People v. Keller CA2/6

Filed 10/18/22 P. v. Keller CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d. Crim. No. B318238 (Super. Ct. Nos. Plaintiff and Respondent, 21HWMH01530, 21HWMH00772, BA463164) v. (Los Angeles County)

JAMES WILLIE KELLER,

Defendant and Appellant.

James Willie Keller appeals an order sustaining a petition to recommit him as an Offender with a Mental Health Disorder (OMHD). (Pen. Code, § 2970.)1 The People concede we must reverse the order because the trial court failed to advise him of his right to a jury trial. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1123-1124 (Blackburn).) The parties dispute,

1 OMHDs were previously referred to as Mentally Disordered Offenders. All further statutory references are to the Penal Code.

however, whether this court must remand the case for a new trial. We conclude remand is not appropriate under Blackburn. FACTS AND PROCEDURAL HISTORY The trial court initially committed Keller as an OMHD in February 2019 and placed him in a treatment facility. (§ 2962.) He contested his commitment under section 2966, subdivision (c).2 Soon after, the People petitioned to recommit Keller for another year of treatment under section 2970.3 The trial court heard the parties’ petitions on December 6, 2021. It asked whether Keller, who was not present, had waived his right to a jury. Defense counsel stated he did not know and requested they defer the issue. The court agreed and scheduled trial for January 2022. The parties appeared for trial in front of a different judge. The court proceeded without advising Keller of his right to a jury trial or obtaining a waiver from him or defense counsel. It ordered Keller recommitted for another year. Keller appealed. DISCUSSION “[A] a court must obtain a personal waiver of the defendant’s right to a jury trial before holding a bench trial.” (Blackburn, supra, 61 Cal.4th at p. 1125, citing § 2972, subd. (a).) The parties agree we must reverse the recommitment order because the trial court failed to advise Keller of this right or to obtain a waiver from him. The parties disagree, however, about