The opinion
JOHNSON, J.
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.