Supreme Court of California Justia
Docket No. S097414
People v. Kopatz

Filed 4/30/15



Plaintiff and Respondent,




Riverside County

Defendant and Appellant.

Super. Ct. No. RIF086350

A jury convicted defendant Kim Raymond Kopatz of the first degree

murders of Mary Kopatz and Carley Kopatz. (Pen. Code, § 187.)1 It found true

the special circumstance allegations of murder for financial gain (§ 190.2, subd.

(a)(1)) and multiple murder (§ 190.2, subd. (a)(3)). After a penalty trial, the jury

returned a verdict of death, and the trial court imposed that sentence. This appeal

is automatic. (§ 1239, subd. (b).) We affirm the judgment.


All further statutory references are to the Penal Code unless otherwise




A. Guilt Phase

1. The Prosecution’s Case

a. Introduction

On the afternoon of April 22, 1999, the strangled bodies of defendant’s

wife Mary Kopatz and his young daughter Carley Kopatz were discovered in the

family’s van, which was parked about one mile from the Kopatzes’ home. The

prosecution presented circumstantial evidence of defendant’s guilt. The evidence

reflected a financial motive. Defendant had recently lost a large amount of

money, was in debt, and was the beneficiary of life insurance policies on Mary and

Carley; he also had made a claim on an insurance policy for Mary’s wedding and

anniversary rings four days after the murders. The evidence further showed that

although several people attempted to telephone defendant when Mary failed to

show up for work that day, no one could contact him during the morning hours

that Mary and Carley were initially missing. Witnesses saw defendant or the

family’s van that morning in the area where the van — containing Mary’s and

Carley’s bodies — was later found. The crime scene inside the van had been

staged to make it appear as if a robbery and sexual assault had occurred. The

prosecution also presented defendant’s statements and behavior indicating

consciousness of guilt and physical evidence linking defendant to the murders.

b. Defendant’s Finances

In April 1999, defendant and Mary had been married for 10 years. They

lived in a house on Garfield Street in Riverside with their two daughters, eight-

year-old Ashley and three-year-old Carley. Mary was manager of a Jenny Craig

weight loss center in Riverside. Defendant, who had been disabled in a workplace

accident, was a stay-at-home father. Defendant had 13 credit card accounts with a


total debt of $117,883 and had reached his maximum credit limit on those

accounts. Although the family’s monthly income was $4,259, their monthly

expenses, including minimum credit card payments, were $8,620.

Tax records showed a loss of $71,955 during 1998. In 1998, a Charles

Schwab brokerage account that defendant used for day trading contained over

$20,000. By April 1999, the account’s balance had fallen to $335. In 1998, an

account with Irvine Trading Company that defendant used to trade commodities

and futures contained over $46,000. By April 1999, the account’s balance had

fallen to $125.

The Kopatz family had nine insurance policies covering various family

members. In the event of the deaths of Mary and Carley, defendant stood to gain

more than $800,000 as beneficiary. Defendant also had an insurance policy that

provided $13,628 in coverage for the loss of Mary’s wedding and anniversary


c. Morning Hours When Mary and Carley Kopatz Were Initially

Missing and Defendant Could Not Be Reached

Every morning from December 1998 to April 21, 1999, defendant and his

younger daughter Carley took Ashley to school at 8:00 a.m. However, on the

morning of April 22, 1999, defendant took Ashley to school at the usual time, but

Carley did not accompany him.

David Laird worked near the Kopatzes’ home on Garfield Street and

frequently drove past it. He often saw defendant working in his yard with a van

parked in the driveway. At 8:55 a.m. on April 22, Laird drove by on his way to

work, but did not see defendant. Laird also noticed that the family’s van was

gone, but that a Chrysler sedan was parked in the driveway. Mary Kopatz usually

drove the Chrysler.


When Mary failed to show up at work at her scheduled time of 11:00 a.m.,

Mary’s coworkers at Jenny Craig became concerned, since she was always

punctual. Mary’s coworker, Mary Burdick, called the Kopatzes’ residence at

11:00 a.m., but there was no answer. Burdick and another coworker called the

house every 15 minutes between 11:00 a.m. and 12:15 p.m., but there was no


Linda Lee, the secretary at Ashley Kopatz’s school, called the Kopatzes’

residence several times around 11:30 a.m., to obtain permission to give Ashley, a

diabetic, an insulin injection. There was no answer. Ashley periodically checked

her own blood-sugar levels while in class. She typically had high blood-sugar

levels two or three times a week. When that occurred, the school principal,

Patricia VanDyke, would call defendant or Mary Kopatz.

VanDyke returned to her office at noon. Around 12:05 p.m., after Lee

informed her of Ashley’s high blood-sugar level, VanDyke called the Kopatzes’

house. There was no answer. She then called Mary Kopatz’s work number, and

was told that Mary had not arrived at work and that her coworkers were

concerned. VanDyke then called defendant’s cell phone, but there was no answer.

Never before had VanDyke had occasion to call defendant’s cell phone. She often

needed to contact defendant, and had nearly always been able to reach him at

home. On the rare occasion when defendant could not be reached, VanDyke had

successfully contacted Mary at work.

VanDyke gave Ashley the insulin shot. At 12:30 p.m., she called Mary’s

work again, but was told that they had not heard from Mary. VanDyke called the

Kopatzes’ home and defendant’s cell phone again, but there was no response. She

called his pager and left the school’s telephone number.

About 12:30 p.m., Mary’s coworker, Mary Burdick, drove by the Kopatzes’

house, but did not see defendant. She saw Mary’s car parked in the driveway, but


did not see the family’s van. Burdick drove home and called the Kopatzes’ home

several more times, but received no answer.

d. Discovery of Mary Kopatz’s and Carley Kopatz’s Bodies;

Defendant’s Conduct Before and After the Discovery

About 1:00 p.m. on April 22, David Laird drove by the Kopatzes’ house

again and saw defendant working on a sprinkler near the front driveway. Maria

Montoya, defendant’s neighbor, also saw defendant working in the front yard

between 12:00 p.m. and 1:00 p.m.

At 1:15 p.m., Mary Burdick called the Riverside police to report Mary

Kopatz missing, but the police would not take a missing person report from her.

About 1:15 p.m., defendant called Jenny Craig and spoke to Jean Black.

Defendant calmly asked if his wife had brought Carley to work with her. Black

reported that Mary had still not arrived. Defendant explained that Mary was going

to run some errands and pick up prescriptions at Sav-on and Walmart. He

mentioned that Mary’s cell phone and pager were on the counter at home, but Jean

knew that Mary took her cell phone “everywhere she went,” in case Ashley

needed insulin. Defendant said he had been outside “digging all day,” had lost

track of time, and had come inside to get a drink of water. During the

conversation, defendant knocked over a glass of water, exclaimed, “Oh shit,” and

began to act “rattled” and “panicked.”

At 1:30 or 1:40 p.m., Mary Burdick called defendant again and defendant

answered. Burdick said that she was worried because Mary still had not shown up

at work and Ashley’s school had called about her injection. Sounding upset,

defendant said that he had spoken to Jean Black and was aware of the situation.

Burdick told him she had gone to the house and assumed they were out since the

van was not there. She asked defendant where he had been all morning. He

replied that he had been in the backyard working all day and that Burdick should


have gone there to talk to him.2 Defendant stated that Mary and Carley had left

the house between 8:30 and 9:00 a.m. to run errands; he thought Mary had taken

Carley to work for “take your daughter to work day.” However, Burdick knew

that two weeks earlier, Mary Kopatz had advised the staff at a meeting not to bring

their children to work for liability reasons. Mary had also mentioned that Carley

was too young to come to work. Burdick was still concerned about Mary. She

spoke to her husband Doug Burdick and he agreed to go over to the Kopatzes’


At 2:00 p.m., defendant called Principal VanDyke. Sounding “frantic” and

“highly upset,” defendant declared that Mary was missing and he could not find

her. VanDyke told him the school had been trying to contact him and asked where

Carley was. Defendant responded that Carley was with Mary; he did not hear his

cell phone because he had been in the backyard and it had been on the kitchen

sink. He told VanDyke that Mary’s purse was on the kitchen sink and that she had

only taken her wallet. While they were talking, defendant informed VanDyke that

Doug Burdick had just pulled up to the house; she asked to speak with Burdick.

VanDyke asked Burdick to look after defendant, while she took care of Ashley.

Doug Burdick arrived at the Kopatzes’ house between 2:10 and 2:15 p.m.

