WALSH v. PEOPLE

Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

Michael James WALSH, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The PEOPLE, Real Party in Interest.

No. B094286.

Decided: March 05, 1996

Michael P. Judge, Public Defender, Arthur Wynn and John Hamilton Scott, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Gil Garcetti, George M. Palmer, Los Angeles, and Brent Riggs, Pasadena, for Real Party in Interest.

Petitioner Michael James Walsh (“defendant”) seeks a writ of prohibition restraining respondent Superior Court of Los Angeles County from commencing trial on an information currently charging him with one count of violating Penal Code section 245, subdivision (c), assault on a peace officer.   The information also alleges the personal use of a weapon and the infliction of great bodily harm.  (Pen.Code, §§ 12022, subd. (b), 12022.7, subd. (a).) 1

We consider whether the 1982 amendment to section 1368.1, subdivision (a), governing the timing of preliminary examinations and mental competency hearings, justifies a departure from case law holding that where a defendant is found to be incompetent shortly after arraignment in superior court, the court must grant the defendant's section 995 motion and set aside the information.2  Because the Legislature in enacting the 1982 amendment did not intend to eliminate the “two preliminary hearings rule,” and because a preliminary hearing conducted when the defendant is incompetent deprives defendant of due process, we conclude that prior case law is still applicable.   Accordingly, we issue a writ of prohibition.

I.

Proceedings in the Trial Court

Following his arraignment in municipal court, defendant's preliminary hearing was conducted on July 6, 1994.   At the hearing, defense counsel indicated that he had a doubt about defendant's competency under section 1368 but stated that he, nevertheless, wished to go forward with the preliminary examination.   The magistrate held the hearing, one witness was called, and defendant was held to answer.   Defendant does not contest the sufficiency of the evidence to bind him over for trial.

Two weeks later, on July 20, 1994, defendant was arraigned in superior court.   A plea of not guilty was entered for him.   Although the minute order does not so reflect, apparently either at the arraignment or in any event prior to August 20, 1994, the court appointed a psychiatrist to examine defendant under section 1368.   On August 29, 1994, the court declared a doubt as to defendant's competence, received the psychiatrist's report, and found defendant incompetent.   The court adjourned proceedings and, pursuant to section 1370, ordered defendant committed to the Department of Mental Health for placement in a state hospital.

Defendant was thereafter treated at Patton State Hospital.   On January 3, 1995, the state hospital prepared a report stating that defendant remained incompetent.   On April 11, 1995, the hospital's medical director certified that defendant's mental competence had been restored.   A report accompanying the certification “strongly recommended that Mr. Walsh be housed in a structured mental health treatment facility, rather than the general jail population, for the duration of the court proceedings in order to maintain competency gained.”

On May 8, 1995, the court conducted a hearing and found defendant competent;  criminal proceedings were resumed.   On June 6, 1995, the court heard defendant's section 995 motion.   Defendant argued that because he had been found incompetent shortly after his arraignment in superior court, the granting of the section 995 motion was compelled under Hale v. Superior Court (1975) 15 Cal.3d 221, 124 Cal.Rptr. 57, 539 P.2d 817, Chambers v. Municipal Court (1974) 43 Cal.App.3d 809, 118 Cal.Rptr. 120, and Miller v. Superior Court (1978) 81 Cal.App.3d 132, 146 Cal.Rptr. 253.   The People argued that the 1982 amendment to section 1368.1 rendered those cases inapplicable, and, in any event, defendant had failed to prove he was incompetent at the time of his preliminary hearing.   The trial court agreed and denied the motion.

II.

The Amendment to Section 1368.1 Does Not Eliminate Defendant's Right to a Second Preliminary HearingA. Section 1368.1 Prior to the 1982 Amendment and the “Two Preliminary Hearings Rule”

Section 1368.1, subdivision (a), when first enacted in 1974, provided:  “If the action is on a complaint charging a felony, the hearing to determine mental competence may not be held until after the information or indictment has been filed.   A demurrer or a motion under Section 995 or 1538.5 may thereafter be made by counsel for the defendant, even though a proceeding to determine the defendant's mental competence is pending.”  (West's Annot.Pen.Code, § 1368.1, at p. 47.)

The procedure set out in the statute thus mandated that a competency hearing could be held only after the information was filed, meaning that the hearing could take place only in superior court and only following a preliminary hearing in municipal court after which the defendant was held to answer.  (§§ 859b, 872, 949 et seq.) 3

The requirement in section 1368.1, subdivision (a), that a preliminary examination be held before a competency hearing reflected a legislative concern that persons accused of crimes and later determined to be incompetent should not be subjected to lengthy confinement without a hearing establishing the probable cause of the charges.  “Under the new incompetency commitment law, a defendant found incompetent to stand trial may, in the circumstances described above, be committed for up to three years under section 1370 of the Penal Code, and indefinitely thereafter under the LPS Act [Welf. & Inst.Code, § 5000 et seq.].  Section 1368.1, subdivision (a), declares the Legislature's judgment that a defendant should not be subject to such long-term confinement unless probable cause to believe him guilty of the crime charged is determined by means of a preliminary hearing or grand jury hearing.”  (Hale v. Superior Court, supra, 15 Cal.3d at pp. 228–229, 124 Cal.Rptr. 57, 539 P.2d 817.)

