Opinion
A152182
12-21-2017
THE PEOPLE, Plaintiff and Respondent, v. BRUCE ROY GREENE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-161637-4)
Bruce Roy Greene is temporarily committed to a state hospital for expert examination as to whether he is competent to stand trial. He has not yet had a preliminary examination on the criminal complaint filed against him. He perfected a timely appeal from the 13-page order denying his petition for a writ of mandate directing that a preliminary examination be conducted during his commitment, before his competency examination is concluded.
Defendant's appointed counsel has filed a brief in which she advised that she found no arguable issues to present, and, in accordance with People v. Wende (1979) 25 Cal.3d 436, requested this court conduct an independent review of the record to determine if there are any arguable issues that require briefing. Appointed counsel advised Greene he was entitled to file a supplemental brief, but he elected not to do so.
There was nothing arguable about the denial of Greene's petition. The statutory command that "all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined" (Pen. Code, § 1368, subd. (c)) is not given a literal construction, but the directive is not easily or commonly evaded. Holding a preliminary examination which results in an order that the defendant be held for trial might be accomplished, but it could prove to be an idle act: it would have to be set aside if Greene is later found to be incompetent at the time of the preliminary examination. The trial court did not abuse its discretion by declining to undertake what could prove to be an exercise in futility. (See People v. Garcia (2016) 5 Cal.App.5th 640, 654; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1510-1512 and authorities cited.)
It should also be noted defendant's petition was not summarily denied, but only after full briefing and argument by defendant's counsel in response to the trial court's order to show cause.
The order denying the petition for a writ of mandate is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.