PEOPLE v. WESTERFIELDAppellant’s Opening BriefCal.December 28, 2011“7ME COURT COPYgeal IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) CAPITAL CASE Plaintiff and Respondent, ) $112691 ) vs. ) | ) DAVID A. WESTERFIELD, ) SUPREME COURT FILED Defendant and Appellant. ) ) DEC 28 2011 ) Frederick K. Ohlrich Clerk San Diego County Superior Court No. SCD 165805 The Hon. William D. Mudd, Judge APPELLANT’S OPENING BRIEF Mark David Greenberg Attorney at Law State Bar No. 99726 484 Lake Park Avenue, No. 429 Oakland, CA 94610 (510) 452-3126 Attorney for Appellant IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) CAPITAL CASE Plaintiff and Respondent, ) $112691 ) VS. ) ) DAVID A. WESTERFIELD, ) ) Defendant and Appellant. ) ) ) San Diego County Superior Court No. SCD 165805 The Hon. William D. Mudd, Judge APPELLANT’S OPENING BRIEF Mark David Greenberg Attorney at Law State Bar No. 99726 484 Lake Park Avenue, No. 429 Oakland, CA 94610 (510) 452-3126 Attorney for Appellant TABLE OF CONTENTS APPELLANT’S OPENING BRIEF 1 STATEMENT OF APPELLATE JURISDICTION 1 STATEMENT OF THE CASE 1 A. GUILT PHASE OF TRIAL 3 GUILT PHASE STATEMENTOF FACTS 3 Introduction 3 Prosecution Case 5 a. The abduction of Danielle Van Dam 5 1. Friday night: “girls’ night out” 6 2. Friday night: Damon at home 7 3. Friday night: Brenda at Dad’s 8 4. Saturday morning: the gathering at the Van Dam’s 9 5. Saturday and Sunday, February 2 and 3 11 b. David Westerfield 13 1. The January 25 and 29 encounters 14 2. February 1 at Dad’s 16 c. Two Interviews 17 1. Weekendtravel: Saturday, February 2 18 2. Weekend Travel: Sunday, February 3 21 3. The return: Monday, February 4 22 4. Previous encounters with Brenda 23 5. Westerfield’s perplexity 24 d. Proseuction’s Reconstruction of Westerfield’s weekend, and Impeachmentof Westerfield’s statements 25 1. Backyard light and shuttered house 25 2. Uncharacteristic spontaneity and haste in departure 26 3. Silver Strand 27 4. Leaving the Strand and the drive to Glamis 29 5. Glamis 29 6. Back to Silver Strand 33 7. Coronado Cays 33 8. Return home 34 e. Forensic Evidence 35 1. Nuclear DNAandfingerprints 35 i. The jacket. 35 ii. The fingerprint. 35 iii. The carpet stain. 36 iv. Hair in the bathroom sink. 36 2. Mitochondrial DNA for humanhair 37 i. The hallway carpet. 37 ii. The bathroom rug. 37 iii. The laundry. 38 iv. The bedding. 38 v. Dryerlint from trash in garage. 38 3. Mitochondrial DNA and animalhair 38 i. The comforter from the dry cleaner. 39 ii. The hallway carpet. 39 iii. The bathroom rug. 39 iv. The laundry. 39 v. Dryerlint from trash can in garage. 40 4. Fibers consistent with Danielle’s bedroom carpet 40 5. Corresponding fibers unconnected to a known source 41 6. Dog-scent Evidence 42 7. Computer Evidence 43 Defense Case 44 a. Alibi 44 b. Forensic evidence 47 ii c A n & H N = — 1. Accessibility of house and motor home 47 2. Ease of Transferability of Trace evidence 49 3. Significant absence of incriminating forensic evidence 50 4. Computerforensics 52 5. Dog-scent evidence 52 - Defense evidence bearing on Dad’s and on the weekend trip 54 Prosecution Rebuttal 57 Defense Surrebuttal 59 GUILT PHASE ARGUMENT ON APPEAL 60 I. APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE ON FOURTH AMENDMENT GROUNDS WAS IMPROPERLY DENIED 60 Introduction 60 A. The Warrants 61 . Warrant No. 27818 61 . Warrant No. 27802 70 . Warrant No. 27809 71 . Warrant No. 27813 71 . Warrant No. 27830 72 B. . Validity of the first Warrant, Warrant No. 27818, From Which All Ensuing Warrants Depended 72 . Polygraph Evidence and Probable Cause 73 ill a. Survey of existing law governing the use of polygraph evidence. 73 b. Polygraph evidence,if unreliable, is unreliable for purposes of probable cause. 77 c. Special competence of magistrate to assess polygraph evidence. 85 2. Probable Cause for Warrant No. 27818, without Polygraph Evidence 89 3. Probable Cause for the Remaining Four warrants 95 C. The Good Faith Exception to the Exclusionary Rule Does not apply 95 D. Underthe Totality of Circumstances, Appellant’s Consent to Search was not Consensual 102 1. 8 a.m. to noon, February 4, 2002 103 2. 2:30 p.m. to 7 p.m., February 4, 2002 105 3. 7 p.m. to 11:00 p.m., February 4, 2002 107 4. 11 p.m. February 4 to 3:30 a.m. February 5, 2002 109 E. Concluding summary 115 I. WITHOUT THE ADDITIONAL PEREMPTORY CHALLENGES, AS REQUESTED BY THE DEFENSEIN THIS CASE, APPELLANT WAS NOT REASONABLY LIKELY TO HAVE OBTAINEDA FAIR AND IMPARTIAL JURY, AND THE DENIAL OF THE DEFENSE REQUESTSIN THIS REGARD CONSTITUTED A VIOLATION OF DUE PROCESS 117 iv A. Introduction: Nature of the Claim And its Federal Constitutional Status B. Pretrial Publicity C. Quantitative and Qualitative Survey of Venire in Relation to Pretrial Publicity 1. Quantitative assessment 2. Qualitative assessment D. Comparison with Other High-Profile, High Publicity Cases E. Prejudice Tit. THE ERRONEOUS DENIAL OF A DEFENSE CHALLENGE FOR CAUSE ISSUED AGAINST VENIREMAN 19 RESULTED IN PREJUDICIAL ERROR UNDER THE FEDERAL AND STATE CONSTITUTIONS 117 121 131 131 137 147 153 158 IV. THE TRIAL COURT’S FAILURE TO SEQUESTER THE JURY IN THE LATE STAGES OF THE GUILT PHASE, OR AT LEAST BY THE TIME THE CASE WAS SUBMITTED TO THE JURORSIN THE GUILT PHASE, RESULTEDIN A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT 180 Introduction A. Sequestration: Abuse-of-discretion vs. De Novo Review 185 B. Publicity and Other Intrusive Occurrences From the Beginning of Trial on June 4 Through the Guilt Phase Verdict on August 21 191 1. June 4 through July 24 192 a. Juror Privacy and Security 192 b. Damon Van Dam’s Banishment 196 c. Publicity and Outside Information 197 2. July 25 to end the guilt trial 202 a. The First Stalking Incident 202 b. More Publicity Problems 207 c. Closing Arguments, Deliberations, and Juror’s Request for Sequestration 210 d. Publicity, Pressure, and Second Stalking Incident During Deliberations 216 C. Summation 221 vi V. COUNT THREE, CHARGING POSSESSION OF CHILD PORNOGRAPHY, DID NOT MEET THE REQUIREMENTSOF STATUTORY JOINDER TO COUNTS1 AND 2, CHARGING MURDER AND KIDNAPPING, RESPECTIVELY, AND IN ANY EVENT, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION TO SEVER COUNT 3 FROM COUNTS1 AND 2 Introduction A. Procedural Course of Joinder Issue B. Statutory Joinder C. Discretionary Severance D. Prejudice Vil 225 225 227 233 243 253 VI. WHETHERASA DENIAL OF DUE PROCESS RESULTING FROM AN INCORRECT OR EVEN CORRECT JOINDER OF COUNTS, OR AS A RESULT OF INDEPENDENT EVIDENTIARY ERROR, THE ADMISSION OF ALL OF THE PORNOGRAPHY RECOVERED FROM THE COMPUTERSINVOLVEDIN THIS CASE WAS ERROR, WHOSE AGGREGATION AMOUNTED TO CHARACTER EVIDENCE OF NEGLIGBLE, IF ANY, PROBATIVE VALUE, BUT WHOSE INHERENTLY INFLAMMATORY AND PROVOCATIVE NATURE CONSTITUTED A GROSS UNFAIRNESS AND DISTORTION IN THE TRIAL PROCESS A. The Propriety of Mr. Feldman’s Cross-Examination B. “Open Doors”and Attorney Histrionics C. Mr. Dusek’s Closing Argument D. Summation VIL THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO ELICIT FROM SUSAN L. EVIDENCE OF AN ALLEGED STALKING INCIDENT, AND HER OPINION OF WESTERFIELD’S CHARACTER UNDER THE INFLUENCE OF ALCOHOL Vili 262 267 278 284 290 293 VII. THE TRIAL COURT'S RESTRICTIONS ON DEFENSE COUNSEL’S CROSS-EXAMINATION OF PAUL REDDEN CONSTITUTED A DENIAL OF THE SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL AND TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES 309 IX. THE TRIAL COURT ERRED IN NOT ALLOWINGAS A DECLARATION AGAINST INTEREST THE FEBRUARY 15 TELEPHONE CALL TO BRENDA VAN DAM REGARDING DANIELLE 318 X. CALJIC NO.2.16, ON DOG-SCENT EVIDENCE, IS INADEQUATEIN NOT EXPRESSLY ADMONISHING THE JURORS TO VIEW SUCH EVIDENCE WITH CARE AND CAUTION 322 XI. REGARDLESSOF ITS PROPRIETY VEL NON AS A CAUTIONARYINSTRUCTION, CALJIC NO.2.16 IS DEFICIENT IN FAILING IN FAILING TO RELATE THEISSUE OF DOG- SCENT EVIDENCE TO THE STANDARD OF PROOF BEYOND A REASONABLE DOUBT 342 XII. THE TRIAL COURT’S REFUSAL TO ADD A LEGALLY CORRECT, NON- ARGUMENTATIVE CAUTIONARY ADMONITION TO CALJIC NO. 2.51, THE STANDARD INSTRUCTION ON MOTIVE, CONSTITUTED PREJUDICIAL ERRORIN THIS CASE 348 ix XU. THERE WASINSUFFICIENT EVIDENCE OF FORCIBLE ASPORTATION TO SUPPORT A FINDING AND CONVICTION FOR KIDNAPPING AS CHARGED AND SUBMITTED TO THE JURY 351 XIV. IN LIGHT OF PEOPLE V. CHUN, WHICH ESTABLISHES FELONY-MURDERAS A FORM OF MALICE MURDER, FIRST-DEGREE FELONY-MURDER MUST BE DEEMED TO HAVEA FULL RANGEOF LESSER-INCLUDED OFFENSES, FROM SECOND-DEGREE MURDER TO INVOLUNTARY MANSLAUGHTER, AND THE TRIAL COURT’S FAILURE IN THIS CASE TO INSTRUCT ON THESE CONSTITUTED PREJUDICIAL ERROR 359 XV. EVEN IF SECOND-DEGREE MURDERIS NOT A LESSER-INCLUDED OFFENSEOFFIRST- DEGREE FELONY MURDER, THE TRIAL COURT WAS OBLIGATED TO INSTRUCT ON FIRST-DEGREE PREMEDITATED MURDER, OF WHICH SECOND-DEGREE MURDER AND INVOLUNTARY MANSLAUGHTER ARE LESSER -INCLUDED OFFENSES 367 B. PENALTY PHASE OF TRIAL 371 PENALTY PHASE STATEMENT OF FACTS 371 Prosecution Case In Aggravation 371 1. Victim Impact Evidence. 371 2. Factor (b) evidence. 374 Defense Case In Mitigation 377 1. Professional Achievements. 377 2. Friends. 379 3. Family. 382 PENALTY PHASE ISSUES 385 XVI. THE JENNY N. INCIDENT WAS ERRONEOUSLY SUBMITTED TO THE JURORSAS A FACTOR(B) CRIME 386 XVIL IF THE JENNY N. INCIDENT WAS ADMISSIBLE AS A FACTOR(B) CRIME, LABELINGIT AS A “LEWD ACT WITH A CHILD UNDER FOURTEEN YEARS” WAS UNDULY PREJUDICIAL WITHOUT SERVING ANY PERTINENT, RELEVANT, OR MATERIAL FACTOR(B) PURPOSE 404 XVI. IN LIGHT OF THE STATUTORY MANDATE OF EVIDENCE CODE SECTION403, THIS COURT SHOULD RECONSIDERITS RULE TO THE EFFECT THAT THE “FORCE OR VIOLENCE” ELEMENT OF A FACTOR(B) CRIME IS SOLELY A QUESTION OF LAW FOR THE COURT, AND NOT AT ALL A QUESTION OF FOUNDATIONAL FACT FOR THE JURY 409 XI XIX. THE PORNOGRAPHY EVIDENCE ADMITTED AT THE GUILT PHASE, COMBINED WITH THE PROSECUTOR’S MISSTATEMENT OF THE LAW REGARDINGTHIS EVIDENCE AT THE PENALTY PHASE, CONSTITUTED PREJUDICIAL PENALTY PHASE ERROR XX. ERRONEOUSLY ADMITTED EVIDENCE OF THE STALKING INCIDENT AND OF SUSAN L.’S OPINION OF WESTERFIELD’S PROPENSITY TO BE “FORCEFUL” WHEN UNDER THE INFLUENCE OF ALCOHOL XXI. THE COMBINED PREJUDICE OF ANY ONE OF THE ERRORSSET FORTH IN ARGUMENTS XVITI THROUGH XXII REQUIRE REVERSAL OF THE PENALTY JUDGMENT XXI. ALLOWING VICTIM IMPACT EVIDENCE FROM DANIELLE’S TEACHERS EXCEEDED THE DUE PROCESS LIMITS ON SUCH EVIDENCE UNDER THE FACTSOF THIS CASE XXII. THE FAILURE TO SEQUESTER THE JURY REQUIRES AT LEAST A REVERSAL OF THE PENALTY JUDGMENT xii 413 419 422 424 426 XXIII. THE ERRONEOUSDENIAL OF A CHALLENGE FOR CAUSE TO VENIREPERSON19 REQUIRES REVERSAL OF THE PENALTY JUDGMENT 431 XXIV. THE FAILURE TO GRANT ADDITIONAL PEREMPTORY CHALLENGES WASAT LEAST PREJUDICIAL FOR THE PENALTY PHASE,IN THAT THERE WASAT LEAST HERE A SUBSTANTIAL LIKELIHNOOD THAT THE JURY WAS NOT IMPARTIAL ON THE QUESTION OF PENALTY 435 XXV. THE DEATH PENALTYIN CALIFORNIAIS UNCONSTITUTIONALIN THAT IT CAN BE SHOWNBYSTATISTICAL ANALYSIS TO HAVEFAILED IN NARROWING THE CLASS OF DEATH-ELIGIBLE OFFENDERS 440 XXVI. CALIFORNIA’S DEATH PENALTY LAW IS UNCONSTITUTIONALIN FAILING TO REQUIRE A FINDING THAT DEATHIS APPROPRIATE BEYOND A REASONABLE DOUBT 443 XXVIL THE FEDERAL CONSTITUTION REQUIRES JURY UNANIMITY AS TO AGGRAVATING FACTORS 445 XXVIII. THE LACK OF INTERCASE PROPORTINALITY REVIEW RENDERS THE Xiil CALIFORNIA DEATH PENALTY LAW UNCONSTITUTIONAL 446 CONCLUSION 447 CERTIFICATION OF WORD-COUNT 448 X1V TABLE OF AUTHORITIES Cases Adamsonv. Ricketts (9th Cir. 1988) 856 F.2d 1011 Alabama v. White (1990) 496 U.S. 325 Alcala v. Superior Court (2008) 43 Cal.4™ 1205 Apprendi v. New Jersey (2000) 530 U.S. 466 Apodaca v. Oregon (1972) 406 U.S. 404 Bailey v. Superior Court (1992) 11 Cal.App.4" 1107 Banda v. State (Fla. 1988) 536 So.2"' 221 Beck v. Alabama (1980) 447 U.S. 625 Bennett v. Grand Prairie (5" Cir.1989) 883 F.2"400 Boyde v. California (1990) 494 U.S. 370 Brafford v. State (Ind. 1987) 516 N.E.245 Brooks v. Tennessee (1972) 406 U.S. 605 Brott v. State (Neb. 1903) 97 N.W.593 Brown v. Louisiana (1980) 447 U.S. 323 Bruton v. United States (1968) 391 U.S. 123 Bumper v. North Carolina (1968) 391 U.S. 543 California v. Brown (1987) 479 U.S. 538 California v. Ramos (1983) 463 U.S. 992 California v. Carney (1985) 471 U.S. 386 Cervantes v. Jones (7" Cir.1999) 188 F.3rd 805 XV 440 60,73,78,89 227,244 443 179 73,89 185 249 et passim 77 345 329 316 329 445 266,291 60,115 402,436 440 242 75,76 Chambers v. Mississippi (1972) 410 U.S. 284 320 Chapman v. California (1967) 386 U.S. 18 116 et passim Chiarella v. United States (1980) 445 U.S, 222 354 Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.app.4" 150 319 Collier v. Reese (Okla. 2009) 223 P.3™ 973 85 Commonwealth v. Mendes (Mass.1989) 547 N.E.2™ 35 73,82,86 Consorti v. ArmstrongWorld Industries, Inc. (2"* Cir. 1995) 72 F.3" 1003 446 Copeley v. State (Tenn. 1926) 281 S.W. 460 336 Crane v. Kentucky (1986) 476 U.S. 683 311,370 Crocker National Bank v. City ofSan Francisco (1989) 49 Cal.3881 188 Daubert v. Merrill Dow Pharmaceuticals (1993) 509 U.S. 579 74 Debruler v. Commonwealth (Ky. 2007) 231 S.W.2" 752 327 Delaney v. Superior Court (1990) 50 Cal.3™ 785 370 Downesv. Plank (Or. 1964) 390 P.2"? 