureño gang member. Someone using that cell phone sent a text about a shooting after Jesse’s murder.
Detective Tamayo opined that defendant was an active Howe Park Sureño gang member at the time of the Julian and Jesse crimes. That opinion was based on Tamayo’s review of the police reports in the two cases and defendant’s tattoos, prior admissions, criminal history, prior police contacts, and YouTube videos. Detective Tamayo opined that Julian was affiliated with the Norteños based on his tattoos.
Detective Tamayo said the murder of Julian was in association with the Howe Park Sureño gang because defendant was with a Howe Park Sureño gang member at the time of the crime. The detective said Julian’s murder benefited and furthered the activities of the Howe Park Sureño gang because Julian was a Norteño living in Howe Park Sureño territory and Julian had called Sureños “scraps.”
Detective Tamayo opined that the shooting of Jesse was gang-related because Jesse was dressed in attire associated with Norteños and there was graffiti promoting the Bell Block Norteños in the area of the shooting. The detective said the murder of Jesse benefited and furthered the activities of the Howe Park Sureño gang because the fresh Norteño graffiti in an area claimed by the Howe Park Sureños was disrespectful to the Howe Park Sureño gang, and Jesse was contacted in Howe Park Sureño territory.
Defendant presented alibi evidence and also offered the testimony of Dr. Kathy Pezdek, an expert on eyewitness identification and memory. Dr. Pezdek opined, in response to a hypothetical based on Carla’s identification of defendant, that the identification by the eyewitness in the hypothetical was unreliable.
After two days of jury deliberations, the trial court excused Juror No.11 because of a family emergency. Alternate Juror No. 2 was sworn in as the new Juror No. 11 (hereafter Juror 11). The trial court properly instructed the newly constituted jury to disregard all past deliberations and to start deliberations from the beginning.
The jury convicted defendant of taking or driving a vehicle without the consent of the owner (Veh. Code, § 10851, subd. (a) -- count three), the first degree murder of Jesse (Pen. Code, § 187, subd. (a) -- count four) , and assault with a firearm against Carla (§ 245, subd. (a)(2) -- count five). The jury found the firearm use (§§ 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a)), infliction of great bodily injury (§ 12022.7, subd. (a)), and active participant in a criminal street gang (§ 190.2, subd. (a)(22)) allegations in counts four and five true.
After the verdicts were entered on counts three, four and five, Juror 11 told the trial court he was concerned he would succumb to pressure from other jurors if he continued with deliberations on counts one and two. When the trial court asked each juror whether he or she could be open-minded and continue deliberations in a fair and impartial way, Juror 11 responded in the negative. The trial court excused Juror 11 at that point. Defense counsel objected to Juror 11’s removal.
Following further deliberations, the jury was unable to reach verdicts on counts one and two, and the trial court declared a mistrial as to those counts, which related to the murder of Julian (§ 187, subd. (a) -- count one) and failure to stop at the scene of an injury accident (Veh. Code, § 20001 -- count two). The trial court subsequently dismissed the gang enhancement allegation (§ 186.22, subd. (b)(1)) in count five upon the People’s motion.
The trial court sentenced defendant to life without the possibility of parole on count four, with an additional 25 years to life for the section 12022.5, subdivision (d) enhancement, and sentenced him to a total determinate term of 17 years 8 months on the convictions and enhancements for counts three and five.
Additional background facts are set forth in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the verdicts should be set aside based on juror misconduct.
A
Defendant argues the trial court should have inquired into Juror 11’s claim that the jury did not follow the trial court’s instruction to deliberate anew after Juror 11 was sworn in.
When alternate Juror No. 2 became Juror 11, the trial court properly instructed the newly constituted jury to disregard all past deliberations and to start deliberations from the beginning. (People v. Collins (1976) 17 Cal.3d 687, 694 (Collins) [state constitutional right to trial by jury requires instruction that the jury must disregard all past deliberations and begin deliberating anew when an alternate juror takes the place of a discharged juror], superseded by statute on other grounds as stated in People v. Boyette (2002) 29 Cal.4th 381, 426, fn. 19.)
