        IN THE SUPREME COURT OF
               CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
               DAVID ALAN WESTERFIELD,
                 Defendant and Appellant.

                           S112691

               San Diego County Superior Court
                         SCD 165805



                       February 4, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,
in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and
Slough concurred.





      Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                 PEOPLE v. WESTERFIELD
                            S112691


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


       A jury convicted defendant David Alan Westerfield of the
2002 first degree murder of seven-year-old Danielle Van Dam.
(Pen. Code, § 187, subd. (a).1) It found true the special
circumstance that the murder was committed during a
kidnapping. (§ 190.2, subd. (a)(17).) The jury also found
defendant guilty of the kidnapping of Danielle, a child under the
age of 14 (§§ 207, 208, subd. (b)), and misdemeanor possession
of child pornography. (former § 311.11, subd. (a).) Following the
penalty phase of trial, the jury returned a verdict of death. The
trial court denied defendant’s motion for modification of the
penalty to life imprisonment without the possibility of parole
(§ 190.4, subd. (e)) and sentenced him to death on the murder
count. The trial court sentenced defendant to a prison term of
11 years for his conviction of kidnapping, which it stayed
pursuant to section 654. Defendant was sentenced to time
served for his child pornography conviction.
      This appeal is automatic. (§ 1239, subd. (b).) We affirm
the judgment in its entirety.




1
     All further statutory references are to the Penal Code
unless otherwise indicated.


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


                             I. FACTS
     A. Guilt Phase
         1. Overview
      On the night of Friday, February 1, 2002, Damon Van
Dam put his two sons and his seven-year-old daughter, Danielle,
to bed. His wife, Brenda, went out with her girlfriends to a bar
where they saw defendant, David Westerfield, who lived two
doors down from the Van Dams. When Brenda, her girlfriends,
and two male friends came home, they noticed an alarm monitor
was flashing, and the side garage door was open. They closed
the door and had something to eat. Damon got up and joined
them. After the friends left, Brenda and Damon went to bed.
Sometime later during the night, Damon awoke and noticed an
alarm monitor flashing. He went downstairs and noticed the
door to the backyard was open. He closed it and made sure the
other doors were closed. He went back to sleep without checking
on the children. The next morning, Danielle was missing. A
neighborhood search failed to find her, and defendant was not
at home.
      Defendant spent the weekend after Danielle’s
disappearance driving around in his motorhome away from his
house in the Sabre Springs neighborhood of San Diego to various
state parks outside the San Diego area. He had awkward
encounters with rangers and volunteers who worked at the
Silver Strand state park near the city of Coronado.
      On Monday morning, defendant arrived in his motorhome
at his neighborhood dry cleaner’s shortly after the business
opened to have bedding and a jacket cleaned. Although it was a
cold morning, he was wearing a thin T-shirt, thin shorts, no
shoes, and no socks.


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       An examination of the forensic evidence revealed that the
jacket that defendant left at the dry cleaner’s contained
Danielle’s blood. Danielle’s blood was also found on the carpet
of defendant’s motorhome between the bathroom and the closet;
her handprint, including several associated fingerprints, was on
a cabinet above the motorhome’s bed. Hairs consistent with
Danielle’s DNA profile were found in the bathroom of
defendant’s motorhome and at his residence in his washing
machine, dryer, and on the bedding from his master bedroom.
Fibers matching others later found with Danielle’s body were
discovered in defendant’s motorhome, SUV, laundry, and
bedding. Fibers similar to those from the carpeting in Danielle’s
bedroom were found by the bed, in the bathroom, and in the hall
of defendant’s motorhome. Hairs from the Van Dams’ family
dog were discovered on one of the comforters defendant dropped
off at the dry cleaner’s, on the hallway carpet and bathroom rug
in defendant’s motorhome, and in defendant’s laundry.
      Danielle’s badly decomposed body was discovered off the
side of a road in a remote part of San Diego County on February
27, 2002. Her mummified remains had been ravaged by
animals, such that no sexual assault testing could be performed
and no definite cause of death determined. The coroner could
not rule out suffocation.
      In defendant’s home, officers discovered computer files
containing child pornography.
     Defendant principally relied on an alibi defense based on
entomological evidence from Danielle’s body that suggested her
death occurred sometime subsequent to February 5, after
defendant was under constant police surveillance.




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             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.


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Brenda was uncertain whether anyone closed it. Kemal recalled
closing the side door, but not locking it. The Van Dams had
reversed the lock on the interior garage door leading into the
house so that they could, if they chose, prevent their children
from entering the garage. A person inside the garage could
unlock the door without a key and enter the house.
      After Brenda and her two girlfriends left for Dad’s, Damon
stayed home with the children, Danielle, Dylan, and Derek.
Around 10:00 p.m., Damon put the children to bed for the night,
each in his or her own room, and left each door ajar. Damon
watched television downstairs for 20 to 30 minutes. He then
went up to the master bedroom, taking Layla, the family puppy,
with him. He closed the door to keep the puppy in the room and
continued watching television until he fell asleep. He briefly
woke up at around 1:45 a.m. to allow the puppy to relief herself
in the backyard, after which he closed the door and went back
upstairs.
      Brenda, Kemal, and Easton were at Dad’s during this
time. When they arrived at the bar, defendant was already
there with two of his friends. Brenda pointed defendant out to
Easton, who went over to him and introduced herself.
Defendant came over and bought them drinks, but they did not
include him in their conversation. Sometime after 9:00 p.m., the
Van Dams’ friends, Rich Brady and Keith Stone, arrived. Brady
and Stone joined Brenda and her friends. At one point,
defendant’s friends joined Brenda’s group playing pool.
Defendant was not part of the group but watched for at least
part of the time. Later that night, around 10:30 or 11:00 p.m.,
the group went to Brenda’s car where they smoked marijuana.
When they went back inside the bar, the group started dancing.
Defendant was still inside. The group left Dad’s shortly before

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             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.


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checked the alarm panel. Damon went back to bed without
checking on the children.
      The next morning, Brenda woke and went downstairs to
make breakfast and await the arrival of two neighborhood
children whom she was to watch that day. Damon and the two
boys were already downstairs. The neighborhood children
arrived around 9:30 a.m. Because Danielle had not yet come
downstairs, Brenda went to wake her. Danielle was nowhere to
be found. Brenda called 911 and their neighbors, reporting that
Danielle was missing. The police arrived and conducted a
forensic investigation of their house that day and overnight.
            c. The investigation of Danielle’s disappearance
       By Sunday, February 3, the San Diego Police Department
had set up a “command post” on the Van Dams’ street. Detective
Johnny Keene arrived to contact neighbors and to obtain
statements concerning any information about Danielle’s
disappearance. He knocked on defendant’s door and received no
answer. The following morning, Keene returned to defendant’s
home upon learning that defendant had returned and other
officers had spoken with him in his driveway.
        Keene asked defendant about his activities that weekend.
Defendant said that he awoke around 6:30 a.m. on Saturday and
decided he wanted to go to the desert. He drove his Toyota
4Runner SUV to his storage location in “High Valley” where he
left it to retrieve his motorhome. He drove the motorhome back
to his house, where he stocked it with groceries and filled the
water tank. Defendant said he left home around 9:50 a.m.
When he realized that he did not have his wallet and did not
have enough money to go to the desert, he instead drove to a
state park called Silver Strand near the city of Coronado. When


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                     PEOPLE v. WESTERFIELD
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he arrived, he filled out a registration envelope, placed money
for a three-night stay inside, and parked his motorhome. A park
ranger came by and told him he had overpaid by $30, apparently
placing a $50 bill in the envelope. Once the ranger left,
defendant said that he did not stay much longer because it was
too cold. He decided, instead, to return home to find his wallet.
      Defendant thought he arrived home around 3:30 p.m. He
saw news vans and police activity on the street. One of his
neighbors told him about the missing girl and defendant decided
to check his house and pool. After he did so, he drove back to
where he had left his 4Runner because he thought, as it turned
out correctly, that he might have left his wallet in it.
      Once he had his wallet, defendant put gas in his
motorhome and drove the “back way” to Glamis, a sand dune
area about 160 miles away. He estimated that he arrived
around 10:00 or 10:30 p.m. Defendant did not bring with him
any of his “sand toys,” meaning the vehicles he usually drove on
the sand dunes. He pulled into a spot for the night, but got stuck
in the sand. He spent the night there and began digging himself
out the next morning. Eventually someone came by and towed
him out of the sand.
       Defendant said that once he was out of the sand, he left
Glamis and drove to a place called Superstition Mountain to see
if it was a place he would want to take his son camping. He
continued on to Borrego Springs, where he once again got the
motorhome stuck in the sand. Defendant estimated that he left
Borrego Springs about 6:00 p.m. after digging himself out. He
drove back to Silver Strand, but arrived too late to gain
admittance to the park. Defendant said that he parked the
motorhome for the night across the street in a parking lot at


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                     PEOPLE v. WESTERFIELD
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Coronado Cays. He woke up early, around 4:00 a.m., and drove
back to High Valley. But thinking it was still too early to park
his motorhome and retrieve his 4Runner, he drove straight
home. The police arrived a short time later.
      Keene asked defendant about his night at Dad’s on Friday,
February 1. Defendant mentioned seeing Brenda there and that
her husband told her he felt their daughter was growing up too
quickly. Defendant paused and then said, “I could have sworn
she said she had a babysitter. I didn’t know her husband was
home with the kids.” Keene had not asked a question to prompt
such a response.
      Defendant told Keene that he left Dad’s around 11:00 or
11:30 p.m. that night, drove home, and went to bed. When asked
about other previous interactions with Brenda, defendant told
Keene about meeting Brenda at Dad’s the week before and
buying Girl Scout cookies from Danielle the previous week.
Defendant said that while he was filling out the cookie order
form and speaking with the Brenda, the kids were “running all
over the house.”
       Keene asked defendant if it was okay to look inside his
house, 4Runner, and motorhome. Defendant said it was, and
signed consent forms for all of them. Once inside defendant’s
home, Keene immediately noticed how immaculately clean it
was. Keene noted that the master bed did not have a comforter
on it, but was otherwise made with sheets. During their search,
Keene believed defendant was overly cooperative, pointing out
places that the detectives had missed. Keene and Parga looked
at defendant’s 4Runner, which was parked in the garage. It
seemed very clean inside and out. Parga detected the smell of
bleach in the garage.


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                     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


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                     PEOPLE v. WESTERFIELD
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windshield. All of the other curtains were also closed. No one
came out to set up anything for camping. Contrary to
defendant’s description, the weather was cool, but nice.
      State Park Ranger Olen Golden noticed that defendant
had placed $54 in his registration envelope when only $24 was
due. State Park Ranger Brian Neill went to defendant’s
motorhome to return the overpayment. Neill also noticed that
the curtains were drawn so that he could not see inside, and
nothing was set up outside the motorhome. Neill knocked on
the door, but no one immediately responded. He had started
back to his vehicle when defendant emerged. Defendant
immediately shut the door behind himself. Neill informed
defendant that he had overpaid. Defendant insisted that he had
not, but Neill returned the extra money to him. Defendant
remained outside while Neill walked back to his vehicle.
Minutes after Neill left, defendant drove off in his motorhome.
He approached a volunteer who worked at the Silver Strand and
continued to insist he had not overpaid. Contrary to the
narrative defendant told Detective Keene in which he claimed
he had misplaced his wallet, the volunteer saw defendant pull
out his wallet and show the volunteer that he had only $20 bills.
       In Glamis, where defendant drove next, other visitors
noticed that defendant’s motorhome had been driven unusually
far off the road, close to the sand dunes, where it became stuck
in the sand. On Sunday morning, defendant tried to convince
other campers to tow him out, but they were unwilling or unable
to help him. Don Conklin, a Glamis resident who provided tow
services, arrived to help defendant. Conklin successfully pulled
defendant’s motorhome out of the sand. But when Conklin went
to retrieve defendant’s ramps and the shovel that they had used
in the towing process, he could not return them to defendant

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             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.


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             d. The discovery of Danielle’s body and other
                forensic evidence
       Karsten Heimburger was part of a volunteer search party
looking for Danielle. On February 27, 2002, he discovered the
nude, decomposed body of a young girl, lying on her back in the
dirt off the side of Dehesa Road, a desert-type area of open space.
The body was identified as Danielle based on her dental records.
      San Diego County Medical Examiner Dr. Brian
Blackbourne arrived at the Dehesa Road location the night of
February 27, 2002. He observed the Danielle’s body was in a
state of marked decomposition. Her body had been extensively
fed upon by animals so that much of her body tissue was
missing. Her left foot was missing, as was her genital area. Her
skin was mummified. Danielle was wearing no clothes and none
were in the immediate area. At the autopsy the following day,
Blackbourne attempted to determine a cause of death. He ruled
out stabbing, gun shot, blunt force trauma, strangulation, and
disease, but could not rule out suffocation. He concluded the
death was a homicide. Blackbourne could not determine
whether Danielle had been sexually assaulted because her
genital organs were gone. He stated that Danielle had been
deceased for a considerable period of time. He believed she had
died at least 10 days prior to being found and as much as six
weeks earlier.
      Jeffrey Graham, Jr., a latent fingerprint examiner for the
San Diego Police Department, was able to obtain Danielle’s
fingerprints. He compared them to a set of prints lifted from
defendant’s motorhome. One handprint, lifted from a cabinet 10
inches above the motorhome bed, contained four associated
fingerprints, two of which contained sufficient ridge detail to
match two of Danielle’s fingers on her left hand. It was apparent

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from the way the print had been left that Danielle was moving
when it was made, that is, her hand did not simply make the
print and then lift back up.
       San Diego Police Department criminalist Sean Soriano
examined stains on the jacket defendant had left at the dry
cleaner’s. Three stains on the jacket presumptively tested
positive for the presence of blood. San Diego Police Department
forensic biologist Annette Peer located a stain on the carpeted
floor between the bathroom and closet of defendant’s motorhome
that also presumptively tested positive for blood. Peer tested a
cutting of the bloodstain found on the shoulder of defendant’s
jacket for 13 genetic markers, and the 13-marker DNA profile of
the bloodstain on the shoulder area of defendant’s jacket
matched Danielle’s 13-marker DNA profile. Peer testified that
the expected frequency of that identical 13-marker DNA profile
in the Caucasian population is approximately one in 670
quadrillion.
      Forensic scientist Mitchell Holland, of the Bode
Technology Group, tested cuttings of the bloodstain located on
the carpet for defendant’s motorhome for 13 genetic markers,
and the 13-marker DNA profile of that bloodstain matched
Danielle’s 13-marker DNA profile. Holland testified that the
expected frequency of that identical 13-marker DNA profile in
the Caucasian population is approximately one in 660
quadrillion of unrelated persons.3


3
       Before Holland’s testing, Annette Peer of the San Diego
Police Department had tested a different cutting of the
bloodstain located on the carpet of defendant’s motorhome. Her
testing did not return a complete 13-marker genetic profile,



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       Holland also conducted nuclear DNA testing on a hair root
extracted from a hair recovered from the sink drain in
defendant’s motorhome bathroom and obtained a partial profile
that matched Danielle’s DNA profile. The DNA test for that hair
root returned results for 12 out of the 13 tested genetic markers.
Although the missing genetic marker resulted in a lower rarity
statistic than that of a full 13-marker DNA profile, Holland
testified that the expected frequency of that 12-marker DNA
profile in the Caucasian population, nonetheless, is one in 25
quadrillion of unrelated persons.
      Catherine Theisen, employed at the Federal Bureau of
Investigation laboratory in Washington, D.C., conducted
mitochondrial DNA4 analysis on several hairs discovered in
defendant’s motorhome. She could not exclude Danielle as the
source of a hair recovered from the bathroom rug of the
motorhome. Holland conducted mitochondrial DNA testing on
two hairs collected from defendant’s washing machine and
dryer, six hairs collected from the defendant’s master bedroom
bedding, and one hair recovered from defendant’s motorhome
hallway carpet.       All of the hairs contained the same
mitochondrial DNA profile as Danielle.



resulting in a lower rarity statistic of one in 130 quadrillion
persons within the Caucasian population.
4
      Theisen explained that nuclear DNA is inherited from
both the mother and father. It confers a unique identity.
Mitochondrial DNA in inherited only from the mother. It is,
therefore, shared with siblings, the mother, the mother’s
siblings, and anyone else related in the maternal line.
Nevertheless, mitochondrial DNA is extremely useful in
analyzing items of evidence that contain little nuclear DNA,
such as hair that does not have the hair root attached.