622 186 Dunlap v. People (Colo. 2007) 173 P.3™ 1054 ‘178 Eiland v. State (Md.Ct. Spec. App. 1992) 607 A.2™ 42, 178 Estate ofMartin (1915) 170 Cal. 647 295 Estelle v. McGuire (1991) 502 U.S. 62 345 Estes v. Texas (1965) 381 U.S. 532 180,181-182 Fay v. New York (1947) 332 US. 261 120 Fields v. Commonwealth (Ky. 2008) 274 S.W.3" 375 185 XV1 Filitti v. Superior Court (1972) 23 Cal.App.3"? 930 Florida v. Royer (1983) 460 U.S. 491 Franks v. Delaware (1978) 438 U.S. 154 Frye v. United States (D.C. Cir.1923) 293 F. 1013 Fulton v. State (Okla.Crim.App.1975) 541 P.2™ 871 Furman v._Georgia (1972) 408 U.S. 238 Ghent v Superior Court (1979) 90 Cal.App.3™ 944 Gray Vv. Mississippi (1987) 481 U.S. 648 Greene v. Reeves (6™ Cir.1996) 80 F.3™ 1101 Gregg v. Georgia (1976) 428 U.S. 153 Hadley v. State (Mo. 1991) 815 S.W.2™ 422 Ham v. South Carolina (1973) 409 U.S. 524 101 60,85,92,102 96 74,327 74 440,442 235 436 101 440,446 185 120 Hargraves v. Contintental Assurance Co. (Ark. 1970) 448 S.W.2™ 942 392 Harris v. State (Tex. Crim. App. 1987) 738 S.W.2™ 207 Harris v. Superior Court (1977) 19 Cal.3™ 786 Herrera v. Hernandez (2008) 164 Cal.App.4" 1386 Hollandv. Illinois (1990) 493 U.S. 474 Hopkinsonv.State (Wyo. 1984) 679 P.2™ 1008 Hopkins v. Reeves (1998) 524 US. 88 Illinois v. Gates (1983) 462 U.S. 213 In re Antonio C. (2000) 83 Cal.App.4™ 1029 Inre James R. (2007) 153 Cal.app.4™ 413 XVii 186 126 175 120,137,178 186 365,370 72,89 118,416 426 Inre Hitchings (1993) 6 Cal.4" 97 Inre Michele D. (2002) 29 Cal.4™ 600 Inre Winship (1970) 397 U.S. 358 Jacksonv. Virginia (1979) 443 U.S. 307 Johnson v. Mississippi (1988) 486 U.S. 578 Johnsonv. State (Ind. 2001) 749 N.E.2™ 1103 Johnson v. State (Tex.App.1988) 751 S.W.2™ 926 Johnson v. State (Tex. Crim. App. 1971) 469 S.W.2" 581 Jones v. People (Colo. 1986) 711 P.2™ 1270 Landers v. State (Okla. Crim. App. 1955) 281 P.2™ 193 Lankford v. Idaho (1991) 500 U.S. 110 Lee v. Martinez (N.M.2004) 96 P.3™ 291 Lowery v. State (Ind. 1982) 434 N.E.2™ 868 Lowery v. State (Alas. Ct. App. 1988) 762 P.2"457 Maine v. Superior Court (1968) 68 Cal.2" 375 Maldonado v. State (Tex. Crim. App. 1974) 507 S.W.2" 206 Manduley v. Superior Court (2002) 27 Cal.4" 537 Maynardv. Cartwright (1988) 486 U.S. 356 McCormick v. United States (1991) 500 U.S. 257 McGautha v. California (1971) 402 U.S. 183 Miley v. State (Ga. 2005) 614 S.E.2"744 XViil 175 354 343,349,443 355,358 445 185 75,80 183 185 186 406 73 185 185 187 183 369 440 354 130 93-94 Miranda v. Arizona (1966) 384 U.S. 436 98,310 Mongev. California (1998) 524 U.S. 721 445 Moody v. State (Miss. 2003) 841 So.2™! 1067 185 Morganv. Illinois (1992) 504 U.S. 719 436 Mu’minv. Virginia (1991) 500 U.S. 415 120 Ohio v. Robinette (1996) 519 U.S. 33 103 Olden v. Kentucky (1988) 488 U.S. 227 315 On Lee v. United States (1952) 343 U.S. 747 326 Otonoye v. United States (E.D.N.Y.1995) 903 F.Supp. 357 69 Parnell v. Superior Court (1981) 119 Cal.App.3™ 392 356 Patterson v. Colorado ex rel. Attorney General (1907) 205 U.S. 454 184 Payne v. Tennessee (1991) 501 U.S. 808 424 People v. Abbaszadeh (2003) 106 Cal.App.4" 642 118,416 People v. Abilez (2007) 41 Cal.4" 472 243 People v. Adams (1993) 19 Cal.-App.4™ 412, 84 People v. Alvarez (1996) 14 Cal.4" 155 233 People v. Anderson (1975) 15 Cal.3" 806 365 People v. Anderson (1968) 70 Cal.2d 15 240 People v. Anderson (2006) 141 Cal.App.4" 430 367 People v. Arends (1958) 155 Cal.App.2™ 496 281,312 People v. Arias (1996) 13 Cal.4" 92 311 People v. Arias (2011) 193 Cal.App.4" 1428 352 X1X People v. Armendariz (1984) 37 Cal.3™ 573 178 People v. Ashmus (1991) 54 Cal.3™ 932 403 et passim People v. Avena (1996) 13 Cal.4" 394 389,405 People v. Bacon (2010) 50 Cal.4™ 1082 388,405 People v. Bain (1971) 5 Cal.3™ 839 280 People v. Baldwin (2010) 189 Cal.App.4" 991 177 People v. Bales (1961) 189 Cal.App.2™ 694 235 People v. Beagle (1972) 6 Cal.3™ 441 326 People v. Bean (1988) 46 Cal.3™ 919 247 People v. Beeler (1995) 9 Cal.4™ 953 190 People v. Bell (2009) 179 Cal.App.4" 428 352 People v. Bemis (1949) 33 Cal.2™ 395 326 People v. Bennett (1998) 17 Cal.4" 373 73,78,89 People v. Billings (1917) 34 Cal.App. 549 79,88 People v. Birks (1998) 19 Cal.4" 108 369 People v. Bittaker (1989) 48 Cal.3™ 1046 119,155-156,158,166-168,175-177,179 People v. Bledsoe (1984) 36 Cal.3" 236 328 People v. Bolin (1998) 18 Cal. 4th 297 445 People v. Bonilla (2007) 41 Cal.4" 313 158 People v. Bonin (1988) 46 Cal.3659 119,121,131,147,148-152,187,188,435 People v. Boyd (1985) 38 Cal.3™ 762 249,252,389,410 People v. Boyer (2006) 38 Cal.4" 412 People v. Booker (2011) 51 Cal.4" 141 People v. Booker (Ill.App.1991) 568 N.E.2™ 211 People v. Bradford (1997) 15 Cal.4" 1229 People v. Bramit (2009) 46 Cal.41221 People v. Brawley (1969) 1 Cal.3" 277 People v. Breverman (1998) 19 Cal.4™ 142 People v. Brooks (Colo. 1999) 975 P.2"71105 People v. Brown (1988) 46 Cal.3" 432 People v. Brown (1985) 40 Cal.3" 512 People v. Bunyard (2009) 45 Cal.4™ 836 People v. Burroughs (1984) 35 Cal.3" 824 People v. Cain (1995) 10 Cal.4™ 1 People v. Calvert (1926) 80 Cal.App. 50 People v. Camarella (1991) 54 Cal.3™ 592 People v. Cardenas (1982) 31 Cal.3™ 897 People v. Carasi (2008) 44 Cal.4" 1263 People v. Carpenter (1997) 15 Cal.4™ 315 People v. Carrington (2009) 47 Cal.4™ 145 People v. Carter (2005) 36 Cal.4™ 1114 People v. Cash (2002) 28 Cal.4" 703 People v. Castaneda (2011) 51 Cal.4™ 1292 XXi 369 431 76 227,242,243 251 260 359,365,367 334,336 403 et passim 402,436 252,389,405 360 390,405 280 96 275 369 326 73,78,424 159 370,415 360 People v. Cella (1983) 139 Cal.App.3™ 391 88 People v. Centolella (N.Y. Cty. Ct. 1969) N.Y.S.2"* 279 335,339 People v. Chun (2009) 45 Cal.4™ 1172 360,362-363 People v. Clark (1993) 5 Cal.4th 950 446 People v. Clark (1992) 3 Cal.4" 41 235 People v. Coddington (2000) 23 Cal.4™ 529 441 People v. Collins (2010) 49 Cal.4" 175 364,405 People v. Collins (1992) 10 Cal.App.4" 690 393 People v. Collins (1968) 68 Cal.2"' 319 88 People v. Compton (1971) 6 Cal.3™ 55 160 People v. Cook (2006) 39 Cal.4" 566 248,363 People v. Costello (1988) 204 Cal.App.3"431 61 People v. Cowan (2010) 50 Cal.4" 401 406,407 People v. Craig (1957) 49 Cal.2d 313 239-240 People v. Craig (1978) 86 Cal.App.3™ 905 323,328,330-332,334 People v. Crittenden (1994) 9 Cal.4™ 83 175 People v. Cruz (Ill. 1994) 643 N.E.2™ 636 329 People v. Cudjo (1993) 6 Cal.4" 585 249 etpassim People v. Czahara (1988) 203 Cal.App.3“ 1468 443 People v. Dace (Il.App. 1987) 506 N.E.2"332 94 People v. Davis (1995) 10 Cal.4" 463 352 XXil People v. De Leon (1968) 260 Cal.App.2™ 143 People v. Dellinger (1989) 49 Cal.3™ 1212 People v. DePriest (2007) 42 Cal.4" 1 People v. Dillon (1983) 34 Cal.3"441 People v. Din (1919) 39 Cal. App. 695 People v. Dixon (2007) 148 Cal.App.4™ 414 People v. Dolly (2007) 40 Cal.4" 458 People v. Dunkle (2005) 36 Cal.4™ 861 People v. Ellis (1922) 188 Cal. 682 People v. Espinoza (1992) 3 Cal.4" 806 People v. Ewoldt (1994) 7 Cal.4™ 380 People v. Falsetta (1999) 21 Cal.4" 903 People v. Farley (2009) 46 Cal.4" 1053 People v. Feagley (1975) 14 Cal.3™ 338 People v. Figueroa (1986) 41 Cal.3" 714 People v. Ford (1964) 60 Cal.2"* 772 People v. Gambols (1970) 5 Cal-App.3™ 187 People v. Garcia (2011) 52 Cal.4" 706 People v. Gibson (1976) 56 Cal.App.3™ 119 People v. Glass (1975) 44 Cal.-App.3™ 772 People v. Gonzales (2011) 51 Cal.4™ 894 People v. Gonzales (1990) 218 Cal.App.3"? 403 XXIil 295 361 119 360 178 180 85 388,390,410 250 74-75 243,306 291,340 159,187 179 411 36] 281,312 423 274 308,317 191 333 People v. Gonzales and Soliz (2011) 52 Cal.4™ 254 People v. Gordon (1990) 50 Cal.3™ 1223 People v. Granados (1957) 49 Cal.2d 490 People v. Gray (2005) 37 Cal.4™ 168 People v. Green (1980) 27 Cal.3™ 1 People v. Griffin (2004) 33 Cal.4" 535 People v. Guerrero (1976) 16 Cal.3" 719 People v. Gutierrez (2009) 45 Cal. 4" 789 People v. Hall (1964) 62 Cal.2" 104 People v. Hamilton (2009) 45 Cal.4" 863 People v. Hamilton (1989) 48 Cal.3™ 1142 People v. Harrison (1910) 13 Cal-App. 555 People v. Haskett (1982) 30 Cal.3™ 841 People v. Hatch (2000) 22 Cal.4" 260 People v. Hawthorne (1992) 4 Cal.4" 43 People v. Haymer (IlL.App.1987) 506 N.W.2™ 1378 People v. Holloway (2004) 33 Cal.4" 96 People v. Holt (1997) 15 Cal.4" 619, 655-656 People v. Honig (1996) 48 Cal.Ap.4" 289 People v. Horvater (2008) 44 Cal.4" 983 People v. Howard (2005) 34 Cal.4™ 1129 XXIV 232,248,265,291 158,176,320 240 409 352 406 236-238 369 358 119 312 160 202 357 391 76,80 239,304-305 159 302 275 360 People v. Huggins (2006) 38 Cal.4™ 175 People v. Hurlic (1971) 14 Cal.App.3™ 122 People v. Ireland (1969) 70 Cal.2™? 522 People v. James (2000) 81 Cal.App.4™ 1343 People v. Jennings (1991) 53 Cal.3™ 334 People v. Jennings (2000) 81 Cal.App.4" 1301 People v. Johnson (1993) 6 Cal.4" 1 People v. Johnson (1980) 26 Cal.3™ 557 People v. Johnson (2006) 139 Cal.App.4" 1135 People v. Jones (2003) 108 Cal.App.4" 455 People v. Kegler (1987) 197 Cal.App.3™ 72 People v. Kelly (1976) 17 Cal.3"™ 24 People v. Kemp (1961) 55 Cal.2" 458 People v. Kipp (2001) 26 Cal.4" 1100 People v. Kirkes (1952) 39 Cal.2™ 719 People v. Koontz (2002) 27 Cal.4" 1041 People v. Kraft (2000) 23 Cal.4™ 978 People v. Lara (1974) 12 Cal.3"? 903 People v. Letner and Tobin (2010) 50 Cal.4™ 99 People v. Lewis (2008) 43 Cal.4™ 415 People v. Loker (2008) 44 Cal.4" 691 People v. Lopez (1998) 19 Cal.4" 282 XXV 78,89 302 361 407 238 291,340 239,240,242 355 328 354 75,80,83 74,327 233,234 44] 280 233 72,89 76 364 119 409 365 People v. Lozano (1987) 192 Cal.App.3"618 People v. Lucas (1995) 12 Cal.4"" 415 People v. Lucky (1988) 45 Cal.3™ 259 People v. Majors (2004) 33 Cal.4" 321 People v. Malgren (1983) 139 Cal.App.3™ 234 People v. Manriquez (2005) 37 Cal.4" 547 People v. Manson (1977) 71 Cal.App.3™ 1 People v. Martinez (2003) 31 Cal.4" 673 People v. Martinez (1999) 20 Cal.4” 225 People v. Maury (2003) 30 Cal.4™ 342 People v. McClain (1988) 46 Cal.3"97 People v. McClellan (Il1_App.1992) 600 N.E.2™ 407 People v. McFarland (1962) 58 Cal.2"748 People v. McKinnon (2011) 52 Cal.4th 610 People v. McPeters 1992) 2 Cal.4™ 1148 People v. Memro (1995) 11 Cal.4" 786 People v. Mendoza (2000) 24 Cal.4" 130 People v. Mills (2010) 48 Cal.4" 158 People v. Mincey (1992) 2 Cal.4" 408 People v. Mitchell (2003) 110 Cal.App.4™ 772 People v. Moore (2011) 51 Cal.4™ 1104 XXVi 77 319 234 352 323,327,330,332-334 242 186 361 353 75 260 76,80 325,346 75,347,366,423 174 235,242 234,265,291 158 275 322,327 345,360 People v. Moye (2009) 47 Cal.4" 537 People v. Musselwhite (1998) 17 Cal.4" 1216 People v. Myers (1998) 61 Cal.App.4™ 328 People v. Najera (2008) 43 Cal.4" 1132 People v. Nakahara (2003) 30 Cal.4™ 705 People v. Ochoa (1998) 19 Cal.4" 353 People v. Ogunmola (1985) 39 Cal.3™ 120 People v. Oliver (1961) 55 Cal.2™" 761 People v. Ortiz (1978) 22 Cal.3" 38 People v. Padilla (1904) 143 Cal. 158 People v. Page (2008) 44 Cal.4" 1 People v. Panah (2005) 35 Cal.4™ 395 People v. Parsons (2008) 44 Cal.4" 332 People v. Partida (2005) 37 Cal.4"" 428 People v. Patterson (1989) 49 Cal.3"615 People v. Perryman (Mich. App. 1979) 280 N.W.2" 579 People v. Phillips (1985) 41 Cal.3" 29 People v. Pinholster (1992) 1 Cal.4" 865 People v. Polk (1965) 63 Cal.2d 443 People v. Potts (111.1949) 86 N.E. 2345 People v. Powell (1891) 87 Cal. 348 People v. Prieto (2003) 30 Cal.4™ 226 XXVii 359 260,419 390 325,346 360,364,409 226,242 282 353 260 298,303 235,244-246,266,274 102,190,202 343 369 360 339 252,389,394 260 409 185 178 323 People v. Raley (1992) 2 Cal.4™ 870 People v. Ramirez (2006) 39 Cal.4™ 398 People v. Ramkeesoon (1985) 39 Cal.3™ 346 People v. Redmond (1969) 71 Cal.2"¢ 745 People v. Richardson (2008) 43 Cal.4" 959 People v. Robbins (1988) 45 Cal.3"867 People v. Robertson (2004) 34 Cal.4™ 156 People v. Robertson (1982) 33 Cal.3™ 21 People v. Rocha (1971) 3 Cal.3™ 893 People v. Rodriguez (1986) 42 Cal.3"* 730 People v. Rogers (2006) 39 Cal.4™ 826 People v. Riggins (1910) 159 Cal. 113 People v. Rundle (2008) 43 Cal.4™ 76 People v. St. Martin (1970) 1 Cal.3™ 524 People v. Samuels (2005) 36 Cal.4" 96 People v. Sanchez (2001) 24 Cal.4" 983 People v. Sanchez (1995) 12 Cal.4™ 1 People v. Sanders (1995) 11 Cal.4" 475 People v. Sanders (1896) 114 Cal. 216 People v. Sandoval (2007) 41 Cal.4™ 825 People v. San Nicolas (2004) 34 Cal.4™ 614 XXVili 405 226,242 366 358 410 238 360 409 389 438,443 265,291 138,140 241 367 276 364 438,443 375 251 184,426 174 People v. Santamaria (1991) 229 Cal.-App.3™ 269 People v. Scott (1944) 24 Cal.2"! 774 People v. Simon (1986) 184 Cal.App.3125 People v. Smallwood(1986) 42 Cal.3™ 415 People v. Snyder (2003) 112 Cal.App.4"" 1200 People v. Soper (2009) 45 Cal.4" 795 People v. Soto (2011) 51 Cal.4" 299, People v. Spector (2011) 194 Cal.App.4™ 1335 People v. Stanworth (1969) 71 Cal.2"? 820 People v. Steele (2002) 27 Cal.4™ 1230 People v.Stiteley (2005) 35 Cal.4" 514 People v. Story (2009) 45 Cal.4" 1282 People v. Strozier (1993) 20 Cal.App.4" 55 People v. Talamantez (1985) 169 Cal.App.3™ 443 People v. Tate (2010) 49 Cal.4" 635 People v. Taylor (1990) 52 Cal.3™ 719 People v. Temple (1995) 36 Cal.App.4" 1219 People v. Tenorio (1970) 3 Cal.3" 89 People v. Tewksbury (1976) 15 Cal.3™ 953 People v. Thompson (1988) 45 Cal.3™ 86 People v. Thompson (1980) 27 Cal.3d 303 People v. Tidwell (1970) 3 Cal.3™ 62 XXIX 183,189-190,191,430 234 411 233 345 226,227,244,247 391,404 274 409 281,312 389,405 244 190 304 159,431 444 101 369 326,337 249,250 243,358 187 People v. People v. Peoplev. People v. People v. Peoplev. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. People v. People v. Velasquez (1980) 26 Cal.3" 425 Torres (1964) 61 Cal.2" 264 Valdez (2004) 32 Cal.4" 73 Valentine (1986) 42 Cal.3™ 170 Vann (1974) 12 Cal.3™ 220 Vines (2011) 51 Cal.4" 830 Waidla (2000) 22 Cal.4"™ 690 Wallin (1948) 32 Cal.2"! 803 Watson (1956) 46 Cal.2™ 818 Wells (2004) 118 Cal.App.4™ 179 Whisenhunt(2008) 44 Cal.4" 174 Wickersham (1982) 32 Cal.3™ 307 Wilkinson (2004) 33 Cal.4" 821 Willis (2002) 28 Cal.4" 22 Willis (2004) 115 Cal.App.4™ 379 Wilson (2008) 44 Cal.4"" 758 Woods (2006) 146 Cal.App.4" 106 Wright (1990) 52 Cal.3? 367 Wright (1985) 39 Cal.3™ 576 Yeoman (2003) 31 Cal.4" 93 Zamudio (2008) 43 Cal.4" 327 368 79,88 234,360 266,291 325,346 227,243 252,283 326 260 et passim 406 388,411 367 74,75,86 95,101 322-323,327 159 308,317 249 275 119,156,158,159,177,409,434 103 People v. Zapien (1993) 4 Cal.4™ 929 Pitchess v. Superior Court (1974) 11 Cal.3™ 531 Rideau v. Louisiana (1963) 373 U.S. 723 Ring v. Arizona (2002) 536 U.S. 584 Rivera v. Illinois (2009) 129 S.Ct. 1446 Ross v. Oklahoma (1988) 487 U.S. 81 Rufo v. Simpson (2001) 86 Cal.App.4™ 573 Sabbah v. Sabbah (2007) 151 Cal.App.4" 818 Schnabel v. Superior Court (1993) 5 Cal.4™ 704 Schneckloth v. Bustamonte (1973) 412 U.S. 218 312,338 125 188 443 119,436 119,176,436 252 79 233 103 Schumacherv. Cargill Meat Solutions Corp. (8th Cir. 2008) 515 F.3"°867 392 Sheppard v. Maxwell (1966) 384 U.S. 333 147,180,184,187,188,191,426 Simmons v. United States (1968) 390 U.S. 377 Skilling v. United States (2010) 130 S.Ct. 2896 Son v. Territory ofOklahoma (Okla. 1897) 49 P. 923 State v. A.O. (N.J. 2009) 965 A.2"" 152 State v. Bailey (Vt. 1984) 475 A.2™ 1045 State v. Barranco (Neb. 2009) 769 N.W.2" 343 State v. Bergeron (N.D. 1983) 340 N.W.2™ 51 State v. Bowie (La. 2002) 813 So.2"™377 State v. Clark (Wash.2001) 24 P.3™ 1006 State v. Cooper (Wis. 1958) 89 N.W.2™ 816 XXXI 130 120,152-153,184 274 73 186 185 185 185 75 186 XXXIi State v. Craighead (La.1905) 38 So. 28 185 State v. Dean (Wis.1981) 307 N.W.2"628 73,80,83 State v. Dunn (Kan. 1903) 71 P. 811 391 State v. Elmore (Ohio 2006) 847 N.E.2"4 547 185 State v. Flint (Idaho 1988) 761 P.2"4 1158 185 State v. Furlough (Tenn. Crim. App. 1990) 797 S.W.2™ 631 186 State v. Garcia (Utah 1960) 355 P.2™ 57 186 State v. Geier (N.C.1983) 300 S.E.2"9 351 74 State v. Henry (Kan.1997) 947 P.2"? 1020 75 State v. Magwood (Md.1981) 432 A.2™ 446 185 State v. Muhammad(N.J. 1996) 678 A. 2" 164 425 State v. McComsey (S.D. 1982) 323 N.W.2™889 186 State v. Mems (Minn. 2006) 708 N.W.2™ 526 185 State v. Porter (Conn.1997) 698 A.2™ 738 73,74,80-82,84,86-87,88 State v. Roscoe (Ariz. 1984) 700 P.2™ 1312 327,336 State v. Storm (Mont. 1951) 238 P.2™ 1161 329,335 State v. Streeper (Idaho 1987) 747 P.2™ 71 326,329 State v. Taylor (N.H. 1978) 395 A.2™ 505 339 State v. White (S.C. App. 2007) 642 S.E.2" 607 327,329,335 Stilson v. United States (1919) 250 U.S. 583 119 Sullivan v. Louisiana (1993) 508 U.S. 275 444 Trejos v. State (Tex. App. 2007) 243 S.W.3™ 30 Tuilaepa v. California (1994) 512 U.S. 967 Ulster County Courtv. Allen (1979) 442 U.S. 140 United States v. Anderson (9" Cir. 1971) 453 F.2"4 174 United States v. Burgos (4" Cir. 1996) (en banc) 94 F.3" 849 United States v. Childress (D.C.Cir. 1995) 58 F.3™ 693 United States v. Cordoba (9" Cir.1997) 104 F.3™ 225 United States v. Dunn (9" Cir. 1977) 564 F.2™ 348 United States v. Durrive (7™ Cir. 1990) 902 F.2™ 1221 327 391 345 61 344 186-187 74 344 344 United States v. Extreme Associates, Inc. (W.D. Pa. 2005) 352 F.Supp.2™7 578 United States v. Gray (5" Cir. 1980) 626 F.2"* 494 United States v. Greer (5" Cir.1986) 806 F.2"* 556 United States v. Hall (5" Cir. 1976) 525 F.2™4 1254 United States v. Harbin (7" Cir.2001) 250 F.3™ 532 United States v. Henderson (9" Cir. 2000) 241 F.3" 638 United States v. Leon (1984) 468 U.S. 897, United States v. LeMay cg" Cir. 2001) 260 F.31018 United States v. Lopez (8" Cir. 2006) 443 F.3" 1026 United States v. Martinez-Salazar (2000) 528 U.S. 304 United States v. Matlock (1974) 415 U.S. 164 United States v. Olano (1993) 507 U.S. 725 XXXIii 274 344 185 344 153-154 101 60,95,96 260,308 344 119,137,142,159 102 392 United States v. Ripinsky (9™ Cir.) 109 F.3™ 1436 United States v. Scheffer (1993) 523 U.S. 303 United States v. Toler (11"Cir. 1998) 144 F.31423 Wade v. Calderon (9" Cir. 1994) 29 F.3™ 1312 Wainwright v. Witt (1985) 469 U.S. 412 Walling v. Kimble (1941) 17 Cal.2™ 364 Whelchel v. Washington (9"Cir. 2000) 232 F.3" 1197 Wilkie v. State (Alask. App. 1986) 715 P.2"* 1199 Williams v. Superior Court (1984) 36 Cal.3™ 441 Williams v. State (Ga. 2010) 692 S.E.2™ 374 Witherspoonv.Illinois (1968) 391 U.S. 510 Witherspoon v. Superior Court (1982) 133 Cal.App.3™ 24 Wong Sun v. United States (1963) 371 U.S. 471 Woodson v. North Carolina (1976) 428 U.S. 280 Zant v. Stephens (1983) 462 U.S. 826 California Statutes Civ. Proc. Code, § 225(b)(1)(C) Civ. Proc. Code, § 231 Civ. Proc. Code, § 234 Evid. Code, § 100 Evid. Code, § 210 Evid. Code, § 250 XXXIV 251 74,75,86 344 44] 431 233 260,308 339 260 185 431,436 74 60,95 418,419 406,440 160 117 118 303 266 276 Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Evid. Code, § 351.1 Code, § 352 Code, § 356 Code, § 403 Code, § 452(d)(1) Code, § 459(a) Code, § 780 Code, § 1101 Code, § 1108 Code, § 1108(d)(1)(A) Code, § 1220 Code, § 1230 Code, § 1521 Code, § 1523 Pen. Code, § 187 Pen. Code, § 188 Pen. Code, § 189 Pen. Code, § 190.3, factor (a) Pen. Code, § 190.3, factor (b) Pen. Code, § 190.3, factors (c)-(k) Pen. Code, § 192(b) 74,75,309,312 247,266,281,283,297 311,314 410-411 123,126 123,126 295,297 225,247,250-251 et passim 244 234 311 318 276 277 363 362,363 361,363 249-250,413-414 249,252-253,374,386 etpassim 250 362 Pen. Code, § 207(a) Pen. Code, § 207(b) Pen. Code, § 208(a) Pen. Code, § 242 Pen. Code, § 288(a) Pen. Code, § 288(b) Pen. Code, § 311.11(a) Pen. Code, § 311.4(d) Pen. Code, § 646.9(a) Pen. Code, § 954 Pen. Code, § 1121 Pen. Code, § 1259 Statutes from Other Jurisdictions La. Code of Cr. P. Art. 791 Mich. Compl. LawsServ., § 768.16 Constitutional Provisions Cal. Const., Art. I, § 16 U.S. Const., Amend.4 U.S. Const., Amend. 5 U.S. Const., Amend. 6 U.S. Const., Amend. 8 351 352 353 390 352,387,404 387,404 225-226 226 420 225 183,186 323 185 185 176 60,98 etpassim 98,103 et passim 125,130, 176,315,315 249 etpassim Other Authorities CALCRIM No. 334 CALCRIM No. 374 CALCRIM No. 376 CALCRIM No. 950 CALJIC No.2.01 CALJIC No.2.03 CALJIC No. 2.04 CALJIC No.2.05 CALJIC No. 2.06 CALJIC No.2.15 CALJIC No.2.16 CALSIC No.2.51 CALJIC No.2.52 CALJIC No.2.60 CALJIC No.2.61 CALJIC No.2.70 CALJIC No.3.11 CALJIC No.3.18 CALJIC No.3.20 CALJIC No.8.10 CALJIC No. 8.21 XXXVU 325 330,343 342 390 349,350 348 348 348 348 324,330,342,345,348 322,324,330,342,345,348 348 348 209 209 325 324 324 325 358 358 CALJIC No. 8.87 CALJIC No. 8.88 CALJIC No. 9.50 CALJIC No.16.141 Shakes., Hamlet, Act. III, sc.1, 1. 55 Shakes., Julius Caesar, ActII, sc. 2, ll. 78 et seq XXXVili 388,404,409 402,435 353 390,393 392 288 Mark D. Greenberg Attorney at Law SBN No. 99726 484 Lake Park Ave., No. 429 Oakland, CA 94610 510-452-3126 Attorney for Appellant IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) Plaintiff and Respondent, ) $112691 ) vs. ) ) DAVID A. WESTERFIELD, ) San Diego No. ) SCD165805 Defendant and Appellant. ) ) ) APPELLANT’S OPENING BRIEF STATEMENT OF APPELLATE JURISDICTION This case is properly before this Court on automatic appeal following a judgment ofdeath. (§§ 1237, 1239(b).)! STATEMENTOF THE CASE In an information filed on March 22, 2002, the District Attorney of San Diego County accused David Westerfield of the murder (§ 187) of Danielle Van Dam. A special circumstance of murderin the course of kidnapping (§ ' Unless otherwise indicated, all code referencesare to the Penal Code. 190.2(a)(17) wasalso alleged. In count two, Westerfield was charged with the substantive crime of kidnapping a child under the age of fourteen (§§ 207, 208(b)), and in count three, a misdemeanor for possession ofpornographic material involving a person underthe age of 18 (§ 311.11(a)). (1 CT 174-175.) The case proceeded on a no-time-waiver basis. Pretrial motions, in limine motions, and jury selection were completed by June 3, 2002, and opening statements in the guilt phase were given to the jury on June 4. (14 CT 3422.) Closing argumentsat the guilt phase began on August 6, 2002 (14 CT 3483), and the case was submitted to the jurors on the morning of August 8. (14 CT 3487.) Deliberations took place for the balance of the day, continued on for seven full court days thereafter. (14 CT 3489-3497.) On August 21, the jurors returned a verdict of guilt for first-degree murder, with a true finding ofthe special circumstance. (14 CT 3498-3500.) Verdicts of guilt for kidnapping and misdemeanorpossession ofillegal pornography werealso returned. (14 CT 3501- 3502.) Penalty phase opening statements began on August 28, 2002. (144 CT 3506.) Closing arguments and submission of the penalty case to the jury occurred on September 4. (14 CT 3512-3513.) After five and a half court days of deliberation, the jurors returned a verdict of death. (14 CT 3520.) Judgment of death was imposed on January 3, 2003. (14 CT 3525.) * Eleven yearsfor the substantive crime ofkidnapping was imposed andthen stayed pursuant to Section 654. For the misdemeanor, the court imposed a term of 316 days in custody, for which Westerfield received credit for time served. (14 CT 3525.) A. GUILT PHASE OF TRIAL GUILT PHASE STATEMENTOF FACTS? Introduction On February 27, 2002, the badly decomposed body of a young white girl was discovered by volunteer searchers off the side ofDehesa Road in El Cajon in San Diego County. (11 RT 3440-3441, 3450, 3472-3474, 3477-3478, 3498-3503.) Through dental records, the body was identified positively as that of seven-year old Danielle Van Dam whohad been missing from her homein the Sabre Springs neighborhood of San Diegosince Saturday, February 2, and who had been the object of an intensive search ever since. (12 RT 3529, 3561-3562, 3627, 3629- 3632; 13 RT 3834-3836; 15 RT 4244, 4247-4248, 4396, 4400-4401.) The body was on its back under an oak tree about twenty feet from the roadway up an embankment. (11 RT 3450-3451; 12 RT 3711.) The general area wasdry, rugged, and desert-like, and appeared in commonuse as a convenient dumping ground for unwanted appliances, discarded junk, garbage, and even dead pets. (11 RT 3474, 3476-3477, 3481, 3500.) The state of the body made the autopsy difficult, and the cause of death could not be specified beyond homicide. The conclusion found support in such non-physiological factors as her youth, her apparent abduction, and the distance ofher dead body from home. (12 RT 3754- 3755.) David Westerfield, suspected of this crime even before the body was found, wasarrested on February 22, and would eventually be convicted in a trial in which the factual contest was intense and circumstantially detailed. The summary ofthe evidence mustreflect this wealth of detail accordingly in order to provide an adequate foundation and understanding for the legal issues presentedin thisbrief, > The Penalty Phase Statement of Facts is deferred until page 371, afterall the guilt phase claims are presentedin this brief. 