Filed 7/7/26 P. v. Flemings CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B339934
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA029102)
v.
KEVIN TYRONE FLEMINGS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Christopher W. Dybwad, Judge. Dismissed.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles G. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.
______________________________
Kevin Tyrone Flemings appeals from the superior court’s
order denying Flemings’s petition for a writ of error coram nobis
in which he requested that the court correct a 2001 abstract of
judgment to reflect that the court had imposed and stayed a one-
year enhancement for a prior prison term under Penal Code
former section 667.5, subdivision (b).1 Flemings filed his petition
in 2024 in an effort to qualify for resentencing under
section 1172.75, subdivision (c), which provides for resentencing
of individuals in custody serving sentences that include an
enhancement under former section 667.5, subdivision (b).2
Because Flemings has failed to make a prima facie case for
issuance of a writ of error coram nobis, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. Flemings’s Convictions, Sentencing, and Two Appeals
In 1998 Flemings and his codefendant Lionel Farley were
convicted after a jury trial on seven counts of attempted second
degree robbery (§§ 211, 664), conspiracy to commit robbery (§ 182,
subd. (a)(1)), possession of a firearm by a felon (§ 12021,
subd. (a)(1)), shooting at an occupied vehicle (§ 246), and assault
with a semiautomatic gun on a peace officer (§ 245, subd. (d)(2)).
The jury also found true that Flemings personally used a firearm
and a principal was armed with a firearm (§§ 12022, subd. (a)(1),
1 Further statutory references are to the Penal Code.
2 Effective January 1, 2022, Senate Bill No. 483 (Stats. 2021,
ch. 728, § 3) added section 1171.1, which was later renumbered
as section 1172.75.
2
12022.5, subd. (a)(1)). In a bifurcated proceeding the trial court
found true that Flemings was convicted of two prior serious or
violent felonies under the three strikes law (§§ 667, subd. (b)-(i),
1170.12), one of which was a serious felony under section 667,
subdivision (a)(1), and that Flemings had two prior convictions
for which he served prison terms within the meaning of former
section 667.5, subdivision (b).
The trial court3 sentenced Flemings to an aggregate term of
284 years four months to life in state prison. The court imposed
two five-year sentences for the enhancements under section 667,
subdivision (a)(1), and it imposed and stayed a one-year sentence
for the prior prison term enhancement under section 667.5,
former subdivision (b) (section 667.5(b) enhancement). The
abstract of judgment reflects the two section 667,
subdivision (a)(1), enhancements and the stayed section 667.5(b)
enhancement. Flemings appealed, and in 2000 this court
affirmed the convictions but vacated the sentence and remanded
for the trial court to determine whether to sentence Flemings
concurrently or consecutively on specified counts. (People v.
Farley (Jan. 10, 2000, B142936) [nonpub. opn.].)
Following issuance of the remittitur, on June 23, 2000 the
trial court determined that consecutive sentences were
appropriate for counts 2 through 9 (for attempted robberies), and
the court stayed counts 1 and 10 under section 654. The court
did not specifically address the section 667.5(b) enhancement but
stated generally: “The enhancements will remain the same, and
the 667(a) allegation remains the same. Now it’s just an
3 Judge Richard Neidorf presided over the trial and
subsequent proceedings in 2000 and 2001.
3
administrative task to calculate the enhancements and the
priors, so on the counts alone it’s 225 years to life plus the
enhancements and the priors.” The court then calculated the
sentence and explained, “I have 23 years four months on the
enhancements, and 10 years on the priors. That equals 258 years
to life.”
The abstract of judgment from the June 23 hearing filed on
June 29, 2000 (June 29, 2000 abstract) reflected the amended
sentences on the counts and included the firearm-use
enhancements. However, the abstract did not include the two
five-year enhancements under section 667, subdivision (a)(1), or
the section 667.5(b) enhancement. Section 3 of the abstract for
“enhancements charged and found to be true for prior convictions
or prison terms” was left blank. (Capitalization and boldface
omitted.)
Flemings again appealed, and on June 25, 2001 this court
again affirmed the convictions but reversed the sentence with
respect to the firearm-use enhancements and remanded for
resentencing limited to imposition of full, consecutive terms on
those enhancements (instead of the unauthorized determinate
terms the trial court had imposed). This court also ordered the
abstract of judgment modified to show that the sentences on
counts 1 and 10 were stayed pursuant to section 654 and to
include the two five-year terms pursuant to section 667,
subdivision (a)(1). (People v. Flemings (June 25, 2001)
No. B142936 [nonpub.opn.] (Flemings I).) The opinion is silent
with respect to the section 667.5(b) enhancement that was not
included on the June 23, 2000 abstract. The disposition provided:
“The cause is remanded for resentencing for the court to select
authorized terms of imprisonment for the Penal Code
4
section 12022.5 firearm use enhancements. In all other respects,
the judgment is affirmed. Upon remand, the court shall prepare
an amended abstract of judgment which, inter alia, states the
terms imposed for counts 1 and 10 are stayed under Penal Code
section 654 and indicates the court imposed two Penal Code
section 667, subdivision (a)(1), enhancements.” (Flemings I,
B142936.)