Burdick asked defendant what he had been doing all day. Defendant responded

that he had been digging and installing sprinkler pipe in the backyard. It did not

appear to Burdick that defendant had been digging, however. Defendant was not

sweaty and was dressed all in white. There was no dirt on his pants, shirt, or


The prosecution presented impeachment evidence that on April 22,

defendant dropped off some clothing at the dry cleaners between 11:30 a.m. and
12:00 p.m.


hands. However, there was “blue paint” on the tops of defendant’s hands and on

his forearms.3

When Doug Burdick asked if anyone had heard from Mary, defendant

began shaking and crying. He declared that something was wrong and they could

not find Mary. Burdick assured defendant that Mary might be running late or

possibly had a flat tire. Defendant related that Mary was supposed to fill a

prescription at Sav-on and then go to Walmart. Burdick saw Mary’s purse next to

the kitchen sink and a set of keys, a cell phone, and a pager on a shelf near the

front door. When Burdick asked why Mary’s purse was still there, defendant

explained that Mary only took her wallet and left her purse at home.

When Doug Burdick asked if he had called the police, defendant said no.

Burdick told defendant that his wife had attempted to file a police report, but the

police “would not take it.” He recommended that defendant call the police.

Becoming agitated and angry, defendant declared it was a “fucking pain in the

ass” and said he did not want to call the police. He exhibited strange behavior,

repeatedly spitting in the sink, exclaiming it was a “fucking pain in the ass,” and

intermittently folding clothing. He complained that the police would not care and

would place his call on hold.


Other witnesses also saw what they described as blue “PVC glue” on

defendant’s hands, wrists, and elbows. It was the prosecution’s theory that
defendant was trying to hide scratches and cuts on the areas covered by the glue.
Doug Burdick testified that he saw a wagon containing PVC pipes in the
driveway, but that the PVC pipes were still tied together in a bundle and did not
appear to have been used. On the other hand, defendant’s brother, Alan Kopatz,
testified that when he went to the Kopatzes’ house on the afternoon of April 22, he
saw PVC pipes and tools spread over the driveway. It appeared to Alan that work
had been done in the front yard; freshly cut PVC pipes had been laid in two holes
dug there.


Around 3:15 p.m., Doug Burdick finally convinced defendant to call the

police. At one point, defendant was placed on hold and became very upset. He hit

the kitchen cabinet with his fist, and exclaimed, “Ah fuck. Here we go again.”

During the conversation with police, defendant reported that his wife and daughter

were missing and that his wife had failed to show up for work at 11:00 a.m.

Contrary to his statement to Mary Burdick, defendant claimed that he last saw his

wife at 7:30 a.m., before he took Ashley to school. He also told the police that he

did not think his wife was going to take his daughter to work with her, that he

expected her to return home after running errands and before going to work, and

that he had called hospitals and had been doing yardwork.

At the Kopatzes’ house, Burdick saw two rings next to the bathroom sink.

At trial, he described the rings as having “a similar cut” to Mary’s wedding ring

and as being “very, very similar” to Mary’s anniversary band.

Defendant’s brother, Alan Kopatz, arrived at the Kopatzes’ house about

3:20 p.m., after learning that Mary was missing. Alan asked what Mary had been

doing that morning. Defendant responded that she was going to Sav-on to pick up

a prescription and then run a few errands. He stated that he had called Sav-on to

see if Mary had been there, but was told that she had not picked up the

prescription.4 He stated that he had called the police and hospital emergency


Alan Kopatz announced that he was going to Sav-on to search for the

family’s van. He grabbed defendant’s keys, in case he found the van. Defendant


Several Sav-on employees testified that they worked on the morning of

April 22, 1999, but did not recall defendant calling to ask whether his wife picked
up a prescription. One employee testified that such a phone call would have been
unusual, since defendant was the one who usually picked up prescriptions from the


became very agitated and ordered Alan not to take “the whole fucking set of

keys.” Defendant removed the van key from the keychain and gave the key to

Alan. Alan drove through the Sav-on parking lot, but did not see the van.

Alan drove to a nearby Walmart where Mary shopped. While driving, he

saw the family’s van parked on Duncan Avenue, about one mile from the

Kopatzes’ house. He stopped and tried to look inside the van, but his vision was

obscured by the tinting on the windows. He could not open the door. He asked

the resident of a nearby house, John Lopez, if he could use Lopez’s phone for a

possible “emergency.” Alan called the Kopatzes’ house and defendant answered

the phone. When Alan related that he had found the van, defendant let out a deep

sigh and exclaimed, “Oh, my God.” Alan asked to speak to Mary’s father, who

had arrived at the house earlier, and gave him directions to the van.

Alan walked back to the van and looked inside again. This time, he placed

his hands on the window to help him see into the van. He saw Mary’s body on the

floor, ran back to Lopez’s house, and called 911. While still on the phone with the

911 operator, Alan returned to the van and saw Carley’s facedown body.

Riverside firefighters arrived at the scene and found Mary Kopatz’s body

on the floor of the van and Carley Kopatz’s body near the rear seats. Carley’s

body lay facedown. There was a large pool of blood under her face and her arms

and shirt were bloodied. Mary’s body lay faceup. Mary’s belt was unbuckled.

Her pants were unbuttoned, unzipped, and spread open, exposing her underwear.

Her bra was “protruding” from under her shirt. Her shoes were not on her feet, but

were in the van. There were no rings on her fingers.

On the van’s floorboard, the police found two torn-up blank checks from

the Kopatzes’ checking account. They also found Mary’s wallet containing a $20

bill, credit cards, her driver’s license and Social Security card, and store receipts.

There were more cards and receipts strewn on the floorboard. None of the receipts


were dated that day, April 22, 1999. The driver’s seat was at its farthest position


Alan Kopatz called the Kopatzes’ house and spoke to his mother, who by

then was also at the house. He told her that Mary and Carley were dead. When

she told this to defendant, he exclaimed, “Oh my God. Not my baby too,” and

began hitting his head against a cupboard.

At 6:00 p.m., Officer Patrick McCarthy arrived at the Kopatzes’ house.

Paramedics were already there, examining defendant in response to his complaints

of back pain. After their examination, the paramedics announced that defendant

was fine and left the house around 6:30 p.m.

About 6:30 p.m., Sergeant Patrick Watters arrived at the Kopatzes’ house.

He spoke with defendant’s father, who related that defendant said he had taken his

older daughter to school at 8:00 a.m. and that Mary was going to take Carley to

work with her.

At 6:43 p.m., police evidence technician Carlton Fuller arrived at the

Kopatzes’ house and conducted a gunshot residue test on defendant’s hands.

Fuller saw red marks on defendant’s eyelid and wrist, scratches on his forehead

and hands, cuts on his hands, bruises around his elbows, and “blue glue” on his

hands. When Fuller took swabs from his hands and took photographs, defendant

leaned away and became uncooperative. Defendant’s hands shook as Fuller

photographed them. When Fuller asked defendant questions, he did not answer.


The prosecution’s theory was that because defendant was taller and

weighed more than Mary, the driver’s seat was positioned for defendant, not for
Mary. Defendant is 5 feet 10 inches tall and weighed 165 pounds. Mary was 5
feet 6 inches tall and weighed 134 pounds when she died.


Throughout the evening at the Kopatzes’ house, Officer McCarthy and

Sergeant Watters heard defendant repeatedly complain of severe back and head

pain; they did not hear him ask questions about the progress of the investigation

relating to his wife or daughter.6 Sometime after 8:00 p.m., the paramedics

returned to the house in response to defendant’s demands to be seen again.

Between 8:00 and 9:00 p.m., the paramedics took defendant to the hospital.

Officer McCarthy also went to the hospital.

At 9:00 p.m., senior evidence technician Tim Ellis arrived at the hospital to

photograph defendant. The left side of defendant’s face was red. He had

scratches on his left arm and right hand. Blue glue covered his left and right

hands. While being photographed, defendant shook “rather badly” and “moaned

and groaned a lot.”

Officer McCarthy remained at the hospital while defendant was there. At

the hospital, defendant never asked about the murder investigation, but only

complained of back pain. Shortly before midnight, the emergency room staff gave

defendant pain medication and discharged him. Officers McCarthy and Donald

Goodner walked with defendant to the patrol car and drove him to the detective

bureau. While in the patrol car, defendant continued to complain about head and

neck pain, but asked no questions about the investigation or about his wife or

daughter. On their arrival at the detective bureau, defendant complained that his

pain was becoming more severe.


Doug Burdick testified that while he was at the Kopatzes’ house, defendant

never complained of back pain.


e. Defendant’s Interview with Police

Detectives Steven Shumway and Gary DeVinna interviewed defendant at

1:00 a.m. on April 23. Defendant related that he took Ashley to school and

returned home between 8:30 and 9:00 a.m. to find Mary and Carley getting ready

to leave the house. At 9:00 a.m., Mary left with Carley to run errands,7 which

included picking up a prescription at Sav-on. Mary intended to come home before

she left for work at 11:00 a.m. After they left, defendant installed pipes for

sprinklers in the front yard and cleaned around the pool in the backyard. He did

not hear the calls from Mary’s work because the phone was in the house and he

was outside. When the detective commented that his fingernails were “pretty

clean” for having worked in the dirt, defendant replied that he had been washing

his hands. When asked about the “fresh injuries” on his wrists, defendant claimed

that he received them six months earlier from pulling out the roots of the trees in

his yard. He also claimed he hit his head that afternoon on a brick planter while

digging and installing pipes.