3 and an introductory overview ofthe guilt phase oftrial will provide the reader with the general structure that shapes the factual character of this case. The case revolved around Mr. Westerfield’s activities from Friday night February 1, when he was drinking at Dad’s, a neighborhood bar, where Brenda Van Dam and herfriends were having a “girls night out”, to Monday morning, February 4 when Westerfield returned from a long weekend motorhome excursion, which had taken him from the Coronado shore on Saturday morning,to the desert on the Arizona border on Saturday night, and back to Coronado on Sunday night. The prosecution case sifted throughthis in detail, displaying even the smallest circumstance for whatever incriminating significance it suggested or implied, while the defense countered with witnesses to show that several matters were not even odd or unusual, let alone significant. The keystone supporting the heavy circumstantial edifice of the respective cases for the prosecution and the defense was forensic evidence. Almost as soon as Danielle disappeared, the San Diego police department committed a large numberof officers and technicians to the investigation and the collection of evidence, and an enormous amountoftrace evidence was gatheredin this case. The District Attorney brought in multiple outside experts and used outside laboratories to reanalyze carpet fibers, dog hairs, humanhairs and stains. But of all the hundredsoftiny bits of residue, the cynosure ofall this evidence was a small blood stain from the hallway carpet containing Danielle’s DNA;a single hair with nuclear DNA,also belonging to Danielle, found in the sink of the motorhomebathroom;a fingerprint on a cabinet in the bedroom ofthe motorhome; and her DNA in a presumptive blood stain on a sportsman jacket recovered from Mr. Westerfield’s dry cleaning. The defense attacked the integrity of evidence gathered under circumstances apt for problemsof cross-contamination, and contestedits significance, insofar as the motorhome would be parked unlocked in front of Mr. Westerfield’s house for long stretches oftime and wasaccessible to the 4 neighborhood children. But the centerpiece for the defense was the testimony of three entomologists, one ofwhom in fact worked for the county of San Diego and wascalled into the investigation by the authorities as soon and Danielle’s body was found. Based on entomological evidence, all three fixed the time ofher death around the middle of February, when Mr. Westerfield, who was under continuous police surveillance from February 4, had the alibi of this surveillance to exculpate him. Even the prosecution’s entomologist fixed the time of death within this alibi period, but differed only in discounting his entomological opinion as contingent and in deferring to the prosecution’s forensic anthropologist, who was broughtin on rebuttal to criticize the entomological conclusions. This then is a summary of a lengthier summary, and does not even touch on the intricate and complicated factual sub-themeofthe mostly adult, and some child, pornography recovered from the computers in Westerfield’s home. The pornography evidence looms in importance for manyifnotall the legal issues raised in this case, including the penalty issues, and the nature and scopeofthis evidence is described in greater detail during the legal arguments regarding joinder of counts (see below,pp. 225 et seq.) and the admissibility of the pornographic evidence itself (see below, pp. 262 et seq.). But at some point an introduction ceases to introduce, and one must turn to the Statement of Facts itself. Prosecution Case a. The abduction of Danielle Van Dam Danielle lived at 12011 Mountain Pass Road in Sabre Springs with her parents, 36 year-old Damon Van Dam,a software engineer at QUALCOMM,and 39-year-old Brenda Van Dam, a housewife. She had an older brother, Derek, who was 10, and a youngerbrother, Dylan, who was 5. Layla, the 6-month old Weimaraner puppy completed the household. (12 RT 3560-3565-3636; 13 RT 3775-3776.) Danielle’s absence was discovered on Saturday morning, February 2. Brenda was going to watch the Henneschildren at 9 a.m. while their parents attended an organizational meeting for the T-ball league. Eight-year-old Christie Hennes wasa friend of Danielle, and when Danielle still had not yet come downstairs by 9:30, Brenda went upstairs to wake her up. Danielle was not in her bedroom. (11 RT 3423-3424; 12 RT 3626; 13 RT 3832-3824.) A frantic search around the house and yard failed to find her. (12 RT 3627-3629; 13 RT 3834- 3835.) Damon hadbeenthelast to see her when heputher to bed the night before at about 10:15 pm. (12 RT 3595-3597.) 1. Friday night: “girls’ night out” The previous Friday evening began with the family eating their pizza dinner together, which Damon accompanied with two beers. (12 RT 3577-3578, 3584; 13 RT 3799-3801.) At about 8 p.m. Brenda’s friends, Denise Kemal and Barbara Easton,arrived at the Van Dam house to meet Brendafor a planned “girls” night out” at a bar in Poway called Dad’s, which was only about three miles away from the Van Dam house. Damon wasgoing to stay home and watch the children. (12 RT 3588-3589, 3591; 13 RT 3912-3913, 3914.) The “girls’ night out” had been only a contingent plan until Thursday when Damon, whohadplans to leave for Big Bear on Friday night to go snowboarding with Derek, changed his departure to Saturday morning, allowing him to babysit that Friday. (12 RT 3574- 3576, 3589; 13 RT 3799, 3913; 14 RT 4009-4010.) Before they left for Dad’s, the three women adjournedto the garage where they smoked marijuana and drank some beer, while Damonstayed in the house playing videogames with the boys. Danielle sat at the kitchen table writing in her journal. Damon wentinto the garage only briefly to get a “hit” of the marijuana. (12 RT 3589-3593, 3594, 3667; 13 RT 3801-3803, 3914-3915; 14 RT 4010-4012.) The womenleft at about 8:30 in Brenda’s Ford Excursion, with Brenda as the designated driver for the evening. (12 RT 3594, 3667; 13 RT 3804, 3876; 14 RT 4013.) During the session in the garage, Kemal had received a cell phonecall. To 6 get better reception she stepped outside through a side door where the trashcans were kept. Reception wasstill bad, so she returned to the garage, but without locking the door. (14 RT 4012-4013.) * 2. Friday night: Damon at home Damonandthe boys continued playing videogames while Danielle worked on her journal. At some point, Damon had another beer. At 10 p.m. he sent the kids upstairs to get ready for bed, coming up himself about ten minuteslater to check on them. (12 RT 3595-3596.) He looked in on the boys, and actually went into Danielle’s room, where he opened the blindsto let in somestreetlight because Danielle’s nightlight had burned out. (12 RT 3596-3597, 3600, 3603-3604.) After checking on them, Damonleft each child’s door open a bit. As he headed back downstairs, he noticed that the light in the master bedroom wasstill on. (12 RT 3597, 3606.) He went backto turn it off, and in the bedroom noticed the remains of Layla’s dog bed, which she had apparently pulled out and chewed up. He gatheredthe loosestuffing, repacked it, and brought the dog bed downstairs to the laundry room. He let Layla out into the backyard through the sliding glass door, through which the dog also returned when shehad finished. (12 RT 3606-3608.) Damon thensat in the family room for a halfhour before retiring to his bedroom where he watched some local newsonthe television before going to sleep. When he wentupstairs, he brought Layla with him, closing the door of the bedroom to prevent her from wandering the houseandurinating in some inconvenient place. (12 RT 3609, 3627-3629.) * It might be noted here that on the interior door leading from the garageto the kitchen, the Van Dams,as a precaution against children intruding on adult activity in the garage, had reversed the handle so that the door could be locked and unlocked only from the garage side and not from the kitchen side of the door. (13 RT 3915.) Thus an intruder who might have entered the garage through the exterior side door left open by Kemal had free ingress into the house through the interior of the garage. (See 42 RT 9380.) He wokeup at 1:45 a.m. to the sound ofLayla’s whimpering. He brought her downstairs and let her out again into the backyard. When shereturned, he went back to his bedroom, leaving the dog downstairs to greet Brenda, whom he knew would be returning soon after Dad’s closed at 2 a.m. Damon himselfwas waiting upstairs in bed when Brenda, her friends, and some menreturnedat just about 2. a.m. (12 RT 3609-3612.) 3. Friday night: Brenda at Dad’s The men, Keith Stone and Rich Brady, had encountered Brenda at Dad’s. (13 RT 3813-3814; 14 RT 4017, 4097, 4138-4139.) Brady and Stone lived in Sabre Springs and knew the Van Dams. Brady, who ran his own business, was also the Van Dams’ marijuana supplier. (12 RT 3668; 13 RT 3813-3814; 14 RT 4095, 4135-4136.) The evening at Dad’s was spent shooting some pool and drinking. At one point, Brenda, Kemal, and Easton wentoutsideto sit in Brenda’s SUV to smoke some more marijuana. Brady and Stone followed. Brady stood outside the driver’s side talking to Brenda while Stone was standing on the passengerside, talking, flirting with, and kissing Easton. (13 RT 3813-3818, 3924; 14 RT 4019- 4023, 4097-4098, 4103-4106, 4138-4139, 4141, 4146-4147.) The party returned to the bar where they danced and continued drinking until just before closing when they all left and headed for Brenda’s houseat her invitation. Brenda drove her friends while Stone and Bradyleft in separate cars. (13 RT 3818-3819, 3821, 3822-3823; 14 RT 4023-4024, 4026-4028, 4107-4109, 4144-4145, 4147, 4149- 4150.) > Brendatestified that she extended the invitation only because Stone expressed a sexual interest in Barbara Easton and asked her to “make it happen.” (13 RT 3822, 3925-3927.) According to Stone and Brady, Brenda simply invited them over to have a beer. Stone denied saying anything about Easton to Brenda. In his statementto the police Stone said that it was Brenda making sexual innuendosto him, prompting him to declare that he was not interested in married women. (14 RT 4108, 4161-4163.) Later, in the defense case, witnesses wouldtestify that 8 Theself-assessed tally of alcohol consumption that evening for the prosecution witnesses from Dad’s were: three vodka-cranberry cocktails and some tequila shots for Brenda (13 RT 3820)°; for Kemal, the same drinks in about the same quantities (14 RT 4068-4070, 4074); for Brady, some beer and maybe some tequila (14 RT 4103, 4108); and for Stone, beer, margaritas, and a shot of Jack Daniels. (14 RT 4148.) 4. Saturday morning: the gathering at the Van Dam’s Whenthe party from Dad’s returned to the Van Dam house, they were greeted by a flashing red light on the burglar alarm, indicating a breach in a door or a window. It wasthis door that was actually open when the party from Dad’s returned to the Van Dam houseto be greeted by a flashing red light on the burglar alarm, indicating a breach in a door or a window. (13 RT 3824-3826, 3933; 14 RT 4029-4030.) Brenda’s testimony as to the homecoming wasthat she noticed the flashing red light, directed Kemalto look for the breach, and that Brendaherself ran upstairs to tell Damon that they were home and that Rich Brady and Keith Stone were with them. She imparted this information to Damon, asked how the kids’ bedtime went, and then went downthe hallway to shut their doors against the noise of the adult party. Returning downstairs she helped Kemalsearch for the opening, which turned outto be the side garage door that Kemal had opened earlier. (13 RT 3826, 3933-3935.) Kemal’s version of the return differed. The three women went directly upstairs to use the master bathroom,after which Brenda, to whom they werestrangers, invited them backto her houseafter closing, making sexually suggestive statements. (27 RT 7195-7199, 7226; 28 RT 7318- 7319, 7321, 7346-7350; 28 RT 7412.) ° Before Dad’s she had some mulled wine. (13 RT 3876.) Brenda and Kemal went looking for the breached door or window, while Easton remained behind with Damon. (14 RT 4029-4031.)’ In either case, Easton remained upstairs alone with Damon as Damon himself testified. (12 RT 313, 3672-3673.) She lay down on the bed, and the two of them began “kissing and snuggling” (12 RT 3613-3673) until Brenda, prompted by Brady and Stone’s suggestive jokes, returned to her bedroom to inform Easton and Damonthat they were being rude andthat they should come downstairs immediately to join the others. (12 RT 3614, 3673; 13 RT 3826-3827, 3935-3937; 14 RT 4081, 4150-4151.) Damon,in his “jockeys,” got out of bed, put on his pants and he and Easton followed Brenda downstairs. (12 RT 3614, 3674; 13 RT 3826-3827, 3936-3937; 14 RT 4081, 4110, 4127, 4151.)° Theliberties Easton took with Brenda’s husband in Brenda’s bed, and Brenda’s relative equanimity in discerninginallthis little more than a minor breach of etiquette, were to be explained by previous intimacies. Onat least two occasions, Easton had sex with Damonin the presence of Brenda, who in turn was having sex with Easton’s friend, Skip Brauberger. (12 RT 3658-3660; 13 RT 3871-3873, 3889-3890; 14 RT 4049.) Kemal, herself, who could have used the downstairs bathroom on her return from Dad’s, was also familiar with the master bedroom from three occasions of “spouse swapping” involving herself, her then husband Andrew, Brenda, and Damon,and included sex between Kemal and Brenda. (12 RT 3675, 3678-3679; 13 RT 3871-3875, 3889-3890; 14 RT 4040- 4041, 4082.)° | ’ Keith Stone, who wasinterested in Easton, had her going immediately upthe stairs while Brenda and Kemalwentdirectly into the kitchen. (14 RT 4150-4151.) ® In her statements to the police, Kemal said that Damon had not come downstairs at all, and that Easton had remained upstairs until she and Kemal were about to leave. (29 RT 7580-7581,7598-7601; 30 RT 7826-7828.) ° In his initial statements to the police, Damon omitted anything about marijuana use, about Easton in his bed, or open marriages. When herealized the gravity of 10 The gathering started to break up at about 2:30 a.m. when Easton and Kemalleft, though Brady and Stonelingered a short while talking to Damon,until the latter announced that he and Brenda weretired and were going to bed. (12 RT 3615-3616; 13 RT 3829-3830; 14 RT 4032, 4112, 4153-4154.) Brenda locked the front door and also ascertained that the back sliding door was locked when she was aboutto let Layla out into the backyard. Brenda changed her mind whenthe dog calmed down and seemednotto want to go. (13 RT 3830-3831 .)'