Opinion
C079991
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. HO LONG TRAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF124068A)
Ho Long Tran was tried in one trial for two separate shooting incidents in Stockton: one involving him shooting a victim in the head; the other, three weeks later, involving him shooting a gun out of his van, where police found ammunition as well. As to the first incident, a jury found him guilty of attempted premeditated murder and assault with a firearm. As to the second incident, the jury found him guilty of being a felon in possession of a firearm and a felon in possession of ammunition.
On appeal, defendant raises contentions relating to trying him together for the two incidents, denying his motions to substitute new counsel and represent himself, instructing the jury, and finding true that he had prior strikes. Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A
The First Shooting Incident
(Attempted Murder And Assault With A Firearm)
On April 11, 2013, victim L. was riding his bicycle back to his sister-in-law's house where he was living. L. saw a van parked outside the house and recognized defendant standing beside the van. Defendant had been L.'s methamphetamine dealer for about six months in the past.
As L. walked up to the house, defendant told L., "I heard you're doing big things," which L. interpreted to mean selling drugs. Defendant then asked L., "[D]o [you] still smoke [methamphetamine]?" L. said, "No." When L. said he had to get ready to go (into his sister-in-law's house), defendant pointed a gun at L.'s head and said, "Why did [you] talk about [me] like that?" Defendant shot L. just above his eyebrow, to the right of his temple. L. described the gun as a little .22-caliber handgun, dark in color. L. walked toward the front door, as blood was coming out of his head. Defendant watched L. walk inside the house. After L. closed the door, L. heard the van start up outside.
L. told his sister-in-law to call 911. She told 911 that L. had been shot in the head, but she did not know where the shooter went. Within three minutes and while the sister-in-law was still on the phone to 911, police came to the house. L. was still in the doorway, and there were blood drops from the pavement into the house. The police did not see anybody besides L. L. told police he had been shot by a small .22-caliber handgun. Three minutes after police arrived, an ambulance took L. to the hospital. At the time of trial, L. still had a " 'metallic gunshot pellet' " "popping out" from under his skin on his forehead.
B
The Second Shooting Incident
(Felon In Possession Of Gun And Ammunition)
On May 5, 2013, N. who knew defendant as the former boyfriend of her ex-husband's daughter, saw defendant drive by in his van in front of her house. Defendant stuck his hand out of his van's window and fired a "little gun" near a friend of N.'s ex-husband, who moments before defendant had called to come near his van. N. immediately called police. Police saw defendant driving his van. Defendant threw a blue rag with something metallic in it out of his van's window. Police pulled over the van and handcuffed defendant. Police searched the area where defendant had thrown the rag and found a blue cloth and a .22-caliber pistol with three live rounds and two spent casings. They also searched defendant's van. On the floorboard they found a BB gun that was considerably larger than the gun on the street. On the driver's door they found a blue rag. They also found three boxes of .22-caliber ammunition that were of the same brand as in the pistol they found.
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion Or Deny Defendant's
Due Process Right To A Fair Trial When It Granted The People's
Motion To Consolidate The Two Shootings Into One Trial
Defendant contends the trial court abused its discretion and violated his due process right to a fair trial in granting the People's motion to consolidate the April 2013 offenses and the May 2013 offenses into one trial. We disagree.
"An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . ." (Pen. Code, § 954.) However, "the court in which a case is triable, in the interests of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (Ibid.)
Where (as here) the charges in the case all allege offenses of the same class (defendant "assumes" this on appeal), the statutory requirements for joinder are satisfied, and the defendant can predicate error "only on a clear showing of potential prejudice." (People v. Kraft (2000) 23 Cal.4th 978, 1030.) We review the trial court's ruling for abuse of discretion. (Ibid.)
"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 charges 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 aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)
Defendant contends the evidence was not cross-admissible. He is wrong. If defendant had been tried separately for attempted murder, the prosecutor would have been able to introduce evidence that the .22-caliber revolver found in May was the same gun defendant used in April. This is because his May gun possession was probative of the main disputed fact in the April shooting, which was whether defendant shot L. with a .22-caliber revolver or with a BB gun. The fact that defendant had fired one shot in the May shooting was also admissible in the April shooting because it had a tendency in reason to establish defendant's prior possession of the seized weapon because the cylinder had two spent rounds.
