Booth

If, three months after a defendant is held to answer on felony charges he is found not presently competent (Pen. Code, §§ 1368, 1370; statutory references, unless otherwise noted, are to the Penal Code) is he entitled to a new preliminary hearing once his competence is restored? Contrary to Miller v. Superior Court (1978) 81 Cal.App.3d 132 [ 146 Cal.Rptr. 253 ] (First Dist., Div. 4), our answer is no.

Procedural Background

On March 17, 1994, a felony complaint was filed charging petitioner with forcible rape and related charges. He appeared for arraignment that same date and the magistrate declared a doubt concerning his present competence (§ 1368 1 ) and certified the matter to superior court. On April 19, 1994, after a trial, Superior Court Judge Robert Thomas found petitioner not presently competent and committed him to a state hospital for treatment.

*94 On January 10, 1995, the state hospital informed the superior court petitioner was now competent. Soon thereafter, 2 criminal proceedings were resumed. However, on March 22, 1995, after a trial (consisting of a “submission on doctors’ reports”), Superior Court Judge Bernard J. Kamins found petitioner not presently…

I concur in the judgment but not in the disapproval of Miller v. Superior Court (1978) 81 Cal.App.3d 132 [ 146 Cal.Rptr. 253 ]. Rather I would distinguish that case on the grounds the finding of incompetency there followed so closely on the heels of the preliminary hearing it would have been disingenuous to conclude the defendant was competent at the time of that hearing. In contrast, here there had been a finding of competency a few months before the preliminary hearing then a finding of incompetency a couple of months after that hearing. On such a record, it is difficult to assume or find incompetency at the time of the preliminary hearing. Thus, I would uphold the preliminary hearing for that reason, and that reason alone, and allow the proceedings to continue. On the other hand, faced with the circumstances the trial court confronted in Miller v. Superior Court , I would require a new preliminary hearing.

A petition for a rehearing was denied September 11,1997, and petitioner’s application for review by the Supreme Court was denied December 10, 1997. Mosk, J., and Kennard, J., were of the opinion that the application should be granted.

Gil Garcetti, District Attorney, Brent Riggs and William Woods, Deputy District Attorneys, for Real Party in Interest.

OPINION

WOODS, J.

If, three months after a defendant is held to answer on felony charges he is found not presently competent (Pen. Code, §§ 1368, 1370; statutory references, unless otherwise noted, are to the Penal Code) is he entitled to a new preliminary hearing once his competence is restored? Contrary to Miller v. Superior Court (1978) 81 Cal. App.3d 132 [ 146 Cal. Rptr. 253 ] (First Dist., Div. 4), our answer is no.

On March 17, 1994, a felony complaint was filed charging petitioner with forcible rape and related charges. He appeared for arraignment that same date and the magistrate declared a doubt concerning his present competence (§ 1368 [1] ) and certified the matter to superior court. On April 19, 1994, after a trial, Superior Court Judge Robert Thomas found petitioner not presently competent and committed him to a state hospital for treatment.

On January 10, 1995, the state hospital informed the superior court petitioner was now competent. Soon thereafter, [2] criminal proceedings were resumed. However, on March 22, 1995, after a trial (consisting…