The newly constituted jury began deliberating, but within hours the trial court received a note from Juror 11 stating, “Judge, I am concerned that we, the jury, did not begin from scratch when I was admitted as a juror. No new jury foreman, the members of the jury did not begin anew.” After conferring with counsel, the trial court reminded the jury to begin deliberations from the beginning. The trial court instructed, “Per the Court’s instruction, please ensure that you begin deliberations from the beginning. Jurors may not consider deliberations previously entered into without full discussion anew on any particular issues. You are free to choose a new jury foreman or the same jury foreman as you wish.” Jury deliberations continued. Nothing in the record shows that defendant moved to dismiss any juror, requested further inquiry by the trial court, or objected to the further instruction given.
The following day, the trial court received the first July 23 note from Juror 11. That note read, “Judge Koller, I am extremely concerned that this jury is placing extreme pressure on myself and other jurors, often with hostility, even screaming. Also, we did not begin deliberations over as instructed. The other jurors have been extremely hostile to me in pressuring me to vote a certain way, and I feel extremely uncomfortable and under attack for sharing my opinion, especially from the jury foreman. [¶] If possible, I request to be dismissed from the jury. I do not feel comfortable in this environment, and I do not have faith in this jury at all.”
The trial court and counsel met to discuss the first July 23 note. The trial court stated its intent to ask Juror 11 whether he could continue as a juror, without eliciting information that might reveal any deliberation discussions. The judge noted Juror 11 said the jury did not start deliberations anew, but the judge commented, “I’m not sure how he can say that. And I don’t feel comfortable asking him questions about the deliberations that might lead to why he feels that way. [¶] So I’m feeling like I’m hedging a little bit with him, but the real question for us now, because he’s asking to be excused, is whether or not he is so uncomfortable that he’s unable to deliberate.” Defense counsel did not disagree with the trial court.
Defense counsel did not ask the judge to question Juror 11 about his statement that the jury did not deliberate anew. Instead, she proposed that the judge ask Juror 11 whether the trial court could assist him and reinstruct the jury about the roles of deliberating jurors. The prosecutor observed that the newly constituted jury had been deliberating longer than the original jury. Defense counsel did not disagree with the prosecutor’s comment.
The trial court followed defense counsel’s proposed approach. New Juror No.11 explained he was able to express his views and listen to the views of other jurors at times but was not comfortable expressing his views because other jurors responded to his statements with anger. The trial court informed Juror 11 that it was willing to further instruct the jury about making sure everyone had a fair chance to be heard. Outside the presence of Juror 11 and the other jurors, the trial court found that Juror 11 was willing and trying to deliberate, he was just unable to get his point across because of hostility from other jurors. Because Juror 11 did not say he was unwilling to deliberate, the trial court concluded it would not relieve him as a juror. Instead, with approval from counsel, the judge further instructed the jury: “Just a reminder, it’s important that your discussions are carried on in a way that allows each juror the opportunity to be heard fully. Fair and effective jury deliberations require a frank and forthright exchange of views. It may be that uninterrupted opinions would be helpful in the deliberation process. [¶] It is up to you to decide how to conduct your deliberations; but, please remember to treat one another courteously, keep an open mind and exchange your thoughts and ideas.”
In response to that instruction, the jury foreperson submitted the following note at the end of the day: “[W]e were instructed to conduct our deliberation in a courteous manner. At several times during the deliberation, a juror, namely #11 has been behaving in a manner to be distracting to the other jurors present. When asked to stop, he responded that it is the other juror’s problem for being distracted.” At the same time, Juror 11 also sent the judge an additional note stating: “I cannot stress enough the severity of the hostility level I have experienced since joining the jury. On more than one occasion, I have felt coerced into changing my vote, and this hostility level has boiled over into near-violence in the jury room. I am clearly surrounded by 11 jurors who despise me and refuse to consider my opinion, but beyond that I believe 100% that I have been coerced into changing my vote (on multiple occasions) against my personal opinion, and I do not feel capable any longer of being a lawful and objective juror. I am having difficulty dealing with this extremely stressful situation - being screamed at (literally) by a group of other jurors, I feel, may trigger an anxiety attack. It nearly did this afternoon (7-23). But most critically, I have not had a fair opportunity to vote in accordance with my best judgment - in other words, I have been viciously pressured to change my vote on several occasions and I would no longer consider myself a fair and impartial juror. I ask to be excused.” The trial court directed counsel to return to court and the bailiff released the jurors for the evening. At the time the jurors were released, the jury informed the bailiff it had reached verdicts.