Defendant further contends that even if the evidence was cross-admissible, the court still abused its discretion and violated his right to a fair trial because of the potential for undue prejudice. Specifically, he argues that "both [were] highly equivocal shootings -- two weak cases at least in terms of attempts to shoot or kill anyone." Contrary to this argument, the evidence supporting both cases (one a shooting case and the other a possession case) was strong. As to the April shooting, L. unequivocally identified defendant as the shooter. And the fact that defendant shot L. in the head at close range was strong circumstantial evidence of an intent to kill with premeditation. (People v. Bloyd (1987) 43 Cal.3d 333, 349.) The evidence supporting the May unlawful gun and ammunition possession was just as strong. A neighbor who knew defendant saw him fire a gun and then called 911. Police then saw defendant throw from his van what turned out to be a .22-caliber pistol with three lives rounds and two spent casings. Police found more of the same ammunition in his van. Because the evidence of both sets of crimes was so strong, there was no potential prejudice.
At the same time, a single trial on all charges was judicially efficient, which is the rationale for favoring joint trials. (People v. Soper (2009) 45 Cal.4th 759, 771-772.) Given there were no factors weighing in favor of severance and the strong incentive, both evidentiary and fiscally, to try the cases together, the court acted well within its discretion in trying the cases together.
There was also no violation of defendant's due process right to a fair trial because of the stipulation regarding defendant's felon status, which was used to show defendant's illegality of the gun and ammunition possession. Defendant's argument is that since defendant's felon status went only to the May offenses, "[i]njecting ex-felon status . . . into such an equivocal shooting case" (the April case) "was needless and turned serious spillover prejudice into undue prejudice." Defendant continues that this undue prejudice was heightened because there was "no limiting instruction of any kind" given "not to consider the second 'shooting' on the first one . . . ."
But there was a limiting instruction: " 'The defendant and the People have stipulated or agreed that the defendant was previously convicted of a felony. This stipulation means that you must accept this fact as proved. Do not consider this fact for any other purpose. Do not speculate about or discuss the nature of the conviction." This instruction was given twice, but only in conjunction with the last two counts, felon in possession of a firearm and ammunition, which stated that defendant's felon status was by "[s]tipulation to conviction." We presume the jury followed this limiting instruction. (People v. Clark (2016) 63 Cal.4th 522, 573.)
Still, defendant argues the limiting instruction did not go far enough because it did not state that jurors could not consider his prior felony or the evidence regarding the other shooting as propensity evidence. There was no need for that type of instruction for at least two reasons. One, the limiting instruction given did tell jurors not to consider the prior felony conviction "for any other purpose." Two, there was no basis in the record to believe the jurors would have used one shooting to establish propensity to commit the other shooting, when the only reason urged to use that evidence was legitimate relevance.
II
The Trial Court Acted Within Its Discretion In Denying
Defendant's Marsden Motion Regarding Substitution Of New Counsel
The day after the People completed its case-in-chief, defendant told the court that his trial counsel John Panerio was breaching their confidentiality and was not "practicing his right of best interest." The trial court held an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, to determine if substitute counsel should be appointed. After the trial court elicited from defendant more points of dissatisfaction with Panerio and Panerio responded, the trial court denied the motion, concluding, "[b]ased on what I have seen and based on what you've said, I believe that Mr. Panerio has done a professional job. I do not believe that you have a basis to request new appointed counsel."
Panerio was defendant's second attorney. The first had been relieved by the court after an earlier Marsden hearing. The court then appointed Panerio and declared a mistrial to allow Panerio time to prepare for trial.
Defendant on appeal contends the court abused its discretion in violation of his due process right to a fair trial and effective representation by denying the Marsden motion because the court did not make an adequate inquiry into his claims, including denying his request to read from prepared notes. As we explain below, the trial court adequately elicited each of defendant's points of dissatisfaction with counsel and had Panerio respond to all of defendant's points. (See People v. Webster (1991) 54 Cal.3d 411, 435 ["When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion].)
At the in camera hearing, the trial court elicited from defendant his dissatisfaction with counsel and counsel responded. Specifically, the court gave defendant at least seven opportunities to explain his complaints about Panerio as we detail now: "explain to me what you wanna to say"; "[w]hat are the issues you have with your attorney"; "[w]hat else did he do that you feel is not professional"; "tell me what your issues are"; "[w]hat else do you think he's done that's not professional"; "[i]s there anything else"; and "[a]nything else you wanna say about your attorney, and the relationship, and why . . . there's a conflict."