° Damon placed Layla in Derek’s room,since the dog liked to sleep there on the lower bunk, and would cry through the night if she was excluded from everyone’s room. (12 RT 3617.) The couple then went to bed. (12 RT 2617; 13 RT 3831.) 5. Saturday and Sunday, February 2 and 3 Sometime later - Damon estimated that it was between 3 and 4 a.m., since he glimpsed a “3” on the VCR clock — something woke him up. He wasnot sure whether he had to go to the bathroom or whether there was some noise. In any event, a red light was flashing on the alarm pad in the master bedroom. He went to check and foundthat the sliding glass door to the backyard was open about6 to 10 inches. He closed the door without thinking anything of it, assuming that someone in Brenda’sparty had earlier gone out to have a smoke. The red light stopped, but he checked the garage again in any event, and, assured that the house the situation, he talked about the marijuana, butstill held back on the other matters until he was told at 1:45 a.m. on February 3 that Easton had “let the cat out of the bag.” (12 RT 3646, 3650-3652, 3655, 3693.) Brenda did not include these matters in her initial statements until the police asked her direct questions. (13 RT 3947-3950.) '° Ina February 3 interview, Brendatold police that while the sliding glass door wasclosed, she was not sure that it was locked. (29 RT 7607-7608.) 11 was re-secured, he went back to bed. (12 RT 3617-3621A, 3624; 13 RT 3831- 3832.)'! Whenlater that morning at about 9:30 a.m., after the Hennes children arrived and Danielle was discovered missing from the house, Brenda telephoned 911. The police began treating the matter seriously almost immediately, keeping the Van Damsoutoftheir house that day and overnight while a forensic investigation was conducted inside. (11 RT 3430-3432; 12 RT 3631-3632; 13 RT 3837-3839.) By Sunday, February 3, the Robbery Unit, which also investigated kidnappings and extortions took over the investigation. A motor home parked up the street from the Van Dam residence was used as a command post. (15 RT 4242-4243, 4350-4351.) Detectives Johnny Keane and Mo Pargawereassigned to canvass the neighbors on Mountain Pass, which they did that Sunday morning. The last house they approached was 11995 Mountain Pass, where the resident was not home. (15 RT 4244-4246, 4395-4397.) The house was only two addresses west of the Van Dams’ on the sameside ofthe street, but on the next block, on the corner formed by Mountain Pass andthe cross-street Briar Leaf. (11 RT 3437; 12 RT 3566- 3567.) Keene and Parga learned from an officer who had talked to a neighbor named Mark Rohr the day before that the house at 11995 belonged to a David Westerfield. (15 RT 4246, 4419-4420.) Westerfield would eventually be arrested in this case on February 22, even before Danielle’s body was found on February 27. (30 RT 7931.) 'l Thusthe sliding glass doorpresents itself as another possible path ofingress, egress, or both. No further evidence in this case bestowspriority on this or on other possible paths for the intruder. (See above,p. 7, fn. 4.) Whateverthe difficulties of a surreptitious abduction from a house full ofpeople and a dog, the certain fact of this abduction nonetheless towers over the range of equivocal possibilities. (See 42 RT 9381.) 12 b. David Westerfield Westerfield, a self-employed design engineer, ran his business, Spectrum Design, out of his Mountain Pass home. (15 RT 4354-4355, 4390-4391; 28 RT 7423-7424, 7426-7427; 30 RT 7906.) He had been divorced from his wife Jackie for about ten years and had two children. (28 RT 7499-7500; 35 RT 8432-8433, 8455.) The older one, a daughter named Lisa, lived with her mother in Poway. The younger one, Neal, a freshman at San DiegoState, alternated every two weeks between his mother and father’s house. (26 RT 6925; 35 RT 8432-8433.) Westerfield also had a long-term girlfriend named Susan, whom he had met sometime in 1998 or 1999. She had lived with him in the Mountain Pass house for two different extended periods of time, but by December 2001 or January 2002, the couple had broken up. (26 RT 6925-6926; 27 RT 7235, 72561; 30 RT 7868- 7869, 7883-7884, 793, 7917.) The Van Dams knew Westerfield only by sight and would waive in neighborly acknowledgementifthey saw him onthe street. (12 RT 3568; 13 RT 3778-3779.) Damon had chatted with him only once or twice. On one occasion, shortly after the Van Dams had moved in, Damon,strolling the neighborhood, noticed that Westerfield had a “dune buggy”in his garage. This prompted a conversation in which Damon learned about Westerfield’s interest in desert vehicles and about his various possessions in that regard, which included not only the sandrail buta trailer to transport it. (12 RT 3567-3569.) Westerfield also owned a 33-foot Southwind motor home, which he bought sometime in 1999 or 2000 after having owned a smaller one for 12 or 13 years. (29 RT 7631-7632, 7641, 7649; 35 RT 8434-8435.) He parked his motor home periodically on the street by his house, and this drew complaints from people '2 A “sand rail” or “dune buggy”is a car-frame vehicle designed to drive on soft sand. (35 RT 8437.) By February 2002, Westerfield also owned two “quads,”i.e., four-wheel motorcycles. (35 RT 8436-8437.) These types of vehicles are generically called “All Terrain Vehicles” (ATV’s). (17 RT 4954.) 13 throughout the neighborhood. (12 RT 3570; 13 RT 3860-3861; 14 RT 4129-4130; 16 RT 4557; 26 RT 6950-6951.) Brenda herself, according to her testimony, had been irked by the vehicle’s presence, and she noticed how Westerfield would simply shift the motor homea short distance when he reachedthe legallimit for parking. (13 RT 3861, 3863.) In any event, by November 2001, Westerfield found a permanent space for his motor home on a property on Sky Ridge Road in the High Valley area ofPoway, about 8 or 9 miles from the Sabre Springs neighborhood. Keith Sherman, who ownedthis property andlived onit, rented Westerfield a space for $100 a month (15 RT 4254; 16 RT 4553-4557) and allowed Westerfield also to store the trailer used to haul the “sand toys.” (15 RT 4316-4318, 4414; 16 RT 4560.) 1. The January 25 and 29 encounters Brenda had a speaking encounter with Westerfield on Friday, January 25 at Dad’s Bar, where Brenda wascelebrating earlier “girl’s night out” with Kemal and Easton exactly one week before the February 1 excursion to that same bar (13 RT 3793-3795.) When Brenda entered Dad’s thatearlier Friday night, she recognized Westerfield as one ofher neighbors. He approached, bought the three women a drink, made some small talk, and then rejoined his friend Garry Harvey. (13 RT 3795-3796, 3885, 3962-3964, 3971-3972; 14 RT 4176-4181.) Kemal and Easton seemed to have made an impression in the bar on the January 25 Friday. Kemaltestified that she and Barbara had drunk a lot; were “toasted” on wine, beer, and marijuana; and were both dancing in a sexually provocative manner. (14 RT 4043-4044, 4053, 4058-4059.) According to Brenda, Kemal and Easton were acting very “loose” around the menin the bar. Brendafelt ‘3 Both “girls’ nights out” were intended as going-awayparties for Kemal, a flight attendant, who wastransferring to Baltimore. Her original moving date, January 27, occasionedthefirst celebration; the revised date, February 3, occasioned the second. Brenda’s attendance on Friday, February 1, however, was, as noted above, contingent. (13 RT 3913; 14 RT 4002, 4009-4010; see above,p. 6.) 14 it necessary to admonish herfriends that they were probably making everyone in the place “horny.” (13 RT 3886-3887, 3912.) The two women also made an impression on Westerfield, since he mentioned them the next time he encountered Brenda, which was four dayslater on Tuesday, January 29. Danielle was selling Girl Scout cookies door-to-door in the neighborhood, and Brenda, with Dylan in tow, was accompanyingher. Westerfield’s house wastheir last stop. The year before, Brenda and Danielle had been inside the house and sold Westerfield some cookies, and at that time Brenda had noticed that Westerfield’s kitchen was being remodeled. So now,after Danielle madehersales pitch at the door, Brenda asked if she could comein to see how the remodeling came out. Westerfield invited them in. While hefilled out the cookie order form in the kitchen, Danielle and Dylan asked if they could go outside to look at the pool. Westerfield said it was okay, and Brenda gave her permission. (13 RT 3779-3785, 3890.) Whenthe kids went outside, Westerfield brought up the encounter at Dad’s the previous Friday. He expressed an interest in Brenda’s friends, whom,hesaid, looked like a lot of fun. He was especially interested in Easton and asked Brenda to introduce him to her as Brenda’s rich neighbor. Brenda answeredthat her friends were trying to get her to go to Dad’s again on Friday. Since her husband wasleaving to go snowboarding on Friday night, she would not be able to go unless she could get a babysitter. If she did, she would introduce Westerfield to her friends — a prospect that seemedto please him. (13 RT 3787, 3905-3906.) Brendaat this point noted the embarrassmentthat she did not even know Westerfield’s name if she were to make the introduction, whereupon he introduced himself, “Hi, ’m David Westerfield,” and then gave her two ofhis business cards. (13 RT 3787, 3905-3906.) He also had her write her and her husband’s name down on a piece ofpaper, mentioning that he sometimes had family barbecues and sometimes adult parties. (13 RT 3787, 3901.) 15 Whenthe children came back in the house from outside, Dylan asked if he cold go upstairs. Westerfield did not object, but Brenda would not give her permission. Westerfield escorted the family outside. He and Brenda chatted while Danielle and Dylan played on the rocks on front of his house. Westerfield talked about the Wednesday night specials at a bar named In Cahoots, and he suggested that she bring her friends there. Brenda, as she took her leave, told him that she didn’t go out on weeknights, or very often atall for that matter. (13 RT 3790, 3899.) 2. February 1 at Dad’s Westerfield was at Dad’s on February 1 when Brenda andherfriends arrived. The womenatfirst lingered outside the bar talking to the doorman when Brenda noticed Westerfield inside the bar. She pointed him out to Easton,telling the latter that Westerfield wanted to meet her. Easton strode in ahead ofthe other two and introduced herself, expressing regret if she had appeared rude to him the week before. Brenda and Kemalsoon followed. Brenda introduced Kemalto her neighbor “Dave,” while Westerfield introduced the three womento his friend Garry Harvey. (13 RT 3806-3807, 3810; 14 RT 4014-4016.) As the women sat downat the bar, Westerfield announced, “ ‘Ladies don’t buy their own drinks,’” and he paid for a round. (13 RT 3807, 3929; 14 RT 4016.) In Westerfield’s presence, Brenda talked about an upcoming familytrip to Italy and about an upcoming father/daughter dance at school. (13 RT 3944.) But the semicircle the women formedwith their bar stools and the intimacy oftheir familiar conversation tended to exclude Westerfield, who wasstanding slightly behind Brenda. At one point, Brenda felt the need to apologize for being rude, but explained that she had comethere to be with her friends. Westerfield indicated that he took no offense. (13 RT 3811; 14 RT 4016-4017.) In the course of the evening, Brenda andherfriends, soon joined by Brady and Stone, tooklittle note of Westerfield. Brenda and Kemalnoticed him only once watching them playing pool. (13 RT 3816, 3821-3822, 3944; 14 RT 4020, 16 4026.) Neither Rich Brady nor Keith Stone noticed him again after they were briefly introduced. (14 RT 4907, 4107, 4138-4139.) Garry Harvey, Westerfield’s friend, however, did notice that Westerfield wasstill at Dad’s when Harveyleft at midnight to pick up another friend, Yvette Wetli, who workedat a bar called O’Harley’s, which was three minutes down the road in Poway. When Harveyand Wetli returned to Dad’s sometime between 12:30 and 12:45 a.m., Westerfield was no longer there. (14 RT 4189-4193, 4207- 4211.) c. Two Interviews After Danielle’s disappearance, the police canvassed the neighborhood and talked to the residents of each house on the Mountain Pass. No one was homeat 11995, which was Westerfield’s, and when he appeared at his house on Monday morning, February 4, he was contacted by the police as he emergedto get his mail. From about 9:30 to 10 a.m., Detective Keene interviewed him on his doorstep. After the interview, and with Westerfield’s consent , Keene and his partner Detective Parga did a walk-through search of the house and garage. (15 RT 4249- 4250, 4286-4287, 4403, 4408.) Westerfield also consented to a search ofhis motor home in High Valley, and he accompanied the officers there in his owncar. He was homeby about noon, having to wait outside until the police finished conducting a dog search in his house. (15 RT 4302-4303, 4316, 4381-4382, 4461- 4462; 26 RT 6999-7001.) Later in the afternoon, Parga telephoned Westerfield to ask if he would submit to a more formal interview at the Northeastern Substation, to which the 4 Attrial, Kemal claimed that Westerfield was “just looking andstaring” while the women wereplaying pool, and that she thought to herself, “Wow,that’s creepy that he’s just standing and watching.” (14 RT 4020.) However,in her statements to the police before there was any focus on Westerfield at all, she had mentioned only that she was introduced to the neighbor. She never said anything about him being “creepy,” although she was asked to focus on anything she thought was suspicious. (30 RT 7826-7928, 7831, 7834.) 