The next day the trial court discussed the new developments with counsel outside the presence of the jury. Counsel and the trial court agreed that the trial court should talk to Juror 11 again outside the presence of the other jurors. Juror 11 informed the trial court that two of the verdicts were his true and correct verdict and he was a fair and impartial juror on those verdicts, but one of the verdicts was not his true and correct verdict; on that one he voted for the verdict even though he did not agree with it, and he was not a fair and impartial juror on that verdict. The trial court returned the verdict forms to the jurors and asked them to reaffirm in the jury room whether the verdicts were unanimous. The jury confirmed that the verdicts on count three (taking or driving a vehicle), count four (the murder of Jesse), and count five (assault with a firearm against Carla) were true, correct and unanimous, and so were the true findings on certain enhancement allegations.
Defendant argues the trial court erred in not investigating Juror 11’s repeated assertion that the jury disregarded the instruction to deliberate anew. But defendant acquiesced in the trial court’s approach in addressing Juror 11’s assertion, and defendant did not alert the trial court to the error he now alleges occurred. “Having failed to suggest any additional examination was required, thereby preventing the trial court from considering any arguments for conducting further examination, defendant ‘is not privileged to make the argument now for the first time on appeal.’ ” (People v. Holloway (2004) 33 Cal.4th 96, 126-127 [defendant forfeited claim that the trial court erred in failing to discharge a juror by failing to object to the trial court’s course of action]; see People v. Williams (2015) 61 Cal.4th 1244, 1280 (Williams) [failure to raise claim, during trial, that the trial court should have conducted a more thorough investigation with regard to the jury’s refusal to deliberate anew forfeits the claim on appeal]; People v. Wisely (1990) 224 Cal.App.3d 939, 947-949 [defendant cannot raise claim of juror misconduct when he failed to make a contemporaneous objection and acquiesced in the proceedings].)
In any event, defendant’s claim fails on the merits. Whether and how to investigate a claim of juror misconduct rests within the trial court’s sound discretion. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 70 (Allen); People v. Ray (1996) 13 Cal.4th 313, 343.) Here, the trial court conducted an inquiry into Juror 11’s assertion. The inquiry and the record before the trial court indicated that the jury deliberated after Juror 11 was sworn in and that the verdicts on counts three, four, and five were the result of the unanimous agreement of the 12 jurors, including Juror 11, following their deliberations.
Defendant says the jury did not restart deliberations after Juror 11 was substituted in. But the jury deliberated after the trial court instructed the jury to restart deliberations. The jury submitted questions to the trial court indicating that the jurors were deliberating. (Williams, supra, 61 Cal.4th at pp. 1279-1280 [request for readback and asking the court for clarification of instructions indicates the jury deliberated anew].) Juror 11 told the trial court he was at times able to express his views and listen to the views of other jurors.
Juror 11 told the trial court he was fair and impartial in reaching the verdicts on counts three, four, and five. Each juror, including Juror 11, orally affirmed that the verdicts on counts three, four, and five were his/her true and correct verdicts. Juror 11’s statements and the oral affirmation of the verdicts by all of the jurors disprove defendant’s claim that the verdicts on counts three, four, and five did not reflect the independent judgments of the jurors.
It is not an abuse of discretion for the trial court to exercise caution so as not to intrude into the content of jury deliberations. “The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations.” (People v. Cleveland (2001) 25 Cal.4th 466, 476.) “[A] trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.” (Id. at p. 485; see People v. Thompson (2010) 49 Cal.4th 79, 137.) There is no abuse of discretion where examining other jurors about the alleged juror misconduct would threaten to intrude on the deliberation process. (Thompson, at p. 137.)
