People v. Westerfield

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ALAN WESTERFIELD,

Defendant and Appellant.

S112691

San Diego County Superior Court

SCD 165805

February 4, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,

in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and

Slough concurred.



Associate Justice of the Court of Appeal, Fourth Appellate

District, Division Two, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. WESTERFIELD

S112691

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant David Alan Westerfield of the

2002 first degree murder of seven-year-old Danielle Van Dam.

(Pen. Code, § 187, subd. (a).1) It found true the special

circumstance that the murder was committed during a

kidnapping. (§ 190.2, subd. (a)(17).) The jury also found

defendant guilty of the kidnapping of Danielle, a child under the

age of 14 (§§ 207, 208, subd. (b)), and misdemeanor possession

of child pornography. (former § 311.11, subd. (a).) Following the

penalty phase of trial, the jury returned a verdict of death. The

trial court denied defendant’s motion for modification of the

penalty to life imprisonment without the possibility of parole

(§ 190.4, subd. (e)) and sentenced him to death on the murder

count. The trial court sentenced defendant to a prison term of

11 years for his conviction of kidnapping, which it stayed

pursuant to section 654. Defendant was sentenced to time

served for his child pornography conviction.

This appeal is automatic. (§ 1239, subd. (b).) We affirm

the judgment in its entirety.

1

All further statutory references are to the Penal Code

unless otherwise indicated.

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PEOPLE v. WESTERFIELD

Opinion of the Court by Cantil-Sakauye, C. J.

I. FACTS

A. Guilt Phase

1. Overview

On the night of Friday, February 1, 2002, Damon Van

Dam put his two sons and his seven-year-old daughter, Danielle,

to bed. His wife, Brenda, went out with her girlfriends to a bar

where they saw defendant, David Westerfield, who lived two

doors down from the Van Dams. When Brenda, her girlfriends,

and two male friends came home, they noticed an alarm monitor

was flashing, and the side garage door was open. They closed

the door and had something to eat. Damon got up and joined

them. After the friends left, Brenda and Damon went to bed.

Sometime later during the night, Damon awoke and noticed an

alarm monitor flashing. He went downstairs and noticed the

door to the backyard was open. He closed it and made sure the

other doors were closed. He went back to sleep without checking

on the children. The next morning, Danielle was missing. A

neighborhood search failed to find her, and defendant was not

at home.

Defendant spent the weekend after Danielle’s

disappearance driving around in his motorhome away from his

house in the Sabre Springs neighborhood of San Diego to various

state parks outside the San Diego area. He had awkward

encounters with rangers and volunteers who worked at the

Silver Strand state park near the city of Coronado.

On Monday morning, defendant arrived in his motorhome

at his neighborhood dry cleaner’s shortly after the business

opened to have bedding and a jacket cleaned. Although it was a

cold morning, he was wearing a thin T-shirt, thin shorts, no

shoes, and no socks.

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An examination of the forensic evidence revealed that the

jacket that defendant left at the dry cleaner’s contained

Danielle’s blood. Danielle’s blood was also found on the carpet

of defendant’s motorhome between the bathroom and the closet;

her handprint, including several associated fingerprints, was on

a cabinet above the motorhome’s bed. Hairs consistent with

Danielle’s DNA profile were found in the bathroom of

defendant’s motorhome and at his residence in his washing

machine, dryer, and on the bedding from his master bedroom.

Fibers matching others later found with Danielle’s body were

discovered in defendant’s motorhome, SUV, laundry, and

bedding. Fibers similar to those from the carpeting in Danielle’s

bedroom were found by the bed, in the bathroom, and in the hall

of defendant’s motorhome. Hairs from the Van Dams’ family

dog were discovered on one of the comforters defendant dropped

off at the dry cleaner’s, on the hallway carpet and bathroom rug

in defendant’s motorhome, and in defendant’s laundry.

Danielle’s badly decomposed body was discovered off the

side of a road in a remote part of San Diego County on February

27, 2002. Her mummified remains had been ravaged by

animals, such that no sexual assault testing could be performed

and no definite cause of death determined. The coroner could

not rule out suffocation.

In defendant’s home, officers discovered computer files

containing child pornography.

Defendant principally relied on an alibi defense based on

entomological evidence from Danielle’s body that suggested her

death occurred sometime subsequent to February 5, after

defendant was under constant police surveillance.

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2. The Prosecution’s Trial Evidence

a. The events leading to Danielle’s disappearance

A week before Danielle’s disappearance, on January 25,

2002, her mother Brenda went out to a local bar called “Dad’s”

with her two girlfriends — Denise Kemal and Barbara Easton.

They met defendant there, whom Brenda recognized as her

neighbor from two doors down the street. Defendant introduced

himself, and bought the women drinks. Brenda and defendant

briefly spoke, but otherwise Brenda spent the time with her

girlfriends.

The following Tuesday, Brenda accompanied her daughter

Danielle while she sold Girl Scout cookies in the neighborhood

along with her five-year-old brother Dylan. They stopped at

defendant’s house, and he invited them inside so he could fill out

an order form to purchase cookies. While Brenda and defendant

were in the dining room, Danielle and Dylan went into

defendant’s backyard to see his pool. When the children were

outside, defendant discussed the previous Friday night and his

interest in Easton and that he wanted to be introduced to her.

Brenda told defendant that she and Easton might be going to

Dad’s again the upcoming Friday, depending on whether she

could find a babysitter because her husband was planning on

being away that weekend. After the children came inside, they

stayed with Brenda in the dining room, and went nowhere else

in defendant’s house.

b. The night of Danielle’s disappearance

Kemal and Easton arrived at the Van Dam house around

8:00 p.m. on Friday, February 1, 2002. Brenda and her two

girlfriends went into the garage and smoked marijuana.

Someone opened the garage side door to let the smoke out.

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Brenda was uncertain whether anyone closed it. Kemal recalled

closing the side door, but not locking it. The Van Dams had

reversed the lock on the interior garage door leading into the

house so that they could, if they chose, prevent their children

from entering the garage. A person inside the garage could

unlock the door without a key and enter the house.

After Brenda and her two girlfriends left for Dad’s, Damon

stayed home with the children, Danielle, Dylan, and Derek.

Around 10:00 p.m., Damon put the children to bed for the night,

each in his or her own room, and left each door ajar. Damon

watched television downstairs for 20 to 30 minutes. He then

went up to the master bedroom, taking Layla, the family puppy,

with him. He closed the door to keep the puppy in the room and

continued watching television until he fell asleep. He briefly

woke up at around 1:45 a.m. to allow the puppy to relief herself

in the backyard, after which he closed the door and went back

upstairs.

Brenda, Kemal, and Easton were at Dad’s during this

time. When they arrived at the bar, defendant was already

there with two of his friends. Brenda pointed defendant out to

Easton, who went over to him and introduced herself.

Defendant came over and bought them drinks, but they did not

include him in their conversation. Sometime after 9:00 p.m., the

Van Dams’ friends, Rich Brady and Keith Stone, arrived. Brady

and Stone joined Brenda and her friends. At one point,

defendant’s friends joined Brenda’s group playing pool.

Defendant was not part of the group but watched for at least

part of the time. Later that night, around 10:30 or 11:00 p.m.,

the group went to Brenda’s car where they smoked marijuana.

When they went back inside the bar, the group started dancing.

Defendant was still inside. The group left Dad’s shortly before

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closing at 2:00 a.m. Brenda was unsure whether defendant was

at the bar when they left, although one of defendant’s friends,

Garry Harvey, said that defendant was gone when Harvey

returned to the bar around 12:30 a.m. Brenda, her girlfriends,

Brady, and Stone went to the Van Dams’ home.

When Brenda entered her home, she noticed a red

blinking light on the alarm monitor, indicating that there was a

window or door open. Brenda and Kemal started looking for the

open window or door. Upstairs, Brenda also went to tell Damon

that Brady and Stone were visiting. Brenda and Kemal found

that the garage side door was open. Brenda closed it and went

back upstairs, where she found Easton with Damon.2 Brenda

told them to come downstairs. Brenda did not check on the

children, but closed their doors due to the potential noise.

Downstairs, everyone ate leftover pizza. About 20 minutes

later, the guests left. Damon and Brenda locked up the house

and went to bed. Damon placed Layla in Derek’s room. It was

around 2:30 a.m.

Sometime after 3:00 or 3:30 a.m. Damon woke again.

When he got up, he noticed a red light flashing on the alarm

monitor in their bedroom. He went downstairs and noticed a

cold draft of air in the hallway. He found the sliding glass door

to the backyard was open. He closed the door, made sure all of

the other doors were closed, including the side garage door, and

2

Brenda found Easton and Damon “snuggling” and kissing.

In an effort to attack their credibility, the defense presented

testimony that neither Damon nor Brenda had initially told

officers that Damon had previously had sex with Easton in the

presence of Brenda and that he had also had sex with Kemal in

the presence of Brenda and Kemal’s then husband. Brenda later

acknowledged she had had a sexual encounter with Kemal.

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checked the alarm panel. Damon went back to bed without

checking on the children.

The next morning, Brenda woke and went downstairs to

make breakfast and await the arrival of two neighborhood

children whom she was to watch that day. Damon and the two

boys were already downstairs. The neighborhood children

arrived around 9:30 a.m. Because Danielle had not yet come

downstairs, Brenda went to wake her. Danielle was nowhere to

be found. Brenda called 911 and their neighbors, reporting that

Danielle was missing. The police arrived and conducted a

forensic investigation of their house that day and overnight.

c. The investigation of Danielle’s disappearance

By Sunday, February 3, the San Diego Police Department

had set up a “command post” on the Van Dams’ street. Detective

Johnny Keene arrived to contact neighbors and to obtain

statements concerning any information about Danielle’s

disappearance. He knocked on defendant’s door and received no

answer. The following morning, Keene returned to defendant’s

home upon learning that defendant had returned and other

officers had spoken with him in his driveway.

Keene asked defendant about his activities that weekend.

Defendant said that he awoke around 6:30 a.m. on Saturday and

decided he wanted to go to the desert. He drove his Toyota

4Runner SUV to his storage location in “High Valley” where he

left it to retrieve his motorhome. He drove the motorhome back

to his house, where he stocked it with groceries and filled the

water tank. Defendant said he left home around 9:50 a.m.

When he realized that he did not have his wallet and did not

have enough money to go to the desert, he instead drove to a

state park called Silver Strand near the city of Coronado. When

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he arrived, he filled out a registration envelope, placed money

for a three-night stay inside, and parked his motorhome. A park

ranger came by and told him he had overpaid by $30, apparently

placing a $50 bill in the envelope. Once the ranger left,

defendant said that he did not stay much longer because it was

too cold. He decided, instead, to return home to find his wallet.

Defendant thought he arrived home around 3:30 p.m. He

saw news vans and police activity on the street. One of his

neighbors told him about the missing girl and defendant decided

to check his house and pool. After he did so, he drove back to

where he had left his 4Runner because he thought, as it turned

out correctly, that he might have left his wallet in it.

Once he had his wallet, defendant put gas in his

motorhome and drove the “back way” to Glamis, a sand dune

area about 160 miles away. He estimated that he arrived

around 10:00 or 10:30 p.m. Defendant did not bring with him

any of his “sand toys,” meaning the vehicles he usually drove on

the sand dunes. He pulled into a spot for the night, but got stuck

in the sand. He spent the night there and began digging himself

out the next morning. Eventually someone came by and towed

him out of the sand.

Defendant said that once he was out of the sand, he left

Glamis and drove to a place called Superstition Mountain to see

if it was a place he would want to take his son camping. He

continued on to Borrego Springs, where he once again got the

motorhome stuck in the sand. Defendant estimated that he left

Borrego Springs about 6:00 p.m. after digging himself out. He

drove back to Silver Strand, but arrived too late to gain

admittance to the park. Defendant said that he parked the

motorhome for the night across the street in a parking lot at

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Coronado Cays. He woke up early, around 4:00 a.m., and drove

back to High Valley. But thinking it was still too early to park

his motorhome and retrieve his 4Runner, he drove straight

home. The police arrived a short time later.

Keene asked defendant about his night at Dad’s on Friday,

February 1. Defendant mentioned seeing Brenda there and that

her husband told her he felt their daughter was growing up too

quickly. Defendant paused and then said, “I could have sworn

she said she had a babysitter. I didn’t know her husband was

home with the kids.” Keene had not asked a question to prompt

such a response.

Defendant told Keene that he left Dad’s around 11:00 or

11:30 p.m. that night, drove home, and went to bed. When asked

about other previous interactions with Brenda, defendant told

Keene about meeting Brenda at Dad’s the week before and

buying Girl Scout cookies from Danielle the previous week.

Defendant said that while he was filling out the cookie order

form and speaking with the Brenda, the kids were “running all

over the house.”

Keene asked defendant if it was okay to look inside his

house, 4Runner, and motorhome. Defendant said it was, and

signed consent forms for all of them. Once inside defendant’s

home, Keene immediately noticed how immaculately clean it

was. Keene noted that the master bed did not have a comforter

on it, but was otherwise made with sheets. During their search,

Keene believed defendant was overly cooperative, pointing out

places that the detectives had missed. Keene and Parga looked

at defendant’s 4Runner, which was parked in the garage. It

seemed very clean inside and out. Parga detected the smell of

bleach in the garage.

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Defendant led the detectives to High Valley where he

stored his motorhome. Defendant unlocked all of the storage

compartments on the outside of the motorhome and even

pointed out that they had failed to check one smaller

compartment. When they went inside, Keene observed that the

motorhome bed, like the master bed, had no comforter. After

they inspected the motorhome, defendant pointed out the trailer

that contained his dune buggy, quad runners, and various

equipment, offering it for inspection as well. When the

detectives were finished, they all returned to defendant’s house.

Defendant consented to be interviewed at the police

station. During the subsequent interview with San Diego Police

Officer Paul Redden, defendant again described his weekend

activities. As he recounted one stop he made, defendant told

Redden that it was “this little place that we, where we were was

just a little small turn type place.” (Italics added.)

Keith Sherman owned the property where defendant

stored his motorhome and sand vehicles. He testified that on

Saturday morning, February 2, 2002, defendant came to collect

it. Sherman intended to go out and offer to move his own

motorhome out of the way so defendant could move the trailer

he used to carry his sand vehicles, but defendant was already

pulling away. Unusually, defendant was not with his son, but

was alone. It was also unusual that defendant left his 4Runner

on the property and did not take his trailer. Defendant brought

his motorhome back around 7:30 a.m. on Monday.

At the Silver Strand beach, on Saturday, February 2,

2002, several other campers noticed defendant’s motorhome.

When defendant’s motorhome pulled into its camping spot,

someone immediately closed the front curtains across the

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windshield. All of the other curtains were also closed. No one

came out to set up anything for camping. Contrary to

defendant’s description, the weather was cool, but nice.

