P. v. Flemming
Filed 11/14/08 P. v. Flemming CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DEWAYNE FLEMMING, JR., Defendant and Appellant. | F054341 (Super. Ct. No. 104567B) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Stephen Drew, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
On February 1, 2003, at approximately 7:00 p.m., 16-year-old appellant, Richard Dewayne Flemming, Jr., was with several juveniles including M.F. and D.M. at a Super 7 store in Tulare. After Antoine Houston, Timmy White, and Roman Davis arrived at the store in a car, one of the juveniles in Flemmings group identified himself as a Crips gang member by saying, [W]hats up, cuz? The group in the car then began identifying themselves as Blood gang members by saying, [W]hats up, blood? After exchanging words, Flemmings group began walking away from the store but M.F. stayed behind.
The males in the white car soon left the store and followed Flemmings group with White driving, Houston in the backseat, and Davis in the front passengers seat. M.F. followed the car walking and saw it pull over next to Flemmings group about a block away. From a distance of about 50 feet, he heard the two groups exchange words and saw Flemming and D.M. walk up to the car. M.F. saw Flemming raise his hand and point towards the car. He then saw a muzzle flash and sparks and heard several gunshots. M.F. also saw D.M. raise his hands as if to protect himself from the muzzle flashes. One bullet struck Davis and entered his chest cavity, killing him.
Flemming was charged as an adult in this matter. On April 10, 2003, the district attorney filed an information charging Flemming with one count of murder ( 187, subd. (a)), conspiracy to commit murder ( 182, subd. (a)(1)), shooting at an occupied vehicle ( 246), and participation in a criminal street gang ( 186.22, subd. (a)), two counts of assault with a firearm ( 245, subd. (a)(2), and various enhancements.
On September 6, 2007, after the prosecutor amended count 1 to allege voluntary manslaughter ( 192, subd. (a)), Flemming pled no contest to that count and admitted
a personal gun use enhancement ( 12022.5, subd. (a)(1)) and a gang enhancement
( 186.22, subd. (b)(1)). In exchange for his plea, the prosecutor dismissed the remaining counts and enhancements and Flemming was promised a stipulated sentence of 31 years, the aggravated term of 11 years on his manslaughter conviction, a 10-year arming enhancement, and a 10-year gang enhancement.
On October 12, 2007, the court sentenced Flemming to the stipulated 31-year term.
Flemmings appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Flemming has not responded to this courts invitation to submit additional briefing.
Following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.
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*Before Levy, Acting P.J., Cornell, J., and Dawson, J.