Defendant responded (in addition to his earlier complaint about counsel divulging confidences) that Panerio did not cross-examine police witnesses regarding certain items (such as a coffee cup and magazine in the van that he said were not his), failed to show him the People's photographic exhibits before they were introduced into evidence, and failed to call any witnesses.
Panerio responded that he had not shared defendant's confidences with anyone other than the defense investigator. Panerio had cross-examined the police witnesses regarding the evidence, including what was found in the van. Panerio acknowledged he did not show defendant the People's photographic evidence before it was introduced at trial, but that was because the photographs were available only on disk. He did discuss with defendant the contents of those photographs. He had sent his investigator out in the field many times to look for the potential witnesses defendant had identified, but the investigator could not find them. He also reviewed the notes from former trial counsel regarding her search for witnesses. Those notes revealed that defense investigators had tried unsuccessfully to locate witnesses defendant had identified as "Ghost" and "Monkey." Another potential witness whom defendant identified as "Sue" did not know these other witnesses, either, and everything she told the investigator was "rumors and speculation," that would not be "reliable evidence" admissible in court.
The above recitation shows that the court extensively and repeatedly inquired of defendant concerning his specific complaints about Panerio. Defendant then enumerated his specific complaints about Panerio. Panerio then responded to those complaints. This satisfied the court's obligation to conduct an adequate inquiry. (People v. Webster, supra, 54 Cal.3d at p. 435.) "The court was entitled to accept counsel's explanation . . . ." (Id. at p. 436.) "[D]efendant's showing indicate[d] neither constitutionally inadequate assistance nor a fundamental breakdown of attorney-client relations." (Ibid.) Thus, "there was no obligation to appoint new counsel," and the court acted within its discretion to deny defendant's motion to appoint new counsel. (Ibid.)
III
The Trial Court Acted Within Its Discretion
To Deny Defendant's Faretta Requests To Represent Himself
After the trial court denied defendant's motion to substitute trial counsel, the court gave defendant a form to fill out regarding whether he wanted to represent himself. (Faretta v. California (1975) 422 U.S. 806 .) This was because defendant had said in passing during the Marsden hearing, "I think I could be able to represent myself better off." Defendant then partially filled out the form and the court ultimately denied defendant's request for self-representation, finding he was incompetent to represent himself and the request was untimely. After the guilty verdicts, defendant again asked repeatedly to represent himself and the court again found he was incompetent to represent himself.
On appeal, defendant first contends the court erred in denying the Faretta motion made during trial because the record did not show that defendant "could not conduct a defense without an attorney." Second he contends that, "[a]t a minimum, the court erred in denying [his] specific timely requests for post-verdict self-representation." Neither contention has merit.
As to defendant's first contention of error in denying the Faretta motion made during trial, the court acted well within its discretion to deny it because, regardless of the timeliness issue, the court's factual finding that defendant was not competent to represent himself was supported by substantial evidence. (See People v. Johnson (2012) 53 Cal.4th 519, 531 [we defer to the trial court's factual finding regarding competency to represent oneself if supported by substantial evidence].) The factors a court can consider when determining competency to represent oneself include whether the defendant: " '(1) possesses a reasonably accurate awareness of his situation, including not simply an appreciation of the charges against him and the range and nature of possible penalties, but also his own physical or mental infirmities, if any; (2) is able to understand and use relevant information rationally in order to fashion a response to the charges; and (3) can coherently communicate that response to the trier of fact.' " (Johnson, at p. 529.)
Defendant was lacking in all three. As to (1), even though the evidentiary portion of trial was almost over by the time defendant made his Faretta motion, he could not recite or explain the charges against him. His response to the court's question to him, "Do you know what you're charged with," was as follows: "I do briefly, slightly, but I'm really not confirmed the understanding of the total." When pressed further by the court all he could recount was "I'm charged with the crimes, that the guns and ammunition." As to (2) and (3), when the court pressed him for any defenses he might present, defendant responded, "Right. So now that we are -- I'm going to interrupt and I'm going to, maybe, now file whatever that is. Can I presented by rights so I represented what is that to be able to prove that the -- the charge is upon me, against me, and that specifically, generally, I have to have proof or probable cause or presenting of evidence." This record amply supports a determination that the trial court acted within its discretion when it found defendant incompetent to represent himself.
Defendant's second contention that, "[a]t a minimum, the court erred in denying [his] specific timely requests for post-verdict self-representation," fares no better. There was no evidence that defendant was any more capable of representing himself than at the time of his first Faretta motion. In addition, between the first and later motions, defendant had twice been removed from the courtroom for disruptive behavior. This alone was grounds to deny the renewed Faretta requests, even if they were timely. (People v. Welch (1999) 20 Cal.4th 701, 735.)
