# People v. Westerfield

> California Supreme Court · February 4, 2019 · 243 Cal. Rptr. 3d 18

URL: https://www.frixlaw.com/law-library/cases/4364369

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. David Alan WESTERFIELD, Defendant and Appellant.
- **Court:** California Supreme Court
- **Decided:** February 4, 2019
- **Citations:** 243 Cal. Rptr. 3d 18; 6 Cal. 5th 632; 433 P.3d 914
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 242 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4364369

## How later opinions describe it (automated extraction)

- holding that defendant was not entitled to severance of child pornography charges from kidnapping and capital murder charges because “defendant’s possession of child pornography reflected an interest in sexual conduct with, indeed sexual assault of, young girls that was highly…

## Opinion text

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.

1
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.

2
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

3
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

4
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

5
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

6
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

7
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

8
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

9
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

10
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

11
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

12
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

13
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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,

14
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

15
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

16
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

17
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

18
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

19
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

20
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.”

21
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

22
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

23
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

24
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

25
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

26
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

27
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

28
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

29
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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,

30
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

31
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.)

32
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

33
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

34
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

35
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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,

36
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

37
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

38
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

39
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

40
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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?”

41
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

[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

42
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

43
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

44
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

45
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

46
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

47
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

48
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

49
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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,

50
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

51
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

52
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

53
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

54
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

55
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

56
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

57
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

58
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

59
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

60
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

61
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

62
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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.

63
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

64
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

65
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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

66
PEOPLE v. WESTERFIELD
Opinion of the Court by Cantil-Sakauye, C. J.

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 ti

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4364369. Public record. Not legal advice.