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A150704 (Cal. Ct. App. Sep. 11, 2018)



THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MONERT, Defendant and Appellant.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C172604)

Defendant and appellant Michael Monert challenges the sufficiency of the evidence to support a jury's finding he was competent to stand trial. We affirm.


In 2012, through fingerprint evidence, appellant was implicated in a long-unsolved murder that occurred in Oakland in 1991. In December 2013, appellant confessed to the 1991 murder as well as two other long-unsolved Oakland murders.

The Alameda County District Attorney filed an information charging appellant with three counts of murder (Pen. Code, § 187, subd. (a)). The information alleged appellant personally used a deadly weapon in two of the murders (§ 12022, subd. (b)(1)) and a multiple murder special circumstance (§ 190.2, subd. (a)(3)).

All undesignated statutory references are to the Penal Code.

In May 2016, the trial court suspended criminal proceedings after defense counsel expressed a doubt as to appellant's competency. In November, a jury found appellant competent to stand trial.

The evidence on the competency issue is summarized in the discussion portion of this decision.

In December 2016, a separate jury found appellant guilty of murder in the first degree on one count and of murder in the second degree on the remaining two counts. The jury also found true the weapon use allegations and the multiple murder special circumstance. The trial court imposed a sentence of life without parole under section 190.2, subdivision (a)(3), as well as a term of 41 years to life for the remaining charges and enhancements.

This appeal followed.


"A defendant who is mentally incompetent cannot be tried or adjudged to punishment. (§ 1367, subd. (a); [citation].) A defendant is mentally incompetent to stand trial 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).) The defendant has the burden of proving incompetency by a preponderance of the evidence. (§ 1369, subd. (f); [citation].)" (People v. Marshall (1997) 15 Cal.4th 1, 31 (Marshall).) "In reviewing a jury verdict that a defendant is mentally competent to stand trial, an appellate court must view the record in the light most favorable to the verdict and uphold the verdict if it is supported by substantial evidence. [Citation.] Evidence is substantial if it is reasonable, credible, and of solid value." (Ibid.; see also People v. Mendoza (2016) 62 Cal.4th 856, 871-872 (Mendoza).)

A. The Expert Testimony Presented at the Competency Trial

1. Dr. David Howard

Appellant's expert, psychologist David Howard, testified he interviewed appellant for less than an hour in December 2013 and then for 1.5 hours a few days before the November 2016 competency trial. He also reviewed other expert reports and appellant's mental health records. The other expert reports included five reports finding appellant competent and one finding him incompetent.

In his November 2016 interview, appellant insisted he did not have a mental illness and was competent to stand trial. But Dr. Howard opined appellant was "somewhere on the schizophrenia spectrum." Appellant was "manic" during the interview—he had "racing thoughts" and it was difficult to get him to slow down or stop talking. Appellant was also "delusional in both a grandiose way and persecutory way." Appellant believed he would be "second chair" at trial and said he had "accumulated knowledge" from "multiple past lives." Dr. Howard did not believe appellant was malingering. The doctor further opined that, based on his observations of appellant's behavior during the competency trial, appellant was not "able to . . . compose [him]self in court and behave." Dr. Howard believed appellant did not have a "rational understanding of the legal proceedings" and could not "assist his attorney with a rational defense."

2. Dr. Amy Watt

The prosecution's first expert witness, psychologist Dr. Amy Watt, interviewed appellant in July 2016 for about 45 minutes. Appellant understood he was charged with murder, the purpose of trial, and the roles of the jury, judge, prosecutor, and defense attorney. Dr. Watt opined appellant had the "mental capacity" to assist in his defense, explaining that "willful defiance does not enter into the definition of competency." On cross-examination, Dr. Watt admitted she had not reviewed the other expert reports or appellant's mental health records.

3. Dr. John Chamberlain

The prosecution's second expert witness, psychiatrist Dr. John Chamberlain, interviewed appellant for over three hours in June 2016. The doctor diagnosed appellant with depressive and alcohol use disorders, and opined he was on the schizophrenia spectrum. He evaluated appellant's understanding of the charges, the possible penalties, the available defenses, plea bargaining, and courtroom procedures. Dr. Chamberlain opined appellant had "an adequate albeit imperfect ability to understand the nature of the proceedings."

Dr. Chamberlain also evaluated whether appellant could "adequately function in the courtroom should he choose." He said appellant was "capable" of "cooperat[ing] rationally with counsel." For example, appellant understood "how to communicate with his lawyer in an appropriate way in a courtroom setting," by "whisper[ing] to his attorney or writ[ing] notes." But Dr. Chamberlain said having the ability to cooperate was a separate issue from whether a defendant chose to cooperate. He acknowledged that "the combination of [appellant's] psychiatric symptoms and some personality traits would make him challenging to work with compared with the average defendant."

B. Appellant's Conduct During the Competency Trial

Appellant also summarizes appellant's conduct before the competency trial, during the competency trial voir dire, and during the trial on the underlying offenses. His conduct before and after the competency trial was not evidence the jury could consider in determining his competency. (See People v. Mendoza, supra, 62 Cal.4th at pp. 871-872 ["When the sufficiency of the evidence to support the verdict is challenged, our review is limited to the evidence presented at the competency trial"].) It is not clear whether the jury could properly consider his conduct during the competency trial voir dire. During that proceeding appellant interrupted a number of times to complain about the competency trial. We need not decide whether that conduct was evidence before the jury because, if it were, it would not affect our conclusion substantial evidence supports the jury's competency finding.

