Opinion
G056476
08-23-2018
GERARDO BENITEZ, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Sharon Petrosino, Public Defender, and Deputy Public Defender Alisha Montoro for Petitioner. Tony Rackauckas, District Attorney and Johanna Kim, Deputy District Attorney, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF1107) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Jeannie M. Joseph, Judge. Petition granted. Sharon Petrosino, Public Defender, and Deputy Public Defender Alisha Montoro for Petitioner. Tony Rackauckas, District Attorney and Johanna Kim, Deputy District Attorney, for Real Party in Interest.
* * *
Before Aronson, Acting P. J., Ikola, J., and Goethals, J.
On May 29, 2018, respondent court suspended criminal proceedings prior to the preliminary hearing pursuant to Penal Code section 1368. Petitioner, Gerardo Benitez, contends the felony complaint should have been dismissed because he was denied his right to a preliminary hearing within 10 court days from the date he was arraigned in custody on the felony complaint. Petitioner also contends respondent court abused its discretion when it suspended criminal proceedings, and also erred when it refused to conduct a preliminary hearing pursuant to section 1368.1. Although petitioner was not entitled to have his preliminary hearing within 10 court days from the date he was arraigned in custody, he is entitled to relief on the basis that the court abused its discretion and suspended the proceedings pursuant to section 1368. The petition is granted.
All further references are to the Penal Code unless otherwise noted.
PROCEDURAL FACTS
On April 25, 2018, real party, the People, filed a felony complaint charging petitioner, Gerardo Benitez, with offenses that are alleged to have occurred "on or about and between January 01, 2007 and December 31, 2009." On May 11, 2018, petitioner was present in the courtroom before Judge Craig E. Robison when he was arraigned in custody on the complaint. A pretrial hearing was set for May 18, 2018, and the preliminary hearing scheduled to take place on May 23, 2018. At the same time Judge Robison arraigned petitioner on the felony complaint, he also arraigned petitioner on a probation violation in misdemeanor case No. 07WM12217. After the probation violation warrant was recalled, petitioner was remanded into custody and the docket states the felony is to be kept "with companion case[ ] 07WM12217."
According to the docket in the felony case, petitioner was not transported to respondent court for the pretrial hearing on May 18, 2018, and the matter was taken off calendar. On May 23, 2018, the date scheduled for his preliminary hearing, the docket again indicates petitioner was not transported to respondent court and the preliminary hearing was trailed to the following day, May 24, 2018, "Day 9 of 10."
On May 24, 2018, again, petitioner was not transported to respondent court and the docket states, "Pursuant to information provided by the Orange County Jail, the defendant was not transported to Court due to medical reasons. The Court having been advised that the defendant who is in-custody and has been hospitalized due to a medical illness or injury prior to his arraignment, Court finds good cause to trail this case." According to the docket, petitioner's preliminary hearing was trailed to May 25, 2018, "Day 10 of 10."
On Friday, May 25, 2018, counsel announced ready to proceed with the preliminary hearing, but again petitioner was not transported to respondent court. Over counsel's objection to trailing the matter, the court said, "We're just going to have to trail it to Monday for prelim - Not Monday. Tuesday, May 29th."
Monday May 28, 2018, was a court holiday.
On May 29th, both counsel and the People announced ready for the preliminary hearing, but when petitioner was not transported to court again, he filed a motion to dismiss the complaint, or in the alternative to be released, on the basis that he had been denied his statutory right to a preliminary hearing within 10 court days from his in custody arraignment on May 11, 2018. During argument on the motion, the People also complained the preliminary hearing had "been continued over [their] objection for the court to secure the appearance of the defendant" and objected to petitioner's demand to dismiss the complaint because petitioner made no showing of actual prejudice.
In response to the People's argument that petitioner was required to demonstrate prejudice, counsel said, "Defendant has a [ ] statutory right to a preliminary hearing within ten days. Either the court can dismiss it or he can be released O.R., but we don't have to show prejudice at this point."
The court replied, "I will take a recess, I will review the cases, and we will try to find out what the medical issue is and we will proceed." When the matter was back on the record, the following discussion took place:
"The Court: All right. And I found out the reason for his nonpresence since the first day of his incarceration is because he's on a med hold at the Orange County Jail because he's suicidal and
"[Counsel]: Your Honor, I object at this point to the court disclosing my client's confidential information in a public courtroom.
"The Court: So if you know this, are you going to be declaring a doubt at this time?