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       San Diego Police Department criminalist Tanya Dulaney
collected fiber trace evidence in this case. Dulaney discovered
in defendant’s motorhome blue fibers on the kitchen bench seat,
on the upholstered headboard, on the couch, and on the front
passenger seat. Chemical analysis revealed that all of these
blue fibers were consistent with fibers discovered with Danielle
or in the sheet used by the medical examiner to wrap Danielle’s
body for the purpose of collecting potential trace evidence that
might fall off the body when it was removed from the Dehesa
Road location.
     Dulaney also collected at defendant’s residence many
orange and blue fibers from clothing found on top of, and inside,
defendant’s washing machine and dryer. She found similar
orange fibers on the pillow cases from his master bedroom.
Jennifer Shen, another San Diego Police Department
criminalist, found more orange fibers inside defendant’s
4Runner and on a towel discovered inside a laundry bag in his
4Runner. Entangled in the necklace on Danielle’s body was an
orange fiber similar to the orange fibers found on defendant’s
laundry, bedding, and in his vehicle.
     Dulaney also collected tan fibers from the area by the bed,
in the bathroom, and in the hall of defendant’s motorhome,
which, when examined, were consistent with fibers from the
carpeting in Danielle’s bedroom.
      James Watkins, Jr., a law enforcement computer forensic
examiner, copied and examined images found on the computer
hard drives and other computer-related material located in
defendant’s bedroom and home office. He discovered 85 images
and 39 movies that he deemed “questionable,” meaning they
depicted children under the age of 18 in sexual acts that might


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constitute child pornography. He also discovered two “anime”
files that contained two storyboard-type drawings of young girls
being abducted, bound, and raped.
         3. Defense Evidence
      The defense called several witnesses to testify regarding
defendant’s habits and customs regarding his motorhome,
including that he would leave it unlocked when it was parked by
his house, that he had on other occasions made similar trips by
going first to Silver Strand and then to the desert, that he did
not always take the trailer with his “sand toys” with him, that
he sometimes went alone, and that getting stuck in a desert
wash was not uncommon.
     The defense called several witnesses who were at Dad’s
bar on the night of February 1, 2002. They testified to seeing
Brenda and her girlfriends drinking, dancing in sexually
suggestive manners, and flirting. Brenda was seen rubbing up
against defendant as she danced with him.
      Defendant challenged the prosecution’s physical evidence
by emphasizing that fingerprint identification cannot establish
when or under what circumstances a print was made,
biochemical analysis cannot determine how or when a biological
fluid was deposited, and trace evidence of fibers and hairs are
highly mobile, easily transferred, and can be consistent with an
indirect or derivative contact. The defense pointed out that the
fibers found were not unique.
      The defense questioned the “alert” by Cielo, the search and
cadaver dog handled by Jim Frazee, to the side compartment of
his motorhome. The defense also queried why Frazee had not
reported the alert when it was supposedly made, but waited



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                     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

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                     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



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                     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




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                     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


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                     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



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                     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


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                     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


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that the media coverage was “inescapable and at least some
jurors must have . . . been exposed to something in this case.”
This, according to the defense, was compounded by news stories
about another case in which a five-year-old girl, Samantha
Runnion, was kidnapped and sexually molested. Noting the
denial of its requests for sequestration, defendant requested a
mistrial.    The prosecution opposed the motion, which it
characterized as being based on speculation. The trial court
denied the motion. It explained that the media coverage was no
different from what had been occurring throughout the trial and
that it intended to discuss with the jury its duty to ignore the
media focus on the Runnion case. Importantly, it noted that
there was “no evidence that any media coverage is being viewed
by these jurors, and [it had] every reason to believe they [were]
abiding by the court’s orders.”
      On July 27, the court conducted a closed session to discuss
with the parties an incident that had been reported the prior
evening. When Juror number 2 was walking out of the
courthouse with two other jurors, Juror number 17 and Juror
number 18, Juror number 2 noticed someone following them.
Juror number 2, who was not wearing his juror badge at this
point, fell back and watched as a man, dressed in a blue shirt
and gray trousers, followed the other two jurors into the trolley
station. The man got onto the trolley with the three jurors and
exited at the “Old Town” station with them. The two jurors
proceeded to their cars, still followed by the same man, who was
keeping his distance. The man took out a piece of paper and
pencil, and wrote something down as the two jurors got into
their cars. Juror number 2 called the contact number he had
been given for the court to report the incident. There was no
indication who the person was that was following the jurors, but


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                      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.

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      On July 29, defense counsel brought to the court’s
attention that a show had been earlier aired on cable television
titled “Body Farm,” which dealt with the science of
decomposition. Forensic entomologist Haskell had mentioned
the Body Farm as a research facility at the University of
Tennessee during his testimony. Additionally, defense counsel
noted that media coverage of the Runnion case had increased,
including coverage of the fact that the defendant in that case
had been previously acquitted of an earlier crime. The defense
was concerned that the jury here would think that if it acquitted
defendant in this case, he would kill another little girl. The
defense renewed its request for sequestration. The trial court
responded that, as it had mentioned with regard to the problem
of the jurors being followed, it would continue to consider jury
sequestration as a potential option, but its preference was
against it. The court explained that the jurors appeared to be a
hardy group, “they don’t appear to be intimidated by what
occurred and I continue to believe in their integrity.” The court
denied the defense motion.
      When the jurors returned the following day, the trial court
told them that despite its understanding that all of the jurors
were in complete compliance, there was still a potential for
sequestering. The court acknowledged that a number of jurors
had shared a concern about not being available to their families,
and assured the jurors that it would take such concerns into
account.     It advised the jurors that it was the court’s
responsibility to make such decision and although the decision
had not yet been made, it was the court’s current plan to allow
the jury to continue without sequestration. The trial court went
on to recognize that the Runnion case had been recently
receiving publicity and that it might appear to some to be


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                      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


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                     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 time and then leave,
which would generally be sufficient to excuse them from work.
      The court then separately questioned Juror number 12,
who was the juror who felt harassed at work. He confirmed that
the court’s plan for brief attendance on Fridays would excuse
him from work. Asked to describe what kind of things were
occurring at work that caused him concern, Juror number 12
related that nothing had been said to him, but everyone at work
had a radio and read the paper. It was becoming hard for him
to go to work because “a lot of people [were not] as respectful as
they should be.” Juror number 12 stated that this was not
influencing the way he looked at the evidence “or anything like
that,” but it was getting to the point that he was avoiding his
work and getting “written up for it.” He did not feel he should
be placed in such a position. Juror number 12 stated that his
concern was not with the media coverage, which he was strong
enough to keep away from, but with the people at work who were
making it hard for him. The new scheduling, he confirmed,
would solve the problem. Asked whether any information he
had received from his workplace affected his ability to be fair
and objective, Juror number 12 responded: “Oh, no. None.”
Meeting again with the entire panel in closed session, the trial
court confirmed that the majority would prefer not to be
sequestered.
      On August 13, the trial court held another closed session
to discuss information received by the defense that reported
Juror number 12 had stated to a coworker that “he wasn’t going

                                  67
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


to believe anything [one of the defense counsel] said because he
didn’t like him.” The defense wanted the court to “become
involved” and question Juror number 12. The defense also felt
that there was increasing media and public pressure that
justified moving for a mistrial. In support of the motion, defense
counsel related his own experience of name-calling, threats, and
protests that seemed to be aimed at influencing the progress of
the trial. The court found no basis for a mistrial and declined to
inquire further of Juror number 12 because the allegations were
hearsay, if not double hearsay, and unrelated to the juror’s duty
to decide the case based on the evidence alone. It suggested the
parties were free to follow up on the matter to find out if there
was further basis for the claim.
       Two days later, one of the alternate jurors reported she
felt that she and Juror number 2 had been followed when they
left the courthouse one evening. She confirmed that nothing
about the incident would have any effect on her or prohibit her
from fulfilling any duty she was called upon to perform in the
trial. When questioned, Juror number 2 did not feel they had
been followed. He also confirmed that nothing about the
incident would affect his ability to be fair and impartial in the
deliberations.
      On the same day, the trial court heard and denied another
request from the defense to sequester the jury based on what the
defense felt was pressure being placed on them by media
scrutiny. The court granted the defense’s alternative request
that the jury be provided a place to gather during breaks and
lunch away from the media and public.




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


             b. Discussion
      Section 1121 provides, in relevant part, that “[t]he jurors
sworn to try an action may, in the discretion of the court, be
permitted to separate or be kept in charge of a proper officer.”
It is well settled that under this statute and prior case law,
“sequestration is discretionary with the trial court even in
capital cases.” (People v. Bunyard (1988) 45 Cal.3d 1189, 1218,
accord People v. Gallego (1990) 52 Cal.3d 115, 169; People v. Ruiz
(1988) 44 Cal.3d 589, 616.) “The trial court stands in the best
position to evaluate the necessity of sequestration in a
particular case.” (Ruiz, at p. 616.) “ ‘[I]n reviewing a trial court’s
denial of a defendant’s motion for individual sequestered jury
selection, we apply the “abuse of discretion standard,” under
which the pertinent inquiry is whether the court’s ruling “falls
outside the bounds of reason.” ’ [Citation.]” (People v. Perez
(2018) 4 Cal.5th 421, 443, quoting People v. Famalaro (2011) 52
Cal.4th 1, 34.)
      Defendant argues, however, that in this case due process
requires a higher standard of review, principally relying on
some general language found in Sheppard v. Maxwell (1966) 384
U.S. 333 (Sheppard), regarding the increasing prevalence of
unfair and prejudicial media coverage of pending trials that may
impact a defendant’s constitutional right to “receive a trial by
an impartial jury free from outside influences.” (Id. at p. 362.)
The high court stated that “trial courts must take strong
measures to ensure that the balance is never weighed against
the accused” and “appellate tribunals have the duty to make an
independent evaluation of the circumstances.” (Id., at pp. 362-
363.)




                                   69
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


       But this language from Sheppard was not directed at the
standard of review of a trial court’s choice of method for ensuring
the jury is not subject to any such prejudicial influences from
the media. Instead, the high court’s observations were made in
the context of the defendant’s failed attempt to obtain a change
of venue and the subsequent effect of the intense media presence
and coverage on the jury and the defendant’s verdict.
(Sheppard, supra, 384 U.S. at pp. 345-349.) The high court was
critical of the fact that the trial court in the Sheppard case had
allowed a table “within a few feet of the jury box and counsel”
where “sat some 20 reporters staring at Sheppard and taking
notes” and that “[p]articipants in the trial, including the jury,
were forced to run a gantlet of reporters and photographers each
time they entered or left the courtroom.” (Id. at p. 355.) The
court also pointed out that two of the sitting jurors admitted to
learning, during the trial, of “the highly inflammatory charge
that a prison inmate claimed Sheppard as the father of her
illegitimate child.” (Id. at p. 357.)
      It was the extraordinary circumstances involved in the
Sheppard case, where “bedlam reigned at the courthouse,”
because of the oppressive nature of the media’s presence both
inside and outside the courtroom, resulting in a “carnival
atmosphere,” that triggered the finding of a constitutional
violation.   (Sheppard, supra, at pp. 355, 358.)           Those
circumstances do not exist here. We conclude, therefore, in
accordance with our prior case law, that a trial court’s decision
whether to sequester a jury is subject to an abuse of discretion
standard of review. We find no abuse of discretion here.
      First, we disagree with defendant that the trial court
abdicated its responsibility to decide whether to sequester the
jury, leaving it up to the jury to choose. The trial court

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


recognized and explicitly told the jury “that it was the court’s
responsibility to make such decision.” The court informed the
jurors that, in making its decision, it would take their concerns
and preference “into account.” The court did so, but in denying
defendant’s requests for sequestration, it also weighed the fact
that “self-policing” appeared to be working and that
sequestration has its “own pitfalls.”
       Second, as demonstrated by our extensive summary of the
relevant proceedings, the record reflects that the trial court
carefully and repeatedly addressed the potential impact of
media coverage, peer pressure, and public sentiment by ordering
the jurors to avoid any publicity regarding the case,
admonishing them concerning their duty to decide the case
solely based on the evidence presented, inquiring about the
impact of outside influences on their ability to be fair and
impartial, and crafting when necessary methods by which
outside influences could be reduced or avoided. Defendant has
not pointed to anything in the record suggesting that the jurors
failed to abide by the court’s orders and admonishments or
misrepresented their continued ability to decide the case fairly
on the trial evidence alone. “[W]e cannot assume on a silent
record that they ignored [such orders and admonishments] and
were exposed to prejudicial material.” (People v. Ruiz, supra, 44
Cal.3d at p. 617.) Indeed, the trial court expressly noted at one
point that it had “every reason to believe [the jurors were]
abiding by the court’s orders.” Certainly, in the absence of any
evidence that the jury was materially affected by the publicity
and interest that this case generated, we cannot say there was
any “substantial likelihood” that defendant did not receive a fair
trial, as defendant urges.



                                  71
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


         5. Joinder of the Child Pornography Charge with the
            Murder and Kidnapping Charges; Denial of
            Defendant’s Motion to Sever
       Defendant contends that the misdemeanor possession of
child pornography charge alleged against him in count three
(former § 311.11, subd. (a)6) did not meet the statutory
requirements for joinder with the charges of capital murder and
kidnapping. (§ 954.) Even if it did, defendant claims the trial
court abused its discretion in denying severance. We conclude
the child pornography charge was properly joined with the
murder and kidnapping charges.            We further conclude
defendant failed to preserve the claim that the trial court abused
its discretion in denying severance, although we would find no
error in any event.
             a. Background
     Defendant filed a pretrial motion to sever the child
pornography charge from the kidnapping and murder charges
on the ground that it was improperly joined to such charges
under section 954. Defendant did not request discretionary
severance. The court deferred consideration of the severance
motion until it ruled on defendant’s related motion to exclude
any evidence of pornography under Evidence Code section 1101.
      At the in limine hearing that followed, the prosecution
identified the portion of pornographic materials found in
defendant’s home office that it proposed to introduce as evidence
at trial.   First, there were six video clips each lasting


6
      In 2006, section 311.11 was amended to classify a first-
time commission of the offense as a “wobbler.” (Stats. 2006, ch.
337, § 23.) In 2007, a first-time commission of the offense was
designated a felony. (Stats. 2007, ch. 579, § 38.)


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


approximately 30 seconds or less, depicting forcible sexual
attacks on young girls. Next, there was a photograph depicting
a young girl having sexual intercourse with an adult male.
Another exhibit was composed of nine individual cartoon or
anime images portraying forcible sexual acts; three of which
depicted the rape of a female with a fully mature body, but with
girlish facial features, and six of which depicted forcible sexual
acts with pubescent girls. Two other exhibits contained
sequences of multiple anime images showing the rape of females
with girlish features, hairstyles, and clothing. Finally, the
prosecution offered an exhibit containing another nine
photographic images of unclothed pubescent and prepubescent
females in what could be considered seductive poses. The six
video clips and the first photograph were specifically offered in
support of the child pornography charge. All of the images were
offered as relevant to defendant’s motive and intent in
kidnapping and murdering Danielle. It was the prosecution’s
position that “[t]aken together [the images] provide an
extremely rare insight into the reasons for this kidnapping and
murder. . . . They demonstrate graphically [defendant’s] special
attraction to young girls.” The prosecution asserted that one of
the images even looked similar to Danielle.
      The defense responded that because the pornography
involving minors was a small percentage of the pornographic
materials seized from defendant’s computers, it was misleading
to suggest that possession of the materials reflected defendant’s
interest in young girls. The defense suggested that it might
have to counter with the entire collection. In addition, the
defense argued that the images and video clips were not
admissible on the issues of motive and intent without some
explicit connection between them and the crimes committed


                                  73
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


against Danielle. Finally, the defense contended that the
prejudice emanating from this evidence was overwhelming.
       The trial court confirmed that the prosecution’s evidence
would show that “the body of Danielle was found in a nude state,
severely decomposed so that the cause of death could not be
determined, and there were no biological samples recognizable
or identifiable on the body at the time of the autopsy.” The
prosecution added that the evidence would also show Danielle’s
fingerprints on a cabinet just above the bed in defendant’s
motorhome, her blood in the motorhome hallway, and her hair
in the motorhome bathroom and other places. In light of the
totality of these circumstances, the trial court ruled that the
proffered pornography material would be “highly relevant” and
“probative” on the issues of motive and intent. Although it did
not resolve at the time the question of which of the proffered
images would be allowed to be introduced, it expressly found
sufficient evidence to sustain the prosecution’s theory of
admissibility.
      Revisiting the issue the following day, the defense
contended that the pictures were inadmissible character
evidence suggesting that defendant was a pedophile. Because
there was no physical evidence that Danielle had been molested,
it continued to be the position of the defense that there was no
nexus between the images and the charged offenses. The trial
court reiterated its ruling from the previous day and added that,
balancing the appropriate interests, it declined to exclude the
evidence under Evidence Code section 352. The court observed
that the prosecution’s presentation of the evidence could be
succinct and to the point, as it had been at the hearing. The
court doubted the claim made by defense counsel that the
defense would respond by introducing defendant’s entire

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


collection of pornography. It felt the defense could adequately
address its stated concern by establishing that the percentage of
images depicting young girls out of the total number of
pornographic images on defendant’s computers was small. The
court observed that the images the prosecution had elected to
show were not as inflammatory as some of the photographs that
they could have chosen to use.
      The trial court subsequently ruled that the video clips, the
photograph depicting a young girl having sexual intercourse
with an adult male, and the nine photographic images of
unclothed pubescent and prepubescent females in seductive
poses were admissible evidence on the charge of child
pornography, as well as on the other charges. The court ruled
that the two sequences of multiple anime images and three of
the individual anime images portraying forcible sexual conduct
with females depicted with adult bodies were not admissible.
However, it concluded that the six individual anime images
showing forcible sexual acts with pubescent girls were
admissible on the issue of defendant’s possible motive and
intent.
      The trial court next considered defendant’s motion to sever
the child pornography charge from the other charges in light of
its rulings. The defense contended that the child pornography
charge was not within the same class of crimes as the
kidnapping and murder charges, and that the commission of the
one was not connected to the commission of the other two. The
prosecution conceded that the child pornography charge was not
within the same class of crimes, but referencing its previous
argument regarding the admissibility of the child pornography
as evidence of defendant’s motive and intent in kidnapping and
murdering Danielle, it contended that the crimes were clearly

                                  75
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


connected in their commission so as to permit joinder. The trial
court denied defendant’s severance motion.
             b. Discussion of joinder
      Section 954 permits the joinder of “two or more different
offenses connected together in their commission . . . or two or
more different offenses of the same class of crimes or offenses.”
There is no claim that the child pornography charge alleged
against defendant is of the same class of crime as the kidnapping
and murder charges.          The issue is whether the child
pornography offense is properly considered to be connected
together with the kidnapping and murder of Danielle. “Whether
offenses properly are joined pursuant to section 954 is a question
of law and is subject to independent review on appeal.” (People
v. Cunningham (2001) 25 Cal.4th 926, 984.)
      We agree with the People that the charges here were
connected in their commission. “ ‘Offenses “committed at
different times and places against different victims are
nevertheless ‘connected together in their commission’ when they
are . . . linked by a ‘ “common element of substantial
importance.” ’ [Citations.]” ’ [Citation.]” (People v. Valdez (2004)
32 Cal.4th 73, 119; accord People v. Alcala (2008) 43 Cal.4th
1205, 1219 (Alcala).) Motive or intent may be such a common
element of substantial importance. (Alcala, supra, at pp. 1219-
1220 and cases cited therein; People v. Valdez, supra, 32 Cal.4th
73; Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 958.) In
this case, defendant’s possession of child pornography reflected
an interest in sexual conduct with, indeed sexual assault of,
young girls that was highly relevant to explain why he would
have kidnapped Danielle and ultimately murdered her. Such
interest and motivation had an evidentiary connection to the