B
Defendant further argues the trial court should have determined Juror 11’s ability to be fair and impartial before it took the verdicts on counts three, four, and five, and it should have removed Juror 11 at that point because he was not fair and impartial.
After the verdicts on counts three, four and five were entered, the question arose whether the jurors could be fair and impartial in continuing to deliberate on counts one and two. Juror 11 told the trial court he was fair and impartial to the parties and could be objective, but he was concerned he would succumb to pressure from other jurors if he continued with deliberations. When the trial court subsequently asked each juror whether he or she could be open-minded and continue deliberations in a fair and impartial way, Juror 11 responded in the negative. Upon further questioning, Juror 11 repeated that he could not be fair and impartial during further deliberations. The trial court excused Juror 11 at that point.
Defense counsel said she did not see any basis for removing Juror 11 and expressly objected to Juror 11’s removal. Defendant cannot now claim the trial court should have discharged Juror 11 when the record indicates his trial counsel made a conscious and deliberate tactical choice to urge that Juror 11 be retained. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [under the doctrine of invited error, defendant may not claim on appeal that the trial court erred in granting a challenge for cause against a prospective juror when her trial counsel joined in the challenge to that prospective juror]; People v. Burgener (2003) 29 Cal.4th 833, 879 [defendant’s request that the trial court give an admonition bars him from challenging the trial court’s statements on appeal]; People v. Seaton (2001) 26 Cal.4th 598, 639 [defendant invited any error in excusing a juror where his trial counsel stipulated to the excusal].)
Defendant’s claim also fails on the merits. The trial court inquired, before entering the verdicts on counts three, four, and five, whether Juror 11 was fair and impartial with regard to those verdicts and received assurances from Juror 11 that he was. Every juror, including Juror 11, affirmed that the verdicts were his/her true and correct verdicts. Defense counsel did not disagree when the prosecutor observed that the verdicts entered were rendered by a fair and impartial jury. In fact, defense counsel said, and the trial court agreed, that Juror 11 “seemed comfortable when he was polled about the verdicts that were returned.” Juror 11 reaffirmed that he was fair and impartial and was comfortable with the verdicts on counts three, four, and five after those verdicts were entered. Nothing in the record supports the claim defendant now makes that the trial court did not resolve whether Juror 11 was fair and impartial before the verdicts were entered and that Juror 11was not fair and impartial with regard to the verdicts entered.
The trial court properly excused Juror 11 when it did, rather than earlier, because Juror 11 believed at that point that he would succumb to pressure from other jurors on counts one and two and thereby not render a verdict based on his independent judgment. (Collins, supra, 17 Cal.3d at p. 696 [juror’s steadfast claim that she could not follow the court’s instructions and wanted to be excused clearly justified her discharge]; People v. Warren (1986) 176 Cal.App.3d 324, 326 [good cause existed to excuse juror who said she was intimidated by the other jurors and may vote with the majority even though she believed she should not]; People v. Taylor (1961) 189 Cal.App.2d 490, 495 [good cause to discharge a juror exists where the juror expressed doubt as to his ability to perform his duty justly].) Defendant argues Juror 11 could not have been fair and impartial on the entered verdicts but not the other counts. We disagree. Juror 11 said he agreed with the verdicts on counts three, four and five, but felt he would bow to pressure from other jurors on counts one and two. The fact that Juror 11 was able to reach agreement with the other jurors on counts three, four and five does not foreclose the possibility that he might feel intimidated by continued deliberations on counts one and two.
The trial court did not abuse its discretion.
II
Defendant next contends joinder of certain counts denied him due process. He claims the trial court erred in denying his motion to sever the counts relating to the murders of Julian and Jesse.