17 police had moved the commandpostfor the Van Dam case, and which wasonly three miles away from the Sabre Springs neighborhood. Westerfield drove down there by himself, and the interview was conducted by Paul Redden,an “interrogation specialist” with the San Diego police. (15 RT 4248-4249, 4320, 4468-446, 4382, 4493.) 1. Weekendtravel: Saturday, February 2 In both the morning interview with Keene andin the afternoon interview with Redden, Westerfield was asked to relate his weekend activities beginning with Saturday morning. He described how he woke upearly that morning between 6:30 and 7 a.m. andleft his house at about 7:45 a.m. in his Toyota 4- Runner, to retrieve his motor home on Sky Ridge Road. He had decidedthat morning to take trip to Borrego Springs and to spend the weekendin the desert. (15 RT 4254-4255; 8 CT 2014, 2106.)"° Leaving his Toyota parked on the Sky Ridge property, he returned to Mountain Pass in the motor home. After stocking it with groceries and filling the water tank with his hose, he started out on his trip sometime between 9:30 and 10 am. (15 RT 4255-4257; 8 CT 2016-2017.) As he wasdriving, he realized that he did not have his wallet with him, and that he must haveleft it at homeorin the Toyota. This meant that he did not have enough moneyto buygasto get to Borrego Springs. Instead of turning around and driving back to his house, he decided to go somewhere where the $80 he had in cash would be sufficient, and 'S The statement to Keene wasrelated to the jury through Keene’s testimony. (15 RT 4254 et seq.) The statements made to Redden were tape recorded and played to the jury. (15 RT 4488-4489.) The summary is a composite ofboth statements where they are moreorless consistent with each other, or at least not inconsistent with each other. 18 this was Silver Strand, where the charge was only $12 a night. (15 RT 4258; 8 CT 2017-2018.)'° At Silver Strand, hefilled out the registration, placed $24 in the envelope to cover the weekend, and then proceededto find a space for his motor home. At some point, the ranger came byto tell him he had overpaid by $30, having placed $54 — a fifty-dollar bill and four singles — in the envelope. This surprised Westerfield, who thought he had only twenty-dollar bills, and he wondered whetherthe ranger might have confused Westerfield’s payment with someone else’s. (15 RT 4261-4262; 8 CT 2018-2019.) In any case, he found the weather at the ocean cold and uncomfortable. He preferred the sun and decided he couldstill salvage the weekend by going to the desert, this time to Glamis, where he knew someofhis friends would be. This was also more attractive to him because he was feeling somewhat lonely at the time, having just broken up with his girlfriend. So he left Silver Strand at about 3:30 or 4 p.m.in orderto see if he could find his wallet back at the house, so that he could drive to Glamis. (15 RT 4261-4262; 8 CT 2019-2020.)"” When Westerfield drove into the neighborhood, Mountain Pass wasfilled with police cars and media vans. He could not find a space and had to park about a block away from his house. There were people gathered on the corner of Mountain Pass and Briar Leaf, and as he approached he saw his neighbor Mark among them. When he asked Mark what was going on,the latter told him that '® Silver Strand wasa beachstate park running along the spit connectingthe city of Coronadoin the north to Imperial Beach and Palm Avenuein the south. According to Detective Keene, Silver Strand was about 31 miles south of Westerfield’s house. (15 RT 4260; Ex. 40.) 7 Glamis, in Imperial County, was near the Arizona border. (15 RT 4269; 19 RT 5415; Ex. 41.) The townitself consisted oflittle more than a store and a few businesses. The attraction was the sand dunes where campers could run their ATV’s. (17 RT 4932, 4954.) 19 Danielle Van Dam wasmissing, and had either been abducted or had wandered off. (15 RT 4262-4264; 8 CT 2020-2021, 2023.) Westerfield’s first thought was to check to makesure thelittle girl had not wanderedinto his yard to fall into the pool. After the pool, he checked his house, first for the little girl and then for his wallet, neither of which was there. He locked up, went out to talk a bit to Mark again, and then left for High Valley to look for his wallet in the Toyota, where in fact he found it. He had not stopped to talk to the police back at Mountain Pass because he assumed that Mark could give the police Westerfield’s name and addressif there was any necessity to contact Westerfield. (15 RT 4265-4266; 8 CT 2023-2027.) It was now about 5:30 p.m.andstarting to get dark. He drove from High Valley to the Chevron Station on Ted Williams WaynearInterstate 15. There he filled up with gas, after which heset off for Glamis, heading north on 15 and exiting at Escondido. From there he drove through Ramona toward Santa Ysabel, where he madea left to go “around the mountain,” heading north toward Warner Springs. There he turned back southeasterly, going through Borrego Springs, then through Brawley, until he arrived at about 10:30 p.m. in Glamis. (15 RT 4266- 4269; 8 CT 2027-2028; Ex. 41.)'® In Glamis, he looked for his friends Dave and Debbie,first in wash 3, and then in wash 6, which were places they usually camped. (15 RT 4270; 8 CT 2028- 2029.) '? They were not there, so he began driving up and downthe other washes '8 This was, according to Keene, a 160-mile drive. (15 RT 4269.) Later testimony established that the itinerary described by Westerfield was the “scenic” route, commonly used by motor home enthusiasts from San Diego. (28 RT 7436, 7448; 29 RT 7837, 7840-7841, 7857-7858; Ex. 41.) The faster route from San Diego wasto take Interstate 8 east to about Holtville, and then to head north toward Glamis. (29 RT 7837-7839; Ex. 41.) '9 In Glamis, there was a dirt road running along therailroad tracks, which were raised on a slight embankment. Atintervals, there were conduits running through the embankment for drainage. These opened up into “washes.” Each conduit had 20 hoping to see Dave’s distinctive rig in the dark. Sometime between 10:30 and 11 p.m., he pulled into wash 14 to spend the night, but because there was a group there making lots of noise, he drove farther out towards the sand dunes and got stuck. It was too late to do anything aboutit, so he settled downfor the night and went to sleep. (15 RT 4270-4271; 8 CT 8029.) 2. Weekend Travel: Sunday, February 3 Waking up the next morning about 6:30 a.m., he beganfruitlessly trying to dig his motor homeoutofthe sand with a small shovel he had for campingtrips. Eventually, some man offered to tow him out for $150. Westerfield was able to pay only $80, but wrote the man’s name and address downand promised to send him the balance. It was about 2:30 p.m. before he wasout of the sand. He decided that he wasnot going to find anyone he knew in Glamis, so he headed toward a place called Superstition, where he used to go with his ex-wife Jackie. He thought he might checkit out for an upcoming three-day weekend he was going to spend with his son Neal. Superstition would also place him closer to homefor his return on Monday. (15 RT 4271-4273; 8 CT 2029-2031.)”° Westerfield stayed only for about twenty minutes at Superstition. He did not like the place. It was rough and there wasnota lot of sand. (15 RT 4273;8 CT 2031.) He left Superstition, drove west a bit on Interstate 8 to Highway S-2, wherehe turned north toward Borrego. (15 RT 4272, 4273; 8 CT 2031.) It was sunny out when hearrived there. He tooka little dirt road heading off into the hinterland, but again drove too far and got stuck in the sand. It took him two a numberpainted onit, and this was used as a reference point by campers, who would drive along the dirt road and then turn into the wash in which they intended to camp, driving no farther than the edge of the hardpan at which point the dunes and the soft sand began. (17 RT 4932-4934, 4954; 18 RT 4973-4974, 5039; 35 RT 8445-8446.) °° Superstition Mountain was west of Glamis,still in Imperial County, but just east of the San Diego County line. (15 RT 4272; Ex. 41.) 21 hours to dig himself out. He left Borrego, which was within the desert region of San Diego County, and headed out again on S-2 toward Borrego Springs. (15 RT 4273-4274; 8 CT 2032-2033.) In the Redden statement only, Westerfield describe how he pulled overto the side off the road on S-2 near Borrego Springsto eat, showerandrest after this exertion. In describing this rest stop, Westerfield stated to Redden: “this little place that we, where we were at wasjust little small turn type place.” (8 CT 2033-2034.)”" Bythis time, Westerfield’s desert frustrations made him reconsider a return to the ocean, where he already had a spacepaid for at Silver Strand. He headed back to San Diego by the same route he headed out. In San Diego, he stopped at the same Chevron Station to refill his motor home with gas. From there, he drove back to Silver Strand. To Keene, Westerfield fixed his arrival at 7:10 p.m.; to Redden,hefixed it at 7:30 p.m. In either case, the gates at Silver Strand closed at 7 p.m. and he could not get back in. He therefore drove across the highwayto the Coronado Cays, where, seeing no signs barring motor homes, he parked and spent the night. (15 RT 4274-4277; 8 CT 2034-2036.) 3. The return: Monday, February 4 In his statement to Keene, Westerfield said he woke up at about 4 or 4:30 a.m. on Monday morning anddecided it was time to go home. Hedrove back to the Sky Ridge property in High Valley, arriving about 7 or 7:15 a.m. Since it was too early and might disturb the residents, he pulled off nearby and napped for an hour before driving into the property. (15 RT 4277-4279.) In his statement to Redden, Westerfield said he woke up about 5:30 or 6 a.m. and arrived at the Sky *I_ Mr. Dusek, the prosecutor, thought this use of the first-person-plural “we” was significant and he had Reddenhighlight it in a testimonial preview before the tape wasplayed for the jurors. (15 RT 4888; see 42 RT 9437.) *2 Coronado Cays was an expensiveresidential area across from Silver Strand. It waspart of the city of Coronado, but had its own security post that greeted incoming and monitored outgoingtraffic. (18 RT 5109-5110.) Across from the fire station there, there was a public parking lot. (18 RT 5112.) 22 Ridge property at 7:30 a.m. He parked his motor homeand by 8:30 a.m. he was back in his house on Mountain Pass where he took a shower, began some laundry, and checked some mail. (8 CT 2037-2038.) In the Redden statement alone, which took place in the afternoon, Westerfield related some ofthe events that occurred between the Keene and Redden interviews. Westerfield told Redden that when hefinally finished with the police that morning, he sat downin his office to do some work. He noticed that he did not have his cell phone and supposedthat he hadleft it in the motor home. He headed back, bringing with him some dry cleaning — a sweater and somepants--, which he dropped off on the way to Sky Ridge Road. At the motor home, he retrieved his cell phone and noticed that there was a call from Detective Parga. He could not call back immediately because the battery was almost dead, but he called her when he returned home. (8 CT 2039-2042.) 4. Previous encounters with Brenda After pinning down the weekend from Saturday to Monday,both interviewers asked Westerfield about his previous encounters with Brenda. Westerfield described the meeting at Dad’s on January 25, and then the Girl Scout cookie encounter on the 29". (15 RT 4283-4284; 8 CT 2021-2022.) In the Keene interview, Westerfield related that while he was talking to Brenda, the children were running around his house. When asked if they went upstairs, Westerfield said that he did not rememberfor sure, but could not discount it. (15 RT 4285.) These previous encounters also included the meeting at Dad’s on Friday night, February 1. As Westerfield related to Keene, that evening after dinner, Westerfield went to Dad’s to meet a friend named Garry. At somepoint he saw his neighbor Brenda Van Dam and two other females talking to two other males. He also saw Brenda andherfriends drinking, dancing and playing pool. He did not speak with her however, until just before he left Dad’s between 11 and 11:30 p.m. Brenda had related how her daughter Danielle had an upcoming 23 father/daughter dance. She noted that her husband, Damon, wasn’t very excited abouthislittle girl growing up so fast. (15 RT 4281-4282.) To Redden, Westerfield related that he went to Dad’s between 8 and 8:30 p.m. to meet Garry. He met him there, and about half hour later Brenda and her friends showed up. He bought them a roundofdrinks, and then watched when they went to play pool. (8 CT 2044.) He remembered dancing and had danced with the “littlest one,” referring to one of Brenda’s friends, who had dragged him on to the dance floor and insisted. He was drinking rum and cokethat evening, and thought he was drunk. He did not even rememberarriving home;“that’s how bad it was.” (8 CT 2045.) To the best of his knowledge, he left Dad’s around 10:30 or 11 p.m., and went homestraight to bed. (8 CT 2045-2046.) 