Riverside County Super. Ct. No. RIF086350, W. Charles Morgan, Judge.
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[Copyrighted Material Omitted]
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.
A jury convicted defendant Kim Raymond Kopatz of the first degree murders of Mary Kopatz and Carley Kopatz. (Pen. Code, § 187.) 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.
A. Guilt Phase
1. The Prosecution’s Case
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—as 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 the 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 rings.
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 answer.
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. 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’ house.
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 hands. However, there was “blue paint” on the tops of defendant’s hands and on his forearms.
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.
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. He stated that he had called the police and hospital emergency rooms.
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 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, 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 back.
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.
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. 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.
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,  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 ...