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


kidnapping and murder charges in the physical evidence of
Danielle’s handprint located near the bed of the motorhome, her
blood and hair found in the motorhome, her hair found on
defendant’s home bedding, and in the fact that she was abducted
from her bed at night and her nude body was subsequently left
in the desert.
      Defendant raises a number of objections to our reaching
this conclusion.
      First, he points out that there was no evidence that he
created the pornographic images seized or that he viewed them
immediately prior to Danielle’s disappearance. Defendant
asserts that to qualify for joinder of the charges, the possession
of proscribed pornography had to be connected to the evidence
of the kidnapping and murder, and not to some speculation or
theory of the prosecution concerning how or why those offenses
were committed. He further notes that there was no evidence
that any of the images were of Danielle herself or that the
images depicted a scene corresponding to the kidnap or murder
of Danielle. Defendant refers us to several cases in which such
factors, under their respective facts, have been present or have
posed an evidentiary concern. But because none of these cases
addressed the relevance of those factors as applied to the issue
of joinder, they are inapposite. (People v. Memro (1995) 11
Cal.4th 786, 864-865; People v. Clark (1992) 3 Cal.4th 41, 129;
People v. Guerrero (1976) 16 Cal.3d 719, 727-728 (Guerrero);
People v. Ghent, supra, 90 Cal.App.3d 944, 955-956, 958; People
v. Bales (1961) 189 Cal.App.2d 694, 701.) As the People observe,
the presence of any of these factors would have made the
evidence all the more damaging to defendant, but the absence of
these factors does not compel a conclusion that, under the



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


circumstances present here, the child pornography charge was
unconnected to the charged kidnapping and murder.
      Defendant appears to assume that intent or motivation
cannot constitute evidence connecting crimes for purposes of
joinder and, instead, that such connection can be made only
through physical evidence or objectively measurable factors.
But we have previously rejected the argument that the lack of
physical evidence or other objectively measurable factors is
necessary to establish the appropriateness of joinder. Instead,
we have expressly held that a connected intent or motivation,
including a sexual motive, is sufficient in and of itself to
establish the appropriateness of joinder. (Alcala, supra, 43
Cal.4th at p. 1220 [rejecting the contention that “intent or
motivation cannot constitute a ‘common element of substantial
importance,’ and, instead, only physical or objectively
measurable factors, such as use of a specific individual weapon,
can suffice” for joinder].)
      Defendant next contends that the unclothed state of
Danielle’s body provides insufficient evidence of sexual
motivation and intent. He principally relies on People v. Craig
(1957) 49 Cal.2d 313, 318-319 (Craig I). In Craig, the issue was
whether the evidence supported a theory of first degree felony
murder perpetrated in the commission or attempted commission
of a rape. (Craig, supra, at p. 318.) The lacerated and battered
body of the victim was found lying under a car, legs spread
slightly apart, clothed in a raincoat over a nightgown or slip and
panties. Each of the garments had been torn open, exposing the
front of the body, but there was also evidence that the body had
been dragged some 20 to 25 feet. (Id., at p. 316.) We concluded
the evidence indicated a “terrific struggle,” but did not suffice to
prove the killing was committed in the attempt to commit rape

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


or in the commission of rape. (Id., at p. 319.) The issues before
this court in Craig, and the other cases cited by defendant
(People v. Johnson (1993) 6 Cal.4th 1, 41-42; People v. Anderson
(1968) 70 Cal.2d 15, 34-36; People v. Granados (1957) 49 Cal.2d
490, 497), are distinguishable from the issue of joinder
presented here. (See People v. Thomas (1992) 2 Cal.4th 489, 527
[distinguishing the issues considered in Craig and Guerrero].)
Here we are examining the prosecution’s proposed evidence to
determine whether there is a substantial connection between
the alleged crimes for purposes of joinder. That inquiry does not
depend on the sufficiency of the evidence that a sexual assault
was ultimately attempted or completed.
       Moreover, contrary to the argument of defendant, there
was other evidence besides the child pornography that
suggested a sexual motivation for the kidnapping and murder of
Danielle. There was the evidence of her abduction from her bed
at night, her handprint found on the cabinet above the bed in
defendant’s motorhome, her hair found in his home bedding, and
the absence of any clothing on or near her decomposed body. We
are not persuaded by defendant’s claim that the implication
from the location of Danielle’s handprint is diminished
significantly because a motorhome is such a cramped space.
That Danielle’s handprint was found near the bed, therefore,
still retained evidentiary significance.
      We conclude that the child pornography charge was
validly joined with the kidnapping and murder charges under
section 954.
             c. Discussion of discretionary severance
     Because it ordinarily promotes efficiency, joinder “is the
course of action preferred by the law.” (Alcala, supra, 43 Cal.4th


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


at p. 1220.) “Nonetheless, a trial court has discretion to sever
properly joined charges in the interest of justice and for good
cause.” (People v. Simon (2016) 1 Cal.5th 98, 122.)
       “When exercising its discretion, the court must balance
the potential prejudice of joinder against the state’s strong
interest in the efficiency of a joint trial.” (People v. Arias (1996)
13 Cal.4th 92, 126 (Arias).) To successfully claim that the trial
court abused its discretion in denying a motion to sever, a
“ ‘ “defendant must make a clear showing of prejudice” ’ ” by
demonstrating that the denial “exceeded the bounds of reason.”
(People v. Capistrano (2014) 59 Cal.4th 830, 848 (Capistrano).)
“An appellate court evaluates such claims in light of the
showings made and the facts known by the trial court at the
time of the court’s ruling.” (People v. Merriman (2014) 60
Cal.4th 1, 37 (Merriman).) “ ‘[A] party seeking severance must
make a stronger showing of potential prejudice than would be
necessary to exclude other-crimes evidence in a severed trial.’ ”
(Alcala, supra, 43 Cal.4th at p. 1222, fn. 11, quoting Arias,
supra, 13 Cal.4th at p. 127; accord, People v. Soper (2009) 45
Cal.4th 759, 773-774 (Soper).)
       “In determining whether a trial court’s refusal to sever
charges amounts to an abuse of discretion, we consider four
factors: (1) whether evidence of the crimes to be jointly tried is
cross-admissible; (2) whether some charges are unusually likely
to inflame the jury against the defendant; (3) whether a weak
case has been joined with a stronger case so that the spillover
effect of aggregate evidence might alter the outcome of some or
all of the charges; and (4) whether any charge carries the death
penalty or the joinder of charges converts the matter into a
capital case.” (People v. O’Malley (2016) 62 Cal.4th 944, 968
(O’Malley).) “We then balance the potential for prejudice to the

                                   80
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


defendant from a joint trial against the countervailing benefits
to the state.” (Soper, supra, 45 Cal.4th at p. 775, fn. omitted.)
However, “[i]f the evidence underlying the joined charges would
have been cross-admissible at hypothetical separate trials, ‘that
factor alone is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court’s refusal to sever properly
joined charges.’ [Citations.]” (Merriman, supra, 60 Cal.4th at
p. 38.)
      Defendant complains that it is not clear that the trial court
even considered the relevant factors and exercised its discretion
in denying his motion for severance. He argues that, in any
event, the denial of his motion was an abuse of discretion.
       Defendant contended in his written motion and oral
comments to the trial court that the child pornography charge
alleged in count three did not meet the statutory requirements
for joinder with the kidnapping and capital murder charges. He
did not request, in the alternative, that the court exercise its
discretion to sever the charges if it found the charges to be
properly joined. It is not surprising, therefore, that the trial
court did not state for the record that it would deny such a
request and explain its reasoning. Under these circumstances,
we conclude defendant has failed to preserve the claim that the
trial court erred in denying discretionary severance pretrial.
      Even if we were to find no forfeiture, however, we would
not find any error. Here the evidence underlying the child
pornography charge would have been cross-admissible at a
hypothetical separate trial of the kidnapping and murder
charges, as we have discussed in the previous section. Indeed,
the cross-admissibility of the two crimes flows in both directions
because each crime illuminates the motive for the other.


                                  81
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


      Defendant’s reliance on People v. Page (2008) 44 Cal.4th 1,
does not persuade us otherwise. In Page, defendant claimed
prejudicial error in the admission of pornographic magazines to
show his intent in committing a lewd act on a child. (Id., at p.
39.) We found that the magazines “may have been probative
with respect to defendant’s commission of the crimes,” although
we found them to have “less probative value than the images
considered in prior cases.” (Id., at p. 40.) But we declined to
reach the issue of whether the trial court abused its discretion
under Evidence Code section 352 in admitting the magazines
because we found any error to be harmless under the
circumstances. (Id., at pp. 41-45.) Because Page did not reach
the issue of admissibility, it does not assist defendant’s claim
that evidence of his possession of child pornography was
irrelevant to the kidnapping and murder charges and therefore,
not cross-admissible.      Moreover, the nature of the child
pornography possessed by defendant here provided a much
stronger inference of motive and intent than apparent in the
magazines possessed by the defendant in Page. (Id., at p. 39.)
      Further, if we were to reach the remaining three
discretionary severance factors, we would still find no abuse of
discretion.      The second factor considers whether an
inflammatory offense is being joined to one that is not
inflammatory “under circumstances where the jury cannot be
expected to try both fairly.” (People v. Mason (1991) 52 Cal.3d
909, 934.) “The danger to be avoided is ‘that strong evidence of
a lesser but inflammatory crime might be used to bolster a weak
prosecution case’ on another crime.” (Ibid; accord Capistrano,
supra, 59 Cal.4th at p. 850.) Here the charge of possessing
images of child pornography was no more inflammatory than
the charges of kidnapping a young girl from her bed at night,


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


murdering her, and leaving her body to be ravaged by animals
in the desert. The evidence supporting each crime was strong,
and this defeats the notion that strong evidence of one
inflammatory crime was improperly used to bolster any weak
evidence supporting the other crime. In fact, defendant
concedes, relevant to both the second and third factors, this was
not a situation where “a weak case [was] joined with a stronger
case” creating a “spillover effect of aggregate evidence [that]
might alter the outcome of some or all of the charges.”
(O’Malley, supra, 62 Cal.4th at p. 968.) Finally, the joinder of
the child pornography charge did not convert defendant’s case
into a capital one. (Ibid.)
         6. The Trial Court’s Admission of Additional
            Pornography Evidence
       At trial, the prosecution presented, through the testimony
of its computer forensic examiner, James Watkins, Jr., a limited
subset of the still images and video child pornography found
recorded on CD-ROM’s and zip disks located in defendant’s
home office. The trial court subsequently ruled, however, that
by its cross-examination of Watkins, the defense opened the
door to the admission of almost all of the rest of defendant’s
collection of pornography.
      Defendant claims that he did not “open the door” and if the
cross-examination was in some way misleading, the appropriate
remedy was corrective redirect examination by the prosecution,
not the admission of additional pornography. Defendant
contends the trial court abused its discretion under Evidence
Code section 352 by allowing Watkins to describe and the jury
to view the additional pornography. Defendant further asserts
that admission of the additional evidence revealed the gross
unfairness of the joinder of counts. Defendant argues the trial

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                     PEOPLE v. WESTERFIELD
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court’s rulings undermined the fundamental integrity of the
trial and amounted to a violation of due process. We find no
error.
            a. Background
      As previously recounted, a pretrial hearing was held
regarding defendant’s motion to sever the child pornography
charge and related motion in limine to exclude the child
pornography found on defendant’s computers and related
storage mediums. At the hearing, the prosecution proffered a
limited number of images and video it intended to introduce,
both as evidence of defendant’s possession of child pornography
and of his intent and motive in kidnapping and murdering
Danielle. The trial court further narrowed the images that it
would allow, exercising its discretion under Evidence Code
section 352. In so doing, the court indicated, among other
things, its belief that the defense could adequately respond to
the prosecution’s introduction of the child pornography by
establishing that the percentage of images depicting young girls
was small when considered in light of the total number of
pornographic images possessed. The court also observed that
the images the prosecution had elected to show were not as
inflammatory as some of the photographs that it could have
chosen to use.
      During its case-in-chief, the prosecution called forensic
examiner Watkins to testify about the “questionable” digital
images — images that in his view were pornographic depictions
of children under the age of 18 — that he found on two CD-
ROM’s and three zip disks located in defendant’s home office.
The prosecution showed the jury fewer than 20 still images,
including anime images, plus three movie segments.



                                  84
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             Opinion of the Court by Cantil-Sakauye, C. J.


      On cross-examination, defense counsel elicited that on the
four computers and related storage files located in defendant’s
home, there were approximately 100,000 graphic or digital
image files. Out of this total, there were between 8,000 and
10,000 depicting nudes, including adults. Counsel then asked
Watkins to confirm that the “17 stills” the jury saw were
included in the 8- to 10,000 images. Watkins agreed. Defense
counsel, with what the trial court later described as raised
eyebrows expressing dismay, responded: “So apparently culled
out of a hundred thousand you identified down 8- to 10,000, and
then of the 8- to 10,000 you spotted 14 or so that the jury just
saw?” Watkins said: “Yes, sir.” Defense counsel then confirmed
with Watkins that there were also several hundred digital
movies in the collection and asked if Watkins had noticed that
there was a “common theme” in them of sexual intercourse with
mature women. The trial court allowed the questioning over the
prosecution’s “best evidence” objection, indicating that the court
and parties would likely need to discuss the matter further.
Defense counsel continued by asking whether virtually all of the
movies depicted adults engaged in various consensual sex acts.
Watkins agreed. Returning to the 8- to 10,000 still images,
counsel asked Watkins to confirm that the theme of such images
was large-breasted women. Watkins responded that “there
were a large amount of those.” Defense counsel pressed Watkins
whether this was not also true of the movies. Watkins agreed
that “there were quite a few of those.”
      At the beginning of the redirect examination of Watkins,
the prosecution indicated that it wished to mark two binders for
identification, containing all of the pornographic images seized
from defendant’s home office. The trial court stated that it
thought doing so would be appropriate. Defense counsel


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


immediately asked for a sidebar conference. The trial court
excused the jury and the matter was discussed outside its
presence.
      The court informed defense counsel that by virtue of his
cross-examination, he had “put everything in issue.” The court
stated: “You’ve represented to this jury, . . . that out of a
hundred thousand images there are only 13 that are such that
the District Attorney can find against your client. You know, I
know, that is not true.” The trial court reminded defense
counsel of the proceedings on the in limine motion and the fact
that the court had directed the prosecution to pare down the
number of images it intended to use at trial out of those that
were admissible. The court said it took such action under
Evidence Code section 352 for the specific purposes of
minimizing defendant’s exposure to the prejudicial impact of
this evidence. But, according to the trial court, the defense
turned around and tried to suggest the images introduced were
the only such images found.
       The defense denied that it had opened any door, although
counsel acknowledged that Watkins’s report indicated there
were about 80 questionable images.              Defense counsel
complained that the prosecution had not requested a sidebar;
instead objecting on the grounds of best evidence — a rule no
longer in existence. The trial court responded that if the defense
had any doubt concerning the trial court’s position on the matter
it could have requested a sidebar instead of immediately going
“for the jugular” in cross-examination. The court explained that
the trial was “a search for the truth . . . and the truth is there
are more than 13 images.” The court indicated it would allow
the jury to look at all of the identified pornographic material if
it wanted to do so.

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


      The discussion between the court and counsel continued
the next day with the defense maintaining its position that no
door had been opened, that its cross-examination was within the
scope authorized by the court during the pretrial hearing, and
that if the defense had opened any door, Evidence Code section
352 nevertheless required the evidence to be excluded. The trial
court responded that it believed defense counsel had
intentionally and strategically questioned Watkins in a manner
that left a “false impression” with the jury, which was not
contemplated by the court’s prior ruling and which the
prosecution was entitled to correct. The court specifically ruled
that the prosecution would be allowed to establish the true
number of child pornography images and the nature of the other
items.
      The defense asked for a specific “352 ruling” regarding a
set of photographs depicting defendant’s girlfriend, Susan L.,
and her daughter, Danielle L. The prosecution explained that it
intended to show Watkins several images, including the
photographs of Danielle L., and to have him describe the images
but without showing them to the jury. The court reviewed the
photographs of Danielle L., indicating for the record that four of
them showed a young girl laying on a sun chair with her legs
spread apart. The photographer in one of the photographs was
taking the shot from an angle near the bottom of the chaise
lounge, “shooting directly up the crotch area” of the young girl.
The court agreed that Watkins could describe the content of the
picture, but reserved ruling on whether the jury would be
permitted to see it.
     The defense then asked the court to address several
images depicting bestiality. The prosecution indicated that it
intended to have Watkins describe them generally. The court

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


found that based on defense counsel’s prior cross-examination
and accompanying “theatrics,” it would allow the prosecution to
do so.
       In the jury’s presence, on redirect, Watkins clarified that
when he stated that there were a total of 100,000 graphic image
files, that number included every single image on the
computers, including all icons, arrows, buttons and things of
that nature. Watkins identified the two binders that had been
previously marked and described them as containing about
8,000 images, including cartoon and anime images, showing
mostly adult women, naked, and often engaged in sexual acts.
Also included in the binders were images of nude or partially
clothed children beyond those already shown to the jury. He
described two series of anime images he found that showed a
young girl who is assaulted, bound, and ultimately raped. The
images had accompanying dialog text. From the bedroom
computer, Watkins testified that he recovered several digital
photographs of bestiality, by which he meant “a person having
sex acts with animals.” Watkins briefly described a set of
images showing his girlfriend’s daughter, Danielle L., in a
“portrait-type setting” and sunbathing in a bikini on a chaise
lounge with her legs spread. Watkins also described some of the
cartoons that were organized into digital file folders with labels
of “Jetsons,” “Flintstones,” “Star Trek,” and the like. In the
folder marked “Jetsons,” there were images depicting the father
having sexual relations with his daughter. Other images were
pictures of Mrs. Jetson unclothed. Other folders, including the
“Flintstones” and the “Simpsons,” were similar.
      On recross-examination, defense counsel asked Watkins
to confirm that he had identified only 85 images of possible child
pornography out of the 8- to 10,000 images of pornography; a

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


percentage of about 1 percent. The jury had seen 15 to 17 of
those 85. Watkins agreed, but noted that there were several
images that were “borderline” as to the subject’s age, and he did
not include those in the 85 he deemed questionable. Out of the
2600 movies Watkins examined, he believed 39 of them depicted
juveniles under the age of 18; two of which had been shown to
the jury.
     The defense subsequently moved for a mistrial based on
two grounds — the ruling allowing all of the pornography into
evidence and the denial of the severance motion. Defense
counsel noted for the record that several women jurors began to
cry when watching the videos. The trial court denied the
motion.
      Ultimately, the trial court directed the prosecution to
eliminate duplicate images from the two binders, but otherwise
admitted them into evidence. It indicated, however, that the
evidence would not be given to the jurors for deliberations unless
they requested it.     The court ruled that the bestiality
photographs would remain part of the record because they had
been referenced in testimony, but they would be sealed
separately and the jury would not be allowed to see them even
if requested. During deliberations, the jury requested to see the
pornography evidence. The jury was provided the two binders
and the photograph of Danielle L.
             b. Discussion
      Defendant contends defense counsel did not “open the
door” to the admission of the additional pornography and that if
his counsel’s cross-examination was in some way misleading,
the appropriate remedy was corrective redirect examination by
the prosecution regarding the total number of questionable


