Waldon

—Defendant Billy Ray Waldon seeks a writ of mandate after denial of a peremptory judicial challenge pursuant to Code of Civil Procedure section 170.6. We hold a Penal Code section 1368 competency hearing is a separate proceeding from an underlying criminal action for purposes of exercising a section 170.6 challenge. Waldon was therefore entitled to exercise a peremptory challenge in his criminal proceedings despite his earlier exercising a peremptory challenge during competency proceedings. We further hold Waldon’s peremptory challenge was timely filed after the denial of his challenge for cause. (§ 170.3.) Accordingly, we grant Waldon’s petition, direct the superior court to grant his peremptory judicial challenge and vacate the stay.

I

Waldon is charged with three counts of murder, five special circumstances and numerous other felony charges. During pretrial proceedings Waldon asked to represent himself in propria persona. At a hearing on that request a court-appointed psychiatrist expressed the opinion Waldon was not competent to stand trial.

The court suspended criminal proceedings to hold a competency hearing pursuant to Penal Code section 1368. Both the…