IV
There Was No Prejudice In The Court's Failure To Give CALCRIM No. 358 And
CALCRIM No. 359 Regarding Defendant's Extrajudicial Oral Statements
And Defense Counsel's Failure To Request Those Instructions
Defendant contends the trial court erred by failing to instruct the jury to consider his extrajudicial oral statements with caution (CALCRIM No. 358) and that he could not be convicted of a crime based solely on his extrajudicial oral statements (CALCRIM No. 359). The extrajudicial statements here were the following: right before shooting L., defendant said, "I heard you're doing big things," which L. interpreted to mean selling drugs. Defendant then asked L., "[D]o [you] still smoke [methamphetamine]?" L. said, "No." When L. then said he had to get ready to go (into his sister-in-law's house), defendant pointed a gun at L.'s head and said, "Why did [you] talk about [me] like that?"
CALCRIM No. 358 provides: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]"
CALCRIM No. 359 provides: "The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The requirement of other evidence does not apply to proving the identity of the person who committed the crime [and the degree of the crime]. If other evidence shows the charged crime [or a lesser included offense] was committed, the identity of the person who committed it [and the degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt."
The background behind these instructions at trial was this: The trial court proposed giving CALCRIM No. 359. The prosecutor stated that if the court was going to give that instruction, it also needed to give CALCRIM No. 358. Defense counsel responded, "I don't think we need it." The court clarified, "You don't think we need 359 or 358?" And defense counsel responded, "Correct." The prosecutor added, "Because the statements were made during the crime." Defense counsel responded, "Right."
Because of this background, the People on appeal contend that defendant invited any error with regard to the court's failure to give these instructions. But to invoke the doctrine of invited error, the record must show a " 'conscious, deliberate tactical choice' " to " 'forego a particular instruction.' " (People v. McKinnon (2011) 52 Cal.4th 610, 675.) Here, it was a misunderstanding of the law, i.e., that the timing of these statements meant the instruction did not have to be given. It was not, as the People state on appeal, that the defense attorney might have "reasonably decided that he wanted the jury to accept as true the reported consideration . . . because it would support the defense theory that [defendant] shot L[.] with a BB gun rather than a real gun." "The existence of some conceivable tactical purpose will not support a finding that defense counsel 'invited' an error in instructions. The record must reflect that counsel had a deliberate tactical purpose." (People v. Avalos (1984) 37 Cal.3d 216, 229.)
The court had no sua sponte duty to give CALCRIM No. 358. (People v. Diaz (2015) 60 Cal.4th 1176, 1187, 1192 [as to CALCRIM No. 358, "it is more appropriate to permit defendants to determine whether to request the instruction than to require the trial judge to give it in every case"].) As to CALCRIM No. 359, the court did have a sua sponte duty to give it. When a defendant's extrajudicial statements form part of the prosecution's evidence, the trial court must instruct the jury sua sponte that "a finding of guilt cannot be predicated on the statements alone." (People v. Alvarez (2002) 27 Cal.4th 1161, 1170.) Here, the prosecution used those statements to argue motive for the shooting.
As to defendant's argument that trial counsel was ineffective for failing to request these instructions and that the trial court erred in not giving the instruction, we conclude there was no prejudice.
Omitting these instructions was not harmful to defendant because it was not "reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (People v. Beagle (1972) 6 Cal.3d 441, 455, superseded on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209.) The main purpose of these instructions was to assist the jury in determining if the statement was in fact made by the defendant. (People v. Stankewitz (1990) 51 Cal.3d 72, 94; People v. Bemis (1949) 33 Cal.2d 395, 400) Nobody here challenged that point. In addition, the court gave other instructions on how the jury should determine the credibility of witnesses' statements and testimony, such as CALCRIM Nos. 105 (the credibility of witnesses and their testimony) and 318 (prior statements as evidence). Thus, in light of the other instructions given to the jury to assist them in evaluating witness credibility and the fact that nobody challenged that defendant did indeed make these statements, there was no reasonable probability that defendant would have received a more favorable result if CALCRIM Nos. 358 and 359 had been given. (People v. Dickey (2005) 35 Cal.4th 884, 905-906.)