On September 26, 2001, following the filing of the
remittitur, the trial court “order[ed] that the clerk at the
sentencing desk amend the abstract per instructions of the court
of appeal.” The minute order does not reflect that the court held
a resentencing hearing, and Flemings, his counsel, and the
prosecutor were not present in court. Further, there was no court
reporter. The court prepared an amended abstract of judgment
certified by the court clerk on October 9, 2001 (October 9, 2001
abstract). The amended abstract lists the date of the sentencing
hearing as June 23, 2000 and includes the two five-year
enhancements under section 667, subdivision (a)(1), but not the
section 667.5(b) enhancement.4
B. 2024 Letter to the Superior Court and Petition for Writ of
Error Coram Nobis
On February 15, 2024 Flemings, representing himself, filed
a letter with the superior court requesting the court correct the
4 We note that the June 23, 2000 abstract reflects imposition
of determinate sentences on the firearm enhancements imposed
and stayed on counts 2 through 8 as three years four months.
The amended October 9, 2001 abstract reflects the identical
sentences, contrary to the direction of this court in Flemings I,
supra, B142936.
5
October 9, 2001 abstract to include the section 667.5(b)
enhancement and resentence him pursuant to section 1172.75,
subdivision (a). Flemings attached the October 9, 2001 abstract
and the 1998 minute order finding the prior prison term
allegation true. The appellate record does not indicate whether
the court responded to the February 15 letter.5
On April 4, 2024 Flemings, again representing himself,
filed a petition for a writ of error coram nobis. The petition
stated the October 9, 2001 amended abstract did not include the
section 667.5(b) enhancement. Further, Flemings did not learn
that the amended abstract did not include the section 667.5(b)
enhancement “until recently, after reviewing his central file.”
Flemings noted he did not appeal from entry of the October 2001
abstract of judgment. He requested as relief that the superior
court issue an amended abstract that included the
section 667.5(b) enhancement and recall his sentence pursuant to
section 1172.75. On June 3, 2024 Flemings, representing
himself, filed another petition for writ of error coram nobis
raising the same issues and seeking the same relief.
On June 27, 2024 the superior court (Judge Christopher W.
Dybwad) issued a non-appearance minute order denying the
petition. The court recounted that Flemings alleged in his
petition that the amended abstract of judgment did not include
the section 667.5(b) enhancement the trial court imposed and
stayed at the initial sentencing in 1998, and that following the
remand from the Court of Appeal in 2001, “the trial court issued
a new abstract of judgment without any section 667.5[(b)]
5 Flemings notes that he also filed petitions for writs of
habeas corpus in 2014 and 2023 “raising claims unrelated to
those made in this appeal,” and the petitions were denied.
6
enhancement. The total length of the sentence remained the
same.” The superior court concluded, “Based on these facts,
Petitioner cannot meet the ‘strict requirements’ necessary for a
Writ of Coram Nobis,” citing People v. Shipman (1965) 62 Cal.2d
226, 230 (Shipman) and People v. Kim (2009) 45 Cal.4th 1078
(Kim).
Flemings timely appealed.
DISCUSSION
A. Flemings Did Not Make a Prima Facie Case for Issuance of
a Writ of Error Coram Nobis
Flemings contends the superior court erred in denying his
petition for a writ of error coram nobis because he met the
requirements for issuance of a writ of error coram nobis under
Kim, supra, 45 Cal.4th at pages 1092 to 1093. The trial court did
not err. As the Supreme Court explained in Kim, “The grounds
on which a litigant may obtain relief via a writ of error coram
nobis are narrower than on habeas corpus [citation]; the writ’s
purpose ‘is to secure relief, where no other remedy exists, from a
judgment rendered while there existed some fact which would
have prevented its rendition if the trial court had known it and
which, through no negligence or fault of the defendant, was not
then known to the court.’” (Id. at p. 1091.)
The Supreme Court in Kim stated that its earlier decision
in Shipman, supra, 62 Cal.2d at page 230 set forth “the modern
requirements for obtaining a writ of error coram nobis.” (Kim,
supra, 45 Cal.4th at pp. 1092-1093.) Under Shipman, three
requirements must be met: “(1) Petitioner must ‘show that some
fact existed which, without any fault or negligence on his part,
was not presented to the court at the trial on the merits, and
7
which if presented would have prevented the rendition of the
judgment.’ [Citations.] (2) Petitioner must also show that the
‘newly discovered evidence . . . [does not go] to the merits of
issues tried; issues of fact, once adjudicated, even though
incorrectly, cannot be reopened except on motion for new trial.’