After the trial court invited appellant's counsel to give an opening statement, appellant said, "I will begin for [defense counsel] and he will conclude." Appellant argued with the court, insisting he was "second chair" and entitled to make the opening statement. He protested that "[t]here cannot be a civil case for triple murder" and that the prosecutor was trying to introduce "evidence that cannot be heard during a triple murder." Appellant eventually relented and defense counsel made a brief opening statement. Appellant complimented the prosecutor's opening statement describing the evidence of appellant's competence.

During appellant's counsel's direct examination of Dr. Howard, appellant frequently made interjections with his own questions; he also objected that a number of the doctor's answers were "conjecture." Appellant resisted being led out of the courtroom during a recess and, outside the presence of the jury, the court excluded him for the remainder of the morning session. When the jury returned, the court admonished the jurors not to draw any inferences from appellant's absence.

On the second day of trial, during the continued direct examination of Dr. Howard, appellant repeatedly interjected that the doctor was engaging in "conjecture" and "hearsay." He also accused the doctor of lying in response to a question whether the doctor was "privy to" appellant's outgoing mail. Appellant made a number of interjections during the prosecutor's cross-examination, and he eventually was removed from the courtroom. He commented, among other things, "It wouldn't be necessary if my lawyer would act like a lawyer." Appellant was quiet during the direct examination of Dr. Watt, but he was removed from the courtroom during her cross-examination because he repeatedly tried to ask her a question. Appellant returned for Dr. Chamberlain's testimony. He interjected a number of comments and questions during the direct examination and repeatedly interrupted during cross-examination.

During defense counsel's closing, after initially keeping quiet, appellant objected at length to some of counsel's statements, which he claimed were untrue. The trial court ordered him removed, and appellant commented that the prosecution would use the "incomplete data" against the defense.

C. Analysis

There was ample evidence appellant suffers from a mental disorder, so the critical issues for determination by the jury were whether appellant was able to understand the proceedings and assist in his defense. (Marshall, supra, 15 Cal.4th at p. 31.) Although appellant questions the reliability of Dr. Watt's testimony, he acknowledges Dr. Chamberlain conducted a "thorough" evaluation of appellant. Appellant argues the prosecution's expert testimony was "overwhelmed" by his behavior during the trial—that is, his conduct "rebut[ted]" the evidence he was competent.

Regarding his understanding of the proceedings, appellant points to his confusion about aspects of the competency trial, such as how it could be considered a civil proceeding and his assertion the proceeding was being used to introduce evidence that would not be allowed in a murder trial. However, appellant cites no authority that his confusion about aspects of the competency trial is sufficient to show he is "unable to understand the nature of the criminal proceedings." (Marshall, supra, 15 Cal.4th at p. 31.) In any event, the confusion expressed by appellant about the competency trial did not obligate the jury to find him incompetent, in light of the testimony of Dr. Watt and Dr. Chamberlain that appellant understood the various relevant aspects of the overall criminal proceeding—including the charges he faced, the trial participants and procedures, and his available defenses and plea options.

Appellant's primary focus on appeal is whether the evidence supports the jury's finding he could assist in his defense, asserting "[i]t cannot be disputed that appellant was incapable of composing himself and cooperating with his counsel." Appellant continues, "Appellant made a shambles of all the court proceedings he participated in. He interrupted the proceedings. He contradicted his attorney. He argued with his attorney. He objected to his attorney's questions. He told his attorney not to lie. He repeatedly reminded the competency jury that he was on trial for triple murder. He argued with the judge. He complained about the proceedings. . . . Appellant plainly could not restrain himself." Appellant concludes, "The jury could not reasonably reject the evidence of appellant's behavior that was before their eyes and conclude that petitioner was able to cooperate with his attorney."

The record does show appellant was disruptive during much of the competency trial. Appellant is correct his behavior was evidence the jury could consider in determining whether he was competent. (People v. Prince (1988) 203 Cal.App.3d 848, 856 ["Obviously, if a defendant in a competency trial acts in a bizarre manner or is hallucinating, the jury will view the defendant's conduct to see if it comports with the opinion testimony and therefore is relevant evidence of incompetence."].) However, although a defendant's disruptive behavior is relevant, it is not dispositive. The court in People v. Hightower (1996) 41 Cal.App.4th 1108, rejected a defendant's contention "that his disruptive behavior in the courtroom and disputes with defense counsel prove that he was not competent to stand trial." (Id. at p. 1112.) The court reasoned, "[h]is conduct demonstrates an unwillingness to cooperate with defense counsel but does not constitute proof of mental incompetence. '[T]he test, in a section 1368 proceeding, is competency to cooperate, not cooperation.' " (Hightower, at p. 1112; accord People v. Clark (2011) 52 Cal.4th 856, 893.)

In the present case, the jury was entitled to credit the expert testimony that appellant had the mental capacity to cooperate and behave appropriately, even if he frequently chose not to do so. Appellant argues on appeal that he demonstrated an inability to control his behavior, but the jury, which had the benefit of observing appellant, apparently credited the expert testimony that appellant could choose to cooperate. Appellant has not shown the jury was obligated to reject the expert testimony. (See People v. Mendoza, supra, 62 Cal.4th at p. 883 ["We must emphasize that it is not our function to substitute our judgment for that of the jury or to reweigh the evidence"].)

People v. Samuel (1981) 29 Cal.3d 489, is inapposite. In that case, there was "persuasive and virtually uncontradicted defense evidence proving [the defendant's] mental incompetence to stand trial." (Id. at p. 506; see also People v. Stanley (1995) 10 Cal.4th 764, 808-809 [Samuel involved a "virtually one-sided showing of incompetence"]; Mendoza, supra, 62 Cal.4th at p. 883 ["This is certainly not a case like Samuel in which no reasonable trier of fact could reject the defense evidence."].) --------


The judgment is affirmed.


SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________

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