People v. Roberts CA1/1 ( 2024 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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,
A167960
v.
RICKEY ROBERTS, (San Francisco City & County
Super. Ct. No. SCN227657)
Defendant and Appellant.
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
2
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.”
3
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”].)
4
LANGHORNE WILSON, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A167960N
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