People v. Roberts CA1/1

Filed 5/16/24 P. v. Roberts CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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