Although section 1368.1, subdivision (a), firmly established the right to a preliminary examination before a competency hearing, it created a different problem which soon presented itself to the appellate courts:  If, at the preliminary hearing, the magistrate found probable cause and held the defendant to answer, and later the defendant was found incompetent in superior court, what effect would the subsequent finding of incompetency have on the legality of the previously held preliminary hearing?   This issue was addressed incrementally in three decisions of our Supreme Court and the Court of Appeal.   In Hale v. Superior Court, Chambers v. Municipal Court, and Miller v. Superior Court, all supra, the constitutionality of section 1368.1, subdivision (a), was upheld and the so-called “two preliminary hearings rule” evolved.   That rule requires the granting of a section 995 motion and the setting aside of an information after the defendant has been restored to competency.   The defendant, thus, is entitled to a “second” preliminary hearing following the filing of a new information.4

The first of these cases, Chambers v. Municipal Court, supra, 43 Cal.App.3d 809, 118 Cal.Rptr. 120, was decided the year following the enactment of section 1368.1.   In Chambers, the defendant, confined to a mental hospital, sought a writ of prohibition restraining a preliminary hearing and possible superior court arraignment on the ground she was denied due process in that her mental condition prevented her from cooperating with counsel in the preparation of her defense.   Her counsel had informed the magistrate that she was not mentally competent, an assessment with which both the court and the prosecutor agreed.   The defendant's request for suspension of the proceedings was denied.

The Court of Appeal recognized that the old law “permitted commitment simply because a defendant was incompetent to proceed to trial without a determination of probable cause to believe he had committed a crime.”   (Chambers v. Municipal Court, supra, 43 Cal.App.3d at p. 812, 118 Cal.Rptr. 120.)   It then framed the issue thusly:  “[W]hether the new statute, which requires [the defendant] to go through a preliminary hearing when a doubt has arisen as to her present sanity, can withstand constitutional scrutiny.”   (Ibid.)

The court's resolution of the issue upheld the statute's constitutionality.   The procedure established by section 1368.1, subdivision (a) had the salutary purpose of providing counsel with the opportunity to show that “the evidence is insufficient to hold her to answer․”  (Chambers v. Municipal Court, supra, 43 Cal.App.3d at p. 813, 118 Cal.Rptr. 120.)   Thus, it was in the defendant's interest to go forward.   As to the argument that the defendant's due process rights would be violated if she were held to answer following proceedings which she could not comprehend, the court reasoned:  “Although not specifically provided in the statute, we think suitable safeguards exist to protect [the defendant's] rights.   The preliminary hearing is a critical stage in the criminal process, and one held when the defendant is not mentally competent does not comply with due process of law.   A defendant is entitled to effective assistance of counsel at a preliminary hearing, and counsel cannot effectively represent a client who does not understand the nature of the charges against her or who is unable to cooperate in her defense.   If [the defendant] is held to answer, and if she is found mentally incompetent at her superior court hearing, she will not have been lawfully committed to stand trial by a magistrate, and the information may be set aside on that ground under the provisions of Penal Code section 995 if criminal proceedings are reinstituted.”  (Ibid., fn. omitted.)

The following year the Supreme Court addressed the same issue, although in a slightly different context.   In Hale v. Superior Court, supra, the magistrate, apparently without conducting a preliminary hearing, “certified” the defendant to superior court for a competency hearing.   The defendant sought a writ of prohibition to restrain the hearing.   The People urged the propriety of the magistrate's ruling, and argued section 1368.1, subdivision (a) was unconstitutional because it would be a denial of due process to conduct a preliminary hearing when the defendant was incompetent.  (15 Cal.3d at p. 223, 124 Cal.Rptr. 57, 539 P.2d 817.)

