Opinion Bank # 108 (Re: 302.5.10 [Applicability Of Merger Doctrine To Arson Death Qualifier].)
NOT FOR PUBLICATION
COURT OF APPEAL, FOURTH DISTRICT
STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, E008125
v. (Super. Ct. No. OCR 13389)
MARK SHANE OCKERMAN, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County. Kenneth G. Ziebarth, Judge. Affirmed in part and reversed in part; remanded for further proceedings.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, Keith M. Motley, Supervising Deputy Attorney General, and Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
APPLICABILITY OF THE “MERGER DOCTRINE” TO THE ARSON-MURDER SPECIAL CIRCUMSTANCE ALLEGATION
Defendant has mounted two attacks against the arson-murder special circumstance allegation which was found true by the jury in this case: (1) As a matter of law, the “merger doctrine” precluded a true finding as to that allegation; and (2) even if the “merger doctrine” did not preclude such a true finding, there was sufficient evidence before the jury to warrant giving an instruction on the “merger doctrine” and the trial court erred in refusing to do so.
In simple terms, the “merger doctrine” holds that a “separate” crime which otherwise might serve as the basis for a felony-murder allegation or murder special circumstance allegation is “merged” in the act of murder itself when the crime is committed with the single felonious purpose of murder — and, thus, that the “separate” crime cannot serve as the basis for a felony-murder allegation or murder special circumstance allegation. (See People v. Clark (1990) 50 Cal.3d 583, 606-609, and cases cited therein.) Conversely, if the “separate” crime is pursued for any felonious purpose independent of the resulting murder, such crime is not merged in the murder and can serve as the basis for a felony-murder allegation or for a murder special circumstance allegation. For example, if a defendant sets fire to a room with the sole purpose of killing the person in the room, there is no independent felonious purpose for the arson and the “merger doctrine” would preclude the use of the arson as the basis of a felony-murder charge or a murder special circumstance allegation.
Defendant argues that that is exactly the situation in this case — that the evidence conclusively establishes that defendant set fire to the bed with the sole purpose of killing Gray and that the “merger doctrine” precludes the use of the arson to charge defendant with an arson-murder special circumstance allegation. The People argue just as forcefully that the evidence conclusively establishes that defendant had a felonious purpose independent of murder for setting the fire — to cover up evidence of the robbery. Both the People and defendant cite vague and ambiguous statements given by defendant during his police interrogations in support of their respective positions. Both the People and defendant attempt to derive unassailable inferences from the way in which defendant set the fire to support their positions.
By the very nature of their arguments on the issue, the People and defendant have highlighted the fact that, based on the contradictory evidence, applicability of the merger doctrine is not a matter of law. The evidence in this case does not conclusively establish whether defendant had a felonious purpose independent of murder in setting the bed on fire while Gray lay unconscious upon it. Given the conflict in-the evidence, the trial court erred in refusing defendant’s request to instruct the jury on the “merger doctrine” as it applied (or not) to the facts of the case — and letting the jury determine for itself whether there was an independent felonious purpose other than homicide underlying the setting of the fire.
Applying the Chapman standard of harmless error, we cannot say beyond a reasonable doubt that absent this erroneous failure to instruct on the merger doctrine the jury would have found the arson murder special circumstance allegation to be true. There is evidence upon which a reasonable jury could conclude that defendant’s sole intention in setting the fire was to kill Gray. If a jury were to so conclude, then the “merger doctrine” would preclude a true finding on the arson-murder special circumstance allegation.
This matter must be remanded to the trial court for a retrial of the arson-murder special circumstance allegation. Of course, given the practical reality that a person can only truly serve one sentence of life without possibility of parole, the People may well choose to forego such a retrial in light of the fact that we have affirmed the true finding on the robbery-murder special circumstance allegation brought against defendant. In any event, that is a matter for the People to consider on remand.
To the extent the judgment entered below was entered upon the jury’s true finding on the arson-murder special circumstance allegation, said judgment is reversed. In all other respects, the judgment entered below is affirmed in full. This matter is remanded to the trial court for further proceedings consistent with this opinion.