People v. Flemings CA2/4

Filed 11/9/15 P. v. Flemings CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B261593

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA023926) v.

KEVIN FLEMINGS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed. Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.

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Kevin Flemings appeals the order denying his motion to vacate a judgment previously entered on his conviction pursuant to a plea agreement of one count of second degree robbery. (Pen. Code, § 211.) Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND In 1995, defendant entered a plea agreement in which he pled no contest to one count of second degree robbery, and, in return, the People moved to strike a firearm enhancement allegation and a prior prison term allegation. The trial court accepted the plea agreement, imposed a five-year sentence which was suspended, and placed defendant on probation for three years, with the first year to be served in county jail. Defendant received custody credits of 217 days. In September 2014, defendant filed a petition for writ of error corum nobis, arguing that the plea agreement was improper because he should not have been placed on probation. Upon the denial of his petition, defendant filed a petition for writ of mandate, seeking to overturn the trial court’s ruling. We denied that petition in September 2014. (No. B258871.) In December 2014, defendant filed a motion to vacate the judgment. He argued the trial court erred in dismissing the prior robbery conviction, striking the gun use allegation, and imposing probation. He sought to vacate the judgment and “enter into a new plea agreement.” The trial court denied the motion, finding that it lacked merit, and that the court had “no jurisdiction to modify the sentence.” Defendant filed a timely notice of appeal. His attorney filed a Wende1 brief, stating that she had thoroughly reviewed the record to determine whether it contained any arguable issues. We issued a letter directing counsel to send the record and a copy of the opening brief to defendant, and inviting defendant to submit a supplemental brief or letter. Defendant filed a supplemental brief, which we have read and considered.