“ ‘The law prefers consolidation of charges.’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 574 (Manriquez).) “Section 954 permits ‘[a]n accusatory pleading’ to charge ‘two or more different offenses of the same class of crimes or offenses, under separate counts . . . .’ ” (People v. Cook (2006) 39 Cal.4th 566, 581 (Cook).) The state has an interest in the efficiency of joinder, and the public is served by reduced delay. (People v. Bean (1988) 46 Cal.3d 919, 939-940 (Bean).) Here, joinder of the murder counts was proper under section 954 because the murder counts are offenses of the same class of crimes and the other counts are connected in their commission to the murders. (Bean, supra, 46 Cal.3d at p. 935; Williams v. Superior Court (1984) 36 Cal.3d 441, 447, superseded by statute on another ground as stated in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19.) Nevertheless, section 954 gives the trial court discretion, in the interests of justice and for good cause shown, to order that the different offenses or counts set forth in an accusatory pleading be tried separately.
To establish error in a denial of severance when two offenses are properly joined under section 954, the defendant must make a clear showing that the potential of prejudice outweighed the state’s interest in joinder. (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza); Bean, supra, 46 Cal.3d at p. 935.) We review a trial court’s decision not to sever for abuse of discretion, based on the record before the trial court when it heard the motion. (Cook, supra, 39 Cal.4th at p. 581.) Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the crimes are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case or with another weak case so that the spillover effect of the evidence might well alter the outcome of some or all of the counts; and (4) any one of the counts carries the death penalty or joinder of them turns the matter into a capital case. (Manriquez, supra, 37 Cal.4th at p. 574.)
The trial court ruled there was significant cross-admissibility of evidence regarding the Julian and Jesse murders because the People charged a gang enhancement in connection with each charge. But the trial court did not explain how the murders were sufficiently similar to raise an inference that defendant acted with the same intent or motive in committing the two crimes, and it appears the trial court did not conduct an Evidence Code section 352 analysis. However, even if there was not cross-admissibility, that fact, by itself, would not require severance. (Cook, supra, 39 Cal.4th at p. 581; Manriquez, supra, 37 Cal.4th at pp. 574-575; Mendoza, supra, 24 Cal.4th at p. 161; Bean, supra, 46 Cal.3d at pp. 935-936.) If evidence of the joined offenses is not cross-admissible, the trial court must “assess the relative strength of the evidence as to each group of severable counts and weigh the potential impact of the jury’s consideration of ‘other crimes’ evidence. I.e., the court must assess the likelihood that a jury not otherwise convinced beyond a reasonable doubt of the defendant’s guilt of one or more of the charged offenses might permit the knowledge of the defendant's other criminal activity to tip the balance and convict him. [Citation.] If the court finds a likelihood that this may occur, severance should be granted.” (Bean, supra, 46 Cal.3d at p. 936.)
We find no abuse of discretion. As the trial court noted, nothing before it at the time it ruled indicated that one case was significantly more egregious than the other so that it was especially likely to inflame the jury against defendant or that one case was weak. We disagree with defendant’s appellate contention that the shooting of two teenagers was significantly more inflammatory than the manner in which Julian was killed. The papers submitted showed that although the manner of killing differed, both murders involved senseless and violent killings of an apparent rival gang member. The circumstance of each crime indicated defendant intentionally killed with premeditation and deliberation. Defendant did not argue, in his motion for severance, that the circumstances of the Julian murder were more inflammatory than the circumstances of the Jesse killing or vice versa. He argued instead that the introduction of gang evidence would have an inflammatory effect. But both cases involved gang enhancements and would have involved the presentation of gang evidence. Unlike in Williams v. Superior Court, supra, 36 Cal.3d 441, a case upon which defendant relies, the complaint against defendant included gang enhancement allegations. Both the Julian and the Jesse cases would have involved the presentation of evidence tending to show the following: the Howe Park Sureño gang was a criminal street gang, defendant was an active participant in the gang, there was a rivalry between the Sureños and Norteños, there were hostilities between those gangs in the areas where the murders occurred, and there were possible gang motives and intent for the crimes.
At the same time, because the two sets of crimes were factually separable, it was unlikely the jury would consider the commission of one murder as evidence of defendant’s commission of the other. (Mendoza, supra, 24 Cal.4th at p. 163.) And one case was not significantly weaker than the other. Defendant’s fingerprints were found on the car used to kill Julian, and Jaime identified defendant as the driver of the car. Carla identified defendant as Jesse’s shooter. Cell phone records and text messages further incriminated defendant.