The Supreme Court held that section 1368.1, subdivision (a) was constitutional but agreed with the People's due process concerns.   The remedy was the procedure articulated in Chambers:  “The preliminary hearing is a ‘critical stage’ of the criminal proceeding at which an accused is entitled to the assistance of counsel.  (Coleman v. Alabama (1972 [1970] ) 399 U.S. 1 [90 S.Ct. 1999, 26 L.Ed.2d 387].)  Counsel cannot effectively represent a defendant who is unable to understand the proceedings or to rationally assist him.  (Chambers v. Municipal Court (1974) 43 Cal.App.3d 809, 813 [118 Cal.Rptr. 120].)  Therefore, if a preliminary hearing is held while a defendant is incompetent, and if criminal proceedings subsequently resume upon restoration of his competence, the defendant would be entitled to have the information set aside.  (Pen.Code, § 995;  Chambers v. Municipal Court, supra.)   As the People contend, bringing the defendant to trial under these circumstances would require another preliminary hearing or grand jury hearing.”  (Hale v. Superior Court, supra, 15 Cal.3d at p. 228, 124 Cal.Rptr. 57, 539 P.2d 817, emphasis added.)

The third strike establishing the “two preliminary hearings rule” was pronounced in Miller v. Superior Court, supra.   Unlike Chambers and Hale, in Miller the defendant was held to answer following a preliminary hearing.   After the defendant had been arraigned on the information filed in superior court, the court declared a doubt as to defendant's competency and defendant was committed under section 1370.   Eight months later he was returned to court and found competent to stand trial.   Defendant's motion to set aside the information under section 995 was denied.   After reviewing the holdings in Chambers and Hale where no preliminary hearings had been held, the Court of Appeal addressed the People's argument that there was no showing that defendant was actually incompetent at the time of the preliminary hearing.   The court concluded that, because a competency hearing cannot be held before the information is filed, at the time of the preliminary hearing defendant was not able to show he was incompetent.   Accordingly, the court concluded that since the defendant “was found mentally incompetent shortly after the superior court arraignment, under Chambers and Hale, he was not lawfully committed, and the information must be set aside.”  (Miller v. Superior Court, supra, 81 Cal.App.3d at p. 137, 146 Cal.Rptr. 253.)

B. The 1982 Amendment to section 1368.1

 In 1982, the Legislature amended section 1368.1, subdivision (a).   The statute now provides, in part, that in felony cases “proceedings to determine mental competence shall be held prior to the filing of an information unless the counsel for the defendant requests a preliminary examination under the provisions of Section 859b.”  Section 1368.1 thus requires that the competency hearings be held prior to filing of the information, i.e., conducted by the magistrate, unless defense counsel requests a preliminary hearing.   If such a request is made, the magistrate conducts the preliminary examination and, if the defendant is held to answer, any competency hearing is held in superior court.

The People contend that the current procedure governing the timing of preliminary examinations and competency hearings satisfies the constitutional concerns expressed in Hale, Chambers and Miller.   Because the Legislature has now provided for the opportunity to challenge defendant's competency before the preliminary hearing, they argue, section 1368.1 has eliminated the two preliminary hearings rule.   Defendant disagrees.   He contends that while it is true that defense counsel now has been given the option to conduct the preliminary examination before or after the competency hearing, the Legislature did not intend to change the judicially created two preliminary hearings rule in those cases where the preliminary hearing is, in fact, held first, and later the defendant is found incompetent.

 The parties have brought to our attention various items of legislative history which they contend demonstrates the Legislature's intent in amending section 1368.1, subdivision (a).5  Legislative history of the adoption of a statute is an important factor in its interpretation.   (Lewis v. Ryan (1976) 64 Cal.App.3d 330, 333, 134 Cal.Rptr. 355.)   In determining legislative intent, “we search for the manner in which the Legislature would have treated the problem in the case at bench had the Legislature foreseen it.”  (Ibid.)  Although there are other tools for divining legislative intent, legislative history is “controlling upon us where clues to the legislative intent exist.”  (Id. at p. 334, 134 Cal.Rptr. 355.)

When introduced in the Assembly, Assembly Bill No. 3721 contained only a minor modification of section 1368.1, a change which did not find its way into the final version.   The significant new language was found in a proposed amendment to section 1368.   On this subject, the bill provided:  “When the action is pending in municipal justice [sic ] court and a [competency] hearing is ordered, the defendant shall be certified to the superior court for prompt hearing on the defendant's mental competency and no other hearing shall be conducted prior to that hearing.”  (Assem.Bill No. 3721, introduced by Assemblyman Farr, March 23, 1982.)

If passed into law, this language would have legislatively reversed the decisions in Hale, Chambers and Miller because the preliminary hearing would not be held until after a competency hearing was conducted in superior court;  hence, no “second” preliminary hearing would be necessary.   The amendment would also have indicated that the Legislature no longer had a concern that a defendant might suffer long-term confinement before a determination of probable cause.  (See Hale v. Superior Court, supra, 15 Cal.3d at pp. 228–229, 124 Cal.Rptr. 57, 539 P.2d 817.)   Once the magistrate declared a doubt as to defendant's competency, the magistrate would certify defendant to superior court for a competency hearing without holding a preliminary examination.   If the superior court found the defendant incompetent, he or she would be committed to a state mental hospital without a preliminary hearing.   Predictably, the State Public Defender's office voiced its opposition on that very point.  “We feel that if a person is to be committed as incompetent, minimum due process requires at least a showing of probable cause to believe this person committed an offense.”  (Letter from Marjorie C. Swartz, Deputy State Public Defender, to Assemblyman Farr, dated April 28, 1982.)

