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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
2Keller v. Cal. Dept. of Corrections and Rehabilitation
(Super. Ct. Los Angeles County, 2021, No. 21HWMH00772).
People v. Keller (Super. Ct. Los Angeles County, 2021, No.
3
21HWMH01530).
2
what should happen after the order is reversed. The People
request we remand the case to the trial court “for further
proceedings consistent with Blackburn.” Keller contends no
further proceedings are required after we dismiss the erroneous
recommitment order.
Keller is correct. Blackburn concluded defense counsel can
waive the right to a jury trial only when a client “lacks the
capacity to make a knowing and voluntary waiver.” (Blackburn,
supra, 61 Cal.4th at p. 1137.) The high court instructed the
Court of Appeal to remand the case so the trial court could
determine whether defendant knew about defense counsel’s
waiver, and, if not, whether he lacked capacity to waive the right
personally. (Ibid.) No such questions exist here about waiver or
competence. Neither Keller nor his counsel are alleged to have
waived a jury. The trial court received testimony from Keller and
commended him for “doing well” in his conditional release
program. The jury waiver issue appears to have slipped through
the cracks, so to speak, when the case convened for trial in
January 2022.
In addition, Blackburn was well-established authority
during the underlying commitment proceedings. Failing to
advise a defendant of the right to a jury constitutes a miscarriage
of justice and requires automatic reversal, not a remand for
further proceedings. (Blackburn, supra, 61 Cal.4th at p. 1117;
People v. Blancett (2017) 15 Cal.App.5th 1200, 1207.)
DISPOSITION
The recommitment order dated January 19, 2022, is
reversed.
3
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P.J.
YEGAN, J.
4
John S. Somers, Judge
Superior Court County of Los Angeles
______________________________
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Nima Razfar, Deputy Attorney General,
for Plaintiff and Respondent.