                                  89
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


images located by Watkins in the collection of pornography he
examined. We disagree.
       Our review of the record shows that the trial court, in
ruling on defendant’s pretrial in limine motion, carefully
circumscribed the pornography evidence that the prosecution
would be allowed to introduce. And at trial, the prosecution
initially offered, through the testimony of its forensic examiner
Watkins, less than what was permitted by the court’s pretrial
ruling. As the trial court recognized during the pretrial
proceedings, it would have been permissible for the defense to
counter the prosecution’s evidence with testimony establishing
that the percentage of images depicting young girls out of the
total number of pornographic images on defendant’s computers
was small.
      On cross-examination of Watkins, however, defense
counsel did not elicit the total number of questionable images
and the total number of pornographic images that Watkins
located so as to establish an approximate ratio of the one to the
other. The defense questioning, accompanied by the theatrical
body language described by the trial court, instead misleadingly
suggested that out of 8- to 10,000 pornographic images in
defendant’s collection, the prosecution could find only the less
than 20 questionable images that it had shown to the jury. The
defense knew this was not true. The images and segments of
video introduced at this point were both fewer in total number
and, according to the trial court, less inflammatory than other
images and videos depicting young girls found in defendant’s
collection. Moreover, defense counsel went on to ask Watkins
whether the “theme” of the pornography collection was in fact
sexual acts with large-breasted adult women. In effect, the
defense suggested the child pornography was not only limited in

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


quantity, but importantly, was substantively a subject of little
interest to defendant while ignoring the existence of numerous
“borderline” pictures. Defendant implicitly suggested to the jury
that the videos and images it had seen were not representative
of defendant’s sexual interest or fantasies.
       The prosecutor objected based on “best evidence.”
Defendant contends the testimony sought by the defense cross-
examination was not subject to the best-evidence rule, which in
its traditional form no longer exists. (See Evid. Code, § 1521.)
The prosecutor’s objection, however, may have reflected the idea
that a review of the remainder of the pornography collection
would best reveal whether the images of young girls was as de
minimis in quantity and substance as defendant claimed. The
full collection would more accurately establish the true nature
of defendant’s sexual interests.
      This concept is properly embodied by Evidence Code 356,
the rule of completeness. Evidence Code section 356 provides,
in relevant part, that “[w]here part of [a] . . . writing is given in
evidence by one party, the whole on the same subject may be
inquired into by an adverse party; . . . ; . . . when a writing is
given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be
given in evidence.” “The purpose of Evidence Code section 356
is to avoid creating a misleading impression.” (People v.
Samuels (2005) 36 Cal.4th 96, 130.)
      Under the rule of completeness, we agree with the trial
court’s response that by its cross-examination, the defense had
“opened the door” to the admission of the other pornography
evidence. (Evid. Code, § 356; see People v. Vines (2011) 51
Cal.4th 830, 861; People v. Sakarias (2000) 22 Cal.4th 596, 643-


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


644.) The additional pornography became relevant in order for
the jury to test defendant’s implicit assertion that the
pornography in his collection did not reflect a particular sexual
interest in young girls, much less an interest in violent sexual
assault of young girls.       Under the circumstances, the
prosecution was not limited to corrective redirect examination
in order to counter defendant’s apparent attempt to mislead the
jury.
       Nor did the trial court abuse its discretion under Evidence
Code section 352 by allowing Watkins to describe and the jury
ultimately to view the additional pornography. “A trial court’s
exercise of discretion under section 352 will be upheld on appeal
unless the court abused its discretion, that is, unless it exercised
its discretion in an arbitrary, capricious, or patently absurd
manner.” (People v. Thomas (2012) 53 Cal.4th 771, 806.) The
trial court’s decision to allow Watkins to testify regarding the
remainder of defendant’s collection and to allow the jury on
request to view the collection, minus the images of bestiality,
was not abuse of discretion under the circumstances.
      Finally, because the additional evidence was properly
introduced, defendant has shown neither gross unfairness in the
joinder of counts nor a violation of due process.
         7. The Cross-Examination of Susan L.
      The prosecution portrayed defendant’s series of activities
on the weekend of Danielle’s disappearance as being highly
suspicious. The defense called defendant’s former girlfriend,
Susan L., to testify that such activities were not uncommon for
defendant.    Her testimony also suggested that she was
comfortable bringing her children on camping trips with
defendant.


                                   92
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


      Specifically, Susan L. testified that she had been camping
with defendant in his motorhome more times than she could
count. Her children, including her daughter Danielle L., often
accompanied them. On occasion they went to Silver Strand to
camp, but when the weather was bad, they left after only a
couple of hours and went instead to the desert at Borrego.
Sometimes they arrived in the desert at night. Susan recalled
getting stuck in the sand at the desert several times. Defendant
would dig the sand out from the wheels and put boards
underneath in order to get out. They would abandon the boards
because once they were going, they could not stop for fear of
getting stuck again.
      Susan L. testified that when defendant was planning a
camping trip, he would park the motorhome near his home.
Sometimes the motorhome was parked for two days prior to
camping. When the motorhome was being loaded, its front door
would sometimes be open. Susan said that the area was a family
neighborhood with children out walking on the sidewalks.
According to Susan, the last thing that they would do before
leaving to go camping was fill the motorhome with water. When
they were finished, they would just throw the hose in the front
yard.
      On cross-examination, the prosecution attempted to show
that, despite Susan L.’s descriptions, defendant’s activities on
the weekend of Danielle’s disappearance were still out of the
ordinary for him. When the prosecution sought to explore two
other areas of cross-examination, however, defendant objected.
Defendant now argues on appeal that the trial court
prejudicially erred in overruling his objections.




                                  93
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


      First, defendant complains that the prosecution was
allowed to question Susan L. regarding an incident that
defendant characterizes as an alleged stalking. The questioning
arose in the following context.
       The prosecution elicited from Susan L. that she had twice
left defendant and was no longer living with him, but that she
still cared about him. She had last seen defendant about three
weeks before his arrest. At that time, she had already broken
up with defendant and she was out with a male friend. At the
end of the evening, the friend walked her to the door and gave
her a kiss on the cheek. At trial, Susan said she did not see
defendant at the time, but spoke with him the next day. When
the prosecutor asked if defendant told her that he had been
present the previous night, defense counsel’s objection was
sustained. The prosecutor asked to approach the bench.
      In the ensuing bench discussion, the prosecutor informed
the court that Susan L. had previously told law enforcement
that she saw defendant that night, but, regardless, Susan L. also
said that defendant called her the following day and told her
that he had been present the previous night to tell her about a
business opportunity. Defendant stated that he had watched
Susan and her friend approach. The defense contended that the
inference the prosecution was trying to draw was that defendant
was stalking Susan and urged the court to exclude the testimony
under Evidence Code section 352. The court expressed concern
about the relevance of the proposed testimony. The prosecutor
responded it was relevant in that, although Susan L. still
thought positively of defendant, it had “freaked her out” that he
was surreptitiously present on this occasion. The court ruled
that the prosecutor would be allowed to go into “her state of
mind,” specifically “that she didn’t have good feelings for him

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


back on that particular date,” because that would be “in conflict
with the way she is today.” However, it ordered the prosecutor
not to elicit testimony that she had “freaked out.”
      When cross-examination resumed, the prosecutor
impeached Susan L. with a transcript of her interview with law
enforcement in which she stated that she had found defendant
sitting outside that night. Susan also responded that defendant
had called her the next day. She admitted that after their
conversation, she did not feel comfortable with defendant “at
that time.”
      Defendant argues the trial court erred in allowing this
cross-examination. He concedes that evidence a witness bears
enmity towards a party against whom he testifies is relevant to
show bias — just as evidence that a witness is friendly toward a
party for whom he testifies is also relevant to show bias.
Therefore, as defendant concedes, the prosecutor’s questioning
of Susan L. concerning whether she still cared for defendant was
appropriate. But, defendant argues, the questioning of Susan
L. regarding the incident of alleged stalking suggested only that
she should be hostile to defendant and accordingly, it was not
proper impeachment of her testimony in favor of defendant. In
defendant’s view, the testimony was inadmissible character
evidence. (Evid. Code, § 1101, subd. (a).) We are not persuaded.
       “The partiality of a witness is subject to exploration at
trial, and is ‘always relevant as discrediting the witness and
affecting the weight of his testimony.’ ” (Davis v. Alaska (1974)
415 U.S. 308, 316.) “The state of mind of a witness as to bias,
prejudice, interest involved, friendship or hostility toward a
party are all proper subjects for investigation in the trial of a
case.” (People v. Sweeney (1960) 55 Cal.2d 27, 41.) In exploring


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


such states of mind, we agree with the People that a witness
may be impeached with evidence that she has previously held
an opinion concerning a party different from her opinion
expressed at trial. (People v. Price (1991) 1 Cal.4th 324, 474.)
Defendant offers no authority supporting his claim that the
prosecution could not both suggest Susan L.’s testimony in favor
of defendant was biased because she still cared for him and at
the same time impeach her implicit testimony that she felt
comfortable with defendant by pointing out that she did not
always feel that way. We conclude the trial court acted within
its discretion in allowing this line of questioning.
      In another area of cross-examination, the prosecution
asked Susan L. if defendant would drink alcohol when they went
out to the desert. She testified that he did. The prosecution
then asked if defendant’s attitude or personality would change
when he drank. Defense counsel objected on grounds of
Evidence Code section 352 and that the question called for
inadmissible character evidence. The trial court overruled the
objection and Susan answered that she did notice a change in
defendant’s behavior when he drank. He became quiet,
sometimes “a little upset,” and depressed. His drinking was one
of the reasons Susan left him.
      Later, the prosecutor asked to approach the bench. He
told the court that he had a transcript of an interview with
Susan L. in which she stated that when defendant drank he
became sexually and verbally abusive.            The prosecutor
represented that he would not elicit this, but he did want to ask
Susan if defendant became more “forceful” when he drank.
Defense counsel objected that, among other things, such
testimony would constitute inadmissible character evidence.
The trial court observed that the evidence was overwhelming

                                  96
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


that defendant had been drinking on the night Danielle
disappeared. It stated that Susan L. was a “percipient witness”
regarding how defendant “changes when he [has] been
drinking,” which it found to be relevant and probative. The
court stated that the proposed testimony would not be
“character evidence in the true sense” and overruled defendant’s
objection. The prosecutor proceeded to ask Susan if defendant
would become forceful when he had been drinking and she
answered that she remembered “an occasion that he did.”
      Defendant contends the trial court erred in allowing
Susan L. to testify concerning defendant’s “character for
violence when intoxicated,” and that such evidence is generally
prohibited character evidence under Evidence Code section
1101, subdivision (a). But even assuming the trial court erred,
we conclude that the error in admitting this testimony was
nevertheless harmless.       The physical evidence against
defendant — Danielle’s hairs found in the bedding of
defendant’s master bedroom, her handprint above the
motorhome bed, the presence of her blood and hair in the
motorhome, and the significant fiber evidence — combined with
defendant’s strange activities over the weekend of her
disappearance, his weak explanations to investigating officers,
and the evidence of his interest in child pornography as a
possible motive, presented a strong case supporting defendant’s
guilt. The alibi entomological evidence presented by the defense
was powerfully rebutted. In this context, it is not reasonably
probable that the jury’s verdict would have been different if it
had not heard from Susan L. that on one occasion defendant had
been forceful with her when he had been drinking. (People v.
Partida (2005) 37 Cal.4th 428, 439.)



                                  97
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


      Finally, defendant fails to persuade us that this error,
even combined with any assumed error in allowing the other
challenged cross-examination of Susan L., resulted in a
fundamentally unfair trial that offends due process. (People v.
Partida, supra, 37 Cal.4th at p. 439.)
         8. Restriction on Defendant’s Cross-Examination of
            Officer Redden
       San Diego Police Officer Paul Redden interviewed
defendant on the afternoon of February 4, 2002, and
administered a polygraph examination. At trial, the prosecution
called Redden to testify and introduced a version of the taped
interview that had been redacted to eliminate all references to
the polygraph examination, which evidence is inadmissible
under Evidence Code section 351.1 as we have previously noted.
In the cross-examination of Redden, defendant sought to elicit
other discrete portions of the interview, but was warned by the
trial court that if he did so, the entire interview might become
admissible. Defendant claims on appeal that the trial court’s
restrictions on his cross-examination of Redden violated his
right to present evidence under Evidence Code section 356, as
well as his Sixth Amendment right to confrontation. We
disagree.
            a. Background
      Defense counsel began his cross-examination of Redden by
asking him how many hours he spent with defendant and how
many times defendant asked him for counsel. The trial court
sustained the prosecutor’s Evidence Code section 352 objections
to both questions. At a bench conference outside the hearing of
the jury, the court explained that it had made pretrial rulings
regarding the admissibility of the interview tape and that



                                  98
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


defendant’s requests for counsel were contained in the excluded
parts of the interview. It warned defense counsel that further
questioning in this area would come “dangerously close to
opening up this entire interview.” Defense counsel responded
that his questions went to the voluntariness of defendant’s
responses, an issue defendant was entitled to present to the
jury. The court responded that it had ruled on defendant’s
motion for exclusion that the interview was voluntary and that
it had based that ruling on “the entire tape.” If defense counsel
wanted to pursue this line of questioning, the court warned
again, it would “open the door” to the whole tape being admitted
into evidence, and yet that would be defendant’s choice. Defense
counsel stated that “[g]iven the court’s ruling,” he would not “go
there,” yet wanted to voice his objection “as to the
voluntariness.”
      Later, defense counsel asked Redden whether he had
asked defendant what his job was. Redden said yes. When
counsel asked what defendant had told him, the prosecutor
objected. Defense counsel responded “[Evidence Code section]
356.” The trial court called counsel to a second bench conference
at which it reminded defense counsel that the court and
prosecutor had done everything they could to excise references
to inadmissible evidence in the interview tape and transcript
and that by asserting section 356, the court understood defense
counsel to be implicitly requesting the introduction of the entire
interview. The court noted that the defense could make such a
strategic move and that it could give a limiting instruction to
the jury, but it wanted to make it clear that counsel was “on the
brink of bringing [the entire interview] in.” Defense counsel
denied that his assertion of section 356 constituted a request to
admit the entire interview. Rather, counsel said, he was trying


                                  99
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


to introduce portions of the interview that were relevant to the
jury’s consideration of matters contained in the redacted tape.
The court suggested that defense counsel should have raised
these concerns when the tape was being edited. Counsel
responded that it had simply been assumed that the defense
would be permitted to probe these areas. The prosecutor
objected that the defense was really trying to introduce
sympathetic character evidence. The court ruled that the
defense could not cross-examine regarding matters that were
not on the tape.
       Defense counsel then noted that the tape contained two
statements by defendant in which he used the word “we” when
talking about a stop he made during his weekend travels. In
order to explain defendant’s usage of the pronoun, defense
counsel felt it was necessary to establish a foundational record
that defendant had been in custody for a long time, he was
fatigued, he had not eaten breakfast, he did not have a lot of
sleep, and he had asked for counsel. The trial court ruled that
the defense could ask Redden about his observations regarding
whether defendant appeared fatigued, but the court remained
concerned that other questioning would alert the jurors to the
fact that the tape had been redacted, something the defense had
not wanted them to be told. It ruled that defendant should
“work with the tape you’ve got” at the risk of opening the door.
Defense counsel subsequently elicited from Redden, without
objection, that defendant told him that he had five hours of sleep
the previous night and that he had not eaten.
      After Redden finished testifying, however, defendant
raised the matter again and offered to waive any objection to the
jury learning that the tape had been redacted. In a further
discussion outside the presence of the jury, the trial court

                                 100
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


repeated its belief that the parties had worked together to edit
the tape. But, the court stated, if defense counsel still wanted
to probe other areas not covered by the tape, it offered to provide
a limiting instruction informing the jury that “there were
redactions and that those redactions somehow didn’t get into the
tape and that these other issues were covered.” It again warned
defense counsel “that this is a slippery slope . . . because the
context of the Redden interview [wa]s the entire interview” and
at some point, the entire statement would have to be introduced
in order for the jury to understand the points being made. The
court left it up to the defense whether to recall Redden. The
defense did not recall him.
             b. Discussion
      Defendant reasserts on appeal that he had a right to
submit the facts regarding the voluntariness of his interview
statements to the jury for its consideration of the reliability of
the statements. (Crane v. Kentucky (1986) 476 U.S. 683, 689-
690.) Defendant claims that he also had a right to question
Redden regarding the context of his use of the pronoun “we”
when he told Redden about making a stop during his weekend
travels. Defendant contends the pursuit of these relevant lines
of inquiry would not have opened the door to introducing the
inadmissible portions of the tape concerning his polygraph
examination. (Evid. Code, § 351.1.) In support, defendant cites
cases stating the principle that a party cannot take advantage
of another party’s improper introduction of inadmissible
evidence by failing to object and then claiming the door had been
opened to further inadmissible evidence. (People v. Steele (2002)
27 Cal.4th 1230, 1271-1273 (conc. opn. of George, C. J.) (Steele);
People v. Gambols (1970) 5 Cal.App.3d 187, 192 (Gambols);
People v. Arends (1958) 155 Cal.App.2d 496, 508-509 (Arends).)