Between 1:00 and 1:30 p.m., defendant realized Mary was missing and

called the police and several hospitals. He also called Sav-on to determine if she

had picked up a prescription. The police had told him to call the hospitals. When

he did, no one was there. He denied any knowledge of the killing of Mary and


Shortly before 2:00 a.m., the interview concluded and Officers McCarthy

and Goodner drove defendant to his brother’s house. During the drive, he

continued to complain about his pain.


Although defendant’s statement to the detectives was consistent with what

he had told Mary Burdick, his statement to the 911 dispatcher was different. He
told the dispatcher he last saw Mary and Carley at 7:30 a.m., before he took
Ashley to school.


f. Defendant’s Behavior After the Murders

On April 24, two days after the murders, defendant and his daughter Ashley

went to Mary’s parents’ house. Defendant asked Robert Foley, Mary’s brother, if

he could park his car towards the back of the house. Defendant believed that the

police had followed him as he drove there and that they had bugged his car. He

told Mary’s father and brother that there had been a lot of police around his house,

warned them not to talk to the police, and gave them the business card of an

attorney. Defendant instructed that if the police contacted them, they should not

talk to the police, but instead refer them to the attorney.8

Robert Foley and his sister, Janet Foley, saw scratches on defendant’s

hands, forearms, forehead, and face, and a bump on his forehead. There was no

longer any blue PVC glue on defendant’s hands. Defendant explained that while

working in his backyard, he bumped his head on a brick and scratched his hand

while digging and installing pipes.

On the morning of April 26, defendant called Mary Burdick and asked if

she went to his house at 11:00 or 11:30 on the morning of the murders. Mary

replied that she went to his house at 12:30 p.m., after his wife failed to come to

work. Defendant explained that he “must have been out to lunch or eating lunch”

when she came by.

The insurance policy, which covered Mary’s wedding and anniversary

rings, was due to expire on April 26, four days after the murders. On that same

date, defendant made a claim for $13,628 under the policy. When the claims

specialist called defendant the next day, defendant claimed that his wife had been


The business card contained information for one of the attorneys who later

represented defendant at trial.


wearing her rings when she was murdered, but that the rings were missing when

her body was found in the van.

The police found a printed list of stocks, stock quotes, and dates next to

defendant’s computer. The printout showed that defendant had played an online

fantasy stock game on various dates, including the days before and after the


g. Defendant’s and the Van’s Whereabouts on the Morning of the


The police interviewed various witnesses who lived near the Duncan

Avenue location where the van and bodies had been discovered. John Lopez lived

on Duncan Avenue, about one mile from the Kopatzes’ house. Lopez saw the van

parked two houses from his house during the morning of April 22. The van was

still there when he returned from a medical appointment at 11:00 a.m.9 Lopez’s

wife confirmed that she also saw the van around 11:30 a.m.

Two witnesses who lived on Nellie Street, which runs perpendicular to

Duncan Avenue, also saw the van drive past their house sometime before noon.

Edward “Les” Ballou lived on Nellie Street, around the corner from

Duncan Avenue. On April 22, between 10:00 a.m. and 10:30 a.m., Ballou was in

his front yard and saw defendant walk by. Ballou said “hi.” Defendant responded

“ ‘hello,’ ” but appeared to be “dour” and angry.10


On April 23, Lopez told the police that he first saw the van around 8:40

a.m., but a few days later, he said to them he was not sure he had seen the van that
early. However, he was positive he saw the van at 11:00 a.m.

Ballou died before trial. Ballou’s testimony was presented through his

preliminary hearing transcript.


h. The Autopsy Findings

Both Mary and Carley Kopatz died from asphyxia due to ligature

compression of the neck. The ligature marks indicated that Mary and Carley had

been strangled from behind with a smooth cord, such as a nylon rope or electrical

cord. There were two ligature marks across Mary’s neck, indicating that she had

been moving and struggling while being strangled. There was only one ligature

mark across Carley’s neck, indicating that Carley had not been moving or

struggling while being strangled.

Mary had also suffered two broken ribs on her right side, which was not a

fatal injury, but likely a cause of significant pain. The broken ribs could have

been caused by a knee placed forcefully against her ribcage as she lay on the


In addition, Mary had suffered blunt force trauma to her face and the back

of her head. She had bruising and discoloration on the left side of her face and

behind her left ear, a blackened right eye, and bleeding inside her scalp. There

was a streak of blood that went from Mary’s right ear to her cheek and stopped

near her nose. This suggested that Mary’s body had been moved; the body had

been facedown at some point, contrary to the faceup position in which she was

found in the van. There were contusions on her left elbow, left shoulder, left

wrist, and the back of both hands and knees. A few of Mary’s fingernails were

broken, but it could not be determined whether they were “freshly broken.” There

was a small amount of tissue, which appeared to be skin, adhering to one of her

fingernails. There were no injuries consistent with sexual assault.

Carley suffered a slashing wound to the skin of her neck. It was likely

inflicted postmortem by a sharp instrument with a cutting edge. The wound

exposed, but did not damage, her larynx and thyroid. There were superficial

slashing wounds to Carley’s right arm, but no other bruises or injuries.


i. Forensic Test Results

Suspecting that the murders had not occurred in the van, the police

collected a portion of carpet and of a hallway doorframe from the Kopatzes’

house, which tested positive for blood. Criminalist Daniel Gregonis determined

that the DNA profile from the blood on the doorframe was an exact match to

Mary’s profile, providing “strong evidence” that Mary was a “good potential”

source of the blood.11 Gregonis could not obtain a DNA profile from the blood on

the carpet. He stated that a possible explanation for the inability to obtain a profile

was the presence of an inhibitor, such as a cleaning solution, that had been applied

to the stain. Criminalist Michele Merritt noted a stain on the back of the carpet, but

could not determine if it was from cleaning fluid. She opined that if any liquid

had been applied to the bloodstain, it was after the blood had dried completely.

Fibers found on Mary’s front torso, left sock, and lower left leg were

consistent with fibers from the carpet in the Kopatzes’ house.

DNA testing eliminated Mary and Carley as contributors to the scrapings

found under Mary’s fingernails, but could not eliminate defendant as a possible


2. The Defense’s Case

Mary Rolle lived across the street from the Kopatzes’ house. About 9:00

a.m. on the day of the murder, she spoke to defendant in front of her house. There

was nothing unusual about his demeanor.12


Gregonis testified that the blood from the hallway doorframe could be

expected to be found in about 1 in 4.2 million Caucasians, 1 in 7.6 million
Hispanics, and 1 in 95 million African-Americans.

The defense presented Rolle’s testimony to impeach Lopez’s testimony that

he saw defendant’s van near his Duncan Avenue house at 8:30 or 8:45 a.m. the
morning of the murders.


Arthur Kopatz, defendant’s brother, testified that after receiving a past due

notice on one of defendant’s insurance policies, he signed defendant’s name on the

notice and wrote, “Mary was murdered 4-22-99. Death cert not released as of 7-

06-99.” Arthur stated that he did this to cancel the deductions taken from

defendant’s checking account, and not to make a claim on the policy for


Doug Burdick was first interviewed the day after the murders. At trial, he

testified that he could not recall if he had told the police he had seen rings in the

Kopatzes’ bathroom. However, before his trial testimony, Burdick asked a police

detective if the rings were ever located.

B. Penalty Phase

1. The Prosecution’s Case

The prosecution presented victim impact evidence from Mary and Carley’s

family members.

2. The Defense’s Case

Defendant presented testimony from his family and neighbors. They

portrayed defendant as being quiet, dependable, and close to his children and

siblings, and as having an even-keeled temperament and a good marriage. They

testified that defendant had had an accident at work; afterwards, he went on

disability, suffered headaches, and stuttered.

3. Prosecution Rebuttal Evidence

Mary’s coworker, Jean Black, testified that about nine months before the

murders, she attended a party at the Kopatzes’ house. Before the party, Mary

warned Black that defendant behaved unpredictably, that he sometimes had angry

outbursts and used obscenities. She attributed this behavior to his workplace

injury. Mary confided that she was unhappy in her relationship with defendant,


describing it as “not a close loving” one. At the party, Black saw one of

defendant’s angry outbursts, during which he cursed at his guests.

Several weeks before the murders, Black ran into Mary and her daughter,

Ashley, at the shopping mall. When Ashley asked Mary if they were going home,

Mary replied, “You saw how mad your father was, we can’t go home yet.”