On May 10, 1982, the Assembly Committee on Criminal Justice held a hearing on Assembly Bill No. 3721.   By that time, an amendment to the bill had been proposed which deleted the proposed changes to section 1368, and added the language which eventually became law as amended section 1368.1, subdivision (a).   The committee report on the bill accurately reports the then-current state of both statutory and case law.   It states in part:  “Purpose.   Under current procedures, incompetent defendants frequently have two preliminary hearings.   Current law precludes the issue of competency from being taken up before a preliminary hearing.   After restoration of competency, the person may have the information set aside (because defendant has been denied a substantial right, i.e., committed when incompetent to help the attorney and understand the proceedings) which would result in a new preliminary examination.   In many cases, there is no issue as to sufficiency of the evidence and no need for two preliminary hearings.   This bill would allow for only one preliminary hearing, after competency is restored, unless the attorney for the defendant requests a preliminary hearing before the issue of competency is taken up.”  (Report of Assem. Com. on Criminal Justice, May 3, 1982, p. 1)  The report's comments on the two preliminary hearings rule concluded:  “This bill retains the two hearing option only if the defendant's counsel so requests.”  (Id. at p. 2.)

The bill as amended passed the Assembly Committee on Criminal Justice and was sent to the full Assembly on May 13, 1982.   Thereafter, also predictably, the State Public Defender's office withdrew its opposition.  (Letter from Marjorie C. Swartz, Deputy State Public Defender, to Assemblyman Farr, dated June 18, 1982.)   The bill passed the Assembly and the Senate without a single “no” vote.6

The legislative history, thus, discloses that the Legislature intentionally chose not to eliminate the “the two preliminary hearings” rule.   The Legislature recognized that in some cases defense counsel might conclude an initial preliminary hearing was unnecessary where, for example, the evidence of guilt was overwhelming.   In those situations, defense counsel could choose to forego the preliminary examination and have a section 1368 competency hearing in municipal court.   If the defendant were found competent, the court would conduct a preliminary hearing and, with sufficient evidence, the defendant would be held to answer.   If the defendant were found incompetent in municipal court, proceedings would be suspended, the defendant would be committed to the Department of Mental Health and a preliminary hearing would be held upon the restoration of competency.   Under either of these two scenarios, only one preliminary examination would take place.

In contrast, if defense counsel decided it was in the defendant's best interest to have a preliminary examination first, then the magistrate would be required to conduct such a hearing.   If the defendant were held to answer, the competency hearing would be held in superior court after the information had been filed.   As the assembly committee comments make clear, however, if the defendant were then found incompetent, he or she would be entitled to another preliminary hearing upon the restoration of competency.

The People point to additional legislative history which demonstrates that the purpose of Assembly Bill No. 3721 was to “save money and court time in doing away with a preliminary hearing in Municipal Court for the sole purpose of transferring the case to Superior Court for a hearing on mental competency.”  (Sen.Com. on Judiciary Background Info., Assem.Bill No. 3721.   See also Letter from Legislation Com. Chair of State Bar Crim.Law Section to Assemblyman Farr, dated April 26, 1982.)   They contend that requiring two preliminary hearings is inconsistent with the goal of reducing costs.

Undoubtedly, the bill was designed to save court time and cost;  that goal is realized even if two preliminary hearings are sometimes held.   Under prior law, if defense counsel sought a competency hearing and believed a preliminary hearing unnecessary, the preliminary hearing was still required before the magistrate could certify the case to superior court for the competency hearing.   Preliminary hearings, under the new law, no longer had to be conducted as a condition precedent to the competency hearing.   Only when defense counsel determined that a preliminary hearing was in the client's interest would one be conducted before the competency hearing.   Significant cost savings are, thus, achievable under the new legislation.

More fundamentally, the new law realized savings while at the same time protecting the due process rights of incompetent defendants to both a fair hearing (Chambers v. Municipal Court, supra, 43 Cal.App.3d at p. 813, 118 Cal.Rptr. 120) and a determination of probable cause before long-term confinement.7  (Hale v. Superior Court, supra, 15 Cal.3d at pp. 228–229, 124 Cal.Rptr. 57, 539 P.2d 817.)

 We conclude the 1982 amendment to section 1368.1, subdivision (a), did not represent a legislative change in the rule expressed in Hale, Chambers and Miller requiring the granting of a section 995 motion and the setting aside of the information when a preliminary hearing is held and shortly after the superior court arraignment, the defendant is determined to be incompetent.