                                 101
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


Defendant, therefore, asserts the trial court erred in ruling that
further cross-examination of Redden would open the door to
admission of the entire interview, and he claims that, as a
result, he had no real choice but to forego further questioning.
      We agree that defense counsel’s effort to cross-examine
Redden about whether defendant had asked for an attorney did
not constitute a waiver of the broad protection afforded by
Evidence Code section 351.1, which prohibits any reference to
“the opinion of a polygraph examiner, or any reference to an
offer to take, failure to take, or taking of a polygraph
examination.” (Evid. Code § 351.1, subd. (a).)
      But we reject defendant’s contention that the
circumstances underlying Steele, Gambols, and Arends were
present here. No inadmissible evidence had been admitted, and
the trial court’s ruling did not give the prosecution permission
to introduce the entire tape containing the inadmissible
polygraph evidence after a failure to object.
       In any event, the court’s warnings did not prejudicially affect
the evidence before the jury. Defendant’s comments about
procuring a lawyer occurred after he had been told that he had
failed the polygraph examination and were made in direct response
to his failure of that test. For this reason, the parties had originally
agreed to redact these portions of the interrogation. Consequently,
whether defendant had requested an attorney does not seem
strongly probative on the issue of whether defendant had made the
“we” reference because he was tired.
      We also note that defendant was able to elicit from Redden
that defendant said he had only five hours of sleep the previous
night and that he had not eaten. Thus, defendant was able to argue
he was fatigued and hungry at the time of the interview, which


                                  102
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


could explain his “slip” in using the pronoun “we.” As defendant
notes in his reply brief, there was also testimony that defendant
often was accompanied by others when he took his motor home
excursions. Nothing prevented defendant from arguing that
defendant’s use of the plural pronoun when describing such
excursions was a matter of habit. In sum, even if we were to find
error, it would be harmless given the other means by which
defendant could have raised the same points and in light of the
strength of the evidence against him. (Arias, supra, 13 Cal.4th at
pp. 156-157 [applying harmless error standard of People v. Watson,
supra, 46 Cal.2d at p. 836 to claim of error under Evid. Code § 356].)
         9. Exclusion of the February 15 Anonymous
            Telephone Call to Brenda Van Dam
       Defendant claims the trial court erroneously refused to
admit evidence that Brenda Van Dam received a telephone call
from an anonymous man on February 15, 2002, who asked her
if she wanted her daughter back, and told her that Danielle had
been abused but was still alive. In defendant’s view, the
telephone call supported his alibi defense because it was
consistent with the testimony of his entomological expert
Faulkner, who opined that Danielle’s body was first available
for insect activity on February 16. Defendant offered the
telephone call as a declaration against the caller’s interest
pursuant to Evidence Code section 1230 and also argued its
admissibility on federal due process grounds.
      Evidence Code section 1230 provides that the out-of-court
declaration of an unavailable witness may be admitted for its
truth if the statement, when made, was so far against the
declarant’s interests, penal or otherwise, that a reasonable
person would not have made the statement unless he or she
believed it to be true. “ ‘The proponent of such evidence must

                                 103
                     PEOPLE v. WESTERFIELD
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show “that the declarant is unavailable, that the declaration
was against the declarant’s penal [or other] interest, and that
the declaration was sufficiently reliable to warrant admission
despite its hearsay character.” ’ ” (People v. Geier (2007) 41
Cal.4th 555, 584.) “The focus of the declaration against interest
exception to the hearsay rule is the basic trustworthiness of the
declaration. [Citations.] In determining whether a statement
is truly against interest within the meaning of Evidence Code
section 1230, and hence is sufficiently trustworthy to be
admissible, the court may take into account not just the words
but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant’s
relationship to the defendant. [Citation.]” (People v. Frierson
(1991) 53 Cal.3d 730, 745.) We review the trial court’s finding
for an abuse of discretion. (Ibid.)
      We find no abuse of discretion here. The trial court
sustained the prosecution’s hearsay objection when the matter
of the telephone call first came up during defendant’s cross-
examination of Brenda.          It specifically found that the
anonymous caller’s statements lacked the reliability necessary
for their admission. The court reiterated its ruling excluding
the evidence when the defense subsequently made a formal
motion to have the evidence admitted. It observed that the
identity of the caller and the place from which the call was made
were unknown. The court also noted the publicity that this case
had received and the possibility of a “crank” call being made.
      A trial court does not abuse its discretion by finding “that
statements by an anonymous tipster fail to satisfy the
fundamental requirement of a declaration against interest —
that the declarant actually believes himself to be at some
significant risk of civil or criminal liability when he makes the

                                 104
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


statement sought to be admitted.” (Clark v. Optical Coating
Laboratory, Inc. (2008) 165 Cal.App.4th 150, 171.) Defendant
argues, however, that this case falls outside of this rule because
there was only one anonymous call conveyed and it occurred
under circumstances in which the caller would likely have
anticipated that the Van Dams’ telephone would be monitored.
Indeed, the February 15 call might have been traced but for the
fact that the warrant for a “tap and trace” on the Van Dam
telephone had been inadvertently allowed to lapse.
      It is purely speculative that the person who made the
single February 15 telephone call to the Van Dams believed his
call would be traced. And even if he thought the communication
would be traced, there is no basis to conclude he believed that
his identity would thereby be discovered, subjecting him to
criminal liability or social opprobrium, within the meaning of
Evidence Code section 1230. As the trial court noted, nothing
indicated the place from which the telephone call was made.
The communication could have easily been made from a number
unassociated with the caller precisely in order to maintain his
anonymity. Moreover, the caller gave no details regarding the
basis for his claimed knowledge that could be tested and given
the extensive publicity the case had been receiving, the
possibility that the communication was a “crank” call was real.
Under these circumstances, the trial court’s finding of
untrustworthiness was eminently reasonable.
      The situation present here is not, as defendant argues,
comparable to the exclusion of evidence that otherwise “bore
persuasive assurances of trustworthiness” found by the high
court to have violated due process in Chambers v. Mississippi
(1972) 410 U.S. 284, 302. Rather, as we have stated before, the
“foundational prerequisites are fundamental to any exception to

                                 105
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


the hearsay rule.” (People v. Hawthorne (1992) 4 Cal.4th 43, 57.)
“ ‘[A] defendant does not have a constitutional right to the
admission of unreliable hearsay statements.’ ” (People v. Ayala
(2000) 23 Cal.4th 225, 269.) Application of “the ordinary rules
of evidence do not impermissibly infringe on the accused’s right
to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834;
accord People v. Prince (2007) 40 Cal.4th 1179, 1229.)
         10. The Adequacy of CALJIC No. 2.16 in Considering
            Dog-Scent Evidence
       As noted in the statement of facts, Jim Frazee, a volunteer
canine handler from the San Diego Sheriff’s Department,
testified that he and his trained search and cadaver dog Cielo
were called upon to search 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 some place in the motorhome.
      Defendant does not claim error in the admission of the
dog-scent evidence. Rather, he claims two errors in the trial
court’s instruction to the jury regarding its consideration of the
evidence. First, he argues that CALJIC No. 2.16, which
instructed the jury in its consideration of dog-tracking evidence,
was inadequate because it failed to admonish the jury to view
the evidence with caution. Second, he argues that CALJIC No.
2.16 is inadequate because it fails to relate the jury’s
consideration of the evidence to the beyond a reasonable doubt
standard of proof. We reject both claims.




                                 106
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


             a. Lack of Cautionary Admonishment
      The admission of dog-tracking or dog-scent evidence7 was
first approved in People v. Craig (1978) 86 Cal.App.3d 905
(Craig II). The foundational requirements for admission of such
evidence were further developed in People v. Malgren (1983) 139
Cal.App.3d 234 (Malgren). Specifically, the Malgren court
identified the following five foundational requirements: “(1) the
dog’s handler was qualified by training and experience to use
the dog; (2) the dog was adequately trained in tracking humans;
(3) the dog has been found to be reliable in tracking humans; (4)
the dog was placed on the track where circumstances indicated
the guilty party to have been; and (5) the trail had not become
stale or contaminated.” (Id., at p. 238.) When the issue was
recently presented to us, we approved the admission of dog-scent
evidence upon a sufficient foundational showing of the first four
Malgren requirements. (People v. Jackson (2016) 1 Cal.5th 269,
325-326.) We determined that the fifth Malgren factor “is not
an independent requirement; it is satisfied by evidence that
establishes the other four factors.” (Id., at p. 325.) We have not,
however, had an occasion to consider the jury instruction that
should accompany the admission of such evidence.
      The trial court in this case instructed the jury with the
language of CALJIC No. 2.16, as follows: “Evidence of dog
tracking has been received for the purpose of showing, if it does,
that the defendant is the perpetrator of the crimes of kidnapping
and murder. This evidence is not by itself sufficient to permit
an inference that the defendant is guilty of the crimes of


7
      CALJIC No. 2.16 refers to this type of evidence as dog-
tracking evidence. Under the circumstances here, the evidence
is more readily understood as dog-scent evidence.


                                 107
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


kidnapping and murder. Before guilt may be inferred, there
must be other evidence that supports the accuracy of the
identification of the defendant as the perpetrator of the crimes
of kidnapping and murder. [¶] The corroborating evidence need
not be evidence which independently links the defendant to the
crime. It is sufficient if it supports the accuracy of the dog
tracking. [¶] In determining the weight to give to dog-tracking
evidence, you should consider the training, proficiency,
experience, and proven ability, if any, of the dog, its trainer, and
its handler, together with all the circumstances surrounding the
tracking in question.”
      Although CALJIC No. 2.16 specifically instructs the jury
that dog-tracking (dog-scent) evidence is not sufficient alone to
permit a finding of guilt and that corroboration of the accuracy
of the identification is necessary, defendant claims that still
more cautionary directions are required. He argues that the
instruction is inadequate because it fails to expressly admonish
the jury to view the dog-scent evidence “with care and caution”
and contends that the trial court had a duty to add such
admonition on its own motion.8 According to defendant, such an
express cautionary admonition is necessary because dog-scent


8
      Defendant did not object to the instruction on this ground,
but raises the claim on appeal relying on section 1259, which
provides instructional errors are reviewable “if the substantial
rights of the defendant were affected thereby.” (§ 1259; People
v. Prieto (2003) 30 Cal.4th 226, 247.) The People do not
challenge the applicability of section 1259. But we have
previously recognized that “it is more appropriate to permit
defendants to determine whether to request the instruction than
to require the trial judge to give it in every case” because dog
tracking evidence can be either inculpatory or exculpatory.
(People v. Diaz (2015) 60 Cal.4th 1176, 1192 (Diaz).)


                                  108
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


evidence, like accomplice testimony, in-custody informant
testimony, and evidence of an oral confession or admission by a
defendant, presents a substantial risk of “specious reliability.”
He notes that the dog-scent instruction given in Craig included
an admonition that such evidence “must be viewed with the
utmost of caution.” (Craig II, supra, 86 Cal.App3d at p. 917.)
      The majority of the court in Malgren, however, specifically
rejected the argument that “the court was obligated to instruct
that dog trailing evidence must be viewed with caution.”
(Malgren, supra, 139 Cal.App.3d at p. 241.) It reasoned that
“[u]nlike accomplice testimony, dog tracking evidence is not
inherently suspect because of a self-interested source.
[Citation.] The notion that such evidence is of slight probative
value or must be viewed with caution stems at least in part from
a fear that a jury will be in awe of the animal’s apparent powers
and will give the evidence too much weight. [Citation.] In light
of the stringent foundational requirements which must be met
before such evidence is admissible at all, however, we see no
reason to categorize that evidence thereafter as inferior or
untrustworthy, and instruct that it be given less weight than
other evidence. The Craig II court itself suggested that what
the law in this state actually requires is not that dog trailing
evidence be viewed with caution, but that it be treated as any
other evidence, with its weight left to the trier of fact. (Craig II,
supra, 86 Cal.App.3d at p. 918.)” (Malgren, at pp. 241-242.)
      Defendant urges us to disapprove Malgren on this point.
He argues that dog-scent evidence is “highly problematic” and
in this way is akin to accomplice testimony, in-custody
informant testimony, and evidence of an oral confession or
admission by a defendant, which he asserts have similar
questionable reliability and so warrant a cautionary instruction

                                  109
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


on its own motion. Subsequent to the filing of defendant’s
briefing, however, we have concluded that trial courts do not
have a duty to instruct the jury on its own motion to view with
caution evidence of a defendant’s extrajudicial statements.
(Diaz, supra, 60 Cal.4th, at pp. 1189-1190.) In reaching that
conclusion, we started with the observation that a trial court has
such a duty to instruct only “ ‘on the general principles of law
relevant to the issues raised by the evidence. [Citations.] The
general principles of law governing the case are those principles
closely and openly connected with the facts before the court, and
which are necessary for the jury’s understanding of the case.’ ”
(Id., at p. 1189.) We then considered “whether the cautionary
instruction [regarding defendant’s extrajudicial statements] is
one of those ‘general principles of law’ so ‘necessary for the jury’s
understanding of the case’ that the instruction must be given by
the trial court even when the defendant does not request it.”
(Ibid.)     We ultimately concluded that “[t]he cautionary
instruction is no longer ‘necessary for the jury’s understanding
of the case’ [citation] because courts are now required to instruct
the jury, in all criminal cases, concerning the general principles
that apply to their consideration of witness testimony.” (Id., at
p. 1190.)
      Considering defendant’s contention in light of this
framework of analysis, we conclude an express cautionary
admonition regarding dog-scent evidence is not a general
principle of law necessary to the jury’s understanding of the
case. (Diaz, supra, 60 Cal.4th at pp. 1189-1190.) First, we agree
with the Malgren majority that “the stringent foundational
requirements which must be met before such evidence is
admissible at all” ensure that this type of evidence is not
inherently “inferior or untrustworthy,” requiring that the jury


                                  110
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


be instructed to give it “less weight than other evidence.”
(Malgren, supra, 139 Cal.App.3d at p. 241.)9 Second, we note
CALJIC No. 2.16 observes that the “[e]vidence of dog tracking
has been received for the purpose of showing, if it does, that the
defendant is the perpetrator of the crimes of kidnapping and
murder.” (Italics added.) The highlighted language alerts the
jury to consider the possibility that the evidence does not reflect
that defendant is the perpetrator. Combined with the language
of CALJIC No. 2.16 instructing the jury that dog-scent evidence
is not sufficient alone to permit a finding of guilt, that
corroborating evidence is necessary, and that the jury should
consider the training, proficiency, experience, and proved
ability, if any, of the dog, its trainer, and its handler, along with
all of the surrounding circumstances, CALJIC No. 2.16 already
contains limitations and safeguards ensuring that the jury will
carefully evaluate dog-scent evidence. Moreover, the jurors also
were apprised of the general rules advising caution in the
consideration of circumstantial evidence. (CALJIC No. 2.01.) A
further cautionary instruction is neither necessary nor
appropriate for the jury’s understanding.




9
      Defendant fails to persuade us that the foundational
requirements are so easy to satisfy in this “age of the credential
and the certification” that they do not provide an adequate
measure of reliability. The fact that a dog and its handler have
been certified by a credentialed organization specializing in
canine search and rescue is only one of many circumstances that
a trial court may considered in determining whether the
foundational requirements for admissibility of proffered dog-
scent evidence have been met. If the evidence is allowed, it is
only one of many circumstances that may be considered by the
jury in deciding the weight to give the evidence.


                                  111
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


      Defendant, therefore, has not shown any error in the trial
court’s failure to insert a cautionary admonition in CALJIC No.
2.16.
            b. Lessening of the Burden of Proof
      Defendant claims there is a further problem with CALJIC
No. 2.16. Defendant contends the instruction is deficient
because it fails to relate the issue of dog-scent evidence to the
standard of proof beyond a reasonable doubt. According to
defendant, to avoid lessening the prosecution’s burden of proof,
CALJIC No. 2.16 should include further language along the
lines used in current CALCRIM No. 376 [Possession of Recently
Stolen Property as Evidence of a Crime], which closes with the
following admonition: “Remember that you may not convict the
defendant of any crime unless you are convinced that each fact
essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt.”
      CALJIC No. 2.16, regarding dog-scent evidence, bears
substantial similarity to the standard pattern instructions
(CALJIC No. 2.15; CALCRIM No. 376), concerning a jury’s
consideration of evidence of a defendant’s possession of recently
stolen property. CALJIC No. 2.15 and CALCRIM No. 376 both
instruct a jury that the defendant’s conscious possession of
recently stolen property is not by itself sufficient to permit an
inference of the defendant’s guilt and that there must be other
corroborating evidence of the defendant’s guilt before guilt may
be inferred. (CALJIC No. 2.15; CALCRIM No. 376.) Similarly,
CALJIC No. 2.16 instructs the jury that evidence of dog tracking
that shows a defendant to be the perpetrator of a charged crime
is not by itself sufficient to permit an inference of the
defendant’s guilt and that there must be corroborating evidence



                                 112
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


that either supports the accuracy of the dog scent evidence itself
or independently supports the identification of the defendant as
the perpetrator. The instructions differ in that both CALJIC
No. 2.15 and CALCRIM No. 376 instruct the jury that the
corroborating evidence need only be “slight.” CALJIC No. 2.16
does not include that language.
      Like CALJIC No. 2.16, CALJIC No. 2.15 contains no
language similar to the closing reminder in CALCRIM No. 376
regarding the beyond a reasonable doubt standard of proof.
Nevertheless, as defendant recognizes, we have rejected the
argument that CALJIC No. 2.15 erroneously lessens the
prosecution’s burden of proof. We have found that “there is
nothing in the instruction that directly or indirectly addresses
the burden of proof, and nothing in it relieves the prosecution of
its burden to establish guilt beyond a reasonable doubt.” (People
v. Parson (2008) 44 Cal.4th 332, 355-356.) Moreover, we
determined, “given the court’s other instructions regarding the
proper consideration and weighing of evidence and the burden
of proof, there simply ‘is “no possibility” CALJIC No. 2.15
reduced the prosecution’s burden of proof.’ ” (Id at p. 356.)
Subsequently, in People v. Moore (2011) 51 Cal.4th 1104, we
explained that the trial court’s giving of CALJIC No. 2.15,
although erroneous in applying the “slight” corroboration rule to
a murder charge, “in no way altered the trial court’s proper
instructions concerning the elements of [the charged offense]
that the prosecution was required to prove beyond a reasonable
doubt. The jury was instructed it could draw merely ‘an
inference of guilt’ from the fact of possession with slight
corroboration, which any rational juror would understand
meant he or she could consider this inference in deciding
whether the prosecution has established the elements of [the


                                 113
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


charged offense] elsewhere defined in the trial court’s
instructions. The instruction purported to explain to the jury its
proper consideration of a particular item of circumstantial
evidence in reaching a verdict on the charges; it did not alter the
defining elements of those charges.” (Id., at p. 1131.)
      Defendant asks that we reach a different conclusion with
respect to CALJIC No. 2.16 in light of the CALCRIM
committee’s decision to add to CALCRIM No. 376 the closing
reminder regarding the burden of proof and in light of his
assertion that dog-scent evidence is “typically unreliable.”
Contrary to defendant’s view, however, the additional language
of CALCRIM No. 376 does not reflect a legal inaccuracy or
deficiency in CALJIC No. 2.16. CALJIC No. 2.16 provided the
jury with instructions regarding an inference that the jury
might draw from this particular item of circumstantial evidence
but did not alter the court’s other instructions concerning the
necessity of proof beyond a reasonable doubt. (CALJIC Nos.
2.01, 2.90.) And, as explained in the previous section, courts
have treated dog-scent evidence that has passed the stringent
foundational requirements for admission into evidence as not
“inferior or untrustworthy.” (Malgren, supra, 139 Cal.App.3d at
p. 241.) Defendant fails to persuade us that our previous
rejection of this argument in the context of CALJIC No. 2.15
should not be applied by analogy to CALJIC No. 2.16. Doing so,
we reject defendant’s claim of error.
         11. The Trial Court’s Refusal to Modify CALJIC No.
            2.51
      The trial court instructed the jury with CALJIC No. 2.51
that “[m]otive is not an element of the crime charged and need
not be shown. However, you may consider motive or lack of
motive as a circumstance in this case. Presence of motive may

                                 114
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


tend to establish the defendant is guilty. Absence of motive may
tend to show the defendant is not guilty.” The trial court denied
defendant’s request to add language instructing the jury that
“motive is not sufficient by itself to prove guilt, and its weight
and significance, if any, are for you to decide.”
      Pointing to other instructions that contain language
cautioning the jury that certain evidence is not sufficient to
establish guilt, including CALJIC Nos. 2.15 and 2.16, defendant
argues that it was error for the trial court to refuse his request.
Defendant contends that under the specific circumstances of
this case, in which inflammatory images of child pornography
were offered as evidence of motive, the additional language was
not only salutary, but necessary.
       This court has previously rejected the argument that it is
necessary to instruct the jury that motive alone is insufficient to
establish guilt. We have explained that if CALJIC No. 2.51 “
‘somehow suggested that motive alone was sufficient to
establish guilt, defendant’s point might have merit. But in fact
the instruction tells the jury that motive is not an element of the
crime charged (murder) and need not be shown, which leaves
little conceptual room for the idea that motive could establish
all the elements of murder. When CALJIC No. 2.51 is taken
together with the instruction on the concurrence of act and
specific intent (CALJIC No. 3.31) and the instruction outlining
the elements of murder and requiring each of them to be proved
in order to prove the crime (CALJIC No. 8.10), there is no
reasonable likelihood [citation] it would be read as suggesting
that proof of motive alone may establish guilt of murder.’ ”
(People v. Livingston (2012) 53 Cal.4th 1145, 1168 (Livingston),
quoting People v. Snow (2003) 30 Cal.4th 43, 97-98 (Snow).)