A. Guilt Phase Issues

1. Suppression Motion

At trial, defendant moved to suppress evidence of his videotaped interview

with the police on the ground that he was unlawfully seized under the Fourth

Amendment when taken to the detective bureau and subjected to custodial

interrogation without being given Miranda warnings (Miranda v. Arizona (1966)
384 U.S. 436). The trial court denied the motion. It found that because defendant

was not in custody, Miranda warnings were not required. Consequently, the

prosecution played for the jury the videotape of defendant’s interview during its

case-in-chief. On appeal, defendant contends that the trial court erred in denying

his suppression motion. We find no error. We conclude that defendant was not

seized when taken to the detective bureau and not in custody when questioned by

the detectives.

a. Underlying Facts

Towards the end of the prosecution’s case-in-chief, the prosecution re-

called Detective Shumway to present evidence of defendant’s interview with the

police. At that point, defense counsel moved to suppress evidence of the

interview. Counsel argued that he had believed defendant voluntarily

accompanied the officers to the detective bureau until Officer McCarthy

completed his trial testimony.


During his cross-examination, Officer McCarthy stated that the

investigating detectives directed him to transport defendant to the detective

bureau. When they were leaving the hospital, Officer McCarthy told defendant

they were taking him to the detective bureau, but could not recall if he asked

defendant for his permission. Defendant did not object to going to the detective

bureau, was not handcuffed, and was not under arrest.

Based on this testimony, defense counsel argued that because the officers

did not ask defendant for permission to take him to the detective bureau, the

interview was the product of an “illegal transport/detention.”

Officer Goodner and Detective Shumway testified at the suppression

hearing. Officer Goodner stated that he was at the Kopatzes’ house for about 45

minutes. During that time, defendant moved freely around the house and the

officers did not restrict his movements. After defendant asked the paramedics to

take him to the hospital, a police sergeant directed Officer Goodner to go to the

hospital and then transport defendant to the detective bureau. At the hospital,

Officer Goodner told defendant he was being taken to the detective bureau

because “they would like to talk to him there.” Defendant responded, “Fine.”

Defendant walked out of the hospital to the police car on his own accord.

The officers did not handcuff him, place him under arrest, or restrict his

movements. They did not frisk or search defendant before he entered the police

car. During the 10-minute ride to the detective bureau, defendant did not make

any complaints. Officer Goodner escorted defendant to the detectives inside the

station and waited until the interview was over. He then drove defendant to his

brother’s house. Defendant never told Officer Goodner he wanted to leave.

Detective Shumway testified that about 1:00 a.m. on April 23, 1999, he and

Detective DeVinna interviewed defendant in an unlocked interview room. They

knew defendant had reported to the police that his wife and daughter were missing


and wanted him to describe Mary’s and Carley’s activities on the day of the

murders. They did not consider him to be a suspect, but a witness who was free to

leave any time he wished. Defendant was not handcuffed and his movements

were not restricted. The interview began almost immediately after defendant’s

arrival. The detectives told defendant they were going to ask some questions and

he could then leave. Defendant did not object to the interview.

During the interview, the detectives asked when defendant last saw his wife

and daughter and what he had been doing that day. At one point, they gave

defendant some water. At another point, defendant asked to go to the bathroom.

As per policy, Detective Shumway escorted defendant there and waited to walk

him back to the interview room. Towards the end of the interview, defendant

asked how much longer it would take. The detectives replied that he could go

home after they asked him a few more questions. The interview lasted less than an

hour and never became accusatory.

Detective Shumway testified that if defendant had not wanted to go with

the officers to the detective bureau, the detectives would have gone to the hospital

to talk with him there. He stated that because nobody was at the detective bureau

to take defendant home, he asked Officers Goodner and McCarthy to transport


The detectives also interviewed defendant’s daughter, Ashley, at the

detective bureau at another time. Detective Shumway stated that it is “extremely

critical” to a homicide investigation to obtain statements within 72 hours from

people who had the last contact with the victims.

After reviewing the videotape of defendant’s interview and the transcript of

the trial testimony relating to the interview, the trial court denied defendant’s

suppression motion. The court reasoned that under the totality of the

circumstances, a reasonable person in defendant’s position would not have


believed he was in custody, and thus, Miranda warnings were unnecessary.

Defendant renews his claim that: (1) he was unlawfully seized under the Fourth

Amendment when taken to the detective bureau and (2) subjected to custodial

interrogation without being given Miranda warnings at the detective bureau in

violation of his Fifth Amendment rights.

As to the Fourth Amendment claim,“[i]n ruling on a motion to suppress, the

trial court must find the historical facts, select the rule of law, and apply it to the

facts in order to determine whether the law as applied has been violated.

[Citation.] We review the court’s resolution of the factual inquiry under the

deferential substantial evidence standard. The ruling on whether the applicable

law applies to the facts is a mixed question of law and fact that is subject to

independent review.” (People v. Ramos (2004) 34 Cal.4th 494, 505.)

“A person is seized by the police and thus entitled to challenge the

government’s action under the Fourth Amendment when the officer, ‘ “by means

of physical force or show of authority” ’ terminates or restrains his freedom of

movement, [citations], ‘through means intentionally applied,’ [citation].”

(Brendlin v. California (2007) 551 U.S. 249, 254.) “When the actions of the

police do not show an unambiguous intent to restrain or when an individual’s

submission to a show of governmental authority takes the form of passive

acquiescence,” the test for determining if a seizure occurred is whether, “ ‘in view

of all of the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave,’ [citation].” (Id. at p. 255.) The

coercive effect of the encounter can be measured by whether “ ‘a reasonable

person would feel free to decline the officer’s requests or otherwise terminate the

encounter,’ [citation].” (Ibid.)

As to the Miranda claim, “ ‘[b]efore being subjected to “custodial

interrogation,” a suspect “must be warned he has a right to remain silent, that any


statement he does make may be used as evidence against him, and that he has a

right to the presence of an attorney, either retained or appointed.” ’ ” (People v.

Leonard (2007) 40 Cal.4th 1370, 1399-1400.) Whether a defendant was in

custody for Miranda purposes is a mixed question of law and fact. (People v.

Ochoa (1998) 19 Cal.4th 353, 401.) “When reviewing a trial court’s

determination that a defendant did not undergo custodial interrogation,” an

appellate court accepts the trial court’s findings of historical fact if supported by

substantial evidence, but independently determines “whether, given those

circumstances,” the interrogation was custodial. (People v. Leonard, supra, 40

Cal.4th at p. 1400.)

An interrogation is custodial when “a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” (Miranda v.

Arizona, supra, 384 U.S. at p. 444.) The test for Miranda custody is, “ ‘would a

reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave.’ ” (Yarborough v. Alvarado (2004) 541 U.S. 652, 663.)

The objective circumstances of the interrogation are examined, not the

“ ‘subjective views harbored by either the interrogating officers or the person

being questioned.’ ” (Ibid.)

Thus, as relevant here, the test for determining whether a person was seized

under the Fourth Amendment or was under Miranda custody is essentially the

same: whether a reasonable person would have felt he or she was at liberty to

leave or to decline the officers’ requests to go to the detective bureau and be

interviewed there.

Here, defendant’s encounter with Officers Goodner and McCarthy between

the hospital and the detective bureau was consensual. (People v. Terrell (1999) 69

Cal.App.4th 1246, 1253.) When Officer Goodner told defendant he was being

taken to the detective bureau because “they would like to talk to him there,”


defendant indicated assent by responding, “Fine.” The officers did not handcuff

defendant or display any weapons. Defendant walked unassisted to the patrol car.

The officers did not frisk or search defendant before he entered the patrol car. (In

re Manuel G. (1997) 16 Cal.4th 805, 821 [circumstances establishing seizure

include presence of several officers, officer’s display of weapon, some physical

touching of the person, or use of language or tone of voice indicating compliance

with officer’s request might be compelled].) The drive to the station was only 10

minutes, and defendant did not voice any complaints or opposition.

Defendant claims that his response, “Fine,” was an acquiescence to the

officers’ show of authority, especially since they did not say he was free to go and

he had just spent several hours in the emergency room, had no other means of

transportation, and was dressed in shorts and a T-shirt. Defendant further argues

that he was transported in a locked cage in the back of the patrol car and relies on

Kaupp v. Texas (2003) 538 U.S. 626, 629. In that case, three police officers,

despite being unable to get a warrant for his arrest, woke Kaupp, a 17-year-old

suspect, at 3 a.m. They told him “ ‘we need to go talk’ ” and that they were taking

him to the police station. (Ibid.) Kaupp responded, “ ‘okay.’ ” (Ibid.) The

officers “handcuffed him and led him shoeless and . . . in [his] boxer shorts . . .

[to] a patrol car.” (Ibid.) The officers transported him to the scene of the crime

and then to the police station. The high court held that in this situation, a

reasonable person would not feel that he or she could leave the interview and that

Kaupp’s response was “ ‘a mere submission to a claim of lawful authority.’ ” (Id.

at pp. 631-632.)

