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Filed 5/16/24 P. v. Roberts CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKEY ROBERTS,

Defendant and Appellant.

 

 A167960

 (San Francisco City & County

 Super. Ct. No. SCN227657)

MEMORANDUM OPINION1

Defendant Rickey Roberts appeals a November 2022 trial court order

denying his petition for resentencing under Penal Code section 1172.6.

2 We 

affirm.

In 2018, a jury convicted Roberts of second degree murder (§ 187) and

making criminal threats (§ 422, subd. (a)), and he was sentenced to prison for 

1 We resolve this case by memorandum opinion pursuant to California 

Standards of Judicial Administration, section 8.1, reciting only those facts 

necessary to resolve the issue raised.

2 Undesignated statutory references are to the Penal Code. Roberts 

filed his resentencing petition under former section 1170.95, which was 

amended and renumbered as section 1172.6 without substantive change 

effective June 30, 2022. (People v. Vargas (2022) 84 Cal.App.5th 943, 947, fn. 

2.) We refer to the statute by its current number.
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18 years to life. A panel of this court affirmed his convictions. (People v. 

Roberts (Jan. 29, 2020, A155212) [nonpub. opn.].)

In 2022, Roberts filed a petition for resentencing pursuant to section 

1172.6. The trial court appointed counsel for Roberts and set an evidentiary 

hearing, and the People filed an opposition to Roberts’s petition. Before the 

hearing, the court directed the prison at which Roberts was incarcerated to 

have Roberts attend the hearing remotely via videoconference or telephone, 

providing a videoconference link and defense counsel’s cell phone number. 

At the November 2022 hearing, Roberts attended via telephone. The 

prison had attempted to join the hearing via videoconference but was unable 

to log on due to technical issues. At the beginning of the hearing, Roberts’s 

counsel stated, “Can I briefly say to Mr. Roberts, if at any time you can’t hear 

anything Mr. Roberts, speak up and we will repeat it.” Roberts replied,

“Okay.” The trial court explained it had read the briefing and reviewed the 

record, including the preliminary hearing transcript and jury instructions. 

The prosecutor and defense counsel submitted on the papers and did not 

provide additional argument. At the conclusion of the hearing, the court 

determined Roberts was ineligible for relief and denied his resentencing

petition. The hearing was very brief, comprising only three transcript pages. 

Roberts’s sole contention on appeal is that his constitutional right to be 

present at the evidentiary hearing was violated because he was unable to 

hear the proceedings. He asserts that after the hearing began, the telephone 

connection was lost and he was unable to participate. Roberts’s only factual 

support for this claim is two declarations—from himself and his counsel who 

appeared at the hearing—of which he requests judicial notice. Both

declarations were signed in May 2023, six months after the evidentiary

hearing. The People oppose the request for judicial notice, arguing the 
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declarations were not before the trial court, are not part of the record on 

appeal, and may not be considered. Roberts has conceded that we may not 

consider the declarations.3 Therefore, his request for judicial notice is denied. 

(See Evid. Code, §§ 452, 459; In re Zeth S. (2003) 31 Cal.4th 396, 405 [an 

appeal reviews the correctness of a judgment as of the time of its rendition

upon the record before the trial court]; Glassman v. Safeco Ins. Co. of America

(2023) 90 Cal.App.5th 1281, 1307 [“Documents not presented in the trial 

proceeding generally cannot be included as part of the record on appeal and 

must be disregarded on appeal as beyond the scope of review”].)

The record demonstrates there was no error which violated Roberts’s

constitutional right to be present at the evidentiary hearing. (See People v. 

Quan (2023) 96 Cal.App.5th 524, 532–534 [a defendant has constitutional 

rights to be present at an evidentiary hearing held pursuant to section 

1172.6]; People v. Basler (2022) 80 Cal.App.5th 46, 59.) Roberts attended

remotely via telephone. At the beginning of the hearing, his counsel 

explained that Roberts could not appear via videoconference due to technical 

issues at the prison, so the prison called in via telephone. Roberts’s counsel 

instructed him to “speak up” if he could not hear and they would “repeat it,”

to which Roberts replied, “Okay.” Roberts did not speak again during the 

remainder of the brief proceeding, and there is no showing in the transcript 

that the prison called back during the hearing. This record does not support 

Roberts’s claim that he was unable to hear or participate in the hearing. 

3 After the respondent’s brief and opposition to the request for judicial 

notice were filed, Roberts’s counsel filed a letter stating, in relevant part,

“The respondent’s brief in this case maintains that this appeal lacks adequate 

foundation, because the post-judgment declarations on which the appeal 

turns are not properly before this court on appeal. Upon review of the 

authorities cited by respondent, I am persuaded that contention is correct.” 
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Because there was no error, we need not, and do not, determine 

whether any claimed error was prejudicial. (See People v. Quan, supra, 96 

Cal.App.5th at p. 536.)4

DISPOSITION

The order denying Roberts’s petition for resentencing is affirmed. 

Roberts’s request for judicial notice is denied.

4 As the People contend, Roberts’s remedy may be to file a petition for 

writ of habeas corpus in the trial court and offer the extra-record evidence. 

(See In re Reno (2012) 55 Cal.4th 428, 449–450 [writ of habeas corpus allows 

a person “to bring before a court evidence from outside the trial or appellate 

record”].)
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LANGHORNE WILSON, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A167960N