                                 115
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


       Defendant argues that because Livingston, supra, 53
Cal.4th at page 1168, involved a claim that the trial court had a
duty to modify CALJIC No. 2.51 on its own motion, it is not
authority for rejecting his contention that the trial court erred
in denying his request for the additional language. However,
nothing in Snow or Livingston suggests our rejection of the
argument was limited to claims concerning the trial court’s duty
to instruct on its own motion. Indeed, the defendant in
Livingston noted that the court had instructed the jury in his
case regarding flight, using the language of CALJIC No. 2.52,
which told the jury that evidence of flight is not sufficient by
itself to establish guilt. Livingston contended that “the failure
to so state regarding motive would cause the jury to believe that
motive alone was enough to convict.” (Livingston, supra, 53
Cal.4th at p. 1168) As relevant here, we found there was no
error and no prejudice. We stated: “The court fully instructed
the jury on the reasonable doubt standard. We find no
reasonable likelihood the jury would infer from the motive
instruction that motive alone could establish guilt. Moreover,
given the strong evidence of guilt aside from motive, the jury
certainly did not base its verdicts solely on motive.” (Id., at p.
1169.) The same can be said here.
         12. Sufficiency of the Evidence of Forcible Asportation
            Underlying the Kidnapping Conviction
      Defendant contends that the evidence presented at the
guilt phase of trial was insufficient to support his conviction of
kidnapping under section 207 — and therefore his conviction of
felony murder predicated on kidnapping — because there was
assertedly no evidence that Danielle was removed from her
house by force or fear. Defendant emphasizes that there is no
evidence showing how Danielle was taken, no evidence of a


                                 116
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


disturbance or commotion noticed by those at the house or the
family dog, and no trace evidence linking defendant to the
interior of the Van Dam home. He contends, therefore, that the
circumstances amount to a taking effected by fraud or deceit,
which does not constitute kidnapping within the meaning of
section 207. (See People v. Majors (2004) 33 Cal.4th 321, 327-
328.) Defendant further asserts that the record contains no
evidence of later use of force or exploitation of fear. We reject
defendant’s sufficiency of the evidence claim.
       Defendant was charged with kidnapping Danielle in
violation of section 207, subdivision (a), which provides that
“[e]very person who forcibly, or by any other means of instilling
fear, steals or takes, or holds, detains, or arrests any person in
this state, and carries the person into another country, state, or
county, or into another part of the same county, is guilty of
kidnapping.” (§ 207, subd. (a).)
      “As can be seen by this language, in order to constitute
section 207(a) kidnapping, the victim’s movement must be
accomplished by force or any other means of instilling fear.”
(People v. Majors, supra, 33 Cal.4th at p. 326.) Defendant’s jury
was instructed accordingly with CALJIC No. 9.50, which in
relevant part, told the jury that “[i]n order to prove this crime,”
it must be proved that “[a] person was unlawfully moved by the
use of physical force, or by any other means of instilling fear[.]”
Defendant points out that “asportation by fraud alone does not
constitute general kidnapping in California.” (People v. Davis
(1995) 10 Cal.4th 463, 517, fn. 13.)
     In evaluating a claim regarding the sufficiency of the
evidence, we review the record “in the light most favorable to
the judgment below to determine whether it discloses


                                 117
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


substantial evidence — that is, evidence which is reasonable,
credible, and of solid value — such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 578.) “The federal
standard of review is to the same effect: Under principles of
federal due process, review for sufficiency of evidence entails not
the determination whether the reviewing court itself believes
the evidence at trial establishes guilt beyond a reasonable
doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11,
citing Jackson v. Virginia (1979) 443 U.S. 307, 317-320; accord
People v. Castaneda (2011) 51 Cal.4th 1292, 1322.) “The
standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.” (People v. Rodriguez,
supra, 20 Cal.4th at p. 11; accord People v. Watkins (2012) 55
Cal.4th 999, 1019-1020.) “We presume in support of the
judgment the existence of every fact the trier of fact reasonably
could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.”
(People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).)
      There is no dispute that seven-year-old Danielle was
removed from her bedroom in the Van Dam home sometime
between 10:30 p.m. on February 1, after her father Damon first
went to bed, and 9:00 a.m. on February 2 when she was
discovered to be missing. We agree with the People that the jury
could have reasonably inferred that defendant abducted
Danielle by either using force to quietly subdue her or by


                                 118
                      PEOPLE v. WESTERFIELD
              Opinion of the Court by Cantil-Sakauye, C. J.


threatening her with harm if she made any noise. Although it
is possible that defendant persuaded or tricked Danielle into
secretly leaving with him, even assuming such a possibility
reasonably exists, it simply presents a contrary view of the
evidence. Reversal is “not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding.” (Lindberg, supra, 45 Cal.4th at p. 27.)
       More important, even assuming Danielle had been moved
by a ruse and not through force or fear, the evidence was
sufficient to support defendant’s conviction for kidnapping.
Danielle’s status as a young child is significant because we have
long recognized an alternative standard for such victims for
purposes of kidnapping under section 207. We have held that
the kidnaping of a minor can be accomplished without the same
kind of force or fear applicable to adult victims provided that it
was done for an improper purpose, because a minor is “too young
to give his [or her] legal consent to being taken.” (People v.
Oliver (1961) 55 Cal.2d 761, 764 (Oliver).) Accordingly, we have
construed section 207, “as applied to a person forcibly taking and
carrying away another, who by reason of immaturity or mental
condition is unable to give his [or her] legal consent thereto, . . .
[to constitute] kidnaping only if the taking and carrying away is
done for an illegal purpose or with an illegal intent.” (Oliver,
supra, 55 Cal.2d at p. 768.) In Oliver, we applied this
construction of section 207 to the taking of a two-year-old child.
We later applied the same construction to the takings of even
younger children. (See People v. Hill (2000) 23 Cal.4th 853, 857-
858 [seven-month-old]; In re Michele D. (2002) 29 Cal.4th 600,
607 (Michele D.) [12-month-old].)
    Moreover, at the time of defendant’s trial, the use note for
CALJIC 9.50 described the exception we established in Oliver:

                                  119
                     PEOPLE v. WESTERFIELD
             Opinion of the Court by Cantil-Sakauye, C. J.


“If the victim of the alleged kidnapping is incapable of giving
consent, the People must prove the movement was done for an
illegal purpose or with an illegal intent.” (CALJIC No. 9.50
(1999 rev.) (6th ed. 1996), citing Oliver, supra, 55 Cal.2d at p.
768.) Thus, it was well-established at the time of defendant’s
trial that the forcible taking language of section 207 as charged
against defendant involves an alternative standard when the
child victim is “too young to give his [or her] legal consent to
being taken.” (Oliver, supra, 55 Cal.2d at p. 764.)
      Consequently, even if Danielle was persuaded into leaving
her home, she could not have legally consented and was still
kidnapped if she was taken away a substantial distance for an
illegal purpose or with an illegal intent. Kidnapping is,
moreover, a continuous offense. (People v. Barnett (1998) 17
Cal.4th 1044, 1159 [kidnapping continues “until such time as
the kidnapper releases or otherwise disposes of the victim and
has reached a place of temporary safety”].)
      The evidence indicated that defendant had moved
Danielle. The mitochondrial DNA profiles of six hairs recovered
from the master bedroom of defendant’s residence matched
Danielle’s mitochondrial DNA profile, suggesting she had been
in defendant’s bedroom. According to the latent fingerprint
examiner, the handprint Danielle left on the cabinet above
defendant’s motorhome bed showed pressured movement of her
hand. Moreover, the mitochondrial DNA profiles of two hairs
recovered from the floor of defendant’s motorhome matched
Danielle’s mitochondrial DNA profile, and a third hair found in
the motorhome sink matched Danielle’s more distinct nuclear
DNA profile, all of which further support her presence in
defendant’s motorhome. Viewing the evidence in a light most
favorable to the judgment, these circumstances suggests she

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was alive at some point when defendant drove the motorhome
to various locations. Thus, defendant’s movement of Danielle —
likely to his house and certainly in his motorhome — continued
the kidnapping.
      Defendant suggests, however, that this recognized
exception to the force requirement of section 207 has been
applied to only the takings of infants, and not older children
such as Danielle. But the Courts of Appeal have applied Oliver
to child victims with ages similar to seven-year-old Danielle.
(See People v. Dalerio (2006) 144 Cal.App.4th 775, 782 [nine-
year-old]; Parnell v. Superior Court (1981) 119 Cal.App.3d 392,
403, fn. 3 [seven-year old]; see also People v. Ojeda-Parra (1992)
7 Cal.App.4th 46, 50 [three-year-old].) As a result, the record
overwhelmingly meets the standard of force as we apply it to
children, given that Danielle was removed from her house
without her parents’ consent and moved from there to where her
body was eventually found.
      Defendant further objects, however, to the application of
the standard of force described by the Oliver line of cases on the
grounds that “this alternate theory of forcible kidnapping” was
not alleged against him and the jury was not instructed on this
alternative theory. He contends that these circumstances also
contributed to the insufficiency of the evidence to support his
conviction for kidnapping because a conviction cannot be
affirmed on appeal on a factual theory never tried before a jury.
      Concerning the alleged pleading error, defendant’s
argument is inapt because Oliver and Michele D., and the other
related cases described above, did not create a new or different
crime of kidnapping that needed to be expressly pleaded against




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the defendant.     Instead, these cases simply applied an
alternative standard in kidnapping cases involving children.
      Moreover, the information made clear that defendant was
being charged with the kidnapping of a child. In fact, defendant
concedes that his kidnapping charge alleged that Danielle was
“a child under the age of fourteen years.” In a similar context,
we have held that “an accusatory pleading charging murder
need not specify the theory of murder upon which the
prosecution intends to rely.” (People v. Abel (2012) 53 Cal.4th
891, 937.) Here, the information filed against defendant, if
anything, highlighted the theory of which he now complains by
alleging the kidnapping of a child, thereby placing him on notice
that the prosecution could rely on the theory of kidnapping used
in Oliver and Michele D.
      Nor does it matter for purposes of defendant’s
insufficiency of the evidence claim that the jury was not
informed of the alternative standard applicable to the
kidnapping of a child. The jury was instructed that, in order to
convict defendant of kidnapping, the evidence must show that
defendant moved Danielle using the standard threshold of force
required for kidnapping, which is higher than the threshold of
force we established in Oliver. Additionally, the jury’s finding
of guilt for the kidnapping charge necessarily indicates it
believed she had been moved against her will, either by force or
by inducing fear, or both.
      Thus, if the jury concluded that Danielle had accompanied
defendant out of fear, then any definition of force, alternatively
defined or not, was irrelevant to defendant’s conviction for
kidnapping. On the other hand, if the jury concluded that a
seven-year old would have made some effort to resist but was


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overcome through defendant’s use of force to move her, then the
alternative definition of force under Oliver is also irrelevant to
defendant’s conviction for kidnapping. Consequently, with the
understanding that the showing of force required for a child
victim like Danielle is greatly reduced, there is no doubt that,
construing the facts most favorable to the judgment, any
rational trier of fact could have reasonably inferred from the
evidence that Danielle had been removed from her home against
her will for purposes of kidnapping.
      Admittedly, however, defendant’s jury was not instructed
that it must find Danielle was taken and carried away “for an
illegal purpose or with an illegal intent.” We have recognized
the importance of the “illegal purpose or illegal intent”
requirement that was established in Oliver, supra, 55 Cal.2d at
page 764, because, without such a requirement in cases
involving children, “every time a person picks up and moves a
child, he or she could be charged with kidnapping.” (Michele D.,
supra, 29 Cal.4th at p. 612; Oliver, supra, 55 Cal.2d at p. 768
[“So construed the legislative purpose will be preserved and
furthered, and innocent persons who cannot have been within
the legislative intention in adopting section 207 will be excluded
from the operation of the law”].)
      Although this element concerning the Oliver theory of
kidnapping was not presented to the jury, any asserted error
was harmless under either the state or federal constitutions.
(See Neder v. United States (1999) 527 U.S. 1, 17 [under the
federal constitution, the failure to instruct the jury on an
element of the crime is reviewed for whether the error was
harmless beyond a reasonable doubt]; People v. Cole (2004) 33
Cal.4th 1158, 1208, citing People v. Watson, supra, 46 Cal.2d at
p. 836 [under the state constitution, the inquiry is whether there

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is no reasonable probability that the outcome of defendant’s trial
would have been different had the trial court properly instructed
the jury].) Defendant relied on an alibi defense and made no
claim asserting that Danielle willingly left her home with him
on the night of February 2, 2002. More important, the record
reflects there could have been no possible lawful purpose for
surreptitiously removing seven-year-old Danielle from her home
without her parents’ knowledge and consent. There was no fire
or other emergency, for example. There can be no other
reasonable interpretation of the evidence that shows, or
remotely suggests, defendant took Danielle for a lawful
purpose. And this is all that the law requires.
         13. The Trial Court’s Failure to Instruct on Second
            Degree Murder and Involuntary Manslaughter as
            Lesser Included Offenses of First Degree Felony
            Murder
       Over defendant’s objection that the jury should also be
instructed on first degree premeditated murder, the trial court
instructed the jury on first degree felony murder only, and his
liability for murder was tried solely on that basis. Defendant
contends the trial court had a duty to instruct on second degree
murder and involuntary manslaughter as lesser included
offenses on the court’s own motion. For his claim that second
degree murder is a lesser included offense of first degree felony
murder, defendant relies on our discussion of the law regarding
second degree felony murder in People v. Chun (2009) 45 Cal.4th
1172. Defendant contends the failure to instruct on the lesser
included offenses constituted both state law error; and a
violation of his constitutional rights under the Eighth
Amendment. (Beck v. Alabama (1980) 447 U.S. 625, 638)




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       As defendant observes, we have previously declined to
address the question of whether second degree murder is a
lesser included offense of first degree felony murder. (People v.
Castaneda, supra, 51 Cal.4th, at pp. 1328-1329 (Castaneda);
People v. Romero (2008) 44 Cal.4th 386, 402; People v. Valdez,
supra, 32 Cal.4th, at p. 114, fn. 17.) We do so again here. Even
assuming for purposes of argument that second degree murder,
and involuntary manslaughter, are lesser included offenses of
first degree felony murder, we conclude that the trial court did
not error in failing to instruct the jury on them here.
      “ ‘[I]t is the “court’s duty to instruct the jury not only on
the crime with which the defendant is charged, but also on any
lesser offense that is both included in the offense charged and
shown by the evidence to have been committed.” [Citation.]’
[Citations.]” (Castaneda, supra, 51 Cal.4th, at p. 1327, italics
added.) “Speculation is an insufficient basis upon which to
require the giving of an instruction on a lesser offense.” (People
v. Wilson (1992) 3 Cal.4th 926, 941.) “ ‘[T]he existence of “any
evidence, no matter how weak’ will not justify instructions on a
lesser included offense . . . .’ [Citation.] Rather, substantial
evidence must exist to allow a reasonable jury to find that the
defendant is guilty of a lesser but not the greater offense.
[Citation.] ‘ “ ‘Substantial evidence is evidence sufficient to
“deserve consideration by the jury,” that is, evidence that a
reasonable jury could find persuasive.’ ” ’ [Citation.]” (People v.
Valdez, supra, 32 Cal.4th at p. 116 fn. omitted.)
      We conclude that there was no substantial evidence
introduced at defendant’s trial that the killing of Danielle was
other than a murder during the commission of a kidnapping.
First, to the extent defendant’s argument that the jury could
have concluded he was guilty of only second degree murder or

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involuntary manslaughter relies on his view of the evidence of
forcible asportation for purposes of kidnapping, as discussed and
rejected in the previous section, we find it purely speculative in
this context. Second, as we have previously explained, it was
uncontested that Danielle was taken from her home during the
night without her parents’ consent. Someone kidnapped her.
Defendant contended that he was neither her abductor nor her
killer. But blood and trace evidence showed Danielle’s presence
in defendant’s home, SUV, and motorhome. Her naked, animal-
ravaged body was subsequently found off the side of a road in a
remote part of San Diego County miles away from her home.
There was no evidence from which the jury could find, for
example, that defendant simply came upon her and killed her
where her body was found, warranting instructions on the
assumed lesser included homicide offenses.
         14. The Trial Court’s Refusal to Instruct the Jury on
            First Degree Premeditated Murder
      As just noted, the prosecution tried this case solely on a
first degree felony murder theory. The trial court denied
defendant’s request to instruct the jury on premeditated and
deliberate murder, finding that there was no substantial
evidence to support that theory. Defendant argues that the trial
court erred. He contends the jury could have drawn an inference
from the evidence that defendant put thought and planning into
Danielle’s abduction, transportation, and later in the disposal of
her body and on that basis, the jury could have found him guilty
of first degree premeditated murder.          Defendant claims
prejudice from the trial court’s refusal to instruct on
premeditated murder because it concomitantly denied him the
right to instructions on the lesser included offenses of second
degree murder and involuntary manslaughter.


