Sometimes, but the route depends on who requests it and what proceeding is sought. Penal Code section 1368 generally suspends prosecution when a present-competence inquiry begins, subject to section 1368.1. In a felony case, defense counsel may request a preliminary examination under section 1368.1(a)(1), where specified motions may be heard. A separate, narrower route lets the prosecutor request a probable-cause determination for the limited grave-disability purpose in qualifying cases. These paths are not interchangeable, and neither means every issue proceeds during the competency pause. (Penal Code § 1368; § 1368.1)
Defense-requested preliminary examination
If the case is a felony complaint and competency proceedings are pending, section 1368.1(a)(1) permits a preliminary examination when defense counsel requests it. At that examination, counsel may demur, contest whether there is reasonable or probable cause to hold the defendant to answer, or make a suppression motion under section 1538.5. The decision belongs with counsel after reviewing the complaint, available evidence, and the defendant’s situation; the exception does not require that every defendant personally litigate motions while competence is unresolved. (Penal Code § 1368.1; Penal Code § 872)
The court can decide the motions listed in section 1368.1 only when a fair determination can be made without the defendant’s personal participation. The statute also says the defendant shall not be certified until that demurrer or motion is decided. Check the actual complaint, competency order, counsel’s request, motion record, and court’s ruling to see which path is being used. (Penal Code § 1368.1)
The prosecutor’s grave-disability request is narrower
Section 1368.1(a)(2) separately permits a prosecutor to seek a probable-cause determination for a limited grave-disability purpose in specified felony complaints involving death, great bodily harm, or a serious threat to another person’s physical well-being. That is not the ordinary preliminary examination requested by defense counsel. The statute preserves a preliminary hearing after competency is restored; the special determination does not replace it. (Penal Code § 1368.1)
Section 859b governs the ordinary preliminary-examination framework and includes a provision for timing after competency is restored. It does not create a universal deadline for making the section 1368.1 choice. The court’s order and procedural posture matter, so counsel should confirm the dates and request actually entered rather than relying on a generic competency timeline. (Penal Code § 859b; § 1368.1)
The Law Offices of David S. Chesley represents people facing California felony charges. Call (800) 755-5174 to discuss a competency inquiry and preliminary-hearing procedure.