State Park Ranger Olen Golden noticed that defendant

had placed $54 in his registration envelope when only $24 was

due. State Park Ranger Brian Neill went to defendant’s

motorhome to return the overpayment. Neill also noticed that

the curtains were drawn so that he could not see inside, and

nothing was set up outside the motorhome. Neill knocked on

the door, but no one immediately responded. He had started

back to his vehicle when defendant emerged. Defendant

immediately shut the door behind himself. Neill informed

defendant that he had overpaid. Defendant insisted that he had

not, but Neill returned the extra money to him. Defendant

remained outside while Neill walked back to his vehicle.

Minutes after Neill left, defendant drove off in his motorhome.

He approached a volunteer who worked at the Silver Strand and

continued to insist he had not overpaid. Contrary to the

narrative defendant told Detective Keene in which he claimed

he had misplaced his wallet, the volunteer saw defendant pull

out his wallet and show the volunteer that he had only $20 bills.

In Glamis, where defendant drove next, other visitors

noticed that defendant’s motorhome had been driven unusually

far off the road, close to the sand dunes, where it became stuck

in the sand. On Sunday morning, defendant tried to convince

other campers to tow him out, but they were unwilling or unable

to help him. Don Conklin, a Glamis resident who provided tow

services, arrived to help defendant. Conklin successfully pulled

defendant’s motorhome out of the sand. But when Conklin went

to retrieve defendant’s ramps and the shovel that they had used

in the towing process, he could not return them to defendant

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because defendant had driven away immediately after being

towed.

Julie Mills knew defendant as a longtime customer of

Twin Peaks Cleaners in Poway, where she worked. According

to Mills, defendant arrived at the dry cleaner’s on Monday,

February 4, 2002, between 7:00 and 7:30 a.m. Although it was

cold, defendant was wearing very thin shorts, a very thin T-

shirt, with no shoes and no socks. Defendant brought to be

cleaned a sport jacket, a couple of comforters, and some other

bedding. Several things struck Mills as unusual. Mills had

never before seen defendant dressed in this manner. Defendant

was not his usual talkative self and would not look her in the

eye. Defendant also arrived in his motorhome, which she had

never seen him do before. Defendant had not mentioned a trip

to the dry cleaner’s in his recounting of his weekend to Detective

Keene.

Defendant made a second trip to the dry cleaner’s that

same day around 1:40 p.m. He arrived in his 4Runner. He

dropped off a sweater, pants, and a T-shirt, requesting same day

service. He again acted differently from normal, not smiling or

chatting.

Jim Frazee, a volunteer canine handler from the San

Diego Sheriff’s Department, and his trained search and cadaver

dog Cielo, searched defendant’s motorhome. Cielo “alerted” to

the first storage compartment behind the passenger’s door; an

area where air from inside the motorhome would naturally

escape. When the storage door was opened, Cielo showed

“interest” in a shovel and lawn chair that were inside. According

to Frazee, Cielo’s alert indicated that a body had been

somewhere in the motorhome.

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d. The discovery of Danielle’s body and other

forensic evidence

Karsten Heimburger was part of a volunteer search party

looking for Danielle. On February 27, 2002, he discovered the

nude, decomposed body of a young girl, lying on her back in the

dirt off the side of Dehesa Road, a desert-type area of open space.

The body was identified as Danielle based on her dental records.

San Diego County Medical Examiner Dr. Brian

Blackbourne arrived at the Dehesa Road location the night of

February 27, 2002. He observed the Danielle’s body was in a

state of marked decomposition. Her body had been extensively

fed upon by animals so that much of her body tissue was

missing. Her left foot was missing, as was her genital area. Her

skin was mummified. Danielle was wearing no clothes and none

were in the immediate area. At the autopsy the following day,

Blackbourne attempted to determine a cause of death. He ruled

out stabbing, gun shot, blunt force trauma, strangulation, and

disease, but could not rule out suffocation. He concluded the

death was a homicide. Blackbourne could not determine

whether Danielle had been sexually assaulted because her

genital organs were gone. He stated that Danielle had been

deceased for a considerable period of time. He believed she had

died at least 10 days prior to being found and as much as six

weeks earlier.

Jeffrey Graham, Jr., a latent fingerprint examiner for the

San Diego Police Department, was able to obtain Danielle’s

fingerprints. He compared them to a set of prints lifted from

defendant’s motorhome. One handprint, lifted from a cabinet 10

inches above the motorhome bed, contained four associated

fingerprints, two of which contained sufficient ridge detail to

match two of Danielle’s fingers on her left hand. It was apparent

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from the way the print had been left that Danielle was moving

when it was made, that is, her hand did not simply make the

print and then lift back up.

San Diego Police Department criminalist Sean Soriano

examined stains on the jacket defendant had left at the dry

cleaner’s. Three stains on the jacket presumptively tested

positive for the presence of blood. San Diego Police Department

forensic biologist Annette Peer located a stain on the carpeted

floor between the bathroom and closet of defendant’s motorhome

that also presumptively tested positive for blood. Peer tested a

cutting of the bloodstain found on the shoulder of defendant’s

jacket for 13 genetic markers, and the 13-marker DNA profile of

the bloodstain on the shoulder area of defendant’s jacket

matched Danielle’s 13-marker DNA profile. Peer testified that

the expected frequency of that identical 13-marker DNA profile

in the Caucasian population is approximately one in 670

quadrillion.

Forensic scientist Mitchell Holland, of the Bode

Technology Group, tested cuttings of the bloodstain located on

the carpet for defendant’s motorhome for 13 genetic markers,

and the 13-marker DNA profile of that bloodstain matched

Danielle’s 13-marker DNA profile. Holland testified that the

expected frequency of that identical 13-marker DNA profile in

the Caucasian population is approximately one in 660

quadrillion of unrelated persons.3

3

Before Holland’s testing, Annette Peer of the San Diego

Police Department had tested a different cutting of the

bloodstain located on the carpet of defendant’s motorhome. Her

testing did not return a complete 13-marker genetic profile,

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Holland also conducted nuclear DNA testing on a hair root

extracted from a hair recovered from the sink drain in

defendant’s motorhome bathroom and obtained a partial profile

that matched Danielle’s DNA profile. The DNA test for that hair

root returned results for 12 out of the 13 tested genetic markers.

Although the missing genetic marker resulted in a lower rarity

statistic than that of a full 13-marker DNA profile, Holland

testified that the expected frequency of that 12-marker DNA

profile in the Caucasian population, nonetheless, is one in 25

quadrillion of unrelated persons.

Catherine Theisen, employed at the Federal Bureau of

Investigation laboratory in Washington, D.C., conducted

mitochondrial DNA4 analysis on several hairs discovered in

defendant’s motorhome. She could not exclude Danielle as the

source of a hair recovered from the bathroom rug of the

motorhome. Holland conducted mitochondrial DNA testing on

two hairs collected from defendant’s washing machine and

dryer, six hairs collected from the defendant’s master bedroom

bedding, and one hair recovered from defendant’s motorhome

hallway carpet. All of the hairs contained the same

mitochondrial DNA profile as Danielle.

resulting in a lower rarity statistic of one in 130 quadrillion

persons within the Caucasian population.

4

Theisen explained that nuclear DNA is inherited from

both the mother and father. It confers a unique identity.

Mitochondrial DNA in inherited only from the mother. It is,

therefore, shared with siblings, the mother, the mother’s

siblings, and anyone else related in the maternal line.

Nevertheless, mitochondrial DNA is extremely useful in

analyzing items of evidence that contain little nuclear DNA,

such as hair that does not have the hair root attached.

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San Diego Police Department criminalist Tanya Dulaney

collected fiber trace evidence in this case. Dulaney discovered

in defendant’s motorhome blue fibers on the kitchen bench seat,

on the upholstered headboard, on the couch, and on the front

passenger seat. Chemical analysis revealed that all of these

blue fibers were consistent with fibers discovered with Danielle

or in the sheet used by the medical examiner to wrap Danielle’s

body for the purpose of collecting potential trace evidence that

might fall off the body when it was removed from the Dehesa

Road location.

Dulaney also collected at defendant’s residence many

orange and blue fibers from clothing found on top of, and inside,

defendant’s washing machine and dryer. She found similar

orange fibers on the pillow cases from his master bedroom.

Jennifer Shen, another San Diego Police Department

criminalist, found more orange fibers inside defendant’s

4Runner and on a towel discovered inside a laundry bag in his

4Runner. Entangled in the necklace on Danielle’s body was an

orange fiber similar to the orange fibers found on defendant’s

laundry, bedding, and in his vehicle.

Dulaney also collected tan fibers from the area by the bed,

in the bathroom, and in the hall of defendant’s motorhome,

which, when examined, were consistent with fibers from the

carpeting in Danielle’s bedroom.

James Watkins, Jr., a law enforcement computer forensic

examiner, copied and examined images found on the computer

hard drives and other computer-related material located in

defendant’s bedroom and home office. He discovered 85 images

and 39 movies that he deemed “questionable,” meaning they

depicted children under the age of 18 in sexual acts that might

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constitute child pornography. He also discovered two “anime”

files that contained two storyboard-type drawings of young girls

being abducted, bound, and raped.

3. Defense Evidence

The defense called several witnesses to testify regarding

defendant’s habits and customs regarding his motorhome,

including that he would leave it unlocked when it was parked by

his house, that he had on other occasions made similar trips by

going first to Silver Strand and then to the desert, that he did

not always take the trailer with his “sand toys” with him, that

he sometimes went alone, and that getting stuck in a desert

wash was not uncommon.

The defense called several witnesses who were at Dad’s

bar on the night of February 1, 2002. They testified to seeing

Brenda and her girlfriends drinking, dancing in sexually

suggestive manners, and flirting. Brenda was seen rubbing up

against defendant as she danced with him.

Defendant challenged the prosecution’s physical evidence

by emphasizing that fingerprint identification cannot establish

when or under what circumstances a print was made,

biochemical analysis cannot determine how or when a biological

fluid was deposited, and trace evidence of fibers and hairs are

highly mobile, easily transferred, and can be consistent with an

indirect or derivative contact. The defense pointed out that the

fibers found were not unique.

The defense questioned the “alert” by Cielo, the search and

cadaver dog handled by Jim Frazee, to the side compartment of

his motorhome. The defense also queried why Frazee had not

reported the alert when it was supposedly made, but waited

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until after defendant’s arrest, when Frazee sent an email

describing it to two friends and Cielo’s breeder.

Defendant relied heavily on an alibi defense based on

entomological evidence suggesting that Danielle’s body could

not have been placed at the Dehesa Road site until a date after

defendant was either in actual contact with police or under

constant police surveillance. Specifically, defendant was almost

constantly in police presence beginning around 9:00 a.m. on

Monday, February 4, 2002, until his arrest on February 22,

2002. He did not go near the Dehesa Road site during this time.

David Faulkner, a forensic entomologist called by the defense,

attended Danielle’s autopsy where he collected insects from her

remains and later went to the Dehesa Road site to assess insect

activity. He testified that such insect information can be used

to approximate time of death or the post-mortem interval. In

Faulkner’s expert opinion, based upon the age of the insect

material he collected, as well as the known temperature and

weather conditions at the time, the insect activity on Danielle’s

body would have occurred 10 to 12 days prior to the recovery of

her remains on February 27, 2002. That is, the body was first

available for exposure to insect activity between February 16

and 18, 2002. The defense also called forensic entomologist Neal

Haskell, who opined based upon the age of the insect material

he received from Faulkner, Faulkner’s trial testimony, as well

as data regarding weather conditions at the time, that Danielle’s

body would have been first available for exposure to insect

activity between February 14 and 21, 2002.

Marcus Lawson, a computer forensics expert testified that

he found pornographic images on the computers belonging to

defendant’s son, Neal Westerfield.

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4. Prosecution’s Rebuttal

To rebut the defense entomological evidence, the

prosecution called forensic anthropologist William Rodriguez.

Rodriguez specialized in assessing human skeletons in difficult

cases, such as where the body is decomposed, in an effort to

identify the deceased as well as to determine the manner and

cause of death. Rodriguez noted that Danielle’s body was

mummified to a high degree, which can happen very quickly

with the body of a small child. Rodriguez explained that

mummification slows the decomposition process. He related

that insects will either not be able to penetrate a mummified

body or, if inside, would die for lack of nutrients. But if animals

feed on a mummified body, the body can be opened for insect

activity. Rodriguez testified that it is difficult to estimate

accurately how long an individual has been dead because many

variables are involved in the decomposition process, including

weather, sunlight, and insects. He believed it is important to

use various methodologies, and not just entomology, which on

its own can suggest only a minimum post mortem interval.

Based on his review of all of the data, reports, and testimony,

Rodriguez opined that Danielle had been deceased four to six

weeks when she was found, i.e., she died sometime earlier than

February 6, 2002.

The prosecution also called forensic entomologist Madison

Lee Goff. He testified that determining how long a body has

been deceased is not possible by employing forensic entomology.

That process, he explained, can be used only to determine a

minimum time the body would have been available for insect

activity. Goff also noted that the presence and extent of insect

predators and scavengers of the body could alter the rate of

decomposition of the body and affect the entomological analysis.

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Based on his review of all of the data, reports, and testimony,

Goff opined that the earliest date Danielle’s body would have

been available for exposure to insect activity was February 12,

2002. There was no way to determine the latest date. By

employing the tools of forensic entomologist, he was unable to

say that Danielle had been alive from February 1 through

February 12, 2002.

5. Defense Surrebuttal

Forensic entomologist Robert Hall reviewed the same

information as the other experts and opined that the insect

activity on Danielle’s body began no earlier than February 12,

2002, and no later than February 23, 2002. He testified that

insect activity would begin almost immediately upon the body

being dumped in the location where it was found.

B. Penalty Phase

1. Prosecution’s Case in Aggravation

In addition to relying on the evidence admitted during the

guilt phase, the prosecution introduced evidence at the penalty

phase relating to an act of uncharged lewd conduct by

defendant, as well as victim impact testimony.

a. Uncharged Lewd Conduct

J.N. is defendant’s niece. J.N. testified that when she was

between five and seven years old, she was sleeping in an

upstairs bedroom, with her sister and cousin, while her parents

were having a party downstairs. At some point, J.N. woke up.

She realized defendant was there and that he had his fingers in

her mouth. J.N. described defendant as rubbing or massaging

her teeth. J.N. pretended to be asleep and rolled over. J.N. saw

defendant walk over to her sister, but she could not tell what he

was doing. Defendant came back and again put his fingers in

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J.N.’s mouth. J.N. bit down on defendant’s hand. Defendant

moved over to where J.N.’s cousin was sleeping. J.N. watched

to see what defendant was doing. She saw him adjust the sides

of his shorts before leaving the room.

A short time later, J.N. went downstairs and told her

mother that “Uncle Dave [defendant] was in the room and he

was being weird and it bothered me [J.N.].” J.N. did not tell her

mother anything more because she was scared. Her mother

confronted defendant, but after a short talk, thought nothing

more of the situation.