Defendant’s argument is unpersuasive. Officers are not required to inform

individuals of their right to refuse police requests. (People v. Zamudio (2008) 43

Cal.4th 327, 346.) Moreover, unlike Kaupp, the police here did not exhibit any

claim of lawful authority. Defendant initiated the police encounter by reporting


his wife and child missing. The officers met defendant at the emergency room,

asked to speak with him, and transported him to the station without handcuffs.

From the circumstances, it is reasonable to infer that defendant wanted to

accompany the officers to the station, in part, to obtain a ride since he had no other

means of transportation.

At the detective bureau, the interview itself was investigatory, lasted less

than an hour, was not “hostile, menacing, or accusatory,” and occurred in an

unlocked room. (People v. Zamudio, supra, 43 Cal.4th at p. 345; see People v.

Stansbury (1995) 9 Cal.4th 824, 828, 832, 834 [no custodial interrogation where

defendant not considered a suspect at time of interview and officers’ questions

were investigatory, not accusatory]; Green v. Superior Court (1985) 40 Cal.3d

126, 131-133, 135 [same].) Defendant knew he was not under arrest since he was

told he could leave after the interview. (See Oregon v. Mathiason (1977) 429 U.S.

492, 495 [no custody where defendant came voluntarily to police station, and told

immediately he was not under arrest].]) The detectives asked about Mary’s and

Carley’s activities that morning, defendant’s activities that day and the

circumstances of discovering the van. Defendant answered all of their questions,

and did not confess to any involvement in the murders. After the interview,

defendant, who had earlier been allowed to use a detective bureau restroom, was

not arrested and was instead driven home. (See People v. Leonard, supra, 40

Cal.4th at p. 1401; People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.)

Defendant contends that the detectives’ manner communicated that they

were in control. They said, “I’m going to ask you some questions,” “sit up a bit

now,” and “open your eyes and look at this.” However, the record shows that, in

context, these statements were made in connection with the officer’s efforts to

determine whether defendant understood and voluntarily signed a statement

allowing the police to search his house for evidence. Defendant claims that he


was not free to leave when he said, “I’m very sore, very tired. I’m sorry,” and the

detectives responded, “[W]e’ll try and get this done as quickly as we can.” Again,

the record shows that, in context, it appears defendant was apologizing for

misunderstanding a question by one of the officers, not indicating that he wanted

to end the interview. Finally, defendant argues that the detectives communicated

their control by repeatedly requesting him to speak up. Detective Shumway

testified that they were having difficulty understanding defendant. Consequently,

they asked him to speak up.

Toward the end of the interview, the officers left the room and gave

defendant a break, during which he said to no one in particular, “Oooh. Don’t

leave me in here for 30 fucking min --, minutes. I gotta go.” This was not

directed to the officers. Even if these words indicated that defendant subjectively

believed he was not free to go, the test is whether a reasonable person would feel

free to leave. (Yarborough v. Alvarado, supra, 541 U.S. at p. 663.) When the

officers returned, they stated that they were almost done and only had a few more

questions before he could go home. After asking a few more questions about

Mary and the day of the murders, the detectives ended the interview. Thus, there

was no indication that defendant’s “freedom to depart was restricted.” (Oregon v.

Mathiason, supra, 429 U.S. at p. 495.)

In examining all of the uncontradicted facts surrounding the police

encounter with defendant, it is clear that a reasonable person in defendant’s

situation would have believed he was free to leave at any time and to terminate the

interview. Accordingly, defendant was not unlawfully seized when the police

transported him to the detective bureau and not in custody when he was

interviewed. The trial court correctly denied defendant’s motion to suppress the



2. Admission of Deceased Witness’s Prior Consistent Statement

Defendant argues that the trial court prejudicially erred in admitting, as

prior consistent statements, Mae Ballou’s testimony regarding her husband’s

identification of defendant as the man he saw walking by his house on the morning

of the murders.

Edward “Les” Ballou died before trial. On the prosecution’s motion, and

with no objection from defendant, the trial court found Les unavailable and

admitted his preliminary hearing testimony at trial. (Evid. Code, § 1291, subd.


At the preliminary hearing, Les Ballou had testified that he lived on Nellie

Street, around the corner from Duncan Avenue where the bodies of Mary and

Carley were found. On April 22, 1999, the day of the murders, he was working in

his front yard between 10:00 and 10:30 a.m. and said “hi” to a man who walked

by. The man was walking away from Duncan Avenue. Although the man replied

“ ‘hello,’ ” he was “not very nice” and seemed angry. Les identified defendant as

the man he saw that morning.

After he saw defendant on April 22, Les Ballou saw a photograph of

defendant in the June 3, 1999 edition of a newspaper. He testified he was “pretty

sure” that defendant was the man who had walked by his house on the day of the

murders. When Les saw defendant’s photograph, he told his wife Mae, “That’s

the man I saw walking down the street.”

On the prosecution’s motion, and over defendant’s objection, the trial court

admitted the testimony of Les Ballou’s wife, Mae Ballou, regarding prior

consistent statements made by Les to Mae before the preliminary hearing. The

trial court admitted Mae’s testimony, both as substantive evidence and to support

Les’s credibility as a witness, pursuant to Evidence Code sections 1236, 1202, and



At trial, Mae Ballou testified that on the day the police found the van

parked around the corner with the mother and little girl inside, Les Ballou was

working in the front yard. Before noon that day, Les told her that a man had

passed by their house. When Les said hello, the man ignored him and walked

away. Mae believed that the man’s disregard of her husband hurt Les’s feelings.

Mae identified defendant’s newspaper photograph. She stated that she was present

when Les read the newspaper and saw the photograph. He told her that the man in

the photograph was the same man who had passed by and did not say hello to him.

When Mae asked him if he was sure, Les replied yes.

On cross-examination, Mae Ballou acknowledged that the day after the

murders, the police interviewed Les and Mae and asked if they had noticed

anything unusual during the previous morning or afternoon. They only replied

that a man from AT&T was doing some repairs for hours that day.

Defendant claims that the trial court erred in admitting Mae Ballou’s

testimony as substantive proof and to support Les Ballou’s credibility. The

Attorney General agrees that the trial court erred in admitting Mae’s testimony as

hearsay evidence, under Evidence Code sections 1236 and 791, but argues that the

court correctly admitted Mae’s testimony to support Les Ballou’s credibility,

under Evidence Code sections 1202 and 791. We agree with the Attorney


The Attorney General concedes that Mae Ballou’s hearsay testimony did

not qualify as prior consistent statements under Evidence Code sections 1236 and

791 because Les Ballou did not testify at trial. Evidence Code section 1236

permits the admission of a prior statement, as hearsay evidence, if it is consistent

with the witness’s testimony at “the hearing” and is offered in compliance with


Evidence Code section 791.13 Similarly, Evidence Code section 791 permits the

admission of a prior statement that is consistent with the witness’s “testimony at

the hearing” to support the credibility of the witness. The phrase “at the hearing”

refers to “the hearing at which a question under this code arises, and not some

early or later hearing.” (Evid. Code, § 145.)

In People v. Williams (1976) 16 Cal.3d 663, the trial court found a witness

unavailable at trial and admitted his preliminary hearing testimony. We held that

under Evidence Code section 1235, the trial court erred in admitting prior

statements of the witness as inconsistent with his preliminary hearing testimony

because declarant did not testify at trial.14 (People v. Williams, supra, 16 Cal.3d

at pp. 668-669.) In People v. Hitchings (1997) 59 Cal.App.4th 915, 922, the Court

of Appeal extended the holding of Williams to Evidence Code sections 1236 and

791. (Hitchings, at p. 922 [language of Evid. Code, §§ 1235 and 1236 are

“virtually identical” and enacted as part of same legislative bill].)

Les Ballou not having testified at trial — the hearing at which the

admissibility of his prior consistent statements arose — the prior statements were

not consistent with his “testimony at the hearing” within the meaning of Evidence

Code section 1236. However, as the Attorney General asserts, the trial court

properly admitted Mae Ballou’s testimony to support her husband’s credibility

under Evidence Code sections 1202 and 791, subdivision (b).


Evidence Code section 1236 provides:

“Evidence of a statement previously made by a witness is not made

inadmissible by the hearsay rule if the statement is consistent with his testimony at
the hearing
and is offered in compliance with Section 791.” (Italics added.)

Analogous to Evidence Code section 1236, Evidence Code section 1235

allows the admission of a witness’s hearsay statements that are inconsistent with
his or her testimony “at the hearing” under certain conditions.


Evidence Code section 1202 provides, in relevant part: “Any . . . evidence

offered to attack or support the credibility of the [hearsay] declarant is admissible

if it would have been admissible had the declarant been a witness as the hearing.”

Evidence Code section 791 provides, in relevant part: “Evidence of a

statement previously made by a witness that is consistent with his testimony at the

hearing is inadmissible to support his credibility unless it is offered after:

[¶] . . . [¶] (b) An express or implied charge has been made that his testimony at

the hearing is recently fabricated or is influenced by bias or other improper

motive, and the statement was made before the bias, motive for fabrication, or

other improper motive is alleged to have arisen.”