[Citations.] This second requirement applies even though the
evidence in question is not discovered until after the time for
moving for a new trial has elapsed or the motion has been denied.
[Citations.] (3) Petitioner ‘must show that the facts upon which
he relies were not known to him and could not in the exercise of
due diligence have been discovered by him at any time
substantially earlier than the time of his motion for the writ. . . .’”
(Shipman, at p. 230; see Kim, at pp. 1092-1093.)
Flemings did not meet the requirements for issuance of a
writ of error coram nobis. With respect to the first requirement,
there is no “fact” that was not “presented to the court at the trial
on the merits,” which if presented would have prevented
rendition of the judgment. (Shipman, supra, 62 Cal.2d at p. 230.)
Rather, Flemings claims the trial court made an error of law in
failing to include the section 667.6(b) enhancement on the
October 9, 2001 abstract (and that the trial court failed to
resentence him). As the Supreme Court explained in Kim, supra,
45 Cal.4th at page 1093, however, the remedy of a writ of error
coram nobis “‘does not lie to enable the court to correct errors of
law.’” (See id. at p. 1104 [“That a claim of ineffective assistance
of counsel, which relates more to a mistake of law than of fact, is
an inappropriate ground for relief on coram nobis has long been
the rule.”]; People v. Forest (2017) 16 Cal.App.5th 1099, 1112
[“‘[T]he function of a writ of error coram nobis is to correct an
error of fact. It never issues to correct an error of law.’”]; People
8
v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [“[t]hat appellant
believed, at the time of his plea, that he would only serve
15 years in prison was not a mistake of fact but one of law,” and
therefore the petition for writ of error coram nobis was properly
denied].)6
Moreover, Flemings could have appealed from the
judgment entered on October 9, 2001 and asserted his claims that
the trial court erred in omitting the 667.5(b) enhancement on the
October 9, 2001 abstract and failing to resentence him as ordered
by this court in Flemings I, supra, B142936. But he failed to do
so (presumably because the court’s failure to impose full
determinate terms on the firearm-use enhancements and the one-
year section 667.5(b) enhancement inured to his benefit). As the
Supreme Court in Kim, supra, 45 Cal.4th at page 1099 clarified,
the remedy of a writ of error coram nobis is not intended to
provide “‘a second remedy to a party who has lost the remedy
provided by law through failing to invoke it in time—even though
such failure accrued without fault or negligence on his part.’”
(See People v. Darcy (1947) 79 Cal.App.2d 683, 693 [trial court
properly denied petition for writ of error coram nobis where
defendant did not timely appeal from judgment or move for new
trial].)
Finally, Flemings cannot meet the third requirement—that
he did not previously discover the missing section 667.5(b)
enhancement and could not have discovered the issue in the
6 For the same reason, Flemings did not meet the second
requirement that there be “‘newly discovered evidence’” that does
not go to the merits of the issues tried. (See Shipman, supra,
62 Cal.2d at p. 230.) Any legal error in the abstract is not
evidence.
9
exercise of due diligence. Flemings stated in his petition that he
did not discover the missing section 667.5(b) enhancement “until
recently,” when he reviewed his “central file.” But Flemings
acknowledges on appeal that the June 29, 2000 abstract was the
subject of his second appeal, which resulted in this court’s opinion
in Flemings I, supra, B142936 directing the trial court to
resentence Flemings and correct the abstract of judgment.
Therefore, Flemings (or his attorney) was aware in 2000 that the
section 667.5(b) enhancement was not included in the June 23,
2000 abstract, yet he did not appeal or seek relief for another
20 years.
Flemings responds that although his attorney would have
been aware of the missing section 667.5(b) enhancement at the
time of Flemings’s second appeal in 2000, his attorney would not
have viewed the missing enhancement “as an error worth
correcting at the time it occurred over 20 years ago.” Rather, the
missing section 667.5(b) enhancement only became relevant after
enactment of section 1172.75, effective January 1, 2022. That
may well be, but Flemings cites no authority for the proposition
that a petition for a writ of error coram nobis may be filed
20 years after an issue is discovered because the issue only
became meaningful after new ameliorative legislation is enacted.7
7 Flemings argues that a petition for a writ of error coram
nobis was the only available remedy he had in 2024 after his
petition for a writ of habeas corpus was denied as successive.
