1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 OPINION 1

Defendant Rickey Roberts appeals a November 202 2 trial court order

denying his petition for resentencing under Penal Code section 1172.6

. 2 We

affirm.

In 201 8

, 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.2

18 years to life

. A panel of this court affirmed his convictions. ( People v.

Roberts (Jan. 29, 2020, A1 55212) [nonpub. opn.].)

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

11 72.6

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

hearing , and the People filed an opposition to Roberts’s petit ion

. Before the

hearing, the court directed the prison at which Roberts wa s 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 Nove mber 2022 hearing, Roberts attended via tele phone

. 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 briefin g and reviewed the

record, including the preliminary hearing transcript and jury instructions.

T he prosecutor and defense counsel submitted on the papers and did not

provide additional argument

. At the conclusion of the hearing, the court

determined Robe rts was ineligible for relie f and denied his resentencing

petition. T he 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 tele phone

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 Peop le oppose the request for judicial notice , arguing the3

declarations were n ot 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 recor d 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 th e 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

right s 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 v ideoconference 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 d ur ing the

remainder of the brief proceeding

, and there is no showing in the transcript

that the prison called back during the hearing. T h is 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 w ere filed, Roberts’s counsel filed a letter stating, in relevant part,

“The respondent’s b rief 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.”4

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 resent encing 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 p erson “to bring before a court evidence from outside the trial or appellate

record”].)5 LANGHORNE WILSON

, J.

WE CONCUR:

H UMES

, P. J.

B ANKE

, J.

A 167960N