Officer Paul Redden testified about an interview he had

with defendant. Redden testified that defendant was concerned

regarding an incident that had occurred in 1994. Defendant told

Redden about the incident J.N. described. Defendant claimed

that on the night of the incident, he had heard a commotion

upstairs where J.N., her sister, and cousin were sleeping. Upon

entering the room, defendant found one girl with her foot in the

other girl’s pajamas. Defendant separated the girls and went

downstairs. Defendant stated that approximately a week later,

J.N.’s mom accused defendant of molesting J.N.. A recording of

the interview was played for the jury.

b. Victim Impact Evidence

The prosecution called Danielle Van Dam’s

kindergarten/first grade teacher, Amy De Stefani, and second

grade teacher, Ruby Puntenney, as victim impact witnesses.

Both spoke of Danielle’s intellect, curiosity, and compassion,

with Stefani saying Danielle was “just a very caring little girl.

She wanted to make sure that nobody else had their feelings

hurt. . . . She got along with everyone.”

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Thereafter, Danielle’s father took the stand. Damon was

involved in his daughter’s education, both participating at her

school and tutoring Danielle at home. He said Danielle enjoyed

helping him around the house with chores. Damon also testified

about an upcoming father-daughter dance he had planned to

attend with Danielle. Damon spoke about his emotions when he

discovered Danielle was missing. He described how he became

less and less hopeful that she would be found and how he would

have emotional outbursts in front of his friends when

contemplating the possibility that Danielle might never be

found. He explained how he felt when her body was found.

Damon described how Danielle’s brothers handled their

sister’s death. Dylan (her younger brother) became more

childish, needing to sleep with his parents or brother. Her older

brother, Derrick, became “introverted and clammed up a lot.”

Damon testified that Derrick now suffers from emotional

outbursts, and the whole family sought therapy after Danielle’s

disappearance.

Finally, Danielle’s mother, Brenda, testified that she

volunteered for school projects, planned parties, and attended

Danielle’s class to spend time with her daughter. Brenda

testified that Danielle loved writing and math, was involved in

the Daisies (a precursor to the Girl Scouts), and was a dancer,

as well as a piano player. Brenda confirmed Damon’s testimony

that her sons had become emotionally distraught over Danielle’s

death. She explained how difficult it was for her to walk past

defendant’s house and past her daughter’s room every day.

2. Mitigating Evidence

The defense introduced evidence describing defendant’s

involvement as a design engineer with the creation and

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development of various new technologies, including important

medical rehabilitation devices. In addition, the defense

introduced testimony of friends and family members who could

speak to defendant’s character.

a. Defendant’s Engineering Contributions

Ron Lawrence, David Petch, and William Townsend were

defendant’s co-workers at various companies. Each testified

that defendant played an important role in the creation, design,

and development of medical devices at their companies.

Carmen Genovese was a former supervisor of defendant.

According to Genovese, defendant played a crucial role in

leading design teams that significantly contributed to the

development of medical devices for joint rehabilitation and

optical lenses. He testified that these devices were exceptionally

important and improved the life of a great many people.

Genovese also described a significant security device designed

by defendant.

Judy Ray was the owner of a company that employed

defendant. She spoke of defendant’s important contributions to

her company, including the design of a shoulder rehabilitation

device that helped more than 600,000 people.

b. Defendant’s Friends and Family

Susan L. was defendant’s former girlfriend. Susan and

her daughter, Christina G., along with Christina’s one-year-old

son, lived with defendant for a year. Susan testified that

defendant helped rescue Christina from an abusive relationship

and allowed her and her infant son to live with them. Defendant

also planned and threw Christina’s son a birthday party because

Christina could not afford to do so.

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Margaret Hennon was defendant’s high school

sweetheart. Defendant’s family and Hennon’s family were very

close. Hennon testified that she loved defendant and he was

important to her, although she admitted that she had not seen

or spoken to defendant in person since 1973 or 1974.

Several of defendant’s friends and neighbors testified to

his importance to their families. They testified that defendant

was always helpful. He would go above and beyond to assist

whenever needed. Defendant was considerate and protective of

his own and other children. Defendant was a positive influence

in their children’s lives.

The defense also called a number of defendant’s family

members to testify. Defendant’s younger sister, Tania P., spoke

about defendant’s upbringing and noted that defendant worked

to put himself through college. Tania testified that traditional

family values were very important to defendant. She said

defendant was protective of her. Several of defendant’s aunts

testified concerning their association with defendant over the

years. Defendant’s children, Neal and Lisa, both described how

much they loved and missed their father. They described

themselves as a close family. Neal testified that his father

taught him to do the right thing and accept responsibility for his

actions.

II. DISCUSSION

A. Guilt Phase Claims

1. Denial of Defendant’s Motion to Suppress Evidence

Obtained Pursuant to Five Search Warrants

Defendant filed a pretrial motion to suppress the evidence

law enforcement obtained pursuant to five search warrants,

claiming the warrants were illegally obtained in violation of his

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Fourth Amendment rights. Among other things, defendant

argued that his purported failure of a polygraph examination

was improperly considered by the magistrate as part of the

prosecution’s showing of probable cause. The trial court denied

the motion, finding the warrants were supported by probable

cause. With respect to the foundational first warrant, the court

ruled that the magistrate had properly considered the polygraph

evidence offered in support of the warrant, but also found that

even if the evidence to which defendant objected was excised,

there was still sufficient probable cause for the warrant’s

issuance. Moreover, the court further concluded that even if

probable cause was lacking for the first warrant, the search

following its issuance was justified based on defendant’s

consent.

The trial court, however, granted defendant’s motion to

suppress, under the Fifth Amendment, statements he made to

detectives just before he signed a consent-to-search form and

before the execution of the first warrant. The court found that

defendant had made those statements in circumstances under

which no reasonable person would have felt free to leave and

without being advised of his rights under Miranda v. Arizona

(1966) 384 U.S. 436 (Miranda).

Defendant claims on appeal that the trial court erred in

denying his motion to suppress the evidence law enforcement

obtained pursuant to the five search warrants. He argues that

the first warrant was erroneously based on consideration of his

failure to pass a polygraph examination. He argues both

statutory and constitutional error, and contends that without

the polygraph results, there was insufficient evidence of

probable cause. Defendant asserts that the first search was not

otherwise justified by the good faith reliance of the police on the

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magistrate’s issuance of the warrant. And, finally, he contends

that his consent to the search in question was not freely given

and that concluding otherwise is incompatible with the court’s

determination that his statements to detectives should be

suppressed under Miranda. Because the results of the first

search were relied upon to obtain the subsequent four warrants,

defendant contends the evidence from all five warrants should

have been suppressed.

As explained below, we conclude the trial court properly

denied defendant’s motion to suppress. Probable cause

supported issuance of the first search warrant even without

consideration of the polygraph results. Therefore, we need not

reach defendant’s claims regarding the propriety of the

magistrate’s consideration of polygraph results as part of the

probable cause showing for issuance of a search warrant.

Moreover, because the first search was valid, the subsequent

warrants and searches were as well. Finally, given these

conclusions, we need not reach whether the first search was

justified by the good faith reliance of the police on the

magistrate’s issuance of the warrant or whether the trial court’s

finding of voluntary consent provided an alternative basis for

the first search.

a. The affidavits supporting the warrants

1. The first warrant

At approximately 2:00 a.m. on Tuesday, February 5, 2002,

Detective Alldredge telephonically obtained a warrant from

Judge Cynthia Bashant to collect biological samples from

defendant and to search his house and three vehicles — his

SUV, motorhome, and trailer. In a conference call, Alldredge

testified under oath before Judge Bashant in response to

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questioning by a deputy district attorney. At the end of

Alldredge’s testimony, Judge Bashant decided to issue the

warrant. A transcript of Alldredge’s testimony was later

attached to the warrant.

As set out in that transcript, Allredge testified that

Danielle Van Dam was “now considered to be abducted” and

provided the details of her disappearance on February 2, 2002.

He explained that the police responded and completed a door-to-

door check of the neighborhood looking for Danielle. During the

initial survey, most of the other immediate neighbors were at

home and contacted, but defendant, who lived two houses away

from the Van Dams, was not home. Alldredge further noted that

the police conducted a second canvas of the neighborhood on

February 3, 2002, and defendant was still not home.

Alldredge testified that he learned from Danielle’s mother,

Brenda Van Dam that she had previously met defendant twice

at a local bar, including on the night before Danielle’s

disappearance. Brenda also told Alldredge that she and

Danielle had been inside defendant’s house a few days before

Danielle’s disappearance to sell girl scout cookies.

Allredge explained that the police first made contact with

defendant when he came home the morning of February 4, 2002.

Defendant gave them written consent to search his house and

motorhome, including a dog scent search. The dog twice

displayed an interest toward the garage door, although it was

not enough to be considered an “alert.” In response, defendant

explained that Danielle and her brother had recently been in his

home while selling girl scout cookies and that they had run

around inside the house, including upstairs, downstairs, in the

garage, and outside to visit the pool. The officers again

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contacted Brenda, and she confirmed that the children had

neither entered the garage nor had gone upstairs.

Alldredge testified that officers then searched defendant’s

motorhome, which was parked about 30 miles away in Poway,

California. According to the detectives, defendant displayed an

unusual amount of cooperativeness during the search by

opening drawers, lifting cushions, and pointing out areas missed

by the detectives.

Alldredge further testified that on February 4, he

participated in a phone conversation with Federal Bureau of

Investigations (FBI) agents known for profiling abductors.

According to the FBI profilers, a person involved in an abduction

often may offer to help officers or display excessive cooperation.

Further, according to a 10-year study, most abductions of

children ages five and above are for sexual purposes. The

abductors are mostly males who either live close to the victim’s

residence or are an acquaintance of the victim’s family. The

profilers believed it was highly unlikely that a complete

stranger abducted Danielle because of the high risk of entering

an unknown residence to take a victim. The profilers also

thought the perpetrator was someone familiar with the inside of

the Van Dam home. According to Alldredge, defendant’s house

was similar to the Van Dam’s home.

Alldredge testified that in an interview with Detective

Keene, defendant described encountering Brenda at the local

bar on the night before Danielle’s disappearance. Contrary to

Brenda’s description of that same encounter, defendant told

Detective Keene that Brenda had discussed her daughter

Danielle. Defendant said that Brenda had mentioned an

upcoming father-daughter dance at school, that she had bought

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a new blouse for Danielle, and that Danielle’s father was

concerned about how fast his little girl was growing up.

According to Keene, “out of the clear blue sky” defendant stated

that Brenda had told him a babysitter, and not her husband,

was watching her children that night. Keene knew that

Danielle’s father Damon had been watching the children,

although this was not common knowledge. Often the Van Dams

would have a babysitter watch the children on Friday nights.

Alldredge testified that a detective recontacted Brenda

and confirmed that she had not told anyone about the upcoming

father-daughter dance. According to Brenda, the only persons

who were aware of the dance were immediate family members

and one neighbor, not defendant.

Alldredge testified that defendant also described to

detectives the trip he took on the weekend of Danielle’s

disappearance, including how he, on the morning of February 2,

2002, had driven to Poway to pick up his motorhome from

storage. Alldredge noted that a neighbor had told detectives

that defendant’s motorhome was parked in the neighborhood

the night prior to February 2. In one part of his police interview,

Alldredge recounted, defendant said to a detective that “we

drove back to Silver Strand.” Defendant’s reference to “we”

suggested someone else was in the motorhome with him.

However, when questioned as to why he said “we,” defendant

responded that it was “just a slip.”

Alldredge also explained that detectives spoke with a park

ranger at the Silver Strand camping spot. The ranger described

how defendant had behaved suspiciously when the ranger tried

to return defendant’s overpaid camping fee by preventing the

ranger from seeing inside the motorhome.

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Alldredge finally testified about defendant having

completed, and failed, a polygraph examination. During the

examination, defendant was asked whether he was involved in

or responsible for the disappearance of Danielle and whether he

knew her location. Although defendant answered “no” to each

question, the polygraph examiner found defendant had been

deceptive in each response.

Based on this testimony provided by Alldredge over the

telephone, Judge Bashant found the existence of sufficient

probable cause and authorized a search warrant as requested.

The warrant was issued at 2:28 a.m. on February 5, 2002.

2. The second warrant

Detective Alldredge prepared a second affidavit in support

of a search warrant later on February 5, the same day the first

warrant was issued and executed. Alldredge declared that

during the course of the first search, computer forensic

examiners saw “in plain view” three CD’s and three computer

diskettes. The items were marked by the letters “X” and “XO,”

which based on the examiners’ prior experience, indicated they

may contain pornographic material. Following defendant’s

written consent to search his entire residence and all of its

contents, the examiners inserted the media into their own

computers. They discovered “possible child pornography with

minors engaged in sexual activity with each other and adults.”

Based on the items discovered, the examiners believed that

defendant’s computer might have child pornography stored on it

as well. A second warrant was issued authorizing the search of

defendant’s computer and its files, as well as computer disks and

other forms of media “depicting nudity and/or sexual activities,

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whether real or simulated, involving juveniles, juveniles with

juveniles, and juveniles with adults.”

3. The third warrant

The next day, February 6, 2002, Detective Johanna

Thrasher applied for a third search warrant requesting

defendant’s cell phone records, including the location from

which calls were made and received between February 1 and

February 4, 2002. She stated that defendant had made several

inconsistent statements regarding his whereabouts the night of

Danielle’s disappearance. Defendant had also told investigators

that he used his cell phone at different times during the

weekend after her disappearance to contact his son and ex-wife

about his plans and activities. Thrasher stated that by

obtaining defendant’s cell phone records, investigators could

corroborate or disprove defendant’s account concerning where

he was when calls were made. In support of her application for

the warrant, Thrasher relied on the facts demonstrating

probable cause for the first and second search warrants, as well

as the results of the search in which child pornography was

found in defendant’s home. Judge Bashant issued the requested

warrant.

4. The fourth warrant

On February 7, 2002, Detective Terry Torgersen, applied

for a fourth warrant to search any clothing and bedding that

defendant had taken to Twin Peaks Cleaners. Torgersen

presented the same factual basis for probable cause as

previously submitted with the additional information that two

dry cleaning receipts had been found during the search of one of

defendant’s vehicles. Torgersen stated that defendant admitted

to investigators that he dropped off items at the Twin Peaks

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Cleaners on Monday morning, February 4, 2002. Employees at

Twin Peaks Cleaners were contacted and told Torgersen that

defendant was one of their long-time customers. One of the

employees said that defendant had showed up at the cleaners

much earlier than usual on the morning of February 4 and had

asked for “same day service,” which he had never done before.

The employee noticed that defendant was dressed in short

pants, a shirt, and no shoes. She commented to defendant that

this was unusual on such a cold morning and defendant replied

that he had just returned from the desert. Torgersen spoke with

the supervising criminalist at the San Diego Police Department

crime laboratory and was told that DNA technology could obtain

DNA evidence and blood from items that have been dry cleaned

or laundered. Judge Bashant issued the warrant.