5. Westerfield’s perplexity Detective Keenetestified that, in the morning interview, when Westerfield mentionedthe father/daughter dance, Westerfield, stopped, paused for a second, and then said, “I could have sworn she said she had a babysitter. I didn’t know her husband was homewith the kids.” Keenetestified that this statement was “out of the blue;” he had not asked Westerfield any question to occasionthis reflection. (15 RT 4282.) Betweenthe two interviews, Westerfield, standing in his driveway, waiting to be allowed back into his house while the police ran a dog search, was approached bya television reporter, who wanted an interview, sensing that the police were interested in Westerfield. (15 RT 4319-4320, 4446, 4459, 4461-4462; 26 RT 7000-7001; 8 CT 2008.) In the interview, Westerfield explained how he had seen Brenda on Friday night at Dad’s in Poway. He did not see Brenda’s *3 It will be recalled that during the Girl Scout cookie encounter on Tuesday, Brenda told Westerfield that for her to go to Dad’s on Friday night, she would have to get a babysitter. (13 RT 3785-3786.) Brenda did nottestify to saying anything at Dad’sthat Friday about the children being with a babysitter or with Damon. (See 42 RT 9406.) 24 husband there and thought he was on a businesstrip because she had to get a babysitter, adding, “But I don’t know,that’s just me, you know,I, ya, can’t hear very well — old age.” (8 CT 2009.) In the Redden interview, Westerfield explained that he had read the Sunday paper and noticed a difference between Brenda’s statements and his memory. He rememberedher saying that she had a babysitter and was at Dad’s with her friends while her husband wason a trip. In the paperit said that her husband was home all night. This surprised Westerfield, and the blaring of the music at the bar must have interfered with his hearing her correctly. (8 CT 2049.) d. Prosecution’s Reconstruction of Westerfield’s weekend, and Impeachmentof Westerfield’s statements Using Westerfield’s statements of February 4 as a baseline, the prosecution presented over thirty-two witnesses whose testimony was intendedto highlight suspicions about his weekendperegrinations, and to impeachseveral ofhis representations to one degree or another. 1. Backyard light and shuttered house Christina Hoeffs, who lived on Dapple Court immediately behind Westerfield’s house,testified that when she went to bed at 10:30 p.m. on Friday, she noticed the glare of Westerfield’s backyard lights through her bedroom ** To add to the supposed incriminating oddity of Westerfield’s remarks about the father being there instead of a babysitter, the prosecution scoured Westerfield’s February 4 demeanorforall possible telltale signs. Keene and Pargatestified that Westerfield sweated excessively in the cool 50 to 55 degree morning weather, as evidenced by the perspiration stains around the armpits of his grey knit shirt (15 RT 4252, 4287, 4403); that he cooperated over-eagerly during search of his house and his motor home, pointing out areas the officers had missed (15 RT 42876, 4297-4298, 4302, 4309-4310, 4403-4404, 4407, 4411-4412, 4414); and that during the television interview he talked easily with the reporter and even asked whetherhe looked better with his hat on or not — testimony implying that he displayed an inappropriate and frivolous insouciance under the circumstances. (15 RT 4319-4320; see 42 RT 9370.) Whatever the case may beasto his cooperation and supposedfrivolity, his close friends and intimatestestified that Westerfield had a sweating problem. (28 RT 7444, 7503; 30 RT 7881-7882.) 25 window. When she wokeup at 2 a.m. she noticed that the backyard light wasstill on. She looked through her bedroom window and noticedthat all his windows were shut and his blinds were down. She remembered thinking that she had never seen the house shut so tight, and she remembered hopingthat he had not gone to the desert leaving the backyard lights on. (16 RT 4510-4515.) 2. Uncharacteristic spontaneity and haste in departure Hoeffs' anxiety at 2 a.m. arose not from her personal acquaintance with Westerfield himself, whom she did not know by name (16 RT 4510), but from familiarity with his traveling habits. She and her neighbor on Dapple Court, Angela Elkus, had to drive past Westerfield’s house to get to and from their own. In the case of Elks, she was a busy stay-at-home mother and would drive past Westerfield’s house 8 to 10 times a day to run her errands. (16 RT 4519; 17 RT 4717-4719.) Both womentestified that Westerfield always parked his motor home on Briar Leaf or Mountain Pass for a day or two before leaving on a weekend motor hometrip. They would see him loading the motor home, and doing so sometimes with his son or with other adults; and his return would mirrorthis pattern of a day or two ofparking in the neighborhoodin order to unload. (16 RT 4517, 4532, 4535; 17 RT 4720-4721, 4726.)” *5 This evidence was intended to resonate with what mightbe called “the suspicious hose.” When Detectives Keene and Parga were canvassing Mountain Pass on Sunday morning, February 3, they noticed, in Westerfield’s front yard, the garden hose unrolled and stretched out across the lawn, but then doubled back sharply as though thrown. The hose wasstill there like that on Monday, and Westerfield himselfpointed to the hose during the morning interview whenhesaid he filled his tank with water before leaving for his desert trip. (15 RT 4256-4257, 4398.) The detectives thought the hose wasnotable not only because of the otherwise orderly and well-kept lawn, but in light of the later impression arising during the walk-through of Westerfield’s house that he was generally neat and orderly. (15 RT 4257, 4287-4288, 4403, 4409-4410.) Westerfield himself complained to Redden that Keene and Parga “were giving me a hard time about not having rolled up my hose.” (8 CT 2016.) Westerfield’s immediate neighbors wouldlater testify for the defense that it was not unusual to see his hose unrolled on the lawn andleft unattended for a while. (26 RT 6956, 6974, 6992.) 26 Bythe terms of his own statement, Westerfield’s preparation time was about an hourto an hour and a half (15 RT 4254, 4257; 8 CT 2017), considerably shorter than that claimed as usual by Hoeffs and Elks. The prosecution took pains to reduce it even further, presenting the testimony of other neighbors who were emerging for their Saturday morning jog or errands or commute. The testimony suggested that Westerfield did not arrive back at Mountain Pass with his motor home until some time between 8:30 a.m. and 9 a.m., and then left again at about 9:15 am. (16 RT 4592-4596, 4609, 4620-4624, 4632-4639; 26 RT 6985-6988; see 42 RT 9421.).) Similarly, Keith Sherman, the ownerofthe Sky Ridge property where Westerfield parked his motor homeandtrailer, testified that he had never seen Westerfield comealone to retrieve the motor home. Someone, usually Westerfield’s son, would drive Westerfield to Sky Ridge in the Toyota 4-Runner and drop him off. Westerfield, according to Sherman, also always hauled his “sand trailer’ with the motor home when he went on a trip. (16 RT 4553-4554, 4570-4571.) Sherman, whose granddaughter Holly had actually seen Westerfield taking the motor home on Saturday morningat 8 a.m. (16 RT 4545-4548),testified that while the motor homewas gone on Saturday, the sandtrailer wasstill there. (16 RT 4563, 4571.) 3. Silver Strand Based on the testimony from some of the campersat Silver Strand, Westerfield pulled in there sometime between 10 and 11 a.m. on Saturday moming. (17 RT 4871-4872, 4803, 4836, 4849-4850.) The weather was cool but sunny and, in the opinion of some of the witnesses, comfortable. (17 RT 4785, 4803, 4839.) Beverly Askey, at Silver Strand with her family, testified that as soon as Westerfield’s motor home was parked, someoneinside closed the inside curtains blocking the view through the windshield. (17 RT 4780-4781, 4783- 27 4784.) Another witness noticed that the side curtains on the Westerfield motor homewerealso closed. (17 RT 4849-4850.) These and other witnesses noticed that none of the customary inauguralacts, such as leveling the motor home, unfurling the awning, or setting out lawn chairs were performed. (17 RT 4786, 4800-4803, 4839, 4851.) Indeed, no one emerged from the motor homeat all until sometime after 3 p.m. when Westerfield came out to talk to the ranger, who had knocked on his door. According to witnesses, Westerfield shut the door behind him and walked the ranger toward the front of the motor home. (17 RT 4786- 4787, 4803-4805, 4851-4853.) This wasthe return of the overpayment, as Westerfield had described to Keene and Redden. (See above, p. 19.): Olen Golden, the ranger who discovered the overpayment, and Brian Neill, the ranger who returned it to Westerfield, confirmed Westerfield’s account. (17 RT 4860, 4867-4868, 4890-4898.) Neill testified that his encounter with Westerfield to return the money occurred some time between 3 and 3:20 p.m. because Neill had logged back into the main office at 3:35 p.m. (17 RT 4898.) Not in Westerfield’s account was an encounter with Donald Raymond, a retiree, who was doing work as a “volunteer camp host”at Silver Strand, and living there in his motor home. His job was to greet campersat the gate, hand them the registration envelope and a brochure about the park, and then twice a day to do a tour of the park taking downthe license plate numbers ona listing sheet. (17 RT 4916-4917.) Raymondtestified that at about 4 p.m. on Saturday, February 2, Westerfield walked up to Raymondin the camphostoffice and stated that the ranger had just brought some moneythat did not belong to Westerfield. He explained to Raymondthat the ranger gave him change for a $50 bill, which seemed odd to Westerfield since he had just been to an ATM and had only twenty dollar bills. (17 RT 4917-4918.) According to Raymond, Westerfield appeared agitated and pulled out his wallet to show Raymondthat there were only three or four twenty-dollar bills in it. (17 RT 4918-4919.) 28 4. Leaving the Strand andthedrive to Glamis That Westerfield returned to Mountain Pass between 3:45 and 4:30 p.m. on Saturday, looking for a place to park in a neighborhood crowded with onlookers, police cars, and media vans, was confirmed by witnesses from the neighborhood. (16 RT 4610-4614, 4648-4669, 4677, 4681-4784; 26 RT 6929-6930, 6954-6955.) Witnesses, including Mark Rohr, confirmed that Westerfield stopped and talked to Rohr. (16 RT 4613-4614; 26 RT 6931.) Credit card and phonerecords also confirmed Westerfield’s route to Glamis from Mountain Pass. At 5:26 p.m., Westerfield had filled his motor home with $65.20 worth of gas at he Mount Carmel Chevron Station in San Diego. (18 RT 5181-5184.)°° At 5:31 p.m., he made a cell phonecall relayed by a towernearthe Chevron station (17 RT 4738-4739; 19 RT 5413-5414; Ex. 40); he madecalls again around 6:15 p.m. relayed by a tower in the Ramonaareajust east of Escondido (17 RT 4739-4741; 19 RT 5414-5415; Ex. 41); and calls at 7:33 p.m. and at 10:26 p.m. from outside his designated homearea, from somewhere in the Imperial Valley. (17 RT 4741-4742.)"" 5. Glamis It was Super Bowl weekend, and Glamis wasrelatively uncrowded. (18 RT 5011, 5041, 5067.) There were about four or five groups of campers in wash 14 in 6 Donald Raymond’sclaim to have seen Westerfield with a wallet was of course intended to impeach Westerfield’s statement about not having his wallet at the Strand. It is not clear whether the evidence of the time of the gas purchase corroborated Donald Raymond’s testimony in this regard, as it would if it were impossible to get from Mountain Pass to the Mount Carmel Station within a half hour to an hour while also stopping at Skyridge Road, where Westerfield said he had goneto look for his wallet. But not only wasthis possible, it is difficult to imagine why it would take between a half hour and an hour to go from Mountain Pass directly to the Mount Carmel Chevron without the stop. (See Ex. 40.) 27 Asto the timingofthe drive,if the 10:26 p.m.call was made from Glamis,it wasnot implausible that it would take 5 hours to drive a motor home 160 miles at night through back roads. (See 28 RT 7448.) 