"[Counsel]: No I'm not declaring a doubt. I'm ready on the preliminary hearing. I'm asking for a dismissal.
"The Court: All right. Do the People wish to be heard any further? I read the papers.
"[DA]: No."
After counsel distinguished the cases cited by the People, the court said, "But what I'm going to do is something a little different because I am, as the court, going to declare a doubt based on the information I have received about the reason that he's not transported today. My understanding is both sides are ready to proceed but unfortunately the defendant is not here due to his mental condition. Without going into details that were objected to, he is unable to be transported and so he will be needing an evaluation and so what I'm going to do is order him to be evaluated pursuant to Penal Code section 4011.6. Because of that, I'm going to suspend the proceedings as of today and have this evaluation done."
After the court's statement, the record indicates the People asked to approach the bench. Although the reporter's transcript reflects the sidebar discussion was held off the record, counsel represents in the petition that the "prosecutor . . . explained to the court that section 4011.6 does not suspend proceedings [and] urged the court to suspend proceedings pursuant to sections 1368 and 1369." When the matter was back on the record, the following colloquy took place:
Section 4011.6 states that "[i]n any case in which it appears . . . to any judge of a court in the county in which the jail . . . is located, that a person in custody in that jail . . . may be mentally disordered, he or she may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation pursuant to Section 5150 of the Welfare and Institutions Code . . . ." --------
"The Court: So, rather than 4011.6, I understand it won't be quite as helpful for us, what I'm going to do is order a competency hearing pursuant to 1368 and at this time suspend all criminal proceedings until we have an evaluation on the defendant's competency to proceed in these matters. And so I'm going to set a further hearing in Department 58.
"[Counsel]: . . . I would object to any further continuances. It's improper procedure. There is not any information for counsel to think my client is not able to assist in his defense. I will object to whatever date is set.
"The Court: I think that's fine. You don't want all the facts on the record so I won't put them on the record. So - but it's based upon my discussions with the Sheriff's Department about the reasons for his medical hold which has been continuing now for a number of days. . . .
"[Counsel]: Your Honor, just if the court is declaring a doubt and suspending proceedings pursuant to 1368[,] I'm still allowed under the statute to bring motions to dismiss even in his absence even if proceedings [are] suspended. I'm asking the court to still rule on my motion to dismiss or release him O.R.
"The Court: I will deny at this time because if he's a danger to himself or others I'm not going to release him O.R. and I don't think he's competent to participate. It doesn't [look like] he has been competent to participate in his right to his preliminary hearing and I'm not going to deny his right due to his incompetence. I will deny that at this time. . . ."
The docket entry on May 29th states, "Court orders 1368 evaluation due to information received from the Sheriff's Department regarding why the defendant hasn't been transported. [¶] A doubt has arisen in the mind of the Court as to the mental competence of the defendant. Court now orders criminal proceedings suspended. Proceedings pursuant to Penal Code 1368, et seq. are instituted."
On June 12, 2018, the matter was before Judge Michael Murray, and again, the docket indicates petitioner was not present in court. The docket entry states, "Per Orange County Jail, [petitioner] was not transported to Court due to Medical Hold." The court appointed two psychologists to examine petitioner pursuant to section 1368, and his mental competency hearing was continued to July 27, 2018.
On June 6, 2018, petitioner filed a petition for writ of habeas corpus in superior court case No. M-17542. While waiting for a ruling from superior court, petitioner filed a petition for writ of mandate in this court on June 25, 2018. Although petitioner represented to this court that "Superior Court ha[d] not responded to petitioner's writ of habeas corpus," at the time the petition was filed in this court, unbeknownst to petitioner, the superior court had already denied the habeas petition on June 12, 2018, but had not entered the court's ruling in the minutes until June 29th.
In the petition for writ of mandate filed in this court, petitioner is seeking an immediate stay and a peremptory writ in the first instance on the basis that he was entitled to have the complaint dismissed, or in the alternative to be released on his own recognizance when his preliminary hearing was continued beyond 10 court days from the date of his in custody arraignment. Petitioner argues further that the record does not support respondent court's decision to declare a doubt as to his competency, and respondent court erred when it refused to allow him to proceed with the preliminary hearing pursuant to section 1368.1 before suspending proceedings.