Based on the record before the trial court at the time it decided defendant’s severance motion, the significant benefits to the state in joinder outweighed the minimal likelihood of prejudice. The trial court did not abuse its discretion in denying severance.
Denial of severance that is not an abuse of discretion can only be reversed if the defendant shows the joinder actually resulted in gross unfairness amounting to a denial of due process. (Cook, supra, 39 Cal.4th at p. 581; Mendoza, supra, 24 Cal.4th at p. 162.) We look at the evidence actually introduced at trial to determine whether gross unfairness occurred. (Bean, supra, 46 Cal.3d at p. 940.) Although defendant presented an expert to cast doubt on Carla’s identification of defendant as the shooter, the expert conceded Carla provided a description of her assailant to police and identified defendant’s photograph close in time to the shooting, a factor which strengthens the reliability of eyewitness identification. Carla identified defendant as the shooter at the trial. The trial court instructed the jury on how to evaluate expert and lay witness testimony, and the jury had the opportunity to assess the various witnesses. Text messages also provided circumstantial evidence connecting defendant to the shooting of Jesse. The fact that the jury convicted defendant of Jesse’s murder but could not reach a verdict on Julian’s murder or on the gang enhancement allegation for the assault against Carla shows the jury was able to distinguish between the offenses and enhancements charged and did not simply use evidence of one charge or allegation to convict defendant on another. (Williams v. Superior Court, supra, 36 Cal.3d at p. 453 [the principal concern in joinder is that the jury would aggregate all of the evidence and convict the defendant on both crimes in a joint trial].) Under the circumstances, joinder did not result in a denial of due process.
III
Defendant further argues the trial court erred in allowing the People’s gang expert to testify that the murder was retaliation for a prior shooting.
Based on text messages and police reports, Detective Tamayo opined on direct examination that Jesse was shot in retaliation for a prior shooting involving a red car. Defense counsel did not object to the detective’s direct testimony. But on cross-examination, defense counsel secured various concessions from Detective Tamayo. Detective Tamayo said he did not know who sent the text message “I got shot at by a red car,” whether that person was a Howe Park Sureño, or whether defendant was the person who responded to the text. Detective Tamayo agreed he made a number of assumptions in concluding that Jesse’s murder was a retaliatory shooting.
Defendant forfeited his appellate claim by failing to raise it in the trial court. (People v. Ward (2005) 36 Cal.4th 186, 211; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1434.) “ ‘The rule is that a defendant may not complain on appeal that evidence was inadmissible on a certain ground if he did not make a timely and specific objection on that ground in the trial court.’ ” (Gutierrez, at p. 1434.)
Defendant represents that he objected at trial to Detective Tamayo’s challenged testimony, but the record does not support his assertion. Defense counsel objected to admission of the text messages sent or received two days before Jesse’s murder and also referenced an in-chambers discussion in which she objected to Detective Tamayo testifying that defendant committed the murders and the assault. But defense counsel did not object to testimony that the shooting was retaliatory.
In any event, even if Detective Tamayo should not have opined about the retaliatory shooting because he did not have personal knowledge and the jury was competent to weigh the evidence (see People v. Sanchez (2016) 63 Cal.4th 665, 676), any such error did not result in prejudice. Defendant did not dispute that Jesse’s shooting was committed for gang purposes, and there is ample support for the jury’s finding that the shooting was gang motivated. The jury was entitled to credit Carla’s testimony, which showed the crimes against Jesse and Carla were motivated by their apparent affiliation with the Norteño gang and their presence in an area claimed by the Howe Park Sureño gang. Defendant did not dispute he was an active Howe Park Sureño gang member. In addition, as the prosecutor argued to the jury, the jury could reasonably find that there were ongoing hostilities between Norteños and the Howe Park Sureño gang, defendant was aware of those hostilities, he had been looking for a gun before the shooting, and he talked about a shooting hours after Jesse was shot.
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
HULL, Acting P. J.



/S/
DUARTE, J.