5. The fifth warrant

On February 13, 2002, Detective James Hergenroeather

applied for a fifth and final warrant for a more extensive search

for evidence, including trace evidence, located in defendant’s

home. Hergenroeather incorporated the affidavits from the

previous warrants in support of his request, as well as the child

pornography found in defendant’s home. He also indicated that

a strand of blond hair microscopically similar to Danielle’s hair

had been found in defendant’s 4Runner. Judge Bashant issued

the warrant.

b. Analysis

The Fourth Amendment to the United States Constitution

prohibits “unreasonable searches and seizures” and requires

search warrants to be issued only upon a showing of “probable

cause” describing with particularity “the place to be searched,

and the . . . things to be seized.” (U.S. Const., 4th Amend.)

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The pertinent rules governing a Fourth Amendment

challenge to the validity of a search warrant, and the search

conducted pursuant to it, are well-settled. “The question facing

a reviewing court asked to determine whether probable cause

supported the issuance of the warrant is whether the magistrate

had a substantial basis for concluding a fair probability existed

that a search would uncover wrongdoing.” (People v. Kraft

(2000) 23 Cal.4th 978, 1040 (Kraft), citing Illinois v. Gates (1983)

462 U.S. 213, 238-239.) “The test for probable cause is not

reducible to ‘precise definition or quantification.’ ” (Florida v.

Harris (2013) 568 U.S. 237, 243 [133 S.Ct. 1050, 1055].) But we

have stated that it is “ ‘less than a preponderance of the evidence

or even a prima facie case.’ ” (People v. Bryant, Smith and

Wheeler (2014) 60 Cal.4th 335, 370.) “ ‘The task of the issuing

magistrate is simply to make a practical, commonsense decision

whether, given all the circumstances set forth in the affidavit

before him, including the “veracity” and “basis of knowledge” of

persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.’ ” (Kraft, supra, at pp. 1040-1041, quoting

Illinois v. Gates, supra, at p. 238.) “The magistrate’s

determination of probable cause is entitled to deferential

review.” (Id., at p. 1041; accord People v. Carrington (2009) 47

Cal.4th 145, 161.) We explained in Skelton v. Superior Court

(1969) 1 Cal.3d 144, 150, that the warrant “can be upset only if

the affidavit fails as a matter of law to set forth sufficient

competent evidence” supporting the finding of probable cause.

Applying these principles, we find a substantial basis for

the trial court’s conclusion that there was sufficient probable

cause to conduct a search of defendant, his residence, and his

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vehicles that would uncover evidence related to the abduction of

Danielle, even without considering the polygraph evidence.

As explained in sworn testimony used to support the

application for the first search warrant, Detective Alldredge had

information suggesting defendant may have lied about

retrieving his motorhome from storage on the morning after

Danielle’s abduction. A neighbor had seen it parked in the

neighborhood the previous night. Regardless, it appeared that

defendant left in a hurried manner the next morning, and then

did not return to his home for two days. When defendant did

return and was contacted by officers, he displayed an unusual

amount of cooperativeness — a distinct trait associated with

abductors, according to FBI profilers. In addition, defendant

matched other characteristics identified by the profilers as

typical of abductors. When the search and rescue dog displayed

an interest in defendant’s garage, defendant provided a

convenient explanation that was inconsistent with the

information Brenda had provided the officers concerning her

children’s visit to defendant’s house. In his interview with

Detective Keene, defendant related information concerning

Danielle (the upcoming school dance, her new blouse, her

father’s concern that she was growing up too fast) that,

according to Brenda, only Danielle, her family, and one other

neighbor would have known. These circumstances, at least as

understood at the time of the execution of the first search

warrant, led to the reasonable inference that defendant had

learned of the planned father-daughter dance from Danielle

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herself.5 Moreover, defendant oddly voiced “out of the blue”

surprise that Brenda’s children were being watched not by a

babysitter, but by her husband, on the night of the abduction.

Defendant’s description of his weekend contributed

further to suspicion about him and his version of events.

Defendant first drove his motorhome to Silver Strand where he

overpaid to camp for several nights, despite claiming he did not

have his wallet with him. All of the blinds on the motorhome

were closed, and the park ranger who sought to return

defendant’s overpayment to him described defendant’s conduct

as suspicious. Although he had paid for several nights,

defendant left the campsite soon after being contacted by the

park ranger. More important, after describing how he dug his

motorhome out of the sand, defendant said “we drove back to

Silver Strand,” suggesting he was not alone during the trip.

Moreover, defendant stayed only briefly at Silver Strand and

returned home relatively early on the morning of February 4.

Considering the totality of these circumstances, and

without consideration of defendant’s polygraph examination,

there was sufficient probable cause to issue the first search

warrant because there existed a “fair probability” that the

search of his home, vehicle, and motorhome would reveal

evidence of a crime. (Kraft, supra, 23 Cal.4th at p. 1040.)

As for the subsequent warrants, each one was based on

additional, potentially incriminating evidence discovered via

5

After the execution of the first warrant, Alldredge learned

from Brenda that she might have discussed the father-daughter

dance in defendant’s presence.

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either a prior warrant or based on other additional information

learned during the continuing investigation.

Concerning the second warrant, the execution of the first

warrant had led to the discovery of possible child pornography

stored on CD’s. According to the FBI profilers, most abductions

of children ages five and above are for sexual purposes, and the

CD’s suggested that defendant had a sexual interest in children.

This discovery, in addition to the evidence asserted in the prior

warrant that was not related to the polygraph examination,

provided a “substantial basis” to believe that there was a “fair

probability” that additional incriminating evidence might be

stored in defendant’s computer and other electronic media.

(Kraft, supra, 23 Cal.4th at p. 1040.)

The discovery of possible child pornography from the first

and second warrants, in addition to the non-polygraph-related

facts demonstrating probable cause from the first warrant,

justified the issuance of the third warrant. The evidence

obtained from the execution of the prior warrants demonstrated

defendant’s possible sexual interest in children. The first

warrant affidavit described defendant’s inconsistent statements

regarding his whereabouts on the night of Danielle’s

disappearance and his odd behavior with the park ranger at the

Silver Strand camping spot. These circumstances provided a

“substantial basis” upon which to believe that there was a “fair

probability” that a search of defendant’s cell phone records,

including his location, would reveal that he had not been

truthful to investigators concerning his activities during the

weekend in question. (Kraft, supra, 23 Cal.4th at p. 1040.)

Regarding the fourth warrant to seize and search the

clothing and bedding defendant had taken to the dry cleaners,

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the supporting affidavit incorporated the facts asserted in the

prior three search warrant affidavits. In addition, the fourth

search warrant affidavit also alleged that two dry cleaning

receipts had been found during the search of one of defendant’s

vehicles and that defendant had admitted he had dropped off

items at the cleaners on the weekend in question. The affidavit

also alleged that the employees at the dry cleaner’s had noted

that defendant had presented his items at an unusual time and

was wearing clothing inconsistent with the cold weather that

morning. Specifically, he wore no jacket, yet turned in a jacket

for dry cleaning. Moreover, the affidavit alleged that DNA

evidence could still be obtained from items that had been dry

cleaned. Placing aside the polygraph evidence alleged in the

first warrant, these additional facts, in conjunction with those

previously alleged in the prior affidavits, provided a “substantial

basis” on which to believe there was a “fair probability” that a

search of defendant’s clothing and bedding would uncover

evidence relevant to Danielle’s disappearance. (Kraft, supra, 23

Cal.4th at p. 1040.)

Concerning the fifth and final warrant for a more

extensive search for evidence, including trace evidence, located

in defendant’s home, the supporting affidavit incorporated the

facts asserted in the prior search warrant affidavits. The

affidavit also described the discovery, in defendant’s 4Runner,

of a strand of blond hair that was microscopically similar to

Danielle’s hair. Without consideration of the polygraph

evidence alleged in the first warrant, this fact, in conjunction

with those facts previously alleged in the prior affidavits,

provided a “substantial basis” on which to believe there was a

“fair probability” that a trace evidence search of defendant’s

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home would uncover additional evidence relevant to Danielle’s

disappearance. (Kraft, supra, 23 Cal.4th at p. 1040.)

Given the above conclusions, we need not reach whether

the first search was justified by the good faith reliance of the

police on the magistrate’s issuance of the warrant or whether

substantial evidence supported the trial court’s conclusion that

defendant’s voluntary consent provided an alternative basis for

the first search.

2. Denial of Defendant’s Challenges for Cause

Defendant contends the trial court improperly denied his

challenge for cause concerning Prospective Juror number 19.

He claims prejudice from the fact that he was forced to use a

peremptory challenge to remove Prospective Juror number 19,

leaving him with no remaining peremptory challenges to use on

two allegedly biased prospective jurors — Prospective Juror

number 34, who became seated Juror number 4, and Prospective

Juror number 51, who became seated Juror number 2. Although

we conclude that defendant adequately preserved this issue for

appeal, we find no error in the trial court’s denial of defendant’s

challenge for cause to Prospective Juror number 19. In any

event, defendant fails to show that the court’s denial resulted in

him being tried by a biased juror. In addition, to the extent that

defendant further contends or suggests that other jurors should

have also been removed for cause, we also reject those

arguments.

a. Background

Prospective Juror number 19 was a 58-year-old

elementary school principal who lived in Poway. She indicated

on her jury questionnaire that she had “a positive attitude

toward law enforcement officers,” whom she often dealt with in

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connection with her work. However, she indicated that her

attitudes concerning the criminal justice system would not

influence her in favor of either the prosecution or the defense

regardless of the evidence. She believed that she was a good

judge of a person’s credibility. She explained that she dealt with

all types of people in her work and often had to make judgments

about a person’s character. She felt that she could be an

impartial juror because she “practice[d] this with children in

discipline situations.” She stated that she was “pleased to serve

[as a juror], but . . . very uneasy about her work responsibilities.”

She indicated on her jury questionnaire that “[i]t would be

extremely difficult to be away from [her] school (work) for the

length of time this case requires.”

In response to the questionnaire inquiry regarding

whether she “[w]ould like to be a juror in this case,” Prospective

Juror number 19 checked “no,” and stated: “I cannot serve on a

case where the victim was a child.” She believed that her

objectivity might be “colored,” although she continued to

consider herself fair. When asked on the questionnaire about

her ability to view photographs of the victim’s decomposed body,

Prospective Juror number 19 indicated this would affect her

ability to be fair and impartial because “[c]hildren have been

[her] life for 37 years.” Prospective Juror number 19 indicated

that she had basic background information about the case from

the news and had formed opinions based on that information

that the parents were guilty of neglecting their responsibilities

and that defendant had acted strangely by driving to the beach

and then the desert. When asked whether she could set aside

her opinions and decide the case based on the evidence

presented in court, Prospective Juror number 19 checked the

box indicating “yes.” When asked whether, despite anything she

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had seen, heard, or read, she could be fair to both sides, she

again checked the box indicating “yes.” She indicated she would

not automatically choose either death or life in prison, but would

consider all of the evidence in determining the appropriate

penalty. However, when asked at the end of the questionnaire

whether she was willing to serve as a juror on this case,

Prospective Juror number 19 answered “no,” because she could

not “fulfill her obligations to her staff and students if [she was]

away from school for 12 weeks.” Again, she stated that there

was no reason she would not be a fair juror in this case.

When Prospective Juror number 19 appeared in court for

oral voir dire, she reiterated to defense counsel her

questionnaire responses that she could not serve on a case

involving a child victim, that this might color her objectivity,

and that she could not be fair and impartial because children

had been her life for 37 years. When asked whether she was

saying that she could not be fair and impartial in this particular

case because it involved an allegation of murder of a child, she

stated that it “would color [her] feelings.” Defense counsel noted

that she used the word “color” in her response, but in her

questionnaire she used words like “I cannot serve.” He asked

her to explain. Prospective Juror number 19 responded that she

had spent “a great deal of [her] life protecting children. [She

had] gone to the authorities about abuse for children. The rights

of children are uppermost in [her] mind and [she would have] a

hard time looking at a defendant in a child — a case where a

child has been a victim.” She confirmed that sitting as a juror

on the case would create a professional hardship for her.

In response to voir dire by the prosecution, Prospective

Juror number 19 confirmed that she had to be fair and impartial

in her type of work and that she was fair even when the children

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were not her “favorites.” When asked if she could be fair and

impartial in this case, she said that she could not answer that

question because she did not know if she could be fair and

impartial. The prosecutor then asked: “If you were told that you

had to make your decisions based upon the evidence that came

forward in this case and only that evidence, could you do that?”

Prospective Juror number 19 answered, “yes.” Asked if she

would “let us know” if she found that she could not, Prospective

Juror number 19 said, “yes.”

The following colloquy then occurred between the court

and Prospective Juror number 19:

[THE COURT]: “Juror 19, you’re sort of a rare breed. In

reading your questionnaire you’re obviously very educated and

so forth, but you give what I will describe, as a judge, conflicting

messages.

“Counsel have each asked you questions from their

perspective, and I’m going to ask you point blank and direct.

“Knowing everything that you know about yourself, and

what you’ve seen and heard to this point in this case, do you

believe that you can be fair and impartial to both sides in this

case?”

[PROSPECTIVE JUROR NO. 19]: “I honestly believe that

I am fair and impartial in this particular case. I’m not sure that

my beliefs wouldn’t color the case.”

[THE COURT]: “Okay.”

[PROSPECTIVE JUROR NO. 19]: “I don’t know what else

to tell you.

[THE COURT]: “And I appreciate that. You’re just not

sure?”

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[PROSPECTIVE JUROR NO. 19]: “Yeah.”

The defense challenged Prospective Juror number 19 for

cause, additionally pointing to her questionnaire response that

her fairness and impartiality would be affected by viewing

photographs of the victim’s body. The trial court responded:

“Well, I understand that, but the reason I ask[ed] the question

[was] because my own notes show what a dilemma she is.

Because of her experience and her training, she has made it

quite clear that she’s very objective and she’s a very fair

individual. The answers she’s given do not indicate an extreme

bias or prejudice that would prohibit her from doing her job. I’ll

note a challenge to nineteen and it will be denied.”

b. Discussion

“ ‘As a general rule, a party may not complain on appeal of

an allegedly erroneous denial of a challenge for cause because

the party need not tolerate having the prospective juror serve on

the jury; a litigant retains the power to remove the juror by

exercising a peremptory challenge. Thus, to preserve this claim

for appeal we require, first, that a litigant actually exercise a

peremptory challenge and remove the prospective juror in

question. Next, the litigant must exhaust all of the peremptory

challenges allotted by statute and hold none in reserve. Finally,

counsel . . . must express to the trial court dissatisfaction with

the jury as presently constituted.’ ” (People v. Virgil (2011) 51

Cal.4th 1210, 1239, quoting People v. Mills (2010) 48 Cal.4th

158, 186; accord People v. Avila (2006) 38 Cal.4th 491, 539.)