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      The inference of premeditation and deliberation defendant
argues contradicts the position taken by the defense at trial.
There, defense counsel argued that the jury should be instructed
on premeditated first degree murder because the evidence
warranted a jury finding that defendant was the killer, yet not
Danielle’s kidnapper. That position was not supported by the
evidence, as we have explained, and the trial court did not err
in refusing to instruct the jury on premeditated murder, or its
lesser included offenses, on that basis.
      Moreover, assuming for purposes of argument that the
jury could have drawn the inference defendant now urges based
on the circumstances of defendant’s kidnapping, transportation,
and disposal of Danielle’s body, the jury would also have
necessarily found that defendant committed the murder during
the commission of a kidnapping. There would have been no
evidentiary basis for a finding by the jury that defendant killed
Danielle with premeditation and deliberation, but did not do so
her during the commission of the kidnapping. Thus, at most
defendant has shown that the jury might have found him guilty
of both first degree felony murder and first degree premeditated
murder, not that there was substantial evidence on which the
jury could have found him guilty of only lesser offenses to
premeditated murder. Under these circumstances, defendant
could have suffered no prejudice from the trial court’s refusal to
instruct on a supplementary theory of first degree murder.
     B. Penalty Phase Issues
         1. Admission of the J.N. Incident as Factor (b)
            Evidence
     Factor (b) of section 190.3 permits the jury, in determining
the penalty in a capital case, to consider “[t]he presence or



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absence of criminal activity by the defendant which involved the
use or attempted use of force or violence or the express or
implied threat to use force or violence.” Factor (b) evidence
“shows the defendant’s propensity for violence, and helps jurors
decide whether [the defendant] deserves to die.” (People v.
Stiteley (2005) 35 Cal.4th 514, 564.)
      The prosecution proffered evidence of an incident
involving defendant’s niece, J.N., as factor (b) aggravating
evidence. As recounted earlier, J.N. described an incident, when
she was between five and seven years old, involving defendant
placing his fingers into her mouth and rubbing or massaging her
teeth while she had been sleeping. J.N. testified that she first
pretended to be asleep during the initial touching, but she bit
him the second time he touched her teeth. J.N. thereafter told
her mother that defendant had behaved “weird,” and that it
bothered her.      Years later, when Officer Redden asked
defendant if anyone might think defendant was involved in the
kidnapping of Danielle, defendant recalled the incident
involving J.N. and said that her mother had accused him of
molesting J.N..
      The defense objected that the incident at most constituted
a “technical battery” and was not a crime of force or violence.
The prosecution took the position that defendant had committed
an assault and battery, as well as a lewd act in violation of
section 288. The trial court agreed with the prosecution that the
incident constituted a crime of force or violence that was
admissible at the penalty phase and allowed J.N. to testify
regarding it.
     Defendant claims on appeal that the trial court erred. He
contends first that the court misinterpreted section 190.3, factor


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(b), to require only the amount of force necessary for a battery,
i.e., the slightest touching done in an offensive manner. (See
People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12; CALJIC
No. 16.141; CALCRIM No. 960.) Defendant argues that “force
or violence” as used in factor (b) must instead be construed to
mean “forcible violence” or “violent force.” Applying such a
standard, defendant contends that the J.N. incident could not
qualify as anything more than a “non-factor (b) battery” and that
its admission into evidence constituted a violation of due
process.
      Factor (b) is not limited in all circumstances to acts as to
which the defendant has used forcible violence or violent force.
We have stated previously that “[f]or the purpose of
admissibility under section 190.3, factor (b): ‘ “[T]he ‘force’
requisite . . . does not mean bodily harm but the physical power
required in the circumstances to overcome [the victim’s]
resistance.” ’ ” (People v. Raley (1992) 2 Cal.4th 870, 907
(Raley).) But how that standard would apply to the unwanted
touching here is not entirely clear.
      “Force or violence” for purposes of factor (b) has a
conventional and commonsense meaning. (People v. Dunkle
(2005) 36 Cal.4th 861, 922 (Dunkle), citing Tuilaepa v.
California (1994) 512 U.S. 967, 975.) Those circumstances may
include an inequality in size between the defendant and victim
as an element of physical power. (Raley, supra, at p. 907.)
      When the victim is a child, for example, the child may be
too surprised, shocked, or intimidated by the defendant to offer
much, if any, resistance. (See People v. Soto (2011) 51 Cal.4th
229, 243 [children are uniquely susceptible to abuse because of
their dependence upon adults, their smaller size, and relative



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naiveté].) Here, the victim was between five and seven years old
when defendant placed his fingers in her mouth.
       Defendant argues that, even so, we should find that the
trial court erred in admitting the evidence. We review “ ‘a trial
court’s decision to admit “other crimes” evidence at the penalty
phase . . . for abuse of discretion, and no abuse of discretion will
be found where, in fact, the evidence in question was legally
sufficient.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 225;
accord People v. Bacon (2010) 50 Cal.4th 1082, 1127.)
      Defendant argues that the evidence here was legally
insufficient to support the trial court’s exercise of its discretion
and that its admission constituted an abuse of discretion. In
defendant’s view, there is nothing in the record reflecting that
when he put his fingers into J.N.’s mouth, he used any physical
power to overcome resistance that was offered by J.N. as she
slept or feigned sleep. He emphasizes J.N.’s memory was of his
rubbing or massaging her teeth, not his use of any “force” in
putting his fingers into her mouth. The People respond that
defendant’s conduct was not only a battery, but a touching of the
body of a child under the age of 14 with sexual intent, that is, a
lewd act on a child, in violation of section 288, subdivision (a)
(section 288(a)).    Moreover, in the view of the People,
defendant’s acts were more than a touching for purposes of
section 288(a) or a slight offensive touching for purposes of
battery. The People argue that an adult’s insertion of a finger
into a sleeping child’s mouth is a forceful act. The People
characterize it as an “attack.”
       We need not decide whether, under these standards, the
touching here involved the use of force for factor (b) purposes.
Even if the evidence was improperly admitted, we conclude that


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the record does not demonstrate prejudice. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1170.) The jury had already convicted
defendant of the abduction and murder of seven-year-old
Danielle. It had found true the special circumstance of a murder
committed during the commission of a kidnapping. The jurors
had heard all of the circumstances of the crimes and special
circumstance, which involved the snatching of a very young girl
from the safety of her bedroom in the middle of the night, her
subsequent murder, and the dumping of her naked body out in
the desert. The jury learned of defendant’s likely sexual
motivation for the kidnapping through the child pornography
evidence. The jury heard evidence regarding the impact of
defendant’s crimes on Danielle’s family and teachers. (§ 190.3,
factor (a).) The evidence admitted in aggravation in our view
was significant and, contrary to defendant’s assertion, the case
in mitigation was, by comparison, not particularly substantial.
It reflected defendant’s outward positive contribution to society
and value to his coworkers, employers, friends, and family. But
such evidence did not significantly address or undermine the
evidence of defendant’s apparent inner sexual compulsions
toward young girls. Defendant fails to persuade us that the
defense entomological evidence was so strong that it necessarily
raised a lingering doubt concerning his guilt. The entomological
evidence was seriously called into doubt through the rebuttal
evidence introduced by the prosecution. And the J.N. incident
itself was subject to reasonable questions and ambiguities,
which may explain the jury’s request early during its penalty
phase deliberations for a reread of the relevant testimony
regarding that incident. Nothing in the record suggests the jury
ultimately relied on that evidence in reaching its penalty verdict
or that it tipped the scale in favor of death. Under these


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circumstances, we are confident that under any standard, the
admission of the J.N. incident, if erroneous, was harmless.
         2. The Labeling of the J.N. Incident as a Lewd Act
            with a Child
      CALJIC No. 8.87 instructs the jury on consideration of
other criminal activity by the defendant involving the use of
force or violence as an aggravating circumstance. When the
parties discussed the penalty phase jury instructions, defendant
requested that, if the jury was to be instructed with CALJIC No.
8.87, the evidence of the J.N. incident should be labeled a
battery and that the jury be separately instructed on the
elements of battery. The prosecution took the position that the
J.N. incident was not only a battery, but also a lewd act upon a
child under 14 in violation of section 288(a). The prosecution
requested that the jury also receive instructions regarding the
elements of section 288(a).          The defense opposed the
prosecution’s requests, contending that a violation of section
288(a) is not a factor (b) crime because it can be committed
without the use of force or violence. The trial court observed
that it had previously rejected defendant’s argument. It
tentatively ruled that both battery and lewd act on a child would
be identified in the version of CALJIC No. 8.87 given to the jury
and that the jury would be instructed on the elements of both
crimes. The trial court later confirmed that the instruction
would name both crimes, but offered defendant the choice of




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whether the trial court should instruct on their elements.10 The
defense ultimately requested that no instruction be given on the
elements of either of the designated crimes. Over defendant’s
objection, the jury was instructed with CALJIC No. 8.87,
identifying battery “and/or” lewd act with a child under 14 years
old as defendant’s asserted criminal acts.11
      Defendant argues that even if the J.N. incident was
admissible as a factor (b) crime, labeling it as a lewd act with a
child was unduly prejudicial because that aspect of the conduct
was irrelevant to the purpose of factor (b) and the incident could
have been adequately identified as a battery. Defendant
contends that the lewd act label risked distracting, misleading,
inflaming, and provoking the jury to use the evidence as
character evidence beyond that allowed by factor (b). Defendant


10
      Subsequent to defendant’s trial, we have expressly
confirmed that a defendant is entitled to instructions on the
elements of alleged other factor (b) crimes on request, but may
make a tactical choice to forego them. (People v. Brown (2003)
31 Cal.4th 518, 571.)
11
      The full version of CALJIC No. 8.87 given to the jury
stated that: “Evidence has been introduced for the purpose of
showing that the defendant has committed the following
criminal acts: battery and/or lewd act with a child under
fourteen years, which involved the express or implied use of
force or violence. Before a juror may consider any of such
criminal acts as an aggravating circumstance in this case, a
juror must first be satisfied beyond a reasonable doubt that the
defendant did in fact commit the criminal acts. A juror may not
consider any evidence of any other criminal acts as an
aggravating circumstance. [¶] It is not necessary for all jurors
to agree. If any juror is convinced beyond a reasonable doubt
that the criminal activity occurred, that juror may consider that
activity as a fact in aggravation. If a juror is not so convinced,
that juror must not consider that evidence for any purpose.”


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claims that it was far from clear that a violation of section 288(a)
had even occurred and that the jury was prevented from
reasonably and rationally assessing the event because of the
trial court’s instruction that “if” anything happened, it was a
lewd act with a child under 14 years.
      To the extent defendant’s argument suggests that a
violation of section 288(a) cannot constitute factor (b) evidence,
we reference our previous discussion and expressly reject the
claim that section 288(a) is categorically outside of the scope of
factor (b). A violation of section 288(a) may under the
circumstances be a crime involving force or violence or the
implied or express threat of force or violence within the meaning
of factor (b). (Raley, supra, 2 Cal.4th at p. 907.) We have
concluded that the trial court did not abuse its discretion in
determining that to be the case here.
      To the extent defendant’s argument is premised on a view
that his conduct may not have constituted a violation of section
288(a), we find substantial evidence in the record to support a
rational juror’s finding that defendant put his fingers in J.N.’s
mouth and massaged her teeth with the requisite sexual intent.
Defendant’s tactical decision to forego instructions on the
elements of section 288(a) waived his right to the jury’s
determination of the issue.
      With respect to purely the labeling of the J.N. incident as
a lewd act on a child, we reject defendant’s claim that the
naming of it in the instruction prejudicially misled or distracted
the jury from the proper focus of factor (b) evidence. CALJIC
No. 8.87, as given, expressly told the jury that the evidence had
been introduced for the purpose of showing that defendant had
committed battery and/or a lewd act with a child involving the


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use of force or violence. The jury was thus given the possibility
of alternative crimes. It was not told that defendant’s conduct
was definitively criminal lewd conduct with a child. More
importantly, its attention was specifically directed at the facts
of defendant’s past criminal conduct as involving the use of force
or violence — the specific focus of factor (b).
      Furthermore, accurately labelling defendant’s conduct as
a lewd act provided the jury with an appropriate legal
description of defendant’s criminal offense, if the jurors found
that the conduct occurred. When evidence of a defendant’s
factor (b) conduct violates multiple criminal provisions, a court
may identify those offenses for the jury. To the extent the cases
defendant cites in support of his argument that a court must
exercise its discretion to eliminate unnecessary labeling of factor
(b) evidence (People v. Schader (1969) 71 Cal.2d 761, 775-775;
People v. Holt (1984) 37 Cal.3d 436, 462 (dis. opn. of Bird, C. J.);
People v. Cardenas (1982) 31 Cal.3d 897, 905; People v. Avitia
(2005) 127 Cal.App.4th 185, 194) are apposite, we find no abuse
of discretion in the trial court’s decision here to name both
offenses in the instruction.
       Finally, for the same reasons given in the previous section
finding harmless any error in the admission of the evidence
concerning the J.N. incident, we similarly find any error in the
trial court’s labelling of defendant’s criminal conduct in CALJIC
No. 8.87 to be harmless. (See People v. Collins (2010) 49 Cal.4th
175, 219 [a factor (b) incident of marginal significance given an
inappropriate label could not have affected the outcome within
any reasonable possibility]; People v. Clair (1992) 2 Cal.4th 629,
681 [same].)




                                  135
                     PEOPLE v. WESTERFIELD
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         3. Failure of CALJIC No. 8.87 to Submit the Question
            of Force or Violence to the Jury
       Defendant complains that CALJIC No. 8.87 improperly
fails to submit to the jury whether the crime involved the use or
threatened use of force or violence. Although this court has
repeatedly rejected this claim (e.g., People v. Streeter (2012) 54
Cal.4th 205, 266; People v. Loker (2008) 44 Cal.4th 691, 745;
People v. Nakahara (2003) 30 Cal.4th 705, 720 (Nakahara)),
defendant asks us to reconsider our position in light of Evidence
Code section 403.
       Initially, we reject the People’s argument that the issue is
forfeited because defendant failed to renew, when jury
instructions were discussed with the court, his written request
to so modify the instruction. We note that even if defendant had
completely failed to object at trial, we may review his claim on
appeal to the extent his claim of instructional error affected his
substantial rights. (People v. D’Arcy (2010) 48 Cal.4th 257, 302.)
      Nevertheless, on the merits, defendant fails to persuade
us to reconsider our position that CALJIC No. 8.87 is not
defective for failing to submit the question of force or violence
for purposes of factor (b) other crimes evidence to the jury. As
we have explained, “[t]he question whether the acts occurred is
certainly a factual matter for the jury, but the characterization
of those acts as involving an express or implied use of force or
violence . . . [is] a legal matter properly decided by the court.”
(Nakahara, supra, 30 Cal.4th at p. 720.) In contrast, Evidence
Code section 403 is concerned with a trial court’s initial
determination that sufficient evidence has been produced to
show the existence of a preliminary fact necessary to support
admission of proffered evidence, and the court’s duty to instruct,
on request, that the jury determine whether the preliminary

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facts exists before it considers the evidence introduced. (People
v. Lewis (2001) 26 Cal.4th 334, 362.) Evidence Code section 403,
dealing with a factual determination, is inapplicable to the legal
question involved here.
         4. Admission and Use of the Child Pornography
            Evidence at the Penalty Phase
     Defendant claims his death sentence must be reversed
because of the assertedly erroneous admission of the child
pornography evidence at the penalty phase of his trial.
       Defendant first reasserts his claims that the trial court
improperly joined the child pornography count to the other
charges and erroneously admitted the pornography evidence at
the guilt phase. He contends that the prejudicial effect of these
errors was compounded in the penalty phase by admission of the
evidence as part of the prosecution’s case in aggravation and the
prosecutor’s references to it in his penalty phase closing
argument. Because we have rejected defendant’s claims of error
in joinder and admission of the evidence (see ante, Part II.A.5 &
Part II.A.6), there is no error to be compounded.
      Defendant next contends that even if there was no error
in joinder or in the guilt phase admission of the child
pornographic evidence, nevertheless, the admission of the child
pornography at the penalty phase as evidence in aggravation
under factor (a) constituted independent error.
      Factor (a) allows the jury to consider “[t]he circumstances
of the crime of which defendant was convicted in the present
proceeding and the existence of any special circumstances found
to be true.” (§ 190.3, factor (a).) Defendant argues that factor
(a) evidence is limited under the statute to the circumstances of
only the crimes that triggered the death penalty. Thus, he


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claims, the evidence submitted to prove the joined count of
possession of child pornography does not come within factor (a)
and was improperly introduced as such. We have previously “
‘assumed that factor (a), though it speaks in the singular of the
“crime” of which defendant was currently convicted, covers the
“circumstances” of all offenses, singular or plural, that were
adjudicated in the capital proceeding.’ ” (People v. Thomas,
supra, 53 Cal.4th, at p. 821, quoting People v. Montiel (1993) 5
Cal.4th 877, 938, fn. 33; accord People v. Rogers (2006) 39
Cal.4th 826, 909; People v. Sanchez (1995) 12 Cal.4th 1, 70.)
Although defendant questions this assumption, we need not
definitively resolve the issue here because the child
pornography, along with the other pornography depicting
children in cartoon and anime forms, was also properly admitted
as evidence of defendant’s motive in committing the kidnapping
and murder of Danielle, that is, as evidence pertaining to the
crimes that subjected defendant to the death penalty.12



12
      During his penalty phase closing argument, the
prosecutor referred to all three convictions — the child
pornography, the kidnapping, and the murder — as coming
within the crimes covered by factor (a). The trial court overruled
defendant’s objection that this misstated the law. Defendant on
appeal claims that the prosecutor’s comment was a form of
prosecutorial misconduct because it misrepresented the scope of
factor (a). We disagree. At the time of defendant’s trial, our
cases generally construed factor (a) to cover all crimes alleged
as part of the capital proceeding. (People v. Sanchez, supra, 12
Cal.4th at p. 70.) Moreover, even if it were otherwise, there is
no reasonable possibility that the prosecutor’s brief mention of
the child pornography conviction prejudiced defendant given
that the evidence underlying the charge could be considered as
motive evidence relevant to the kidnapping and murder
convictions. (People v. Thomas, supra, 53 Cal.4th at p. 821.)


