People v. Bobo

• Citation: 271 Cal.Rptr. 277
• Decision Date: 06 July 1990
• Docket Number: No. C004511,C004511
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Diane Rochelle BOBO, Defendant and Appellant.

Page 277

271 Cal.Rptr. 277

The PEOPLE of the State of California, Plaintiff and Respondent, v. Diane Rochelle BOBO, Defendant and Appellant.

No. C004511.

Court of Appeal, Third District, California.

July 6, 1990.

Certified for Partial Publication ^*.

Rehearing Denied Aug. 3, 1990.

Review Granted Oct. 11, 1990.

Francia M. Welker, Oakland, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Inglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Supervising Deputy Atty. Gen., and Thomas Y. Shigemoto and Harry J. Colombo, Deputy Attys. Gen., for plaintiff and respondent.

EVANS, Associate Justice.

In the published portion of the opinion, we address the impact of the 1981 changes to the Penal Code, sections 28, 29, 188, and 189, that abolished the defense of diminished capacity and refined the concepts of "express malice" and "deliberate and premeditated."

The unpublished portion of the opinion illustrates the distinction between the medical diagnosis of a serious mental disease and the legal definition of insanity.

A jury found defendant guilty of arson and three counts of first degree murder. (Pen.Code, §§ 451, subd. (b), 187; all further undesignated section references are to the Penal Code.) The jury found the alleged special circumstance of multiple murders to be true (§ 190.2, subd. (a)(3)) and that defendant used a deadly weapon (a knife) to commit the killings (§ 12022, subd. (b)). This same jury found defendant sane during the commission of the crimes.

The prosecution did not seek the death penalty. Sentenced to three consecutive life terms without the possibility of parole, defendant appeals asserting (1) the evidence is insufficient to support the convictions and sanity findings, (2) the prosecutor committed misconduct, and (3) the trial court erred (a) in refusing to give voluntary manslaughter instructions, an instruction distinguishing guilty and innocent motive, a particular insanity instruction, and an instruction on uncontradicted expert testimony; and (b) in denying defendant's motions for exclusion of extrajudicial statements and certain prejudicial evidence, for new trials, and for a different jury at the sanity phase. We affirm.

The nature of the crimes, jury findings, and contentions made on appeal requires an extensive recitation of pertinent facts. We first examine the guilt phase of the trial.

FACTS

Shortly before noon on April 5, 1987, the Sacramento Fire Department responded to a fire at defendant's apartment located within a public housing complex. Firefighter Robert Johnson entered the burning premises and found defendant's three children--Dianeka H. (8 months), Tashima T. (4 years), and Jacoby T. (6 years)--on a bed in the upstairs bedroom. All three had been stabbed. There were no vital signs on the two youngest and medical intervention failed to resuscitate the third. A butcher knife was found on the bed and bloody water was found in the upstairs bathtub.

A resident of the complex, Susan Brown, saw defendant in flames run out the back door of her apartment. While another resident doused the flames, Brown heard defendant say, "[h]e made me kill 'em. They made me" and "[T]hey killed my family."

After Firefighter Johnson removed the children, Fire Apparatus Operator Paul Steinkamp was directed to defendant by the crowd which had gathered. When defendant indicated she was the mother, Steinkamp asked her what happened. She told him she had stabbed her kids and set her apartment on fire. Steinkamp thought defendant also said, " 'He made me do it.' "

According to Johnson, while defendant was being attended to by ambulance personnel, she rocked ceaselessly and repeated words like " 'I wish I were dead' " or " 'I want to be dead' " to no one in particular.

The fire was determined to have been intentionally set; splash and burn patterns on the downstairs couch indicated the use of a flammable liquid. An empty can of charcoal lighter fluid was found in an upstairs bedroom on top of a bassinet. The structural area behind the couch had been burned.

Defendant was taken to the hospital for treatment of deep second and third degree burns on her feet, thigh, and buttocks. About six hours later, she waved for (guard) Deputy Sheriff Richard Bankie to enter her room. Bankie entered and with defendant looking straight at him, she said, " 'Can you take me to the morgue. I want them to cut me up like I did those babies. It's my turn to die now.' " After Bankie explained she was in custody, she said, " 'I don't deserve to live. I cut those babies up and then set my place on fire. I cut my own babies up. I want to be cut up too.' "

About an hour after defendant made her statements to Deputy Sheriff Bankie, she was interviewed at the hospital by Detective Frank Fermer. The interview was tape recorded and transcribed.