The People contend defendant failed to satisfy the third

requirement and thus, forfeited the issue on appeal. It is

undisputed that defendant exercised a peremptory challenge as

to Prospective Juror number 19. And defendant moved for

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additional peremptory challenges after he had exhausted his 20

peremptory challenges. The defense based its request on “the

challenges for cause that were denied,” and identified in

particular Prospective Juror number 19. Defense counsel took

the position that the defense was “entitled to an additional

challenge for her and also the other challenges for cause that

were made and denied.” The trial court denied the request and

the jury was sworn. The following day, the defense recognized

that it had “failed to make clear” that the reason it requested

additional peremptory challenges the previous day “was that we

were dissatisfied with the panel as it was presently constituted

and that if we had had those peremptory challenges, we would

be challenging Jurors 2, 4, 6, . . . 11 and 12.” As the People

observe, defendant did not expressly state his dissatisfaction

with the composition of the jury before the jury was sworn.

Defendant contends, however, his dissatisfaction was implicit in

his request for additional peremptory challenges based on the

trial court’s denial of defendant’s challenge for cause to

Prospective Juror number 19 and other prospective jurors, as he

expressly clarified the next day.

In People v. Carasi (2008) 44 Cal.4th 1263, we found

forfeiture where the defendant had exercised a peremptory

challenge to remove the prospective juror in question, had

exhausted all of his peremptory challenges, and had asked “for

more” peremptory challenges. (Id., at p. 1290.) We found that

defendant had not expressed dissatisfaction with the jury as

constituted. (Ibid.) Here, however, defendant specifically tied

his request for additional peremptory challenges to the denial of

his challenge for cause to Prospective Juror number 19 and

“others,” which could have included his denied challenges to

seated Juror numbers 2 and 4. And, he specifically clarified the

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next day that the defense was dissatisfied with the panel as it

was presently constituted, identifying, among others, Juror

numbers 2 and 4. We conclude defendant adequately stated his

dissatisfaction with the jury as sworn. (People v. Rices, (2017) 4

Cal.4th 49, 75; see also People v. Souza (2012) 54 Cal.4th 90,

130.)

Although defendant preserved the issue for appeal, we

reject the claim on the merits.

“We will uphold a trial court’s ruling on a challenge for

cause ‘ “ ‘ “if it is fairly supported by the record.” ’ ” ’ [Citation.]

The trial court is in the best position to determine the potential

juror’s true state of mind because it has observed firsthand the

prospective juror’s demeanor and verbal responses. [Citations.]

Thus, ‘ “ ‘ “[o]n review of a trial court’s ruling, if the prospective

juror’s statements are equivocal or conflicting, that court’s

determination of the person’s state of mind is binding.’ ” ’

[Citations.]” (People v. Clark (2011) 52 Cal.4th. 856, 895 (Clark);

accord People v. Virgil, supra, 51 Cal.4th at p. 1241; People v.

Hillhouse (2002) 27 Cal.4th 469, 489 (Hillhouse) [“The trial

court is present and able to observe the juror itself. It can judge

the person’s sincerity and actual state of mind far more reliably

than an appellate court reviewing only a cold transcript”].)

Here, Prospective Juror number 19 gave equivocal and

conflicting responses regarding her ability to be fair and

impartial in this case. Ultimately, the trial court credited her

final statement that, knowing everything that she knew about

herself and considering what she had seen and heard to that

point, she could be fair and impartial in this particular case.

Under settled law, the trial court’s determination of her state of

mind is, appropriately, binding on our review.

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Defendant argues, however, that Prospective Juror

number 19’s final statement was not an unqualified assertion.

He notes that Prospective Juror number 19 also concluded with

the statement that she could not be sure that her beliefs

“wouldn’t color the case.” But Prospective Juror number 19 had

previously explained what she meant by the word “color” in her

voir dire answers. She indicated that because of her lengthy

professional background in education, the rights of children

were “uppermost in [her] mind” and that she would have “a hard

time looking at a defendant” in a case involving a child victim.”

Essentially, Prospective Juror number 19 acknowledged that

because of the nature of her work, she would have a difficult

emotional reaction to this case involving an alleged murder of a

child. Of course, “[a]ny juror sitting in a case such as this would

properly expect the issues and evidence to have an emotional

impact. A juror is not to be disqualified for cause simply because

the issues are emotional.” (People v. Bittaker (1989) 48 Cal.3d

1046, 1091 (Bittaker).) Nor do we expect jurors to “ ‘ “shed their

backgrounds and experiences” ’ ” in deliberating on a verdict.

(People v. Peoples (2016) 62 Cal.4th 717, 777.) We find it

significant that Prospective Juror number 19 repeated to

counsel and the court that she could nevertheless make her

decision based solely upon the evidence and would let them

know “if she found that she could not.” Overall, the trial court

reasonably could have found that the voir dire responses of

Prospective Juror number 19 reflect a thoughtful and cautious

self-awareness that supports the trial court’s conclusion that

she could be a fair and impartial juror. (See Hillhouse, supra,

27 Cal.4th at p. 488.)

Arguing against such a conclusion, defendant urges us to

find his challenge for cause concerning Prospective Juror

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number 19 analogous to the challenge for cause to Juror Staggs

in Bittaker, supra, 48 Cal.3d at pages 1089-1090, and Juror

McAdam in People v. Vitelle (1923) 61 Cal.App. 695, 697-700

(Vitelle), both of which were found to have been erroneously

denied. These cases are distinguishable from the circumstances

here.

In Bittaker, Juror Staggs told the trial court “that she had

worked at a rape crisis center, and did not believe she would be

impartial in a case involving charges of rape,” which Bittaker’s

was. (Bittaker, supra, 48 Cal.3d at p. 1089, fn. omitted.) “Her

voir dire present[ed] no unqualified statement that she actually

felt that she could be fair and impartial in the penalty phase of

this case.” (Ibid.) Indeed, she told defense counsel that she

would be unable to fairly and impartially judge and evaluate the

situation because of her strong feelings about victims of rape.

(Id., at pp. 1089-1090.) “The prosecutor attempting to

rehabilitate her, could obtain only a statement that she would

act impartially at the guilt phase.” (Id., at p. 1090.) When

questioned by the trial court, she said that she could try to listen

to the evidence and be a fair and impartial juror, “ ‘but I believe

it would be difficult’ ” and she thought that she “ ‘wouldn’t be

listening wholly to the evidence.’ ” (Ibid.) Given that Juror

Staggs did not think she could be impartial at the penalty phase,

and that she might not listen to all the evidence, we concluded

the trial court erred by denying the challenge for cause. (Ibid.)

In contrast, Prospective Juror number 19 did state that she

could be a fair and impartial juror, despite her qualms regarding

the nature of the case. She did believe she could make a decision

in the case based solely on the evidence and nothing in the

record suggests she would not listen to and consider all of the

evidence presented.

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In Vitelle, counsel for each side knew that the evidence

would show that the defendant was a member of the Ku Klux

Klan and that the charged assault was alleged to be a Klan

activity. (Vitelle, supra, 61 Cal.App. at p. 696.) On voir dire,

then Prospective Juror McAdam stated that he “ ‘was not in

favor of the Klan,’ ” and that it would create in his mind bias

and prejudice if it turned out that the defendant was a leading

member of the Klan. (Id., at p. 697.) Asked whether, with such

bias and prejudice, he could still act fairly and impartially

toward the defendant, McAdam replied that he did not think he

could. (Id., at pp. 697-698.) He thought that the defendant’s

membership in the Klan “ ‘would weigh with [him] to such an

extent that [he] would be influenced in hearing the testimony.’ ”

(Id., at p. 698.) He admitted that the mere fact that the

defendant was a Klan member would bias him. (Id., at p. 699.)

If the evidence showed that the defendant took part in any Klan

activities, McAdam said that he would have a prejudice against

the defendant. (Ibid.) Although McAdam also stated his

willingness to accept the court’s instructions, to attempt to

decide the case in accordance with the law, and to give the

defendant the legal presumption of innocence until the complete

establishment of his guilt (id., at pp. 698-699), the reviewing

court found error in the trial court’s denial of a defense challenge

for cause to McAdam. According to the appellate court, there

was “no escape from the conclusion that there existed in the

mind of McAdam a state of mind in reference to the case which

necessarily prevented him from acting with entire impartiality

and without prejudice.” (Id., at p. 700.) Here, Prospective Juror

number 19 affirmatively stated that she could be fair and

impartial. The trial court, which questioned her and observed

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her voir dire responses, believed her. We will not overturn its

credibility call.

We find no error in the trial court’s denial of defendant’s

challenge for cause to Prospective Juror number 19.

c. Prejudice

Moreover, even assuming error concerning Prospective

Juror number 19, we also reject defendant’s related claim of

prejudice or any suggestion that the trial court incorrectly

denied defendant’s other challenges for cause. Specifically,

defendant fails to show that the trial court’s ruling improperly

forced him to be judged by Juror numbers 2 and 4, both of whom

defendant suggests should have been removed for cause. (See

People v. Black (2014) 58 Cal.4th 912, 920.)

Defense counsel challenged Juror number 2 for cause on

the ground that Juror number 2 had expressed his belief in “a

life for a life,” and would reach an automatic death verdict if

defendant were found guilty.

The prospective juror who became Juror number 2 wrote

that he strongly supported the death penalty, and that his views

regarding it were “a life for a life.” But he wrote he did not hold

his belief in favor of the death penalty so strongly that he would

be unable to impose life without possibility of parole regardless

of the facts. He also indicated that his opinion in favor of the

death penalty would not “substantially impair” his ability to

perform as a juror such that he would vote only for the death

penalty. He acknowledged his willingness to weigh and consider

all the evidence of aggravating and mitigating factors before

deciding the appropriate punishment. He indicated that he

would not automatically vote for a verdict of death in a case

involving these charges and special circumstances, but instead

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would listen and consider all of the evidence at the penalty

phase before reaching a decision.

During voir dire, Juror number 2, consistent with his

questionnaire, affirmed he would not automatically impose the

death penalty if the trial reached a penalty phase. Juror

number 2 further explained that he would “have to hear all the

evidence” but would have a hard time imposing the death

penalty based on circumstantial evidence. He stated that if the

matter reached the penalty phase that he could not “say right

now which way [he] would go.” However, when asked to assume

that defendant had already been found guilty beyond a

reasonable doubt, he affirmed his belief of a life for a life,

explaining that his belief is “pretty strong,” because he thought

that “a life is precious.” Yet on further questioning by the

prosecutor about considering evidence presented at the penalty

phase, Juror number 2 reverted to his prior answers and stated

he would first listen to the evidence, including mitigating

evidence, before reaching a decision.

The trial court denied the defense challenge for cause of

the prospective juror who eventually became Juror number 2.

The court indicated that Juror number 2’s questionnaire was

clear and unequivocal that he could be fair and impartial. And

the court did not “believe that one question couched in such a

way as to change the ground rules . . . is going to make him have

cause to create an inability not to follow the law.”

With one exception, Juror number 2’s questionnaire and

voir dire answers were clear that, despite his views in favor of

the death penalty, he would first consider the penalty phase

evidence and not automatically vote for death. On a single

question during voir dire, defense counsel elicited one conflicting

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response, by asking him to assume that defendant was guilty

beyond a reasonable doubt, but outside the context of

considering aggravating and mitigating evidence presented at a

penalty phase. Juror number 2 subsequently made clear that

he would consider evidence presented during the penalty phase

before deciding punishment. In that sense, the trial court

reasonably determined that the one conflicting response elicited

by the defense through a leading question did not represent

Juror number 2’s true state of mind and properly denied the

defense challenge for cause. We must defer to that

determination because it is supported by substantial evidence

in the record.

Defense counsel challenged Juror number 4 for cause on

the ground that Juror number 4 had been intimidated by the

court into saying that she could be fair and impartial when in

fact she was biased.

The prospective juror who became Juror number 4

identified herself as being from Germany and asserted that

English was her second language. She stated nothing in her

questionnaire or during her first voir dire that disqualified her.

She had initially been passed for cause by both sides.

But after the court denied her hardship request, Juror

number 4 wrote a note to the court explaining that she had

misunderstood one of the questions on the form, specifically the

question asking whether she had friends or relatives in law

enforcement. She thought the question applied to only police

officers, but she now wanted to disclose that she had a close

personal friend who was a retired deputy district attorney. She

explained that they had discussed the criminal justice system,

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and as a result, she had formed opinions “favorable towards

prosecutors.”

Because of her note, Juror number 4 was called into court

for further voir dire. Defense counsel asked Juror number 4

whether her personal friendships would result in her favoring

the prosecution such that she could “no longer be completely,

one-hundred percent objective.” Juror number 4 responded

affirmatively. Defense counsel then asked: “So as a result of

your acquaintance with the prosecutors, in your view, you have

a bias such that it would prevent you from being a fair juror in

this case?” Juror number 4 responded, “I would think so, yes.”

The court asked Juror number 4, who had previously said

she could be fair to both sides, why she had changed her mind.

Juror number 4 explained that she had seen her friend the prior

night and that he had advised her to disclose the existence of

their friendship. She further explained that she was “not

familiar with the justice system the way everybody else seems

to be.” Because her answer was not directly responsive to the

court’s question, the court again asked Juror number 4 whether

she was trying to tell the court that she could not be fair, and

she responded: “I’m not a hundred percent sure. But it seems

like I have to explain this to you that I have this connection, and

we have talked about the judicial system. So that’s all I’m trying

to say here.”

On further questioning by the prosecutor, Juror number 4

stated that her friend, the retired prosecutor, had advised her to

inform the court of their friendship to the court, because she

would perjure herself if she did not disclose it. The prosecutor

also asked Juror number 4 whether she could be fair, and she

replied: “Yes. I think I can be fair, but the thing is I don’t — I

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did not tell you about this gentleman because I wasn’t aware

that this is required of me.”

The court then interrupted and explained its concern

about why she had told defense counsel that she could not be

fair and then told the prosecutor she could be fair, and asked:

“Now, what is it, Ma’am? Can you be fair and objective to both

sides or not?” She replied: “I don’t see why I can’t be, but I am

thoroughly confused at this point.” Juror number 4 affirmed

again that she did not know of any reason why she could not be

fair and impartial.

In contending that Juror number 4 should be dismissed

for cause, defense counsel acknowledged that her statements

about fairness were unequivocal but was critical of “the court’s

tone of voice” in questioning her and contended that she might

have been intimidated. Defense counsel also questioned

whether Juror number 4 had difficulty understanding because

English was not her first language. The prosecutor responded

that Juror number 4 told him without any pressure that she

could be fair. The trial court found no basis for disqualification

and denied the challenge.

Defendant claims on appeal that Juror number 4 was

influenced and intimidated by the court into saying that she

could be fair and impartial when in fact she was biased. But

viewing the totality of her expressed concerns, it appears that

Juror number 4 was merely attempting to state that her

friendship with the retired prosecutor caused her to doubt

whether she could be “a hundred percent” objective, but that she

still believed she could be fair. In assessing whether a claim of

juror misconduct indicates juror bias requiring reversal of the

judgment, we have acknowledged that “[j]urors are not

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automatons” but are “imbued with human frailties as well as

virtues” and that our system cannot survive by demanding

“theoretical perfection from every juror” and that we “must

tolerate a certain amount of imperfection short of actual bias.”