The Attorney General argues that had Les Ballou testified at trial, Mae

Ballou’s testimony regarding Les Ballou’s prior consistent statements would have

been offered to support Les Ballou’s credibility and would have been admissible

under Evidence Code section 791, subdivision (b). On the other hand, defendant

claims that the prior consistent statements cannot be admitted under Evidence

Code sections 1202 and 791 because the foundational requirements of Evidence

Code section 791, subdivision (b) have not been met. He argues that there was no

charge that his testimony at the preliminary hearing was recently fabricated or

influenced by bias or other improper motive.

“[A]n appellate court applies the abuse of discretion standard of review to

any ruling by a trial court on the admissibility of evidence.” (People v. Waidla

(2000) 22 Cal.4th 690, 717.) A trial court has abused its discretion when its ruling

“ ‘fall[s] “outside the bounds of reason.” ’ ” (Id. at p. 714.) We find that the trial

court did not abuse its discretion in admitting the testimony of Mae Ballou

regarding her husband’s prior consistent statements.

On cross-examination at the preliminary hearing, defense counsel

challenged Les Ballou’s credibility by questioning him about the many people


who generally walked by his house, his ability to remember defendant as opposed

to other people who had walked by, and his ability to recall the specific date that

the man walked by. On questioning by counsel, Les Ballou admitted that he spoke

to the police a day after the murders, but did not tell them about seeing defendant.

He did not tell the police about seeing defendant until June 26, 1999, when

Detective Shumway came to his house and interviewed him. Les stated that he did

not make a calendar notation of the date he saw defendant, but told his wife a few

minutes after he saw him.

Counsel further challenged Les Ballou’s credibility by questioning whether

his in-court identification of defendant was based on the photograph rather than on

his recollection of seeing defendant on the day of the murders. Counsel asked

Ballou if the photograph in the newspaper was “seared in your memory,” if he

knew he would be asked to identify the person he saw in the photograph, if he

knew that the person in the photograph would be the accused person in court, if

defendant was the same person he saw in the photograph, and if he had spoken to

the district attorney and Detective DeVinna about the case. Ballou answered

affirmatively to all of counsel’s questions.

During argument on the admissibility of Mae Ballou’s testimony, defense

counsel argued that up until that point, no prior inconsistent statements had been

admitted at trial. Counsel further made an offer of proof that on the day after the

murders, Les Ballou did not tell the police that he saw anything unusual. Counsel

argued that Les Ballou’s “lack of a statement” to the police was not inconsistent

with his preliminary hearing testimony.

After the trial court’s ruling allowing Mae Ballou’s testimony, Mae

testified and defendant then called Detective Shumway as his own witness.

Detective Shumway testified that on April 23, 1999, the police asked Les and Mae

Ballou if they saw anyone unfamiliar or anything out of the ordinary on April 22.


Les and Mae replied they had seen an AT&T repairman doing some work on the

telephone line. Les did not mention seeing someone walking in front of his house

the day before. Similarly, Mae did not mention that Les had told her he had seen

someone unfamiliar walk by their house.

The defense attacked Les Ballou’s credibility by impliedly charging that his

identification of defendant at the preliminary hearing testimony had been recently

fabricated after he saw defendant’s photograph in the paper. It invited the jury to

infer that if Les had seen defendant on the day of the murders, he would have told

the police in response to their questions of whether he had seen anything

unfamiliar or unusual. This broad, implicit charge of fabrication allowed the

prosecutor to admit Les’s prior statements that were consistent with his

preliminary hearing testimony. (People v. Collins (2010) 49 Cal.4th 175, 216

[prior consistent statements admissible to rebut implied charge that witness’s

testimony was based on information in police report and coaching by others rather

than on own recollection]; see People v. Brents (2012) 53 Cal.4th 599, 616 [broad

charge that witness’s entire testimony was unreliable warranted admission of prior

consistent statement to rehabilitate witness].)

Finally, although the trial court improperly admitted Mae Ballou’s

testimony of her husband’s prior statements as substantive hearsay evidence, the

error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Despite its

inadmissibility as substantive evidence, her testimony had limited value for that

purpose: (1) Mae Ballou’s testimony that Les told her that he saw an unfriendly

man on the morning of the murders and that the man in the photograph was the

same man he saw that day was entirely duplicative of Les Ballou’s testimony,

which was subject to cross-examination and (2) Mae had heard these statements

from Les and had no personal knowledge relating to their content. On the other

hand, Mae’s testimony of what Les had told her was properly admitted to support


his credibility. It is not reasonably probable that a result more favorable to

defendant would have been reached if Mae’s testimony had not been admitted as

substantive evidence.

3. Detective Shelton’s Testimony — Alleged Crawford Error

The prosecution presented evidence that the police spoke with a Sav-on

employee, Jennifer Fleming, about whether defendant had called the store’s

pharmacy asking if Mary had picked up a prescription on the day she was killed.

Defendant argues that the officer’s testimony violated defendant’s federal

constitutional right to confrontation under Crawford v. Washington (2004) 541

U.S. 36 (Crawford). Because the officer did not recount what Fleming had told

him, but merely testified that he had spoken to her, there was no admission of an

out-of-court hearsay statement within the meaning of Crawford.

While Mary and Carley were still missing, defendant told Doug Burdick

and Jean Black that Mary planned on running errands, including picking up a

prescription at the Sav-on pharmacy. He told his brother Alan and the police that

he had called Sav-on to find out if Mary had been there to pick up the prescription.

Defendant said he was told that she had not.

To rebut defendant’s claim, the prosecutor called six Sav-on employees

who were working on the morning of April 22, 1999. Four employees (Frank

Lombardo, Mercedes Brand, Juana Longoria, and Sally Swor) testified that they

did not recall whether they received a telephone call from defendant asking if his

wife had picked up a prescription on that day. Lombardo stated that such a

telephone call would have been unusual, and one he would have remembered,

because he did not recall defendant’s wife ever picking up a prescription. Two

other employees (Kevin Rawls and Tina Shaw) testified that they had not received


a telephone call from defendant on that day. The seventh employee who had

worked on April 22, 1999, Jennifer Fleming, did not testify.

The prosecutor then called Detective Robert Shelton. He testified that

within one and a half weeks after the murders, he spoke with all seven Sav-on

employees who had worked on April 22, 1999. Shelton testified that Swor and

Longoria told him they had not spoken to defendant on April 22. The prosecutor

then asked Shelton if he had spoken with Tina Shaw, Kevin Rawls, Mercedes

Brand, Jennifer Fleming, and Frank Lombardo (seriatim), without asking what

they had said. He responded yes as to each employee, without commenting on the

content of their statements.

During closing argument, the prosecutor argued, “The statements by the

defendant show consciousness of guilt. There’s a number of them. . . . But one

that stands out, ‘I called Sav-on’s to check to see if Mary had picked up that

prescription that she ran off to do in her errands.’ [¶] Well, the police looked.

They checked everyone that worked at Sav-on’s. You heard the police here in

court come in and testify. They knew the defendant. He was a regular customer.

He probably knew them by name. He didn’t call Sav-on’s, because he knew she

didn’t pick up that prescription. Mary never left home that day alive.”

Defendant contends that Detective Shelton’s testimony, taken in context,

implied that Fleming said she had not spoken with defendant on April 22, 1999.

Defendant argues that admission of that testimony regarding Fleming’s statement

violated his right to confrontation under Crawford, supra, 541 U.S. 36. Initially,

the Attorney General asserts that the claim is forfeited because defendant failed to

object to Shelton’s testimony about Fleming. Because this case was tried before

Crawford overruled Ohio v. Roberts (1980) 448 U.S. 56, defendant’s

confrontation claim has not been forfeited. (People v. Pearson (2013) 56 Cal.4th

393, 461-462.) However, the claim lacks merit.


Subject to exceptions not present here, Crawford held that the confrontation

clause bars the admission of out-of-court testimonial hearsay statements except

when “the declarant is unavailable” and the defendant “had a prior opportunity to

cross-examine” the declarant. (Crawford, supra, 541 U.S. at p. 59.) Here, there

was no admission of any hearsay statements made by Fleming. Detective Shelton

stated what Swor and Longoria had told him, that they had not spoken to

defendant on April 22, but did not divulge the contents of five employees’

statements, including Fleming’s. He merely testified that he had spoken to them.

Nor did Shelton’s testimony imply that Fleming said she had not spoken to

defendant on April 22, 1999. As with Fleming, the prosecution did not present

evidence that Brand, to whom Shelton also spoke, had not received a telephone

call from defendant. Brand simply stated she did not remember if she had

received a telephone call from defendant on April 22. Thus, Shelton’s testimony

did not imply that all of the employees, including Fleming, said they had not

received a telephone call from defendant. To the extent the prosecutor argued that

defendant had not called the Sav-on pharmacy, defendant failed to object and

could have refuted that statement by arguing the prosecution failed to establish

that no employee working that day received a telephone call from defendant.