After defendant stated her name, age, date of birth, address, and the fact she had no phone, Fermer "Mirandized" her. ¹ Defendant answered "yes" when asked whether she understood her Miranda rights and whether, having those rights in mind, she wished to talk.

When Detective Fermer asked defendant "what happened out there," she provided the following incoherent response, "Those, like, uh, those, like the whole projects harassing me, and I had went to jail for assault and battery, and one was like this porno movie (inaudible) Chinese guy in Zerdo (inaudible).... [p ] Newport running a porno movie at-- ... Captain. [T]hen I got caught up in the black mafia gang, um, the Midnight Star, and they was harassing me around the playground and he said that they would kill me, they would kill my kids and burn us in the front yard, if, um, I didn't kill them, ... [p ] Take an extinguisher and singe and burn my kids. (sobs) I killed my kids so they wouldn't kill them and kill me then.... [p ] So they wouldn't kill my kids and me, and then I jumped off the house, and I jumped into the fire to burn myself up, and then the dude came on me with the extinguisher trying to burn me up and his name was JOE JOHNSON.... [p ] [h]e was at the prison.... [p ] Lerdo [which is] in Bakersfield and Midnight Star the singing group.... [p ] ... they killed my family, RENE CARTHEN, KIM CARTHEN, and burnt them in some body bag."

Defendant then said she and the kids got up about 7 a.m. on the day of the killings; she told Fermer the children's names and where they slept.

She then stated that Midnight Star and Joe Johnson came to her house the night before the killings and put "some ... kind of drug" into her hands. All of the people in the complex knew about it and they were harassing her. Her family was going along with it because they were making a movie. They were trying to kill her because she had witnessed a "drug hit this murder" "at martial, the Chinese book (inaudible) because they was running porno ring." When Detective Fermer asked defendant if she and the children were alone in the house at the time of the killings, she replied that "[n]o one else was in the house because they said they was going to come back and kill me and my kids and I had went to the store and bought myself some ether because they were coming to kill us."

Asked to tell about the killings, defendant stated she killed the children "one by one" with a butcher knife "because they said they was going to ... come back--okay, they killed my family, shot them up in the street. Said they were going to burn their bodies.... Come join them because we're going to kill you and your kids later anyway." She then described the order in which the children were killed. Although her children asked her not to kill them, she told them "that they was going to have a worser death." After being stabbed, the children were still alive so she "drowned them in the bathtub." She then laid the children on her bed and started the apartment on fire by placing a living room couch pillow on the stove, starting the kitchen on fire, and throwing the lighted pillow back onto the couch.

After starting the fire, defendant got on the bed with her children. She then "yelled out the window to tell the people next door to get out of the house because I started my house on fire and everybody started running." To confirm this point, Detective Fermer inquired, "So, you yelled this out the window?" Defendant replied, "Out [the] upstairs window at my kids and everybody in the apartment was with the people that were trying to kill me and then, like I went back off and up inhaling the smoke, but it was taking too long to kill me. I wanted to die with them, ..." Defendant continued to relate a variety of delusional predicates for the methodical killing of her children and torching of her apartment.

Defendant stated she had lived at her apartment for 15 months, that Dianeka's father was Clarence Haynes, a 28-year-old black male employed by Creative Landscaping. The father of her other two children was Tim Tate, who had attended Hiram Johnson and McClatchy High Schools, graduating in 1979. Defendant graduated from McClatchy in 1980. Defendant added that she killed Tim Tate "two days ago ... in my front yard.... Midnight Star took his body away."

Defendant said she just started killing the kids "because they said they were going to kill them." She reiterated the order of killing, the manner of killing, and how she started the fire.

Defendant told Fermer her father was Alan Bobo and she gave a phone number for him as well as a phone number for her sister Kim Carthen. She also provided the name of her welfare social worker. She then added that Joe Johnson, Midnight Star, and Judge Wapner killed her father "[t]his morning or either last night because there's a whole bunch of them. They were trying to talk him out of not killing me."

Joe Johnson had said he was going to kill her and rape and molest her children in front of everyone and burn them to the bone " 'just like we burnt your family.' "

When...