(In re Carpenter (1995) 9 Cal.4th 634, 654-655.)

Here, Juror number 4, in an abundance of caution, alerted

the court and the parties to something she had overlooked. She

acknowledged that it did not make her objectivity 100 percent

perfect but repeatedly clarified that she thought she could still

be fair overall. The trial court acted within its discretion in

denying the defense challenge for cause of Juror number 4.

As a result, defendant fails to show that the court erred in

denying his challenges for cause of the prospective jurors who

became seated as Juror numbers 2 and 4. Therefore, even

assuming the court erred in not removing Prospective Juror

number 19 for cause, defendant fails to show prejudice.

3. Denial of Defendant’s Motion for Additional

Peremptory Challenges

a. Background

On the day jury selection began, the defense noted that a

large number of those who were summoned for that day had

failed to appear. The defense moved the court “to do what it

[could] to enforce” the summons to ensure that defendant

obtained a fair and representative cross-section of the

community and a jury of his peers. Believing that 80 percent of

those summoned had failed to appear, the defense requested a

proportionate number of additional peremptory challenges “as a

remedy.” The trial court denied the request.

After the defense exhausted its 20 peremptory challenges

during jury selection, the defense again moved for additional

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peremptory challenges. The defense based its request on “the

challenges for cause that were denied,” particularly with regard

to Prospective Juror Number 19. The trial court denied the

request and the jury was sworn. The following day, the defense

told the court that what it meant the previous day was that it

was dissatisfied with the composition of the jury — specifically

Juror Numbers 2, 4, 6, 11, and 12 — and that this had been the

reason for requesting additional peremptory challenges. The

trial court found the request untimely because the panel had

already been sworn, but noted that it would have denied the

request even if it had been made before the panel was sworn.

b. Discussion

Defendant contends on appeal that the trial court erred in

denying his requests for additional peremptory challenges,

resulting in a violation of his constitutional right to due process.

He argues that the extensive pretrial publicity surrounding his

case required that he be granted the requested additional

peremptory challenges to ensure a fair and impartial jury. (See

People v. Bonin (1988) 46 Cal.3d 659, 679 (Bonin).) The People

respond that defendant forfeited his claim by failing to raise this

ground as a basis for his requests. (See People v. Jenkins (2000)

22 Cal.4th 900, 946.) In turn, defendant claims the trial court

and parties were acutely aware of the problem of pretrial

publicity and, thus, the court would have fairly understood that

defendant’s request for additional peremptory challenges was

ultimately based on such publicity. (Clark, 52 Cal.4th at p.966;

People v. Scott (1978) 21 Cal.3d 284, 290.)

The record reflects the trial court’s general concern with

the media attention that defendant’s case was receiving. But it

does not support defendant’s claim that the trial court would

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have understood his request for additional peremptory

challenges as being based on an effort to offset the effect of the

pretrial publicity. Nothing in defendant’s request to “remedy”

either the failure to appear of a large percentage of those

summoned for jury duty or the trial court’s denial of defense

challenges for cause would have alerted the court to a defense

concern that the jury venire might be pervasively biased

because of the media interest in and accounts of the case. We

conclude defendant’s failure to cite pretrial publicity as a basis

for his requests for additional peremptory challenges forfeited

his claim on appeal.

Even if we were to conclude otherwise, we would reject his

claim on the merits.

“Peremptory challenges are intended to promote a fair and

impartial jury, but they are not a right of direct constitutional

magnitude.” (People v. Webster (1991) 54 Cal.3d 411, 438, citing

Ross v. Oklahoma (1988) 487 U.S. 81, 88-89.) “To establish a

constitutional entitlement to additional peremptory challenges,

the defendant must at least show that he is likely to receive an

unfair trial before a biased jury if the request is denied.” (People

v. DePriest (2007) 42 Cal.4th 1, 23 (DePriest).)

Turning to such circumstances here, we note that defense

counsel stated the defense needed additional peremptory

challenges because of dissatisfaction with seated Juror numbers

2, 4, 6, 11, and 12. Of those five, the defense challenged for cause

only Juror numbers 2 and 4. As we have explained above,

because the trial court properly denied these challenges,

defendant fails to show that he was tried by a juror who would

have been removed if defendant had been granted additional

peremptory challenges. Therefore, this was not a scenario in

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which “an erroneous denial of a challenge for cause can be cured

by giving the defendant an additional peremptory challenge.”

(Bittaker, supra, 48 Cal.3d at p. 1088.)

We also reject defendant’s assertion that the pretrial

publicity resulted in him being tried by a biased jury. As we will

explain, none of the seated jurors expressed biased created by

pretrial publicity. Moreover, the trial court took numerous steps

to protect the jurors from the public awareness and interest in

the case.

Juror number 1 indicated that she had not “followed the

case closely” and did not know “much” about it. She averred

under penalty of perjury that she had formed no opinion, and

would be able to decide the case exclusively on the evidence

presented at trial even if it conflicted with what she had

previously heard.

Similarly, Juror numbers 2, 3, 4, 9, and 11, as well as

alternate Juror numbers 13, 15, 16, and 18, declared that they

did not know much about the case, had formed no opinion about

it, and could decide the case based solely on the trial evidence.

The jurors who had been exposed to more of the media

coverage of the case also dispelled any belief that they had been

biased. Juror number 5 indicated she knew “very little” about

the case, and the opinion she formed was that she was not

inclined to believe what the media or others had said. Juror

number 6 knew “some” details of the case and had formed the

opinion that there was enough evidence to arrest defendant and

that the authorities were being careful because it was a highly

publicized matter, but declared the ability to decide the case

exclusively on the trial evidence. The responses of alternate

Juror numbers 14 and 17 were similar. Juror number 7 knew

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that a child had disappeared from her room and that her body

had been discovered some weeks later. She had formed no

opinion from the publicity and averred that she could base her

decision entirely on the evidence presented at trial. Juror

number 8 had similar knowledge of the case and thought that

defendant “could possibly be guilty,” but declared that she could

set aside any opinion she had formed and base her decision “on

[the] evidence fairly.” Juror number 10 knew the “basic facts”

of the case, but had formed no opinion and could decide the case

based solely on the trial evidence.

Lastly, Juror number 12 stated he did not believe that he

knew anything about the case, despite the media coverage. He

had formed no opinion and could decide the case on the evidence.

We find no reason to disregard these assurances, by the

prospective jurors who were eventually seated, that they could

set aside whatever they learned from the media and decide the

matter based entirely on the evidence presented at trial.

(Prince, supra, 40 Cal.4th at p. 1215.)

Finally, we note that the trial court took numerous

precautions to prevent infection of the jury pool with prejudicial

information and to ensure a fair trial. Although the search

warrants themselves were made public, the trial court ordered

the attached affidavits and exhibits sealed. A gag order was

issued against the attorneys and law enforcement officers

involved in the case. Pretrial hearings concerning the

admissibility of evidence were closed to the public and media.

The trial court ordered that voir dire, although open to the

public, was not to be filmed. No one entering the courthouse

was to be photographed on the day the prospective jurors were

to report, and no names were to be utilized in the selection

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process. The trial court took the unusual step of directing the

jury commissioner to inform the prospective jurors appearing for

defendant’s case that they were not to discuss “anything about

what they might think they were there for.” As soon as the

prospective jurors appeared in the courtroom, the trial court

emphasized that the trial was to be based solely on evidence

presented in the courtroom and not by any information from

media sources. The jurors were told that the media had been

instructed to have no contact with them and that they were not

to read, listen to, or watch any programs or news items that

related to the case. Our review of the record persuades us that

the proceedings were conducted with solemnity and sobriety.

Defendant, therefore, has not met his burden to show that

he was likely to receive an unfair trial because of asserted bias

based on pretrial publicity. (DePriest, supra, 42 Cal.4th at pp.

23-24.) If defendant had properly preserved this issue for

appeal, we would find no error in the trial court’s denial of his

requests for additional peremptory challenges.

4. The Trial Court’s Alleged Failure to Sequester the

Jury

Defendant contends the publicity and public sentiment

surrounding his case was so extreme as the trial progressed that

it was not only an abuse of discretion under section 1121 for the

trial court to have declined on multiple occasions to sequester

the jury, but also, under a de novo standard of review, it

amounted to a violation of his constitutional right to due

process. Defendant argues that the trial court, in fact, did not

even truly exercise its discretion, but improperly left the

decision on sequestration up to the jury. We disagree with

defendant’s characterization and find no error.

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a. Background

Prior to trial, the defense filed a motion to sequester the

jury for the entire trial in lieu of a motion for change of venue.

Pointing to the extensive publicity the case was receiving, the

defense contended that sequestering the jury was necessary in

order to ensure that it was free from outside influences and to

guarantee defendant a trial by an impartial jury. The defense

noted that such publicity had been the basis for the trial court’s

order sealing pretrial motions and its gag order. The court

deferred a ruling on the motion.

In its initial charge to the jury, the court raised the subject

of the media’s coverage of the case. It told the jurors that “there

is a lot of misinformation that is out on the media regarding this

trial” and if they listened to and used such misinformation, it

would do “a grave disservice to both sides in this case.” The trial

court reminded the jurors that they had been selected because

they had agreed to base their decisions solely on the evidence

presented. It then told them that it had many options “in terms

of handling the media,” but it had selected “self-polic[ing]” as the

best option for the jurors and the trial. The court directed the

jurors to “not look at anything that has anything to do with this

case, whether it be print, radio, or television media.” If problems

came up, the court promised it would address them.

And indeed, some problems arose. When the trial court

noticed that a number of individuals in the courtroom audience

were wearing buttons containing a picture of Danielle, the court

told the audience that such buttons, placards, and T-shirts were

unacceptable and not allowed. The court warned all those

present that it would not allow the jury to be intimidated. When

it later came to the court’s attention that members of the public

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were still wearing the buttons in the courthouse hallway, it

reminded the jury that this had nothing to do with the lawyers,

the evidence before them, or the jury’s job. It was “just one more

form of the kinds of publicity or bias that [the jury had] been

selected to overcome.”

As television reporting continued, the trial court

specifically admonished the jury to avoid the coverage “at all

costs,” unplugging their television if necessary. The court

advised the jury to stay out of internet chat rooms and avoid any

internet coverage of the case. The court frequently repeated its

admonishments.

At one point, the trial court was advised that the county

probate office had received a number of phone calls after a

newspaper had published the occupations of the jurors. Juror

number 7 was one of only seven probate examiners in the office,

so it would not be difficult to ascertain her identity in light of

her altered work schedule. The court made arrangements with

the probate office to avoid pressure on Juror number 7 from

coworkers or the public.

Defendant’s renewed motion for sequestration was denied

without prejudice to the issue being raised again and

reevaluated as circumstances warranted.

Subsequently, the jury sent the trial court a note

indicating that it believed Brenda Van Dam was “glaring or

staring” at them. The court addressed the matter in closed

session. The court asked the jurors to raise a hand if they felt

they were being intimidated in any way by the Van Dams. No

juror did so. When the court inquired whether any juror felt

Brenda’s presence in the courtroom would in any way affect his

or her ability to be fair and impartial to both parties, no juror

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indicated that it would. The court told the jury that it should

notify the court if at any time the conduct of the Van Dams or

anyone else in the courtroom started to affect their ability to

listen to the testimony and be fair and impartial. The court later

repeated that any juror was welcome to raise any concern that

arose regarding perceived interference or intimidation. When

Damon Van Dam was subsequently expelled from the courtroom

for glaring at defendant, the jurors were admonished that the

court had made rulings that might or might not be reported in

the press. The court reemphasized that the jurors must be

vigilant in their self-policing.

The defense renewed its motion for jury sequestration

three days later, in light of further media attention, most

significantly false reports of the number of child pornography

images recovered from defendant’s computers. The trial court

responded that it would not sequester the jury because the court

had no reason to believe that the jurors were disregarding the

court’s order to pay no attention to the publicity.

Due to weekends, court holidays, and the trial court’s pre-

planned vacation, the jury was to be excused for 11 days from

Wednesday July 10 until Monday July 22, 2002. Before the

jurors were excused, the trial court again reminded them that

they must “guard against, in the utmost way possible, reading

or listening to” media coverage of the case. The court suspected

that “all of the talking heads” would try to keep interest in the

case going until the trial started up again and it was “very, very

important” that they continue to “self-police.”

When the trial resumed on July 22, the defense made a

motion for mistrial based on the “tremendous amount of

publicity” concerning the case. The defense took the position

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that the media coverage was “inescapable and at least some

jurors must have . . . been exposed to something in this case.”

This, according to the defense, was compounded by news stories

about another case in which a five-year-old girl, Samantha

Runnion, was kidnapped and sexually molested. Noting the

denial of its requests for sequestration, defendant requested a

mistrial. The prosecution opposed the motion, which it

characterized as being based on speculation. The trial court

denied the motion. It explained that the media coverage was no

different from what had been occurring throughout the trial and

that it intended to discuss with the jury its duty to ignore the

media focus on the Runnion case. Importantly, it noted that

there was “no evidence that any media coverage is being viewed

by these jurors, and [it had] every reason to believe they [were]

abiding by the court’s orders.”

On July 27, the court conducted a closed session to discuss

with the parties an incident that had been reported the prior

evening. When Juror number 2 was walking out of the

courthouse with two other jurors, Juror number 17 and Juror

number 18, Juror number 2 noticed someone following them.

Juror number 2, who was not wearing his juror badge at this

point, fell back and watched as a man, dressed in a blue shirt

and gray trousers, followed the other two jurors into the trolley

station. The man got onto the trolley with the three jurors and

exited at the “Old Town” station with them. The two jurors

proceeded to their cars, still followed by the same man, who was

keeping his distance. The man took out a piece of paper and

pencil, and wrote something down as the two jurors got into

their cars. Juror number 2 called the contact number he had

been given for the court to report the incident. There was no

indication who the person was that was following the jurors, but

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the court surmised that it was likely someone affiliated with the

media.

Brought in and questioned by the court, Juror number 2

confirmed these observations and added that as the jurors were

driving away, the man ducked and attempted to hide. Juror

number 2 indicated that Juror number 17 was aware of the

incident, but he did not believe Juror number 18 was. Asked if

anything about this experience would in any way affect his

ability to be fair and impartial to both sides in this case, Juror

number 2 replied, “No.” The court questioned Juror number 17

and received a similar account of the incident. When asked

whether he felt intimidated by the occurrence, Juror number 17

thought he was “fine with it . . . not happy with it, but . . . fine

with it.” The court also questioned Juror number 18, who said

she was not aware of the person that the other jurors believed

was following them. She indicated that the incident would not

affect her ability to be fair or elevate her safety concerns.