V
The Instruction On Suppression Of Evidence (CALCRIM No. 371) And On Flight
(CALCRIM No. 372) Did Not Violate Defendant's Constitutional Rights;
There Was Sufficient Evidence To Support The Flight Instruction
The trial court instructed the jury with CALCRIM No. 371, suppression of evidence, and CALCRIM No. 372, the flight instruction. Defendant contends that the instructions violated his due process right to a fair trial and impermissibly lowered the People's burden of proof because these instructions allowed the jury to infer "consciousness of global 'guilt' " by failing to indentify the crimes to which the instructions attached. He further claims that there was insufficient evidence of flight to warrant that instruction.
CALCRIM No. 371 as given here stated, "If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it us up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
CALCRIM No. 372 as given here stated, "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
We take his last point first. There was indeed sufficient evidence to support CALCRIM No. 372, the flight instruction. The flight instruction " ' "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' " [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.) Here, defendant fled as soon as L. was in the house, leaving the very badly wounded victim to fend for himself. L.'s sister-in-law had no idea where defendant was when she called 911, which was immediately after defendant shot L. Police also found nobody but L. when they got to the scene. It could be inferred that defendant's purpose in leaving so quickly without helping the badly-wounded L. was to avoid detection, as he ably avoided detection in the very short few minutes it took the sister-in-law to call police and the police to come.
As to defendant's other point (that the failure of the court to specify the crimes to which these instructions applied denied defendant's constitutional rights), it did not. Our Supreme Court has stated: the instructions "do not direct the jury to infer guilt of the 'crimes alleged' and thus do not give rise to an irrational presumption of guilt of all charges, without limitation . . . ." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Rather, they instruct "the jury to infer a consciousness of guilt only if it first found from the evidence that defendants had engaged in the described conduct, and further informed the jury such evidence was not, in itself, sufficient to prove guilt, the instructions properly guided the jury's consideration of the evidence and did not lessen the prosecution's burden of proof." (Ibid.) This analysis directly refutes defendant's argument here.
VI
There Was No Cumulative Prejudice
Defendant contends the errors he has alleged must be evaluated for the cumulative prejudicial effect and that together those errors violated the due process right to a fair trial. We have found only one error (the court's failure to give instructions on defendant's extrajudicial oral statements) that was harmless, so there are no multiple errors to accumulate.
VII
There Was Sufficient Evidence To Support The Trial Court's Finding
That Defendant's Prior Convictions Were Strikes
The People charged defendant with 12 prior strikes. The priors (drug offenses) were alleged as strikes because they had attached gang enhancements. (Pen. Code, § 186.22, subd. (b)(1).) The jury here found that defendant had been convicted of these 12 drug offenses each containing a gang enhancement.
Defendant on appeal contends there was insufficient evidence to support the finding that the 12 separate drug crimes with attached gang allegations qualified as strikes because the handwritten minute orders showing that he admitted the gang enhancements on the 12 drug charges were not sufficiently reliable. We disagree.
The following evidence presented to the jury was sufficient evidence that the priors qualified as strikes. There was an April 3, 2000, change of plea minute order stating that defendant pled no contest to 12 drug offenses and admitted 12 attached gang enhancements that qualified as "future serious felony prior/ strikes." There was an April 28, 2000, sentencing minute order stating that defendant was sentenced to a total of "4 yrs 4 months state prison" for these crimes and enhancements, noting that all the "186.22(b)(1)" "punish[ment was] stricken pursuant [to] 186.22(d)." Penal Code section 186.22, subdivision (d) lists the punishment for the gang enhancement and allows the trial court to suspend execution of the sentence for the enhancement. There was also the abstract of judgment from the drug crimes and the gang enhancements listing the 12 gang enhancements attached to each count with a "**" next to the sentence imposed for them, with a notation at the end of the abstract stating, "** punishment stricken pursuant to PC 186.22(d)." This evidence was sufficient to support the finding that these gang enhancements still existed.
By comparison, Penal Code section 186.22, subdivision (g) allows the trial court to strike the punishment for the gang enhancement altogether, "in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." --------
Defendant points out that some of these notations were in handwriting. However, there is no requirement that court records be typed or computer-generated. (Evid. Code, § 250 [" 'Writing' means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile . . . . ") He also points out that the prosecutor acknowledged to the jury there was one error in the change of plea minute order, namely, that defendant had pled no contest to count 18, but the correct count was really count 29. But that error does not mean the references to the gang enhancements were wrong.
In sum, the evidence noted above was sufficient to prove the 12 strikes against defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Nicholson, J.