III.

Defense Counsel's Decision to Request a Preliminary Hearing Did Not Waive Defendant's Right to Contest the Legality of That Hearing

 The People argue that by requesting a preliminary hearing examination before a competency hearing, defendant has elected to have a single preliminary hearing and has waived his right to challenge the lawfulness of the order holding him to answer.   Hence, defendant's section 995 motion was properly denied.

We reject this argument for reasons both statutory and constitutional.

 First, the People's contention ignores the intent of the Legislature as discussed in Part II, supra.   Although the genesis of the two preliminary hearings rule was in the appellate courts, in amending the statute the Legislature recognized the rule as an established element of criminal procedure.   The Legislature expressly considered and rejected a proposed amendment to section 1368 which would have eliminated the two preliminary hearings rule by requiring a preliminary examination after the competency hearing.   In its place, the Legislature passed an amendment to section 1368.1 with the intent that the two preliminary hearings rule remain intact when defense counsel requested an initial preliminary hearing.   The People's position asks us essentially to construe a statute in a manner wholly inconsistent with expressed legislative intent.   Legislative reliance is an important consideration in determining whether to depart from a judicially created rule of criminal procedure.  (People v. Latimer (1993) 5 Cal.4th 1203, 1212–1214, 23 Cal.Rptr.2d 144, 858 P.2d 611.)   Although we recognize some of the public policy concerns articulated by the People, we are reminded that “it is not our province to invalidate legislation on the ground that an alternative procedure would conserve judicial resources.”  (Hale v. Superior Court, supra, 15 Cal.3d at p. 228, 124 Cal.Rptr. 57, 539 P.2d 817.)   Because the Legislature expressly contemplated that the defendant would have the very election of which the People now complain, we will not condition that election on the defendant's waiver of rights at the preliminary hearing.

Second, eliminating defendant's right to a preliminary hearing after being restored to competency under amended section 1368.1 raises the identical constitutional concerns which Hale, Chambers and Miller addressed under the old statute:  Counsel cannot effectively represent a defendant who is unable to understand the proceedings or rationally to assist counsel.  (Hale v. Superior Court, supra, 15 Cal.3d at p. 228, 124 Cal.Rptr. 57, 539 P.2d 817.)

The People argue that defense counsel's request to have a preliminary hearing held first constituted a waiver of the rights implicated when a preliminary hearing is conducted with an incompetent defendant.   Those rights, the right of confrontation and the right to effective assistance of counsel, the People contend, may be waived.

We note at the onset that at no time during the preliminary hearing was either defendant or defendant's counsel asked to waive any right, statutory or constitutional, nor did either express a waiver of any right.   The record reveals the following colloquy among counsel and the court with defendant present:

“THE COURT:  People, call your first witness.

“MR. WYNN [Defense Counsel]:  Okay.  [¶] Your Honor, before we begin, I'd like to declare my belief that Mr. Walsh is incompetent pursuant to 1368.   We will proceed in any event.

“THE COURT:  1368 declaration by the de—defense as to the defendant.   You know you're going to end up doing this twice.

“MR. RICHMAN [Prosecutor]:  Well, Your Honor, it's my understanding the case law holds that the defendant does not have to be competent for a preliminary hearing.

“THE COURT:  Well—

“MR. RICHMAN:  I—I don't know how—

“THE COURT:  I'm just telling you you're going to do this twice.   He's now made a declaration the defendant's incompetent so I'm going to have to send it to 95.

“MR. WYNN:  No.   No.  We want to do the prelim.

“THE COURT:  I know you do, but I still have to send him to 95 after the prelim.

“MR. WYNN:  At the conclusion, yes.

“MR. RICHMAN:  I know the defendant was committed for a 72–hour observation prior to being arraigned on this matter.   I would assume, at that point in time, somebody determined that he was capable of at least being arraigned or they would not have released him.

“THE COURT:  Okay.  [¶] You ready?

“MR. RICHMAN:  Yes.

“THE COURT:  Call your first witness.”

This exchange indicates that defense counsel did not waive any of his client's rights.   On the contrary, the court twice stated there would be two preliminary hearings.   As for defendant himself, the record reflects that during this discussion he said nothing to the court.   To argue that a defendant who, according to the prosecutor, had just been held on a “72 hour observation” (Welf. & Inst.Code, § 5151), as to whom counsel had just declared a doubt as to competency, and who within six weeks would be found incompetent under section 1368 could intelligently and voluntarily waive constitutional rights is contradictory and not supported by the record.  (Cf. People v. Masterson (1994) 8 Cal.4th 965, 971, 35 Cal.Rptr.2d 679, 884 P.2d 136.)