The court then addressed the entire jury, informing it that

some jurors may have been followed to their cars the previous

evening. The court indicated it was providing this information

not in an effort to make them paranoid, but to encourage them

to report any such behavior. The court assured the jurors that

law enforcement was investigating the incident. It also

informed them that motions to sequester the jury had been

made. But, the court said, it had decided that sequestration was

not appropriate. Nevertheless, all security options were being

considered and sequestration was a future possibility. The court

encouraged any juror who believed that this incident would have

a negative impact on his or her ability to be fair and impartial,

or on his or her ability to act as a juror, to communicate with the

court by written note. The trial court received no such notes.

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On July 29, defense counsel brought to the court’s

attention that a show had been earlier aired on cable television

titled “Body Farm,” which dealt with the science of

decomposition. Forensic entomologist Haskell had mentioned

the Body Farm as a research facility at the University of

Tennessee during his testimony. Additionally, defense counsel

noted that media coverage of the Runnion case had increased,

including coverage of the fact that the defendant in that case

had been previously acquitted of an earlier crime. The defense

was concerned that the jury here would think that if it acquitted

defendant in this case, he would kill another little girl. The

defense renewed its request for sequestration. The trial court

responded that, as it had mentioned with regard to the problem

of the jurors being followed, it would continue to consider jury

sequestration as a potential option, but its preference was

against it. The court explained that the jurors appeared to be a

hardy group, “they don’t appear to be intimidated by what

occurred and I continue to believe in their integrity.” The court

denied the defense motion.

When the jurors returned the following day, the trial court

told them that despite its understanding that all of the jurors

were in complete compliance, there was still a potential for

sequestering. The court acknowledged that a number of jurors

had shared a concern about not being available to their families,

and assured the jurors that it would take such concerns into

account. It advised the jurors that it was the court’s

responsibility to make such decision and although the decision

had not yet been made, it was the court’s current plan to allow

the jury to continue without sequestration. The trial court went

on to recognize that the Runnion case had been recently

receiving publicity and that it might appear to some to be

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similar to this case. The court told the jury it was not similar

and it had no bearing on the issues the jury was to decide in this

case. The court also warned the jury about the “Body Farm,”

advising it not to watch the show. It reminded the jurors that

the only scientific evidence they were to consider about

decomposition had been provided by the experts who testified in

court.

Prior to closing arguments, the trial court noted that

defense counsel had again raised the issue of sequestration. The

court informed counsel that it did not intend to sequester the

jury based on its understanding of the feelings of the jurors and

everything that it had observed. The court was confident that

the jury could still do its job and abide by the court’s orders.

Defense counsel subsequently brought to the court’s

attention a newspaper article that contained leaked information

regarding defendant’s case. The court stated that it was aware

of the article and intended to follow up with law enforcement

regarding the source of the leak. Defense counsel observed that

another newspaper article had been published over the

weekend, which specifically addressed CALJIC Nos. 2.60 and

2.61 and criticized the concept of a defendant’s right not to

testify. In addition, there was an article in San Diego Magazine

discussing the Van Dams and the bar called Dad’s. The defense

asked the court to “either sequester or specifically direct the jury

that there’s more landmines out there.” The court indicated that

these were the same kinds of materials that had been covered

by his previous admonitions. It denied the renewed request for

sequestration, explaining that by allowing the jurors to separate

and not be sequestered, it was expecting them to abide by the

court’s orders. For the record, the court noted again its

impression from dealing with the incident in which jurors had

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been followed that these jurors were “a hardy group of people,”

who did not “want their lives disrupted” by sequestration. It

observed that sequestration also had its “own pitfalls.” In later

admonishing the jury to avoid media coverage, the court again

emphasized that “in order for the court to abide by its

commitment to you not to sequester you,” it was relying on the

jurors “self-policing.” It told the jury that “[i]f that changes for

any reason, I’m going to have to change my position.”

In the course of closing argument, the court received a note

from Juror number 12 indicating that the increased media

coverage of the case was making it hard to have “a clear mind”

because people around him were talking and interested in the

case. The court addressed the issue with the entire panel,

telling the jurors that they “have to figure out ways to avoid

personally becoming involved” in such conversations and they

must disregard anything they accidentally overhear in light of

their obligation to base their decision solely on the evidence.

The court advised them that to avoid sequestration, they must

continue to abide by the court’s order requiring self-policing.

The court expressed its faith in them.

The court essentially repeated these comments in its

concluding instruction to the jury. The court also instructed the

jurors that it expected them to alert the court if they discovered

that they could not deliberate without outside influences and

wished to be isolated for deliberations.

Later the same day, the court received a note from the jury

indicating that one of the jurors was being “harassed” at work

to the point that he would rather be sequestered than go to work

on Fridays when the court was not in session. Because

sequestering would significantly affect the other jurors, the

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remainder of the jury proposed that they be allowed to

deliberate all or part of the day on Fridays, so that the other

juror could avoid going to work. In closed session with the entire

panel, the court worked out a plan that allowed them to come in

on Fridays. They could convene for a short time and then leave,

which would generally be sufficient to excuse them from work.

The court then separately questioned Juror number 12,

who was the juror who felt harassed at work. He confirmed that

the court’s plan for brief attendance on Fridays would excuse

him from work. Asked to describe what kind of things were

occurring at work that caused him concern, Juror number 12

related that nothing had been said to him, but everyone at work

had a radio and read the paper. It was becoming hard for him

to go to work because “a lot of people [were not] as respectful as

they should be.” Juror number 12 stated that this was not

influencing the way he looked at the evidence “or anything like

that,” but it was getting to the point that he was avoiding his

work and getting “written up for it.” He did not feel he should

be placed in such a position. Juror number 12 stated that his

concern was not with the media coverage, which he was strong

enough to keep away from, but with the people at work who were

making it hard for him. The new scheduling, he confirmed,

would solve the problem. Asked whether any information he

had received from his workplace affected his ability to be fair

and objective, Juror number 12 responded: “Oh, no. None.”

Meeting again with the entire panel in closed session, the trial

court confirmed that the majority would prefer not to be

sequestered.

On August 13, the trial court held another closed session

to discuss information received by the defense that reported

Juror number 12 had stated to a coworker that “he wasn’t going

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to believe anything [one of the defense counsel] said because he

didn’t like him.” The defense wanted the court to “become

involved” and question Juror number 12. The defense also felt

that there was increasing media and public pressure that

justified moving for a mistrial. In support of the motion, defense

counsel related his own experience of name-calling, threats, and

protests that seemed to be aimed at influencing the progress of

the trial. The court found no basis for a mistrial and declined to

inquire further of Juror number 12 because the allegations were

hearsay, if not double hearsay, and unrelated to the juror’s duty

to decide the case based on the evidence alone. It suggested the

parties were free to follow up on the matter to find out if there

was further basis for the claim.

Two days later, one of the alternate jurors reported she

felt that she and Juror number 2 had been followed when they

left the courthouse one evening. She confirmed that nothing

about the incident would have any effect on her or prohibit her

from fulfilling any duty she was called upon to perform in the

trial. When questioned, Juror number 2 did not feel they had

been followed. He also confirmed that nothing about the

incident would affect his ability to be fair and impartial in the

deliberations.

On the same day, the trial court heard and denied another

request from the defense to sequester the jury based on what the

defense felt was pressure being placed on them by media

scrutiny. The court granted the defense’s alternative request

that the jury be provided a place to gather during breaks and

lunch away from the media and public.

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b. Discussion

Section 1121 provides, in relevant part, that “[t]he jurors

sworn to try an action may, in the discretion of the court, be

permitted to separate or be kept in charge of a proper officer.”

It is well settled that under this statute and prior case law,

“sequestration is discretionary with the trial court even in

capital cases.” (People v. Bunyard (1988) 45 Cal.3d 1189, 1218,

accord People v. Gallego (1990) 52 Cal.3d 115, 169; People v. Ruiz

(1988) 44 Cal.3d 589, 616.) “The trial court stands in the best

position to evaluate the necessity of sequestration in a

particular case.” (Ruiz, at p. 616.) “ ‘[I]n reviewing a trial court’s

denial of a defendant’s motion for individual sequestered jury

selection, we apply the “abuse of discretion standard,” under

which the pertinent inquiry is whether the court’s ruling “falls

outside the bounds of reason.” ’ [Citation.]” (People v. Perez

(2018) 4 Cal.5th 421, 443, quoting People v. Famalaro (2011) 52

Cal.4th 1, 34.)

Defendant argues, however, that in this case due process

requires a higher standard of review, principally relying on

some general language found in Sheppard v. Maxwell (1966) 384

U.S. 333 (Sheppard), regarding the increasing prevalence of

unfair and prejudicial media coverage of pending trials that may

impact a defendant’s constitutional right to “receive a trial by

an impartial jury free from outside influences.” (Id. at p. 362.)

The high court stated that “trial courts must take strong

measures to ensure that the balance is never weighed against

the accused” and “appellate tribunals have the duty to make an

independent evaluation of the circumstances.” (Id., at pp. 362-

363.)

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But this language from Sheppard was not directed at the

standard of review of a trial court’s choice of method for ensuring

the jury is not subject to any such prejudicial influences from

the media. Instead, the high court’s observations were made in

the context of the defendant’s failed attempt to obtain a change

of venue and the subsequent effect of the intense media presence

and coverage on the jury and the defendant’s verdict.

(Sheppard, supra, 384 U.S. at pp. 345-349.) The high court was

critical of the fact that the trial court in the Sheppard case had

allowed a table “within a few feet of the jury box and counsel”

where “sat some 20 reporters staring at Sheppard and taking

notes” and that “[p]articipants in the trial, including the jury,

were forced to run a gantlet of reporters and photographers each

time they entered or left the courtroom.” (Id. at p. 355.) The

court also pointed out that two of the sitting jurors admitted to

learning, during the trial, of “the highly inflammatory charge

that a prison inmate claimed Sheppard as the father of her

illegitimate child.” (Id. at p. 357.)

It was the extraordinary circumstances involved in the

Sheppard case, where “bedlam reigned at the courthouse,”

because of the oppressive nature of the media’s presence both

inside and outside the courtroom, resulting in a “carnival

atmosphere,” that triggered the finding of a constitutional

violation. (Sheppard, supra, at pp. 355, 358.) Those

circumstances do not exist here. We conclude, therefore, in

accordance with our prior case law, that a trial court’s decision

whether to sequester a jury is subject to an abuse of discretion

standard of review. We find no abuse of discretion here.

First, we disagree with defendant that the trial court

abdicated its responsibility to decide whether to sequester the

jury, leaving it up to the jury to choose. The trial court

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recognized and explicitly told the jury “that it was the court’s

responsibility to make such decision.” The court informed the

jurors that, in making its decision, it would take their concerns

and preference “into account.” The court did so, but in denying

defendant’s requests for sequestration, it also weighed the fact

that “self-policing” appeared to be working and that

sequestration has its “own pitfalls.”

Second, as demonstrated by our extensive summary of the

relevant proceedings, the record reflects that the trial court

carefully and repeatedly addressed the potential impact of

media coverage, peer pressure, and public sentiment by ordering

the jurors to avoid any publicity regarding the case,

admonishing them concerning their duty to decide the case

solely based on the evidence presented, inquiring about the

impact of outside influences on their ability to be fair and

impartial, and crafting when necessary methods by which

outside influences could be reduced or avoided. Defendant has

not pointed to anything in the record suggesting that the jurors

failed to abide by the court’s orders and admonishments or

misrepresented their continued ability to decide the case fairly

on the trial evidence alone. “[W]e cannot assume on a silent

record that they ignored [such orders and admonishments] and

were exposed to prejudicial material.” (People v. Ruiz, supra, 44

Cal.3d at p. 617.) Indeed, the trial court expressly noted at one

point that it had “every reason to believe [the jurors were]

abiding by the court’s orders.” Certainly, in the absence of any

evidence that the jury was materially affected by the publicity

and interest that this case generated, we cannot say there was

any “substantial likelihood” that defendant did not receive a fair

trial, as defendant urges.

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5. Joinder of the Child Pornography Charge with the

Murder and Kidnapping Charges; Denial of

Defendant’s Motion to Sever

Defendant contends that the misdemeanor possession of

child pornography charge alleged against him in count three

(former § 311.11, subd. (a)6) did not meet the statutory

requirements for joinder with the charges of capital murder and

kidnapping. (§ 954.) Even if it did, defendant claims the trial

court abused its discretion in denying severance. We conclude

the child pornography charge was properly joined with the

murder and kidnapping charges. We further conclude

defendant failed to preserve the claim that the trial court abused

its discretion in denying severance, although we would find no

error in any event.

a. Background

Defendant filed a pretrial motion to sever the child

pornography charge from the kidnapping and murder charges

on the ground that it was improperly joined to such charges

under section 954. Defendant did not request discretionary

severance. The court deferred consideration of the severance

motion until it ruled on defendant’s related motion to exclude

any evidence of pornography under Evidence Code section 1101.

At the in limine hearing that followed, the prosecution

identified the portion of pornographic materials found in

defendant’s home office that it proposed to introduce as evidence

at trial. First, there were six video clips each lasting

6

In 2006, section 311.11 was amended to classify a first-

time commission of the offense as a “wobbler.” (Stats. 2006, ch.

337, § 23.) In 2007, a first-time commission of the offense was

designated a felony. (Stats. 2007, ch. 579, § 38.)

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approximately 30 seconds or less, depicting forcible sexual

attacks on young girls. Next, there was a photograph depicting

a young girl having sexual intercourse with an adult male.

Another exhibit was composed of nine individual cartoon or

anime images portraying forcible sexual acts; three of which

depicted the rape of a female with a fully mature body, but with

girlish facial features, and six of which depicted forcible sexual

acts with pubescent girls. Two other exhibits contained

sequences of multiple anime images showing the rape of females

with girlish features, hairstyles, and clothing. Finally, the

prosecution offered an exhibit containing another nine

photographic images of unclothed pubescent and prepubescent

females in what could be considered seductive poses. The six

video clips and the first photograph were specifically offered in

support of the child pornography charge. All of the images were

offered as relevant to defendant’s motive and intent in

kidnapping and murdering Danielle. It was the prosecution’s

position that “[t]aken together [the images] provide an

extremely rare insight into the reasons for this kidnapping and

murder. . . . They demonstrate graphically [defendant’s] special

attraction to young girls.” The prosecution asserted that one of

the images even looked similar to Danielle.

The defense responded that because the pornography

involving minors was a small percentage of the pornographic

materials seized from defendant’s computers, it was misleading

to suggest that possession of the materials reflected defendant’s

interest in young girls. The defense suggested that it might

have to counter with the entire collection. In addition, the

defense argued that the images and video clips were not

admissible on the issues of motive and intent without some

explicit connection between them and the crimes committed

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against Danielle. Finally, the defense contended that the

prejudice emanating from this evidence was overwhelming.