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      In this regard, defendant contends that evidence of motive
admitted at the guilt phase under Evidence Code section 1101,
subdivision (b), is not properly considered a “circumstance” of
the crime within the meaning of factor (a) because in this case
it constituted neither “evidence relevant to ‘the immediate
temporal and spatial circumstances of the crime,’. . .[nor]
additional evidence, like victim impact evidence, that ‘
“surrounds materially, morally, or logically” the crime.” ’ ”
(People v. Tully (2012) 54 Cal.4th 952, 1042.) Defendant
elaborates that even if motive itself could be a factor (a)
circumstance, specific acts of conduct from which motive is
inferable are not in themselves factor (a) circumstances.
      On the contrary, we have previously concluded that
consideration of a defendant’s prior use of drugs is permissible
under section 190.3, factor (a) to demonstrate that he killed the
victim with the “particularly base motive” to obtain money to
buy drugs. (People v. Osband (1996) 13 Cal.4th 622, 708.)
Similarly, here, defendant’s prior interest in the depiction of
sexual conduct with children, and sometimes violent sexual
assault of children, as reflected by his specific action of
possessing such pornography, provided evidence that logically
connected to the jury’s moral assessment of the crimes at the
penalty phase.
      In addition to arguing that the child pornography was
improperly admitted as factor (a) evidence, defendant contends
the prosecutor improperly and misleadingly urged the jury to
also use the evidence as factor (b) evidence. Defendant points to
a portion of the prosecutor’s closing argument in which the
prosecutor told the jury that the J.N. incident reflected a
beginning stage of defendant’s fantasies, that those fantasies
continued with defendant’s possession of the pornography

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depicting children, and ultimately progressed to the kidnapping
and murder of Danielle. Not only did defendant fail to object to
this portion of the prosecutor’s argument, thereby forfeiting any
claim of misconduct, we are not persuaded that any misconduct
occurred.     The record reflects that the complained-of
prosecutorial comments came after the prosecutor identified the
J.N. incident as the factor (b) evidence in this case. The
prosecutor explained how that incident could fit into the jury’s
penalty consideration. Specifically, the prosecutor suggested
that beginning with the J.N. incident, there was a pattern or
“history” of defendant’s sexual interest in children, which not
only reflected defendant’s fantasies and desires but should
provide the jury with additional confidence that defendant
committed the crimes against Danielle in the event the defense
argued lingering doubt. The prosecutor stated that defendant
“is not the saint he has been portrayed.” Nothing in the
prosecutor’s argument urged the jury to view the child
pornography as factor (b) evidence and no rational juror could
have construed the argument as urging the jury to do so.
       In sum, defendant has shown no error in the admission
and use of the child pornography evidence at the penalty phase
of his trial.
         5. Penalty Phase Prejudice from the Cross-
            Examination of Susan L.
       Defendant reminds us of his guilt phase claim that the
trial court erroneously allowed cross-examination of Susan L.
regarding an alleged “stalking” incident and her opinion
concerning defendant’s “forcefulness” after he had been
drinking. (See ante, Part II.A.7.) Defendant now contends that
even if we reject his claim of prejudicial error at the guilt phase,
the use of such evidence at the penalty phase was prejudicial.

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                     PEOPLE v. WESTERFIELD
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He argues that the evidence was responsive to none of the
factors listed in section 190.3 and violated his right under the
Eighth Amendment’s heightened reliability requirement for
capital cases.
      Initially, we note the defendant failed to object to the
prosecutor’s closing argument regarding Susan L.’s testimony
and so forfeited his claim that the prosecutor improperly used
the evidence as a nonstatutory aggravating circumstance. (See
People v. Boyd (1985) 38 Cal.3d 762, 772-776.) In any event, we
agree with the Attorney General that the prosecution never
asked the jury to consider this evidence as improper
nonstatutory aggravating evidence. Rather, the prosecution
used the evidence to rebut the penalty phase testimony of Susan
L. and her daughter Christina G. that defendant had been kind,
helpful, and generous to them. “A defendant who offers evidence
of his or her good character widens the scope of the evidence of
bad character that may be introduced in rebuttal. [Citation.]
‘The scope of rebuttal legitimately embraces argument by the
prosecutor “suggesting a more balanced picture of [the
accused’s] personality.” [Citation.]’ [Citation.]” (People v.
Cunningham, supra, 25 Cal.4th 926, 1024; accord People v.
Hawthorne (2009) 46 Cal.4th 67, 92.)
         6. Asserted Cumulative Error
      Although defendant contends that each of the penalty
phase errors he has alleged is prejudicial standing alone, he also
argues that any combination of the errors would also warrant
reversal of the penalty judgment.
      We have rejected defendant’s claims of error. When we
have alternatively assumed error, we have found each possible
error also to be harmless. Considering the possible errors


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together for the purposes of this claim, we also conclude that
their cumulative effect does not warrant reversal of the
judgment. (People v. Panah (2005) 35 Cal.4th 395, 479-480.)
         7. Victim Impact Evidence
        Defendant claims the trial court erred in allowing, over
defense objection, Danielle’s teachers to testify regarding
Danielle’s character and contributions, and to the effect of her
murder on themselves and Danielle’s classmates. Defendant
asserts that the abduction and murder of “a middle-class young
girl, living happily with her brothers and parents in a nice, safe
neighborhood in San Diego” was itself sufficient victim impact
evidence and anything more “could only irrationally exploit
feelings that would be extremely close to the surface in any
event.”
      It is well settled that the prosecution may introduce victim
impact evidence in the penalty phase of a capital case. “ ‘Unless
it invites a purely irrational response from the jury, the
devastating effect of a capital crime on loved ones and the
community is relevant and admissible as a circumstance of the
crime under section 190.3, factor (a).’ (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1056–1057.) ‘The federal Constitution
bars victim impact evidence only if it is “so unduly prejudicial”
as to render the trial “fundamentally unfair.” ’ (Id. at p. 1056,
quoting Payne v. Tennessee (1991) 501 U.S. 808, 825.)” (People
v. Cruz (2008) 44 Cal.4th 636, 682.)
      “The purpose of victim impact evidence is to demonstrate
the immediate harm caused by the defendant’s criminal
conduct.” (People v. Pollock (2004) 32 Cal. 4th 1153, 1183.) That
harm is not limited to immediate family members. (People v.
Williams (2015) 61 Cal. 4th 1244, 1285.) Friends, coworkers,


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


classmates, and teachers, may all be affected by the death of the
victim under the specific circumstances of a case. (E.g., ibid.
[coworkers]; People v. Thomas (2011) 51 Cal.4th 449, 507-508 [a
friend and classmate]; People v. Taylor (2010) 48 Cal.4th 574,
645-646 [the director of an afterschool program at which the
victim volunteered]; People v. Ervine (2009) 47 Cal.4th 745, 792
[the victim’s work supervisor]; People v. Dykes (2009) 46 Cal.4th
731, 779-780 [the victim’s teacher].) Here, defendant’s shocking
abduction and murder of seven-year-old Danielle caused
emotional harm to her teachers and classmates. Our review of
the record does not persuade us that her teachers’ testimony
regarding Danielle and those effects would invite a purely
irrational response from the jury or that it rendered defendant’s
trial fundamentally unfair under the circumstances.
         8. Failure to Sequester the Jury as Constituting
            Penalty Phase Error
      Defendant contends the trial court’s failure to sequester
the jury at the guilt phase created prejudice reaching into the
penalty phase, requiring reversal of the penalty judgment. In
the alternative, defendant claims that, given the public’s
reaction to the guilty verdicts and the publicity surrounding the
penalty phase, the trial court committed independent reversible
error at the penalty phase by failing to sequester the jury at that
time. We have found no error in the trial court’s failure to
sequester the jury at the guilt phase. (See ante Part II.A.4.)
Therefore, there is no prejudice to carry forward to the penalty
phase, and we reject defendant’s initial claim. Reviewing the
circumstances surrounding the penalty phase of trial (see post),
we also find no abuse of discretion in the trial court’s failure to
sequester the jury at that time and therefore reject defendant’s
alternate claim.


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


             a.   Penalty Phase Background
      The guilt phase verdicts were announced in open court on
August 21, 2002. The jurors were ordered to return on August
28 for the beginning of the penalty phase and were released with
the standard admonition not to discuss the case or anything
concerning their deliberations with anyone. They were directed
to report to the court if anyone contacted or attempted to contact
them about the case. The trial court denied defendant’s renewed
motion for sequestration with the comment that it had “every
confidence [the jury] is abiding by the orders of this court.” It
noted that it had not “seen nor heard nor read anything to
indicate otherwise.”
      After the jury’s verdicts were announced, onlookers who
were congregated around the courthouse let out a cheer that was
televised along with the news of the verdicts. A photographer
snapped a photograph of the Van Dams in the courtroom just as
the verdict was announced in violation of court rules and the
photograph appeared in a local newspaper a short time later.
On the same day, in violation of the trial court’s gag order, the
San Diego Police Chief gave a news conference in which he
commented on the handling of the matter by his department.
The trial court initially considered issuing an order to show
cause to the Police Chief, but decided that there was no
meaningful sanction it could impose at the time and noted the
Chief’s comments were “fortunately” “limited in context.” With
respect to the offending photographer, however, the court barred
that person from the balance of the trial.
      When the jurors returned on August 28, they heard the
victim impact evidence and the testimony of defendant’s niece,
J.N., concerning defendant touching her teeth while she slept.



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


In releasing the jury at the end of the day, the trial court noted
that there were two professional sports games being televised
that night, implicitly suggesting that the jury could safely watch
the games to avoid seeing any televised news concerning the
trial. The court had followed a similar pattern during the guilt
phase by suggesting to the jury that it could watch television
and still be insulated from outside influences by watching such
sporting events. This time, however, the station televising the
San Diego Chargers football game broadcast during halftime a
report concerning the proceedings in defendant’s trial. The
report mentioned allegations of child molestation.
      Defendant renewed his request for jury sequestration the
next day based on the television coverage. The trial court denied
his request, noting that if any jurors had inadvertently seen
anything during the halftime report, it was not different from
J.N.’s testimony that they had heard during the trial. When the
jurors returned to the courtroom, the trial court observed that if
any juror was watching the previous night’s football game, he or
she would have been exposed to some coverage of the trial at
halftime. The court assumed, in line with its previous repeated
admonitions to avoid watching any news coverage of the trial,
that the jurors would have “just looked another way or [switched
channels] to see how the Padres were doing.” No juror indicated
differently.
      On the morning of the next day of trial, the defense asked
to make a record of its investigation regarding a previously
received second-hand report that Juror number 12 had said at
work that he would not believe anything one of defendant’s
counsel said because he did not like counsel. (See ante, Part
II.A.4.a.) The defense reported that its investigator was told
that Juror number 12 had been essentially “tight-lipped” at

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                      PEOPLE v. WESTERFIELD
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work and had said nothing. Juror number 12, however, became
aware of the defense inquiries and, later that day, sent the court
a note to ask why they had been made. The defense requested
that the trial court bring Juror number 12 into the courtroom in
order to assure him that nothing improper had been done by the
defense. The court granted the request and Juror number 12
was called in.
       The trial court explained to Juror number 12 that courts
sometimes receive reports regarding the conduct of jurors,
substantiated or not, and when such a situation arises, it is
incumbent on the court to allow the parties to investigate. The
court had received such a report from someone at Juror number
12’s work that had caused some concern among both sides and
the court had authorized each side to pursue the rumor in order
to allay any concerns they might have. The defense had chosen
to do so, but, the court explained, nothing in the results caused
it any concern. The court then enquired of Juror number 12
whether there was anything about this situation that affected
his ability to be fair and neutral. Juror number 12 responded
that it did not affect him at all and repeated that assurance
when asked a second time by the defense. After Juror number
12 left the courtroom, the defense renewed its motion to
sequester the jurors. The trial court again denied the motion.
             b.   Discussion
       We earlier concluded, in accordance with our prior law,
that a trial court’s decision whether to sequester a jury is subject
to an abuse of discretion standard of review. (See ante, Part
II.A.4.b.) Applying that standard again to the trial court’s
decision not to sequester the jury during the penalty phase of
trial, we find no error. Although defendant has demonstrated



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                     PEOPLE v. WESTERFIELD
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that there was considerable ongoing public and media interest
in this case, there is nothing in the record to indicate that the
jury did not continue to abide by the trial court’s repeated
admonitions and orders to avoid exposure to the news and
publicity concerning the case or that Juror number 12, or any
other juror, misrepresented his or her ability to reach a penalty
phase verdict on the trial evidence alone. We repeat that “we
cannot assume on a silent record that [jurors] ignored [such
orders and admonishments] and were exposed to prejudicial
material.” (People v. Ruiz, supra, 44 Cal.3d at p. 617.)
         9. Denial of Defendant’s Challenge for Cause to
            Prospective Juror No. 19 As Effecting the Penalty
            Judgment
      Referring back to his guilt phase argument, defendant
contends the trial court’s assertedly erroneous denial of his
challenge for cause to Prospective Juror number 19 requires
reversal of the penalty judgment because it left the defense with
no remedy for the allegedly improper retention of not only Juror
number 4, but also of Juror number 2. Defendant claims that
insofar as the record reflects that Juror number 2 was
incompetent to sit as a juror in the penalty phase (People v.
Booker (2011) 51 Cal.4th 141, 158; Wainwright v. Witt (1985)
469 U.S. 412, 424; Witherspoon v. Illinois (1968) 391 U.S. 510,
522, fn. 21), the error in denying the challenge for cause to
Prospective Juror number 19 was prejudicial.
      We have previously concluded that the trial court did not
err in denying defendant’s challenge for cause to Prospective
Juror number 19, and we further concluded that, even assuming
error, defendant has failed to show he was prejudiced by the
retention of Juror numbers 2 and 4. (See ante, Part II.A.2.)
Therefore, defendant fails to show that any error concerning


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                     PEOPLE v. WESTERFIELD
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Prospective Juror number 19 prejudiced his penalty phase
judgment.
         10. The Trial Court’s Failure to Grant Additional
            Peremptory Challenges As Effecting the Penalty
            Judgment
       As part of his guilt phase arguments, defendant contends
the amount of media and public attention focused on his case
required, as a federal constitutional matter, that the trial court
grant his requests for additional peremptory challenges. We
have concluded that defendant’s failure to cite pretrial publicity
as a basis for his requests for additional peremptory challenges
forfeited his claim on appeal. We have also determined that
even if defendant had preserved his claim for appeal, we would
reject it on the merits because defendant has not met his burden
to show that he was likely to receive an unfair trial because of
juror bias based on pretrial publicity. (See ante, Part II.A.3.)
       Defendant reasserts his claim with respect to the penalty
phase and contends that the trial court’s failure to at least grant
the defense requests for additional peremptory challenges
rendered his penalty trial unfair. Pointing us to virtually the
same portions of the record, he argues that the penalty
judgment should be reversed. Again, we conclude defendant
forfeited his claim by failing to raise it as a ground supporting
his request for additional peremptory challenges. Defendant
also fails to persuade us that, if we addressed the merits of his
claim, we would reach a different conclusion for purposes of the
penalty phase of this trial.




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


         11. Challenges to the Constitutionality of California’s
            Death Penalty Law
      Defendant raises several challenges to California’s death
penalty scheme that we have previously considered and
rejected. We find no persuasive reason to reexamine those
conclusions and we therefore reject defendant’s claims as
follows:
      Defendant contends California’s death penalty statute
fails to narrow the class of offenders eligible for the death
penalty and thus violates the federal constitution. (Furman v.
Georgia (1972) 408 U.S. 238.) In support, defendant has
supplied a declaration from a law professor who in 1997
conducted a statistical study of California murder convictions
for the five-year period 1988 to 1992. Defendant claims the
statistics show that section 190.2 fails to sufficiently narrow the
class of death-eligible defendants. On the contrary, we continue
to conclude that “ ‘the statutory [death penalty] scheme
“adequately narrows the class of murder for which the death
penalty may be imposed [citation], and is not overbroad . . .
because of the sheer number and scope of special circumstances
[that] define a capital murder . . . .” ’ [Citation.]” (People v.
Banks (2014) 59 Cal.4th 1113, 1206-1207; People v. Vieira (2005)
35 Cal.4th 264, 303-304.)
      Contrary to defendant’s arguments, to reach a death
verdict jurors do not have to find that death is the appropriate
penalty using a beyond-a-reasonable-doubt standard of proof.
(People v. Banks, supra, 59 Cal.4th at p. 1207; People v.
Melendez (2016) 2 Cal.5th 1, 33.) Except for the verdict itself,
there is no requirement that the jury unanimously agree on
which aggravating factors apply. (People v. Banks, supra,



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


59 Cal.4th at p. 1207.) “ ‘Review for intercase proportionality is
not constitutionally compelled.’ ” (Ibid.)
                        III. DISPOSITION
     We affirm the judgment.
                                       CANTIL-SAKAUYE, C. J.




We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
SLOUGH, J.*




*
      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.



                                 150
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Westerfield
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S112691
Date Filed: February 4, 2019
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: William D. Mudd

__________________________________________________________________________________

Counsel:

Mark David Greenberg, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark David Greenberg
484 Lake Park Avenue, No. 429
Oakland, CA 94610
(510) 452-3126

Robin Urbanski
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9115