Citing Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, on June 28, 2018, this court ordered the People to file informal opposition to the petition. On July 3, 2018, the People filed their informal opposition and advised this court the petition for writ of habeas corpus in case No. M-17542 had been denied. The People's opposition also explained this court should summarily deny the petition because petitioner was in custody on another matter when he was arraigned on the felony complaint. The People argue further that respondent court did not abuse its discretion when it declared a doubt as to petitioner's competency pursuant to section 1368, and petitioner failed to establish that respondent court erred when it denied his due process right to a preliminary hearing pursuant to section 1368.1.
DISCUSSION
1. Section 871.6
As a preliminary matter, this case should have been filed in the superior court in the first instance. "The superior court is the court with jurisdiction to review the actions of a magistrate and issue a writ of mandate to a magistrate." (Magallan v. Superior Court (2011) 192 Cal.App.4th 1444, 1453; People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 803-804.) Although petitioner claims to have complied with the statutory requirement of "seeking relief in the Superior Court" by filing a petition for writ of habeas corpus, section 871.6 clearly contemplates review by filing a petition for writ of mandate or prohibition and states, "If in a felony case the magistrate sets the preliminary examination beyond the time specified in Section 859b, in violation of Section 859b, or continues the preliminary hearing without good cause and good cause is required by law for such a continuance, the people or the defendant may file a petition for writ of mandate or prohibition in the superior court seeking immediate appellate review of the ruling setting the hearing or granting the continuance. (Emphasis added.)
However, because the superior court has already considered the claims raised in this petition and it has refused to grant relief, we exercise our discretion to consider petitioner's request for extraordinary relief. (Cal. Const., art. VI, § 10.) 2. Section 859b
On the merits, petitioner is not entitled to a dismissal or release from custody because his preliminary hearing was not conducted within 10 court days from the date he was arraigned and pleaded not guilty on the felony complaint.
Section 859b states in part, "Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later, or within 10 court days of the date criminal proceedings are reinstated . . . . [¶] Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings pursuant . . . and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur: [¶] (a) The defendant personally waives his or her right to preliminary examination within the 10 court days. [¶] (b) The prosecution establishes good cause for a continuance beyond the 10-court-day period." (Emphasis added.)
When the preliminary hearing is continued beyond 10 court days, the remedy of dismissal or release from custody applies "only to those defendants in custodial confinement solely attributable to the charges which are the subject of the preliminary hearing." (Blake v. Superior Court (1980) 108 Cal.App.3d 244, 248; People v. Standish (2006) 38 Cal.4th 858, 866, fn. 2.) Noticeably absent from the petition is any reference to the fact that in addition to being in custody on the felony complaint, petitioner was also in custody on the probation violation of his misdemeanor case when he was arraigned on May 11, 2018. As such, his custodial confinement was not solely attributable to the charges that are the subject of the preliminary hearing. Because petitioner was not in custody solely on the felony complaint, the only time constraint that applies in this case is the last paragraph in section 859b, which states, "The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings . . . unless the defendant personally waives his or her right to a preliminary examination within the 60 days." Because the record in this case reveals no waiver, the last day to begin the preliminary hearing was July 10, 2018. 3. Section 1368
Apparently unaware the People had an additional 42 days to conduct the preliminary hearing when petitioner did not appear in court on May 29th, sight unseen, respondent court declared a doubt to petitioner's competency, suspended criminal proceedings pursuant to § 1368, and denied petitioner's motion to dismiss the complaint. We agree the record does not support respondent court's decision to declare a doubt to his competency and suspend criminal proceedings.
A defendant is presumed to be mentally competent to stand trial. (§ 1369, subd. (f); People v. Young (2005) 34 Cal.4th 1149, 1216.) In California, "[a] defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).)
Subdivision (a) of section 1368 states, "If, during the pendency of an action and prior to judgment, . . . a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. (Emphasis added.)
Subdivision (b) of section 1368 identifies when the court may suspend criminal proceedings and order a competency hearing and states that "If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court." (Emphasis added.)
When the court orders a hearing as a result of the court or counsel declaring a doubt to whether the defendant is presently competent, "all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined." (§ 1368, subd.(c).)
In this case, at the time respondent court expressed a doubt and suspended the proceedings, petitioner had never appeared before respondent court. According to the docket, petitioner also never appeared in court with the attorney representing him at the pretrial and preliminary hearing. Despite the anomaly of the court suspending proceedings even though petitioner had never appeared before the court, the People contend the court did not abuse its discretion when it declared a doubt to petitioner's competency and suspended criminal proceedings because according to People v. Ah Ying (1871) 42 Cal. 18, "If at any time a doubt arose as to the sanity of the defendant, it was the duty of the Court, of its own motion, to suspend the trial or further proceedings in the case, at whatever stage the doubt arose, until the question of sanity was determined." (Id. at p. 21.)