As for the argument that defendant's election to have the preliminary hearing held first constitutes an implied waiver of rights, the People have cited no authority for the proposition that where constitutional rights at a preliminary hearing are involved, an attorney impliedly waives such rights by the exercise of a right expressly conveyed by statute.   The People direct our attention to People v. Masterson, supra, 8 Cal.4th 965, 971, 35 Cal.Rptr.2d 679, 884 P.2d 136, and Shephard v. Superior Court (1986) 180 Cal.App.3d 23, 29, 225 Cal.Rptr. 328, for the proposition that in a competency hearing, counsel may waive a defendant's rights even over the defendant's objection.   From these cases, the People reason, counsel should be permitted to waive a defendant's right to have a preliminary hearing held when the defendant is competent.

These cases are inapposite.   In Masterson, the court was conducting a jury trial on the issue of mental competence under section 1369 when one of the jurors became ill.  (There was no remaining alternate.)   The attorneys stipulated that the trial could continue with the remaining 11 jurors.   Although the defendant, when asked by the court, stated, “I'd rather have 12 jurors myself,” the court proceeded with 11 jurors.  (8 Cal.4th at p. 967, 35 Cal.Rptr.2d 679, 884 P.2d 136.)   The Supreme Court held that since a trial on the issue of competency was a special proceeding and not a criminal trial, and the right to a jury trial at such hearing was founded in statute, counsel was empowered to waive the defendant's right to a jury trial.   Counsel could also stipulate to an 11 person jury.  (8 Cal.4th at p. 974, 35 Cal.Rptr.2d 679, 884 P.2d 136.)  “[T]he defendant necessarily plays a lesser personal role in the [competency] proceeding than in a trial of guilt.   How can a person whose competence is in doubt make basic decisions regarding the conduct of a proceeding to determine that very question?”  (8 Cal.4th at p. 971, 35 Cal.Rptr.2d 679, 884 P.2d 136.   See also Shephard v. Superior Court, supra, 180 Cal.App.3d at pp. 29–30, 225 Cal.Rptr. 328 [in competency hearing, no conflict with counsel exists where counsel intends to advocate incompetency despite client's contrary wishes].)

Unlike Masterson and Shephard, the hearing at which the People contend counsel impliedly waived his client's constitutional rights was not a competency hearing but a preliminary examination.   Defendant raises no issue in these proceedings concerning the propriety of his competency hearing.   Unlike the statutory (§ 1370) jury trial rights in competency trials, the right to a preliminary hearing is provided by state Constitution (art. 1, § 14) and is a critical stage of criminal proceedings.  (People v. Cudjo (1993) 6 Cal.4th 585, 615, 25 Cal.Rptr.2d 390, 863 P.2d 635;  Hale v. Superior Court, supra, 15 Cal.3d at p. 228, 124 Cal.Rptr. 57, 539 P.2d 817;  Chambers v. Municipal Court, supra, 43 Cal.App.3d at p. 813, 118 Cal.Rptr. 120.)

The People contend that the constitutional underpinnings of Hale, Chambers and Miller, have been eliminated by Proposition 115.   They argue that after Proposition 115 there is neither a state nor a federal constitutional right to confront witnesses at a preliminary hearing and that an incompetent defendant must prove affirmatively that counsel was ineffective at the preliminary hearing.

The state constitutional provision authorizing the preliminary examination does not enumerate the rights afforded at that hearing.  Article 1, section 14 provides, in part:  “Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.”   Article I, section 15 provides, in part, that “in a criminal cause” a defendant has the right “to be confronted with the witnesses against the defendant.” 8

In Mills v. Superior Court (1986) 42 Cal.3d 951, 956–960, 232 Cal.Rptr. 141, 728 P.2d 211, the Supreme Court relied on article I, section 15 to invalidate former Penal Code section 872 (authorizing admissibility of hearsay evidence at preliminary hearings) on the ground that the statute deprived defendants of their state constitutional confrontation and cross-examination rights at preliminary hearings.  (42 Cal.3d at p. 958, 232 Cal.Rptr. 141, 728 P.2d 211.   See Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1076, 2 Cal.Rptr.2d 160, 820 P.2d 262;  see generally Jones v. Superior Court (1971) 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241;  Jennings v. Superior Court (1967) 66 Cal.2d 867, 875, 59 Cal.Rptr. 440, 428 P.2d 304.)   In a case decided just before Mills, the Court of Appeal, also relying on article I, section 15 had upheld the validity of section 872.  (People v. Harris (1985) 165 Cal.App.3d 1246, 1263, 212 Cal.Rptr. 216, criticized on another ground in Whitman v. Superior Court, supra, 54 Cal.3d at p. 1078, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   That court, too, recognized a state constitutional right to confrontation at a preliminary hearing.  “Section 872 by establishing a means whereby an opportunity for cross-examination is guaranteed, satisfies the confrontation requirements of the Constitutions of both the United States and California.  [Citations.]”  (165 Cal.App.3d at p. 1263, 212 Cal.Rptr. 216.)

