People v. Kerestesy CA3

Filed 12/10/13 P. v. Kerestesy CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C072756

Plaintiff and Respondent, (Super. Ct. No. NCR81252)

v.

XAVIER ALEXANDER KERESTESY,

Defendant and Appellant.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On June 4, 2007, the victim reported that defendant Xavier Alexander Kerestesy sexually abused her three years earlier when she was nine or 10 years of age. One incident occurred in the victim’s home. Defendant pulled down her pants and tried to insert his penis into her vagina. The second incident occurred in an orchard. Defendant put his penis in her vagina. Defendant entered a negotiated plea of guilty to two counts of lewd conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and admitted that the

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prosecution was commenced prior to the victim’s 28th birthday (Pen. Code, § 801.1, subd. (a)) in exchange for a stipulated sentence of five years (the low term of three years for count I and one-third the midterm, or two years, for count II). The court sentenced defendant accordingly. The court denied defendant’s request that his sentence run concurrently with the sentence he was serving on Oregon convictions. Defendant appeals. He did not seek a certificate of probable cause. (Pen. Code, § 1237.5.) We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief. Defendant attaches several documents to his supplemental brief. With respect to the documents that he represents are from Oregon and the Department of Corrections and Rehabilitation (DCR), none of these documents appear in the record on appeal filed in the case before this court, and defendant has not asked us to take judicial notice of these documents. Defendant did not submit the documents to the trial court. “ ‘Reviewing courts generally do not take judicial notice of evidence not presented to the trial court’ absent exceptional circumstances. [Citation.] ‘It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered. [Citation.] This rule preserves an orderly system of [litigation] by preventing litigants from circumventing the normal sequence of litigation.’ [Citation.] No exceptional circumstances appear that would justify deviating from this general rule in the present case, particularly in the absence of a request for judicial notice by [defendant]. [Citation.] Moreover, to take judicial notice of