Relying on a case that was decided before section 1368 was enacted in 1872, the People fail to take into account the statute's requirement of counsel's preliminary assessment of the defendant's ability to assist counsel and understand the nature of the proceedings prior to any determination to suspend criminal proceedings. In fact, counsel's opinion is so crucial to the process, even if the court declares it has a doubt as to the defendant's mental competence, it must first "seek defense counsel's opinion as to the defendant's mental competency, or appoint counsel if the defendant is unrepresented." (People v. Mickel (2016) 2 Cal.5th 181, 195.) "[D]efense counsel will often have the best-informed view of the defendant's ability to participate in his defense." (Medina v. California (1992) 505 U.S. 437, 450.) If the defendant is not represented, as subdivision (a) states, "the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time." (Pen. Code, § 1368, subd. (a).) (Emphasis added.)
Subdivision (b) authorizes the court to suspend criminal proceedings and order a competency hearing, but only after "counsel informs the court that he or she believes the defendant is or may be mentally incompetent," which did not occur in this case. Subdivision (b) also states the court on its own may suspend criminal proceedings if counsel "informs the court that he or she believes the defendant is or may be mentally competent," which also did not occur in this case.
When the court asked counsel, "are you going to be declaring a doubt at this time?" counsel replied, "No I'm not declaring a doubt. I'm ready on the preliminary hearing. I'm asking for a dismissal." Counsel also informed the court, "There is not any information for counsel to think my client is not able to assist in his defense." "At that point in time" in the proceedings, counsel had no information to assess and render an opinion on her client's competence.
"If presented with 'evidence that raises a reasonable doubt about a defendant's mental competence to stand trial,' a trial court must suspend the criminal proceeding and hold a hearing to determine the defendant's mental competence. (People v. Elliot (2012) 53 Cal.4th 535, 583.) "Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 847.) "[A] defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel." (People v. Ramos (2004) 34 Cal.4th 494, 508.) "A trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. [Citations.]" (People v. Rogers, supra, 39 Cal.4th at p. 847.)
Relying on Drope v. Missouri (1975) 420 U.S. 162 (Drope), the People contend that being suicidal supports respondent court's decision to declare a doubt as to petitioner's competence and suspend proceedings. The People cite Drope's reference to Pate v. Robinson (1966) 383 U.S. 375, where the court explained that "evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient." (Id. at p. 180.)
In Drope, the defendant and his codefendants were charged with forcibly raping the defendant's wife. The trial court refused to suspend criminal proceedings even though it had a report from a psychiatrist who examined the defendant and suggested treatment. The defendant's wife testified at trial and said the defendant was sick, he was not a person of sound mind, he needed psychiatric care, and he tried to choke her to death the day before trial. In addition to the psychiatric report and the wife's testimony, the defendant actually attempted suicide during the trial. Because the examining psychiatrist in Drope only addressed the defendant's mental and emotional condition, as opposed to medical facts bearing specifically on the issue of the defendant's competence to stand trial, (Id. at p. 176) Drope explained the issue before the court concerned "the inferences that were to be drawn from the undisputed evidence and whether, in light of what was then known, the failure to make further inquiry into petitioner's competence to stand trial, denied him a fair trial." (Id. at pp. 174-175.)
Although the People contend Drope supports respondent court's decision that solely being suicidal is sufficient to suspend the proceedings, Drope said it would not address the lower court's conclusion that "an attempt to commit suicide does not create a reasonable doubt of competence to stand trial as a matter of law." Instead, Drope said, "[the defendant's] attempt to commit suicide 'did not stand alone.' [Citation.] We conclude that when considered together with the information available prior to trial and the testimony of [defendant's] wife at trial, the information concerning [defendant's] suicide attempt created a sufficient doubt of his competence to stand trial to require further inquiry on the question." (Id. at p. 180.) (Emphasis added.)
Unlike Drope, where the trial court had a psychiatric report suggesting treatment, testimony from the defendant's wife that he was sick, not of sound mind, and needed psychiatric care, and evidence the defendant actually attempted suicide, in this case there is no evidence to support respondent court's decision to suspend criminal proceedings. Based on the record, there was no evidence of irrational behavior when petitioner appeared in court to be arraigned on the complaint on April 25, 2018, or May 11, 2018. Likewise, there is no evidence in the record, medical or otherwise, that suggests petitioner was unable to assist counsel, or he could not understand the nature of the proceedings.