B. Penalty Phase Issues

1. Victim Impact Testimony

Defendant contends that his death judgment must be reversed because the

prosecution’s victim impact evidence was so excessive and prejudicial that it

resulted in a trial that was fundamentally unfair. His claim lacks merit.

Before trial, defendant moved to exclude victim impact testimony from

family members. He argued that the case was particularly emotional given the

relationship of defendant and the victims and that the jury might give such


testimony undue weight. The trial court denied the motion to exclude the victim

impact evidence, noting that the People should not be precluded from introducing

the victim impact evidence because defendant chose family members as his

victims. During the penalty phase, the prosecution presented the testimony of

seven of Mary’s family members: her mother, three siblings, two nieces, and one

nephew. The witnesses testified about their relationships with Mary, how they

learned of the crimes, and the impact of those crimes on their lives.

Hazel Foley, Mary’s mother, testified that she and her husband had five

children. She described Mary as a happy, playful, and friendly child who played

“dress up” with her siblings, played the piano, and did craft projects. Mary was a

good student throughout elementary school and high school, and was a very good

mother. Hazel described Carley as a “very sweet, very happy” girl. She related

how she waited between 3:00 p.m., when she heard Mary and Carley were

missing, to 7:00 p.m., when she learned about their death. She stated that she was

close to Mary and that their murders had a “terrible” effect on her and that “it hurt

every day.” When shown several family photographs, Hazel identified them as

depicting Mary throughout her childhood.

Sandra Zalonis, Mary’s sister, testified that she was five years older than

Mary and that Mary “meant the world to me.” Zalonis lived in Florida with her

own family, but remained close to Mary. They spoke with each other at least once

every two weeks. Zalonis stated that her sister, Janet, called and told her that

Mary and Carley had been murdered, and that “nothing in my life prepared me.”

It was difficult being far away from her family in California after the crimes and

she had not “done very well.” She attended grief counseling and divorced her

husband. She missed “everything” about Mary and Carley. Thursdays were hard

for her because that was the day of the week they were killed.


Janet Foley, Mary’s sister, testified that she was 18 months older than Mary

and that they stayed close over the years. While growing up, Janet, Mary, and

Sandra shared a bedroom. Janet and Mary “did just about everything together.”

They had chicken pox and measles at the same time, took piano and violin lessons,

and participated in Girl Scouts together. Mary was maid of honor at her wedding

and was the godmother to her daughter. Janet was in the delivery room with Mary

when Carley was born. Janet described Mary as a loving mother, a true friend,

and a special sister. She described Carley as always smiling, happy, and sharing.

Carley helped her sister Ashley check her blood-sugar levels. At Janet’s request,

Mary and Carley were buried together with Carley’s security blanket, named

Blankie Bear. The funeral was hard; the family had their suspicions about what

had happened and the music defendant chose to be played was “all about him,”

describing a father raising a child on his own. Janet missed Mary’s voice, advice,

and love, and missed Carley, her “angel girl’s” face, smile, and voice. Mary and

Carley’s murder was “devastating” to Janet’s mother and father. They were

raising Ashley and had to adjust their daily schedule to meet the demands of her

diabetic condition.

Mary’s nieces and nephew, Ryan (age 9), Kyle (age 12), and Vanessa (age

14), testified that the murders had been difficult on the entire family. They related

what they missed and remembered about their aunt and cousin. Vanessa stated

that when her mother told her that Mary and Carley had been killed, she felt like it

was a dream.

Robert Foley, Mary’s brother, testified it was difficult to deal with the fact

that Mary and Carley were murdered by their husband and father. Robert stated

he felt extremely guilty for failing to prevent their murders. Although his father

obtained strength from caring for Ashley, it had changed his “normal life” and

“retirement pattern.” Robert’s mother had “nothing but sadness in her eyes.” For


all Ashley had gone through, she had been doing “extremely well,” largely

because his parents were “making sure that she’s okay.” His family missed Mary

and Carley “tremendously.”

“ ‘In a capital trial, evidence showing the direct impact of the defendant’s

acts on the victims’ friends and family is not barred by the Eighth or Fourteenth

Amendments to the federal Constitution. (Payne v. Tennessee (1991) 501 U.S.

808, 825-827, 111 S.Ct. 2597, 115 L.Ed.2d 720.)’ ” (People v. Chism (2014) 58

Cal.4th 1266, 1326.) “ ‘ “The federal Constitution bars victim impact evidence

only if it is ‘so unduly prejudicial’ as to render the trial ‘fundamentally unfair.’ ”

[Citation.]’ [Citation.]” (People v. Ervine (2009) 47 Cal.4th 745, 792) “Unless it

invites a purely irrational response from the jury, the devastating effect of a capital

crime on loved ones and the community is relevant and admissible as a

circumstance of the crime under section 190.3, factor (a).” (People v. Lewis and

Oliver (2006) 39 Cal.4th 970, 1056-1057.)

Here, the family members’ testimony properly explained the nature of their

relationship with the victims, the immediate effects of the murders, and the

residual and continuing impact of the murder on their lives. (People v. Chism,

supra, 58 Cal.4th at pp. 1326-1327; cf. People v. Stanley (1995) 10 Cal.4th 764,

831-832 [prosecutor’s victim impact argument proper where defendant murdered

wife].) Moreover, the number of witnesses was not excessive. (See People v.

Nelson (2011) 51 Cal.4th 198, 207, 219 [victim impact testimony of six family

members about murder’s enduring impact]; People v. Taylor (2010) 48 Cal.4th

574, 646 [victim impact testimony of six family members representing four

generations of victim’s close family].)

Defendant argues that Hazel Foley’s testimony about Mary’s childhood and

teenage years, including her identification of photographs of Mary and the family

taken during those years, was not relevant to the “circumstances of the crime.”


Although Carley was only three years old when she was killed, he makes the same

argument regarding Janet Foley’s identification of photographs of Carley when

she was less than a year old and when she turned two. To the contrary, “[t]he

People are entitled to present a ‘ “complete life histor[y] [of the murder victim]

from early childhood to death.” ’ [Citation.] Such evidence, which typically

comes from those who loved the murder victim, shows ‘how they missed having

[that person] in their lives.’ [Citations.]” (People v. Garcia (2011) 52 Cal.4th

706, 751-752.) Testimony about Mary’s childhood incidents or activities that she

shared with her family showed her uniqueness and explained why her family

continued to be affected by her death. (People v. Virgil (2011) 51 Cal.4th 1210,

1274-1275; People v. Brown (2004) 33 Cal.4th 382, 398.) Moreover, we have

upheld the admission of photographs, including childhood photographs, to

illustrate victim impact testimony. (People v. Suff (2014) 58 Cal.4th 1013, 1076;

People v. Nelson, supra, 51 Cal.4th at pp. 219-220.)

Here, the victim impact evidence was neither unduly prejudicial nor so

inflammatory that it invited the jury to make its penalty determination on a purely

irrational basis.

2. Multiple-Murder Special-Circumstance Instruction and Verdict


Defendant contends that in relation to the multiple-murder special-

circumstance finding, the trial court prejudicially erred in instructing the jury to

render a single verdict, either of life imprisonment without possibility of parole or

death, with reference to both victims, rather than instructing the jury to render a

separate verdict as to each victim. He argues that the instruction and attendant

verdict forms deprived him of an individual penalty determination for each murder

count. We conclude that defendant has forfeited his claim by failing to object to


the verdict forms. Even assuming his challenges to the verdict forms and jury

instructions are properly before us, they lack merit.

Here, the information properly charged and the jury found true only one

multiple-murder special-circumstance allegation. (People v. Zamudio, supra, 43

Cal.4th at p. 363.) With regard to the multiple-murder special circumstance, the

trial court instructed during the penalty phase as follows:

“Having found the defendant, Kim Raymond Kopatz, guilty of two counts

of first degree murder, under counts I and II of the information, and finding the

multiple murder special circumstance . . . to be true, you must now return a verdict

in one of the following forms:

“We, the jury in the above-entitled action, as to defendant Kim Raymond

Kopatz, fix the penalty under counts I and II of the information, as death, for the

multiple murders of Mary Kopatz and Carley Kopatz.


“We, the jury in the above-entitled action, as to defendant, Kim Raymond

Kopatz, fix the penalty under counts I and II of the information, as life

imprisonment without the possibility of parole, for the multiple murders of Mary

Kopatz and Carley Kopatz.”

The jury returned a verdict of death on the multiple-murder special-

circumstance finding.