As the People correctly point out, in Whitman v. Superior Court, supra, 54 Cal.3d at page 1076, 2 Cal.Rptr.2d 160, 820 P.2d 262, the Supreme Court declared that by “virtue of the passage of Proposition 115, Mills v. Superior Court [citation] is no longer controlling authority.”   The People reason from Whitman that there is no state constitutional right to confront witnesses at a preliminary hearing.   This argument ignores the limited issue before the Supreme Court in Whitman, and the court's statements to the contrary.   In Whitman the court upheld the use of hearsay statements at preliminary hearings as authorized by article I, section 30 of the state Constitution and Penal Code section 872 subdivision (b), both of which were added by Proposition 115.   In explaining the impact of article 1, section 30, the court did not hold that the amendment eliminated a defendant's state constitutional confrontation rights at a preliminary hearing.   It concluded that by virtue of article I, section 30, the state Constitution now authorized the admissibility of hearsay at preliminary hearings.   The Supreme Court also reminded that “the state Constitution continues to afford an independent source of relief from infringement of the right to confront one's accusers․”  (Ibid.)   The impact of Proposition 115 was limited:  “The new constitutional provision thus represents a specific exception to the broad confrontation right set forth in article I, section 15 of the California Constitution.  [Citations.]”  (Ibid.)

Thus, even after Whitman a defendant still possesses a state constitutional right of confrontation at the preliminary examination.   Neither Whitman nor Proposition 115 supports the People's position that, when defense counsel first requested a preliminary hearing and defendant was later declared incompetent, defendant had waived his right of confrontation.9

The People also argue that with the passage of Proposition 115 an incompetent defendant must prove affirmatively his counsel was ineffective when the magistrate conducted the preliminary hearing.   Proposition 115 effected a number of a changes relating to the preliminary examination:  Upon request of the prosecutor, defense counsel must make an offer of proof before calling a witness (§ 866, subd. (a));  the preliminary hearing may not be used for discovery purposes (§ 866, subd. (b));  and hearsay is permitted under certain conditions (§ 872, subd. (b)).  None of these changes addresses the issue of the incompetent defendant's right to effective assistance of counsel.

 The cases cited by the People do not rely on Proposition 115;  more fundamentally those cases deal with the competence of counsel in making tactical decisions on a defendant's behalf.  (See, e.g., People v. Cudjo, supra, 6 Cal.4th at p. 615, 25 Cal.Rptr.2d 390, 863 P.2d 635.)   The incompetent defendant lacks the effective assistance of counsel, not because of any failing by the attorney, but because the defendant cannot cooperate with or assist counsel.   In this setting, the defendant does not have to demonstrate affirmatively that counsel was ineffective or that the defendant was prejudiced by his mental incompetence.   This is so because the rule that effective assistance of counsel is not afforded to the incompetent defendant is not based on a factual determination but on constitutional principle.  (Hale v. Superior Court, supra, 15 Cal.3d at p. 228, 124 Cal.Rptr. 57, 539 P.2d 817;  Chambers v. Municipal Court, supra, 43 Cal.App.3d at p. 813, 118 Cal.Rptr. 120;  Miller v. Superior Court, supra, 81 Cal.App.3d at p. 135, 146 Cal.Rptr. 253.)   That rule is unaffected by Proposition 115.

IV.

Defendant was not Required to Produce Evidence that he was Incompetent at the Preliminary Hearing

The People argue that under amended section 1368.1, defendant had the opportunity to demonstrate incompetence at the time of his preliminary hearing and, therefore, the fact that he was found incompetent shortly after his superior court arraignment should not operate as a finding of incompetence at that hearing.   Defendant's failure to prove at the hearing on his section 995 motion that he was incompetent at the time of preliminary examination, therefore, justified the court's denial of the motion.

Miller v. Superior Court, supra, held that where a defendant was found incompetent shortly after the superior court arraignment, the defendant was not lawfully committed following a preliminary hearing.  (81 Cal.App.3d at p. 137, 146 Cal.Rptr. 253.)   The defendant was not required to show affirmatively that he was in fact incompetent at the time of the preliminary hearing.   The close proximity of the preliminary hearing and the subsequent finding of incompetence was sufficient.   The court rested its decision in part on the fact that under the law then in effect, a defendant was not able to demonstrate incompetence at the preliminary examination because the competency hearing could be held only in superior court.