Based on the transcript of the hearing on May 29, 2018, it appears the entire basis for respondent court's determination to declare a doubt to petitioner's competency and suspend criminal proceedings is an ex parte communication, as defined by canon 3B(7) of the Code of Judicial Ethics, from an unidentified source at the Sheriff's Department, who was not subject to questioning or cross-examination by the parties, who may or may not have conveyed firsthand information that petitioner "is suicidal," with no context as to whether petitioner's alleged suicidal condition is recent or chronic, and with no insight or indication that petitioner is incapable of understanding the nature of the proceedings or assisting counsel in his defense as a result of being suicidal.
In People v. Ramos, supra, 34 Cal.4th 494, the Supreme Court noted the "defendant's propensity for violence, hoarding of medication for an alleged suicide attempt, and history of psychiatric treatment" (Id. at p. 509) and said, "We have held that a defendant's preference for the death penalty and overall death wish does not alone amount to substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric evaluation." (Ibid.) As Ramos explained, "although defendant's prior violent acts and other bizarre behavior would lead us to agree he has violent propensities, and may even harbor a death wish, they do not raise doubts that he was incapable of assisting in his own defense or otherwise competent to plead guilty, admit the special circumstance allegations against him, or stand trial. (Ibid.) (Emphasis added.)
The representation by the unknown source at the Sheriff's Department that petitioner was suicidal, even assuming it is true, does not create a doubt as to petitioner's mental competence and his ability to understand the nature of the proceedings or his ability to assist counsel. "[T]he evidence must bear on the defendant's competency to stand trial, rather than simply establish the existence of a mental illness that could conceivably affect his ability to understand the proceedings or assist counsel." (People v. Ghobrial (2018) 5 Cal.5th 250, 270.) As the Supreme Court said in People v. Laudermilk (1967) 67 Cal.2d 272, 285, "[M]ore is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense [citation]." (Emphasis added.) "[E]ven a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt . . . ." (People v. Blair (2005) 36 Cal.4th 686, 714.)
At the hearing on May 29th, neither the court nor counsel had any information that petitioner could not assist counsel or understand the nature of the offense. Although the People contend the information from the unidentified source in this case was sufficient to raise a doubt in the court's mind that petitioner is not competent, the People contradict this claim by admitting in their opposition that "respondent court was not able to observe petitioner, due to his continued absence pursuant to the medical hold, and therefore, unable to determine whether he was able to cooperate with his attorney or understand the nature and object of the proceedings against him."
We agree. "[T]he decision to order such a hearing [is] left to the court's discretion," (People v. Gallego (1990) 52 Cal.3d 115, 162) and based on this record, it was an abuse of the court's discretion to suspend criminal proceedings pursuant to section 1368 when there was no evidence before the court that suggests petitioner was not competent to stand trial. 4. Section 1368.1
Petitioner's last claim, that respondent court erred when it refused to allow petitioner to conduct a preliminary hearing pursuant to section 1368.1 before suspending proceedings and setting the matter for a competency hearing is also without merit.
The Legislature has determined that mentally incompetent individuals have a right to attend preliminary examinations. Subdivision (a)(1) of section 1368.1 states in part, "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 Section 859b." (Emphasis added.)
Rule 4.130(b)(3) of the California Rules of Court states, "In a felony case, if the judge initiates mental competency proceedings prior to the preliminary examination, counsel for the defendant may request a preliminary examination as provided in Penal Code section 1368.1(a)."
Petitioner is right that section 1368.1 and rule 4.130 "firmly [establish] the right to a preliminary examination before a competency hearing," but the statute states that it must be "requested" by counsel "under Section 859b." Based on the record, the People are correct that after the court declared a doubt as to petitioner's competency and suspended the proceedings, thereafter counsel did not request a preliminary hearing under section 859b and instead demanded the matter be dismissed or petitioner released on his own recognizance. But it is of no consequence because the proceedings in this case should not have been suspended pursuant to section 1368, making the application of section 1368.1 moot in this case.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order suspending criminal proceedings on May 29, 2018, pursuant to section 1368. In the interest of justice, the opinion in this matter is deemed final as to this court forthwith and the clerk is directed to issue the remittitur forthwith. (Cal. Rules of Court, rule 8.490(b)(2)(A).)