Regarding his claim the verdict forms were improper, defendant has

forfeited that issue by failing to object. (People v. Jones (2003) 29 Cal.4th 1229,

1259 ; People v. Bolin (1998) 18 Cal.4th 297, 330; People v. Crittenden (1994) 9

Cal.4th 83, 158-159.) During the discussion on the verdict forms, the trial court

asked defense counsel if he had looked at them. Counsel replied, “Those are

fine.” When the jury returned its finding, defendant failed to object to the

multiple-murder special-circumstance verdict forms.


In any event, defendant has failed to show that it is improper for a court to

submit a single verdict form encompassing the penalty for the murder of more

than one victim. “Although it is proper to employ separate verdict forms when

there is more than one murder victim (see, e.g., People v. Sandoval [(1992)] 4

Cal.4th 155, 197 [separate death verdict returned as to one murder victim, separate

life imprisonment without possibility of parole verdict returned as to each of three

other murder victims]; People v. Beardslee [(1991)] 53 Cal.3d 68, 117 [separate

death verdict returned as to each of two murder victims]; People v. Bittaker

[(1989)] 48 Cal.3d 1046, 1106, 1110, fn. 34 [separate death verdict as to each of

five murder victims]), no authority compels the rendering of separate penalty

verdicts as to each victim.” (People v. Crittenden, supra, 9 Cal.4th at p. 159

[instruction for jury to render a single penalty verdict and return the same verdict

form as to both victims not error ]; see People v. Hines (1997) 15 Cal.4th 997,

1070-1071 [same penalty verdict form as to both victims not error].) With regard

to his challenge to the jury instruction relating to the multiple-murder special

circumstance finding, assuming the instructional claim is properly before us

(§ 1259), we similarly find no error. Because submission of a single verdict form

encompassing the penalty for the murder of more than one victim was not

improper, it cannot have been legal error to instruct the jury in substantially the

same language.

Moreover, defendant was not prejudiced by the multiple-murder special-

circumstance instruction and attendant verdict forms. With regard to the financial-

gain special circumstance, the trial court instructed the jury that having determined

defendant committed each murder for financial gain, it must fix the penalty under

each murder count and return a separate verdict form as to each murder victim.

The jury returned true findings and separate death verdicts for each murder. Thus,

contrary to defendant’s claim, he was not deprived of an individual penalty


determination for the murders of each victim since the jury was required to reach

separate penalty verdicts as to each murder count.

Nevertheless, defendant further claims that the trial court erred in

instructing the jury to determine both separate penalty verdicts for each murder

count (counts I and II) and a penalty verdict for multiple murders, allowing the

jury to return three death verdicts for two victims. Defendant argues that having

three penalty verdicts instead of two increased the chances the jury would return a

death verdict. The Attorney General concedes that giving the above multiple-

murder special-circumstance instruction was error, but one that is only technical

because the death verdict for the multiple murders was effectively superfluous.

Although we agree that the giving of three death penalty verdicts instead of two

was error, defendant has failed to show there is a reasonable possibility the death

verdict for the multiple murders prejudicially infected the entire penalty decision


Defendant asserts that “it must have confused the jury to be asked for three

penalty verdicts when only two murders had been committed.” He argues that the

jury could have believed that the verdict for the multiple murders should be based

on different factors than the verdicts for the two murder counts, and “mitigating

factors could have been misallocated or diluted.” The trial court instructed that the

jury should weigh “the various circumstances you determine under the relevant

evidence which penalty is justified and appropriate by considering the totality of

the aggravating circumstances with the totality of the mitigating circumstances.”

Moreover, in arriving at a death verdict, “the jurors each must evaluate the

evidence and then unanimously determine that the aggravating factors outweigh

the mitigating factors, but there is no requirement that the jury agree upon the

factors employed in reaching that decision. . . . Because there is no requirement

that the jury unanimously determine which aggravating factors outweigh those in


mitigation, there obviously can be no requirement that the jury unanimously

determine which facts within a single category of the factors described in section

190.3, such as factor (a), justify imposition of the death penalty.” (People v.

Crittenden, supra, 9 Cal.4th at p. 159.) Thus, as long as the jury unanimously

agreed that death was the appropriate penalty, the jurors need not have uniformly

relied on the same factors in reaching that decision. Defendant has failed to

demonstrate that he was prejudiced by the multiple-murder special-circumstance

instruction and attendant verdict forms.

3. CALJIC Nos. 8.85 and 8.88

The trial court instructed the jury with CALJIC Nos. 8.85 and 8.88, the

standard instructions explaining the penalty determination, the nature of

aggravation and mitigation, the aggravating and mitigating factors to be

considered, and the weighing of those factors. Defendant argues that the

instructions were constitutionally defective for reasons previously rejected by this

court in other cases. He raises no basis for us to reconsider these rulings.

a. CALJIC No. 8.85

CALJIC No. 8.85, which instructed the jury to consider “whether or not”

certain mitigating factors were present, did not unconstitutionally suggest that the

absence of such factors amounted to aggravation. (People v. Mendoza (2011) 52

Cal.4th 1056, 1097; People v. Whisenhunt (2008) 44 Cal.4th 174, 228.) “Nor was

the trial court ‘constitutionally required to instruct the jury as to which of the listed

sentencing factors are aggravating, which are mitigating, and which could be

either mitigating or aggravating, depending upon the jury’s appraisal of the

evidence.’ ” (People v. Mendoza, supra, 52 Cal.4th at p. 1097; People v.

McKinnon (2011) 52 Cal.4th 610, 692.)


b. CALJIC No. 8.88

CALJIC No. 8.88 is not unconstitutional for failing to instruct that: (1)

“life without parole is mandatory if mitigation outweighs aggravation” (People v.

Mendoza, supra, 52 Cal.4th at p. 1097); (2) the jury “may return a sentence of life

without the possibility of parole even in the absence of mitigating evidence”

(People v. Lindberg (2008) 45 Cal.4th 1, 52); (3) “neither party bears the burden

of persuading [the jury] of the appropriateness or inappropriateness of the death

penalty” (People v. McKinnon, supra, 52 Cal.4th at p. 694); (4) “the beyond-a-

reasonable-doubt standard and requirement of jury unanimity do not apply to

mitigating factors” (People v. Streeter (2012) 54 Cal.4th 205, 268); and (5) “there

is a presumption of life.” (Ibid.) CALJIC No. 8.88’s “so substantial” standard for

comparing mitigating and aggravating circumstances and its use of the term

“warranted” instead of “appropriate,” does not render the instruction

unconstitutional or impermissibly vague. (People v. McKinnon, supra, 52 Cal.4th

at p. 693; People v. Lindberg, supra, 45 Cal.4th at p. 52.)

“ ‘ “ ‘The jury need not make written findings, or achieve unanimity as to

specific aggravating circumstances, or find beyond a reasonable doubt that an

aggravating circumstance is proved (except for other crimes), that aggravating

circumstances outweigh mitigating circumstances, or that death is the appropriate

penalty. [Citations.] The death penalty statute is not unconstitutional for failing to

provide the jury with instructions of the burden of proof and standard of proof for

finding aggravating and mitigating circumstances in reaching a penalty

determination.’ ” ’ ” (People v. Streeter, supra, 54 Cal.4th at p. 268.)

4. Challenges to the Death Penalty Law

Defendant challenges California’s death penalty law for reasons previously

rejected by this court in other cases. He raises no basis for us to reconsider those



California’s death penalty scheme does not violate international law and

norms. (People v. McCurdy (2014) 54 Cal.4th 1063, 1112.) “We have in the past

rejected the argument that the use of capital punishment ‘as regular punishment’

violates international norms of humanity and decency and hence violates the

Eighth and Fourteenth Amendments of the United States Constitution. We have

explained: ‘ . . . California does not employ capital punishment in such a manner.

The death penalty is available only for the crime of first degree murder, and only

when a special circumstance is found true; furthermore, administration of the

penalty is governed by constitutional and statutory provisions different from those

applying to “regular punishment” for felonies.’ ” (People v. Debose (2014) 59

Cal.4th 177, 214.)

Finally, intercase proportionality review is not constitutionally required.

(People v. Debose, supra, 59 Cal.4th at p. 213.)

5. Cumulative Prejudice in Guilt and Penalty Phases

Defendant contends that the cumulative prejudicial effect of the errors in

both the guilt and penalty phases mandates reversal of his conviction and sentence

of death. We have rejected all, except one, of defendant’s claims of error. Where

we found error, we have determined defendant was not prejudiced. Thus,

defendant’s cumulative effect argument fails.



We affirm the judgment.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Kopatz

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: April 30, 2015

County: Riverside
Judge: W. Charles Morgan



David P. Lampkin, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Holly D. Wilkens and Andrew Mestman, Deputy Attorneys General, for
Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

David P. Lampkin
P.O. Box 2541
Camarillo, CA 93011-2541
(805) 389-4388

Andrew Mestman
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2458


Opinion Information
Date:Docket Number:
Thu, 04/30/2015S097414