However, according to Flemings’s opening brief, his petition for a
writ of habeas corpus was on an unrelated subject. Further, his
petition for a writ of habeas corpus was denied in part because he
raised issues that could have been raised on appeal, without
making a showing that an exception applied. Flemings has not
sought habeas relief with respect to the trial court’s failure to
10
B. We Do Not Have Jurisdiction To Correct the Trial Court’s
Error in Failing To Resentence Flemings Following This
Court’s Decision in Flemings I
Flemings contends that because the trial court failed to
resentence him following our decision in Flemings I, supra,
B142936, the sentence reflected in the October 9, 2001 abstract
was unauthorized, which we can correct at any time. In the
alternative, Flemings requests we “exercise [our] power” to
correct a clerical error in the October 9, 2001 by ordering the
abstract of judgment be amended to include the one-year
section 667.5(b) enhancement. (Boldface omitted.) We have no
jurisdiction to remand for resentencing or to correct the abstract
of judgment.
We agree with Flemings that the trial court erred in failing
to resentence him following this court’s June 6, 2001 opinion in
which, as part of the disposition, we “remanded for resentencing
for the court to select authorized terms of imprisonment for the
Penal Code section 12022.5 firearm use enhancements.”
(Flemings I, supra, B142936.) As discussed, the trial court did
not hold a resentencing hearing, instead simply directing the
court clerk to modify the abstract of judgment consistent with
this court’s instructions in Flemings I. The court clerk did just
that: The October 9, 2001 abstract reflects that the sentences on
counts 1 and 10 were stayed and that two section 667,
subdivision (a)(1), enhancements were imposed. However, the
court did not resentence Flemings with respect to the firearm-use
enhancements, and instead, the October 9, 2001 abstract
include the section 667.5(b) enhancement in the October 9, 2011
abstract.
11
contains the identical determinate-term enhancements this court
in Flemings I found were not authorized.
The fact the trial court did not resentence Flemings (or
include the section 667.5(b) enhancement in the abstract of
judgment) does not, however, provide jurisdiction for us to correct
the sentence more than 20 years later. As discussed, Flemings
had a right to appeal the judgment entered based on the
October 9, 2001 abstract, and he could have raised both the
failure to resentence him and the missing section 667.5(b)
enhancement in the abstract. That judgment is now long-since
final.
We explained the lack of jurisdiction in this situation (to
correct a long-since-final judgment) in People v. Singleton (2025)
113 Cal.App.5th 783, 797 (Singleton): “Although Singleton’s 2018
sentence was unauthorized, that does not mean the trial court in
2023 had jurisdiction to correct the sentencing error. As the
Supreme Court explained in Kabran v. Sharp Memorial Hospital
(2017) 2 Cal.5th 330, 339, ‘A lack of fundamental jurisdiction is
“‘“an entire absence of power to hear or determine the case, an
absence of authority over the subject matter or the parties.”’”’
[Citation.] ‘“[A]n act beyond a court’s jurisdiction in the
fundamental sense is null and void” ab initio.’ [Citations.] By
contrast, ‘courts that violate procedural requirements, order relief
that is unauthorized by statute or common law, or otherwise
“‘fail[] to conduct [themselves] in the manner prescribed’” by law
[are described] as acting “‘in excess of jurisdiction.’”’ (Kabran, at
pp. 339-340.) Where a court acts ‘in excess of jurisdiction,’ the
court ‘still has “jurisdiction over the subject matter and the
parties in the fundamental sense” [citation], [and] any such act is
“valid until set aside. . . .”’” (See People v. King (2022)
12
77 Cal.App.5th 629, 633-634 [“[a]lthough King correctly contends
that the sentence on the rape-in-concert conviction on count III
was unauthorized, we conclude that the trial court had no
jurisdiction to entertain King’s motion to vacate his sentence”
30 years later].)
Although in Singleton we addressed the authority of the
trial court to vacate a sentence that was long-since final, the
same reasoning applies here. The trial court’s failure in 2001 to
resentence Flemings and to prepare an amended abstract of
judgment was in excess of the court’s jurisdiction; the court did
not lack fundamental jurisdiction to impose the sentence and
amend the abstract of judgment. Thus, we do not have
jurisdiction to vacate or correct the sentence on appeal from
denial of a petition for a writ of error coram nobis other than to
address the merits of the petition. Likewise, we do not have
jurisdiction to correct the abstract of judgment, even if we were to
find the trial court made a clerical error, as argued by Flemings.
Because Flemings has not made a prima facie showing of
merit in his petition for a writ of error coram nobis, we dismiss
his appeal. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [“In
an appeal from a trial court’s denial of an application for the writ
of error coram nobis, a reviewing court initially determines
whether defendant has made a prima facie showing of merit; if
not, the court may summarily dismiss the appeal.”]; see People v.
Adamson (1949) 34 Cal.2d 320, 329, 338 [dismissing appeal from
denial of petition for writ of error coram nobis where defendant
failed to allege facts to constitute prima facie case for relief].)
13
DISPOSITION
Flemings’s appeal from the order denying his petition for a
writ of error coram nobis is dismissed.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
14