 The People argue that under current section 1368.1, subdivision (a), defendant could have requested a competency hearing before his preliminary hearing;  therefore Miller is inapplicable.   Although the statutory procedure has changed, once defendant requested a preliminary hearing before any competency proceedings, he no longer was able to demonstrate incompetence in front of the magistrate.   Under current section 1368.1, subdivision (a), if the preliminary examination is held first, then any competency hearing must be held in superior court.   The statute does not authorize the magistrate to hold a competency hearing immediately following the magistrate's order holding the defendant to answer.   Thus, defendant here was in the same position as the defendant in Miller.

An affirmative showing of incompetence at the preliminary hearing aside from the determination of incompetency in superior court is not required for two other reasons.   First, the earliest opportunity that a defendant will have to demonstrate that he was incompetent at the preliminary hearing often will be months or years after that hearing when competency is restored.  (See § 1370, subd. (c)(1) [three year maximum commitment].)  It is unrealistic to expect an expert witness to be able to determine, after such a passage of time, that defendant was incompetent on the particular day his or her preliminary hearing was held.   On the other hand, a finding that defendant was incompetent shortly after a superior court arraignment creates a strong inference that defendant was incompetent at the preliminary hearing.   Second, the issue of defendant's competency at the time of the preliminary examination is not litigated until the section 995 motion, heard only after restoration of competency.   An evidentiary hearing is normally barred at a section 995 motion.  (See Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1595, 33 Cal.Rptr.2d 515.)

 For these reasons we hold that under section 1368.1, subdivision (a), where the defendant has been held to answer following a preliminary hearing and is found mentally incompetent shortly after his or her superior court arraignment, the defendant was not lawfully committed by the magistrate (§ 995, subd. (a)(2)(A)), and the information must be set aside.10

V.

Disposition

Let a peremptory writ of prohibition issue prohibiting the trial court from conducting any proceedings in this matter other than to grant defendant's motion under section 995.

FOOTNOTES

FOOTNOTE.  

1.   Unless otherwise indicated, all further references are to the Penal Code.

2.   Section 1368.1, subdivision (a) provides:  “If the action is on a complaint charging a felony, proceedings to determine mental competence shall be held prior to the filing of an information unless the counsel for the defendant requests a preliminary examination under the provisions of Section 859b.   At such preliminary examination, counsel for the defendant may (1) demur, (2) move to dismiss the complaint on the ground that there is not reasonable cause to believe that a felony has been committed and that the defendant is guilty thereof, or (3) make a motion under Section 1538.5.”

3.   Prior to the enactment of 1368.1, a hearing on mental competency was allowed “at any time during the pendency of an action and prior to judgment.”  (Chambers v. Municipal Court, supra, 43 Cal.App.3d at p. 811, 118 Cal.Rptr. 120.)

4.   Defendant concedes that the order setting aside the information due to defendant's incompetency does not operate as a bar to subsequent prosecution even if the information was twice dismissed.  (§ 1387, subds. (a), (c).)

5.   We have also reviewed other materials reflecting the legislative history of section 1368.1.   We take judicial notice of these matters under Evidence Code sections 452 and 459.

6.   Contrary to the People's assertion, the legislative history cited in the text cannot be said to represent the views of only some legislators, considering Assembly Bill No. 3721 failed to garner a single vote in opposition on either floor of the Legislature.

7.   The People's assertion that an occasional second preliminary hearing is a “waste to the taxpayers” is questionable.   It has been 13 years since section 1368.1 was amended and no reported decision has squarely addressed the issue under the amendment.  (We note the same issue is also presented in Terry Lee Stafford v. Superior Court, B089654, pending before Division Seven of the Second District.)   It is also significant that with the availability of the streamlined preliminary hearing procedure under Proposition 115, the prosecution largely controls the nature and scope of preliminary hearings and in many cases can eliminate repeat appearances by witnesses, thus reducing unnecessary time and cost.

8.   The right of confrontation at preliminary hearings is expressly provided by statute.  “The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.” (§ 865.)

9.   Because we conclude that Proposition 115 did not eliminate defendant's right to confront witnesses, we need not address the People's argument that there is no federal constitutional right of confrontation at a preliminary hearing.  (See Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1077–1082, 2 Cal.Rptr.2d 160, 820 P.2d 262.)

10.   We need not decide whether a significant delay between the arraignment and the competency hearing, or between the preliminary hearing and the arraignment would cause us to reach a different conclusion.   Here, all the proceedings were held within the original time periods set out in section 1382 and California Rules of Court, rule 227.3(2).   Defendant's preliminary hearing was held on July 6, 1994;  his arraignment was July 20, 1994, and the competency hearing was on August 29, 1994.   The time from arraignment to hearing was approximately five weeks.   In Miller, the preliminary hearing was held March 15, 1977;  the arraignment was March 29, 1977;  and the finding of incompetence was on April 14, 1977, approximately two weeks later.   The difference of three weeks is immaterial.

L. RUBIN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

CHARLES S. VOGEL, P.J., and EPSTEIN, J., concur.