The trial court confirmed that the prosecution’s evidence

would show that “the body of Danielle was found in a nude state,

severely decomposed so that the cause of death could not be

determined, and there were no biological samples recognizable

or identifiable on the body at the time of the autopsy.” The

prosecution added that the evidence would also show Danielle’s

fingerprints on a cabinet just above the bed in defendant’s

motorhome, her blood in the motorhome hallway, and her hair

in the motorhome bathroom and other places. In light of the

totality of these circumstances, the trial court ruled that the

proffered pornography material would be “highly relevant” and

“probative” on the issues of motive and intent. Although it did

not resolve at the time the question of which of the proffered

images would be allowed to be introduced, it expressly found

sufficient evidence to sustain the prosecution’s theory of

admissibility.

Revisiting the issue the following day, the defense

contended that the pictures were inadmissible character

evidence suggesting that defendant was a pedophile. Because

there was no physical evidence that Danielle had been molested,

it continued to be the position of the defense that there was no

nexus between the images and the charged offenses. The trial

court reiterated its ruling from the previous day and added that,

balancing the appropriate interests, it declined to exclude the

evidence under Evidence Code section 352. The court observed

that the prosecution’s presentation of the evidence could be

succinct and to the point, as it had been at the hearing. The

court doubted the claim made by defense counsel that the

defense would respond by introducing defendant’s entire

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collection of pornography. It felt the defense could adequately

address its stated concern by establishing that the percentage of

images depicting young girls out of the total number of

pornographic images on defendant’s computers was small. The

court observed that the images the prosecution had elected to

show were not as inflammatory as some of the photographs that

they could have chosen to use.

The trial court subsequently ruled that the video clips, the

photograph depicting a young girl having sexual intercourse

with an adult male, and the nine photographic images of

unclothed pubescent and prepubescent females in seductive

poses were admissible evidence on the charge of child

pornography, as well as on the other charges. The court ruled

that the two sequences of multiple anime images and three of

the individual anime images portraying forcible sexual conduct

with females depicted with adult bodies were not admissible.

However, it concluded that the six individual anime images

showing forcible sexual acts with pubescent girls were

admissible on the issue of defendant’s possible motive and

intent.

The trial court next considered defendant’s motion to sever

the child pornography charge from the other charges in light of

its rulings. The defense contended that the child pornography

charge was not within the same class of crimes as the

kidnapping and murder charges, and that the commission of the

one was not connected to the commission of the other two. The

prosecution conceded that the child pornography charge was not

within the same class of crimes, but referencing its previous

argument regarding the admissibility of the child pornography

as evidence of defendant’s motive and intent in kidnapping and

murdering Danielle, it contended that the crimes were clearly

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connected in their commission so as to permit joinder. The trial

court denied defendant’s severance motion.

b. Discussion of joinder

Section 954 permits the joinder of “two or more different

offenses connected together in their commission . . . or two or

more different offenses of the same class of crimes or offenses.”

There is no claim that the child pornography charge alleged

against defendant is of the same class of crime as the kidnapping

and murder charges. The issue is whether the child

pornography offense is properly considered to be connected

together with the kidnapping and murder of Danielle. “Whether

offenses properly are joined pursuant to section 954 is a question

of law and is subject to independent review on appeal.” (People

v. Cunningham (2001) 25 Cal.4th 926, 984.)

We agree with the People that the charges here were

connected in their commission. “ ‘Offenses “committed at

different times and places against different victims are

nevertheless ‘connected together in their commission’ when they

are . . . linked by a ‘ “common element of substantial

importance.” ’ [Citations.]” ’ [Citation.]” (People v. Valdez (2004)

32 Cal.4th 73, 119; accord People v. Alcala (2008) 43 Cal.4th

1205, 1219 (Alcala).) Motive or intent may be such a common

element of substantial importance. (Alcala, supra, at pp. 1219-

1220 and cases cited therein; People v. Valdez, supra, 32 Cal.4th

73; Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 958.) In

this case, defendant’s possession of child pornography reflected

an interest in sexual conduct with, indeed sexual assault of,

young girls that was highly relevant to explain why he would

have kidnapped Danielle and ultimately murdered her. Such

interest and motivation had an evidentiary connection to the

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kidnapping and murder charges in the physical evidence of

Danielle’s handprint located near the bed of the motorhome, her

blood and hair found in the motorhome, her hair found on

defendant’s home bedding, and in the fact that she was abducted

from her bed at night and her nude body was subsequently left

in the desert.

Defendant raises a number of objections to our reaching

this conclusion.

First, he points out that there was no evidence that he

created the pornographic images seized or that he viewed them

immediately prior to Danielle’s disappearance. Defendant

asserts that to qualify for joinder of the charges, the possession

of proscribed pornography had to be connected to the evidence

of the kidnapping and murder, and not to some speculation or

theory of the prosecution concerning how or why those offenses

were committed. He further notes that there was no evidence

that any of the images were of Danielle herself or that the

images depicted a scene corresponding to the kidnap or murder

of Danielle. Defendant refers us to several cases in which such

factors, under their respective facts, have been present or have

posed an evidentiary concern. But because none of these cases

addressed the relevance of those factors as applied to the issue

of joinder, they are inapposite. (People v. Memro (1995) 11

Cal.4th 786, 864-865; People v. Clark (1992) 3 Cal.4th 41, 129;

People v. Guerrero (1976) 16 Cal.3d 719, 727-728 (Guerrero);

People v. Ghent, supra, 90 Cal.App.3d 944, 955-956, 958; People

v. Bales (1961) 189 Cal.App.2d 694, 701.) As the People observe,

the presence of any of these factors would have made the

evidence all the more damaging to defendant, but the absence of

these factors does not compel a conclusion that, under the

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circumstances present here, the child pornography charge was

unconnected to the charged kidnapping and murder.

Defendant appears to assume that intent or motivation

cannot constitute evidence connecting crimes for purposes of

joinder and, instead, that such connection can be made only

through physical evidence or objectively measurable factors.

But we have previously rejected the argument that the lack of

physical evidence or other objectively measurable factors is

necessary to establish the appropriateness of joinder. Instead,

we have expressly held that a connected intent or motivation,

including a sexual motive, is sufficient in and of itself to

establish the appropriateness of joinder. (Alcala, supra, 43

Cal.4th at p. 1220 [rejecting the contention that “intent or

motivation cannot constitute a ‘common element of substantial

importance,’ and, instead, only physical or objectively

measurable factors, such as use of a specific individual weapon,

can suffice” for joinder].)

Defendant next contends that the unclothed state of

Danielle’s body provides insufficient evidence of sexual

motivation and intent. He principally relies on People v. Craig

(1957) 49 Cal.2d 313, 318-319 (Craig I). In Craig, the issue was

whether the evidence supported a theory of first degree felony

murder perpetrated in the commission or attempted commission

of a rape. (Craig, supra, at p. 318.) The lacerated and battered

body of the victim was found lying under a car, legs spread

slightly apart, clothed in a raincoat over a nightgown or slip and

panties. Each of the garments had been torn open, exposing the

front of the body, but there was also evidence that the body had

been dragged some 20 to 25 feet. (Id., at p. 316.) We concluded

the evidence indicated a “terrific struggle,” but did not suffice to

prove the killing was committed in the attempt to commit rape

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or in the commission of rape. (Id., at p. 319.) The issues before

this court in Craig, and the other cases cited by defendant

(People v. Johnson (1993) 6 Cal.4th 1, 41-42; People v. Anderson

(1968) 70 Cal.2d 15, 34-36; People v. Granados (1957) 49 Cal.2d

490, 497), are distinguishable from the issue of joinder

presented here. (See People v. Thomas (1992) 2 Cal.4th 489, 527

[distinguishing the issues considered in Craig and Guerrero].)

Here we are examining the prosecution’s proposed evidence to

determine whether there is a substantial connection between

the alleged crimes for purposes of joinder. That inquiry does not

depend on the sufficiency of the evidence that a sexual assault

was ultimately attempted or completed.

Moreover, contrary to the argument of defendant, there

was other evidence besides the child pornography that

suggested a sexual motivation for the kidnapping and murder of

Danielle. There was the evidence of her abduction from her bed

at night, her handprint found on the cabinet above the bed in

defendant’s motorhome, her hair found in his home bedding, and

the absence of any clothing on or near her decomposed body. We

are not persuaded by defendant’s claim that the implication

from the location of Danielle’s handprint is diminished

significantly because a motorhome is such a cramped space.

That Danielle’s handprint was found near the bed, therefore,

still retained evidentiary significance.

We conclude that the child pornography charge was

validly joined with the kidnapping and murder charges under

section 954.

c. Discussion of discretionary severance

Because it ordinarily promotes efficiency, joinder “is the

course of action preferred by the law.” (Alcala, supra, 43 Cal.4th

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at p. 1220.) “Nonetheless, a trial court has discretion to sever

properly joined charges in the interest of justice and for good

cause.” (People v. Simon (2016) 1 Cal.5th 98, 122.)

“When exercising its discretion, the court must balance

the potential prejudice of joinder against the state’s strong

interest in the efficiency of a joint trial.” (People v. Arias (1996)

13 Cal.4th 92, 126 (Arias).) To successfully claim that the trial

court abused its discretion in denying a motion to sever, a

“ ‘ “defendant must make a clear showing of prejudice” ’ ” by

demonstrating that the denial “exceeded the bounds of reason.”

(People v. Capistrano (2014) 59 Cal.4th 830, 848 (Capistrano).)

“An appellate court evaluates such claims in light of the

showings made and the facts known by the trial court at the

time of the court’s ruling.” (People v. Merriman (2014) 60

Cal.4th 1, 37 (Merriman).) “ ‘[A] party seeking severance must

make a stronger showing of potential prejudice than would be

necessary to exclude other-crimes evidence in a severed trial.’ ”

(Alcala, supra, 43 Cal.4th at p. 1222, fn. 11, quoting Arias,

supra, 13 Cal.4th at p. 127; accord, People v. Soper (2009) 45

Cal.4th 759, 773-774 (Soper).)

“In determining whether a trial court’s refusal to sever

charges amounts to an abuse of discretion, we consider four

factors: (1) whether evidence of the crimes to be jointly tried is

cross-admissible; (2) whether some charges are unusually likely

to inflame the jury against the defendant; (3) whether a weak

case has been joined with a stronger case so that the spillover

effect of aggregate evidence might alter the outcome of some or

all of the charges; and (4) whether any charge carries the death

penalty or the joinder of charges converts the matter into a

capital case.” (People v. O’Malley (2016) 62 Cal.4th 944, 968

(O’Malley).) “We then balance the potential for prejudice to the

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defendant from a joint trial against the countervailing benefits

to the state.” (Soper, supra, 45 Cal.4th at p. 775, fn. omitted.)

However, “[i]f the evidence underlying the joined charges would

have been cross-admissible at hypothetical separate trials, ‘that

factor alone is normally sufficient to dispel any suggestion of

prejudice and to justify a trial court’s refusal to sever properly

joined charges.’ [Citations.]” (Merriman, supra, 60 Cal.4th at

p. 38.)

Defendant complains that it is not clear that the trial court

even considered the relevant factors and exercised its discretion

in denying his motion for severance. He argues that, in any

event, the denial of his motion was an abuse of discretion.

Defendant contended in his written motion and oral

comments to the trial court that the child pornography charge

alleged in count three did not meet the statutory requirements

for joinder with the kidnapping and capital murder charges. He

did not request, in the alternative, that the court exercise its

discretion to sever the charges if it found the charges to be

properly joined. It is not surprising, therefore, that the trial

court did not state for the record that it would deny such a

request and explain its reasoning. Under these circumstances,

we conclude defendant has failed to preserve the claim that the

trial court erred in denying discretionary severance pretrial.

Even if we were to find no forfeiture, however, we would

not find any error. Here the evidence underlying the child

pornography charge would have been cross-admissible at a

hypothetical separate trial of the kidnapping and murder

charges, as we have discussed in the previous section. Indeed,

the cross-admissibility of the two crimes flows in both directions

because each crime illuminates the motive for the other.

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Defendant’s reliance on People v. Page (2008) 44 Cal.4th 1,

does not persuade us otherwise. In Page, defendant claimed

prejudicial error in the admission of pornographic magazines to

show his intent in committing a lewd act on a child. (Id., at p.

39.) We found that the magazines “may have been probative

with respect to defendant’s commission of the crimes,” although

we found them to have “less probative value than the images

considered in prior cases.” (Id., at p. 40.) But we declined to

reach the issue of whether the trial court abused its discretion

under Evidence Code section 352 in admitting the magazines

because we found any error to be harmless under the

circumstances. (Id., at pp. 41-45.) Because Page did not reach

the issue of admissibility, it does not assist defendant’s claim

that evidence of his possession of child pornography was

irrelevant to the kidnapping and murder charges and therefore,

not cross-admissible. Moreover, the nature of the child

pornography possessed by defendant here provided a much

stronger inference of motive and intent than apparent in the

magazines possessed by the defendant in Page. (Id., at p. 39.)

Further, if we were to reach the remaining three

discretionary severance factors, we would still find no abuse of

discretion. The second factor considers whether an

inflammatory offense is being joined to one that is not

inflammatory “under circumstances where the jury cannot be

expected to try both fairly.” (People v. Mason (1991) 52 Cal.3d

909, 934.) “The danger to be avoided is ‘that strong evidence of

a lesser but inflammatory crime might be used to bolster a weak

prosecution case’ on another crime.” (Ibid; accord Capistrano,

supra, 59 Cal.4th at p. 850.) Here the charge of possessing

images of child pornography was no more inflammatory than

the charges of kidnapping a young girl from her bed at night,

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murdering her, and leaving her body to be ravaged by animals

in the desert. The evidence supporting each crime was strong,

and this defeats the notion that strong evidence of one

inflammatory crime was improperly used to bolster any weak

evidence supporting the other crime. In fact, defendant

concedes, relevant to both the second and third factors, this was

not a situation where “a weak case [was] joined with a stronger

case” creating a “spillover effect of aggregate evidence [that]

might alter the outcome of some or all of the charges.”

(O’Malley, supra, 62 Cal.4th at p. 968.) Finally, the joinder of

the child pornography charge did not convert defendant’s case

into a capital one. (Ibid.)

6. The Trial Court’s Admission of Additional

Pornography Evidence

At trial, the prosecution presented, through the testimony

of its computer forensic examiner, James Watkins, Jr., a limited

subset of the still images and video child pornography found

recorded on CD-ROM’s and zip disks located in defendant’s

home office. The trial court subsequently ruled, however, that

by its cross-examination of Watkins, the defense opened the

door to the admission of almost all of the rest of defendant’s

collection of pornography.

Defendant claims that he did not “open the door” and if the

cross-examination was in some way misleading, the appropriate

remedy was corrective redirect examination by the prosecution,

not the admission of additional pornography. Defendant

contends the trial court abused its discretion under Evidence

Code section 352 by allowing Watkins to describe and the jury

to view the additional pornography. Defendant further asserts

that admission of the additional evidence revealed the gross

unfairness of the joinder of counts. Defendant argues the trial

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court’s rulings undermined the fundamental integrity of the

trial and amounted to a violation of due process. We find no

error.

a. Background

As previously recounted, a pretrial hearing was held

regarding defendant’s motion to sever the child pornography

charge an

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