29 an area that often contained 50 or 60 such groupsout thereto ride their ATV’s (all terrain vehicles) in the dunes. (18 RT 4971-4973, 5011-5012, 5014.) Ryan Strathearn, one of the campers in wash 14,testified that when he went to sleep at about 11:30 p.m. on Saturday night, the area was quiet. (18 RT 5013-5014.) Similarly, another camper, Joseph Keomptgen,testified that when he went to bed about 11 p.m., there was no musicor party noise from any of the campsites. (18 RT 4971-4976.) The first time any of the campers in wash 14 were aware of Westerfield’s presence was whenthey wokethe next morning to see his motor home about 150 yards beyond the other campsites and stuck in the soft sand. (18 RT 4977-4978, 5015.) Westerfield had been shoveling out the sand from his back wheels and placing woodbracesagainstthereartires for traction. He thought he wasready for a tow and walked back to the washto ask for help. Keomptgen declined becausehis truck was too small to pull the motor home, but Ryan Straethern and his friend Travis Hollins responded. However, they succeeded only in miring Hollins’ owntruck in the soft sand, from which Straethern had to pull Hollins out with Straethern’s truck. (18 RT 4976-4980, 5017-5018.) Eventually, a motorcyclist from Keomptgen’s party was dispatched back to town to fetch Dan Concklin, who lived in Glamis, sold auto parts, and sold his services to tow out vehicles stuck in the dunes. (17 RT 4930-4931; 18 RT 4975, 5024.) Concklin drove out to wash 14, offered to tow Westerfield for $150 cash, and Westerfield agreed. Concklin then set about the preparatory work of digging out the back wheels and bracing them with plywoodfor traction. (17 RT 4934- 4938.) In addition, Concklin used Westerfield’s levelers. These were wooden planks,tiered for leveling a motor home — a processessential for the proper working of the refrigerator and for providing stability, especially in sand. (17 RT 4942.) In the course of the morning, Westerfield had made various remarksto various people about his weekend. In an aside to Joseph Koemptgen, whom 30 Westerfield had first approached for help, Westerfield said he was having a bad weekend, which began with flat tire on his trailer. Westerfield also mentioned that he was supposed to meetfriends, but they had changed their campsite because of some loud campers nearby. He was unableto find his friends becausehiscell phone had gone dead. (18 RT 498-4981.) In asking Straethern forhelp, Westerfield prefaced the request by stating he had been looking for friends in wash 6 the night before but couldn’t find them, so he cameout to the farther washesto see if they were there. In the process, he got stuck in the sand. (18 RT 5015-5017.) Later, while Strathern was working to help Westerfield get out, the latter mentioned in passing conversation thathis trailer had a blowout the previous night in El Centro, where hehadleft it to be repaired. (18 RT 5019.) In the course of the morning, ATV’ers from the other nearby washes would drive by on their morning ride and would offer to help or simply lingerto watch. (18 RT 5037-5038, 5042-5043, 5068-5070, 5087-5089.) One ofthese, Chris Redden, engaged Westerfield in casual conversation while Concklin was working on the back wheels. Westerfield mentioned his bad weekend. He told Redden that he blew tire on his trailer and left it either in E] Centro or Brawley — Redden wasnot certain which one. Westerfield also said he had got stuck while looking for friends. Redden wasnotcertain, but he thought that Westerfield said his friend were supposed to be in wash 2. (18 RT 5044-5046.) Concklin in the meantime wasready to pull the motor homeafter about a half hour to an hour of preparatory work. He had Westerfield get into the cab and give the motor home little gas while Concklin pulled it out with his truck. The motor home cameout onthe first pull. (17 RT 4940-4941.) As Concklin was unhooking the strap, Westerfield announcedthat he did not have enoughcash. Conklin, who wasnotset up for credit cards, accepted Westerfield’s $80 and agreed to wait for Westerfield to send the rest. Westerfield took Concklin’s name *8 El Centro wasoff ofInterstate 8 (18 RT 5019; Ex. 41) on the “non-scenic” route to Glamis. (See above, p. 20, fn. 18.) 31 and address. (17 RT 4937, 4940-4941.) Westerfield then droveoff, leaving his levelers behind. This surprised Concklin, who thought perhaps Westerfield was waiting by the road along the tracks to retrieve his levelers, but when Concklin pulled onto that road, Westerfield was not there. Concklin took the levelers back to his place. (17 RT 4942-4943.) Joe Keomptgen, who returned from his own morningride in the dunes in time to see Concklin pull Westerfield out, testified that Westerfield left immediately after Concklin removed the tow strap. (18 RT 4983-4984.) John Hoffman,a friend of Chris Redden, who watched Concklin pull out he motor home,also testified that Westerfield left immediately. By the time Hoffman was back at his own campsite at wash 12, he saw Westerfield’s motor home driving down the road alongtherailroad tracks at a rate much faster than Hoffman himself would drive his own 30-foot motor home on such a rough dirt road. (18 RT 5038, 5046-5047.) The times at which the various witnesses placed Westerfield’s departure varied. Keomptgen estimated that it was between 10 and 10:30 a.m. (18 RT 4983.) Chris Redden estimated that it was somewhere between 10:30 and 11 a.m. (18 RT 5048.) John Hoffmanestimated that it was around noon. (18 RT 5072- 5073.) Debra Martinez, whose party was campedin wash 13, and who had seen the motor home stuck in the sand, had seenit driving out along the track road some time between 1:15 and 1:30 p.m. (18 RT 5084-5085, 5090, 5092.) Westerfield in his statement to Paul Redden, had estimated that it was about 2:30 p.m. when he wastowed out of the sand. (8 CT 2030.) ? Concklin, whoappearedstill to be disgruntled overthe fact that he was never paid in full for the tow **, testified that while he was digging in the back of the motor home, he thought he heard Westerfield say something. When Concklin asked him what he said, Westerfield answered that he didn’t say anything. (17 RT 4939.) 32 6. Backto Silver Strand Westerfield’s own timing for his return from Glamis to Silver Strand was vague. He had told Keene that after being stuck a second time in the sand for about an hour, he left Borrego at about 6 p.m. and showedupat Silver Strand at 7:10 p.m. with a stop for gas at the Mount Carmel Chevron. (15 RT 4274-4276.) To Reddenhesaid that he got to Borrego about 3 p.m., took two hoursto dig himself out, stopped for a showerandrest, stopped again for gas at the Mount Carmel Chevron, and arrived back at the Strand at 7:30 p.m. (8 CT 2032-2036.) Westerfield’s credit card records showedthat at 7:12 p.m. he was purchasing $83.91 worth of gas at the Mount Carmel Chevron, which wasoverthirty miles from Silver Strand. (15 RT 4260; 18 RT 5185; 19 RT 5413-5414; Ex. 40.) About fifteen minuteslater, at 7:33 p.m., he made a cell phonecall relayed from 9750 Miramar Road, near Interstate 15, further south and closer to Silver Strand, but still some distance away. (17 RT 4743; 19 RT 5415; Ex. 40.) 7. Coronado Cays | Michael Britton, a Coronadopolice officer, whose “beat” in the early morning hours of February 4, 2002 included the Coronado Cays,testified that at about 2:34 a.m. he received a call about an illegally parked vehicle in the public parking lot in the Cays. There were signs posted there prohibiting overnight parking. (18 RT 5105-5108, 5112.) Britton arrived at the Cays at about 2:46 a.m. He saw a large motor home and small truck parked in violation of the posted signs. When Britton knocked on the door, a middle aged man named Cecil Halterman answered. Halterman, whose vehicles had Iowa plates, apologized and explained that he had arrived toolate to get into Silver Strand. He said he did not notice the signs prohibiting overnight parking. Britton let Halterman leave without a citation. There was no other vehicle parked in that restricted lot that night, and David Westerfield, as far as Officer Britton had seen, had not been there. (18 RT 5114-5119.) 33 8. Return home Keith Sherman’s neighbor, Sandra Delong, saw Westerfield’s motorhome at about 7:20 a.m. heading up the hill toward Sky Ridge Road, as she herselfwas heading downthe hill on her way to work in Escondido. She recognized the motor homeas the one that was usually parked on Keith Sherman’s property. (16 RT 4586-4590.) Keith Sherman himself saw Westerfield at the Sky Ridge property at about 7:30 a.m. and talked to him. Shermantestified that Westerfield seemed a little tired, but noticed nothing unusual. (16 RT 4571-4573.) Kelly Bellom, who worked at Twin Peaks Dry Cleaners in Poway, and began work at noon on February 4, testified that at about 1:40 p.m., Westerfield drove intothe lot in his Toyota 4-Runner, and then camein to drop off a sweater and pair ofpants for dry cleaning. (18 RT 5156-5159.) Westerfield, who had told Redden abouthis afternoon stop at the dry cleaners (8 CT 2042), did not mention a morning stop there as well. Julie Mills, who also worked at Twin Peaks Dry Cleaners, and whostarted at 6:30 a.m., saw a motor homepull in front of the store sometime between 7 and 7:30 a.m. Westerfield came in. He was a regular customerbut, according to Mills, was dressed unusually wearing only a T-shirt, very thin boxer-type or jogging-type shorts, and was barefoot. (18 RT 5127-5132, 5133.) In past encounters, according to Mills, Westerfield was pleasant, always smiling, and chatty. This morning he appearedtired and distant, unwilling to talk or even look her in the eyes. (18 RT 5132.) It was also unusual for Westerfield, who normally drove somesort of dark- colored SUV to come in a motor home. (18 RT 5133.) At that time, Westerfield, according to the receipts issued by Mills, dropped off a jacket, two comforters, and two pillowcases. (18 RT 5134-5138.) 30 Detective Keenetestified that when he searched the motor homelater that morning, the bed in the motor home hadonly a sheet and no comforter on it. (15 RT 4312-4313.) 34 e. Forensic Evidence Asnoted above,the forensic investigation began almost immediately with technicians poring over the Van Dam house beginning on February 2. (19 RT 5214, 5224, 5235-5236.) After a warrant was obtained in the early morning hours ofFebruary 5, the investigation turned toward Westerfield’s house and his vehicles — the motor home and the Toyota 4-Runner — which were impoundedthat day. (19 RT 5246, 5363-5365, 5390-5391; 20 RT 5455-5456.) With the discovery of Danielle’s body on February 27, there were intense forensic searches of the Dehesa roadsite, and then the next day forensic evidence wascollectedat the autopsy. (19 RT 5252, 5303-5305.) 1. Nuclear DNAandfingerprints i. The jacket. The jacket that was among the cleaning dropped off with Julie Mills on the morning of February 4 was examinedat the crime lab. An inch and a quarter stain on the right shoulder tested positive as presumptive blood. (18 RT 5168-5169; 21 RT 5694-5703, 5735.) DNAtesting was donefirst at the San Diegocrime lab, and then later at Orchid Cellmark in Germantown, Maryland. Both results established that the profile derived from that stain was consistent with Danielle’s DNAprofile at statistical frequencies sufficient to indicate an individual identification. (21 RT 5751, 5775-5776, 5779-5780, 5784-5785, 5825, 5833-5834, 5838-5839; Ex. 119.) ii. The fingerprint. The head ofthe bed in Westerfield’s motor homeran along the back wall of the vehicle. On the driver’s side, about a foot above the bed, there was acabinet. At the bottom of this cabinet, evidence technicians °! The frequencies calculated at the San Diego lab were 1/670 quadrillion for Caucasians; 1/14 quintillion for blacks; and 1/31 quintillion for Hispanics. (21 RT 5784-5785.) At Orchid Cellmark, where the jacket stain wasretested, the frequencies were calculated as 1/57 quadrillion for Caucasians; 1/1.1 quintillion for blacks; and 1/29 sextillion for Hispanics. (21 RT 5838-5839.) There is an estimated global human population of 6 billion persons. (21 RT 5815; 24 RT 6472.) 35 developedlatent prints that belonged to Danielle. Specifically, one of the latents contained the inside of her middle finger just at mid-knuckle, and the inside of her ring finger just above mid-knuckle. (20 RT 5518-5519, 5600-5601, 5589-5592, 5598, 5656, 5666; Ex. 96.) iii. The carpet stain. On the blue carpet covering the hallway that connected the kitchen in the motor home with the bedroom, the evidence technicians discovered a % inch stain located toward the driver’s side and toward the kitchen end of the hallway. The presumptive test for blood was positive. (21 RT 5761, 5763, 5819-5820, 5827-5828; Ex. 96.) The stain was cut out andlater tested for DNA,both at the San Diego lab and at Bode Technology. It yielded a profile that matched Danielle’s at a statistical frequency establishing an individual identification. (21 RT 5780; 24 RT 6451,6467-6470; Ex. 151.)* iv. Hair in the bathroom sink. At the autopsy, the evidence technicians took a sample of Danielle’s hair. (19 RT 5256.) From this known sample,the criminalists developeda criteria for selecting potential trace evidence: they began looking for hair that was naturally light brownto blondin color, and between 1.18 and 8.46 inches long. (22 RT 5980-5981, 5984-5985; Ex. 126.) Amongthe hairs recovered from the sink in the motor home, there wasa single 8 1/4 inch strand that met these criteria. (20 RT 5514-5516; 22 RT 5972; Ex. 126.) Because there wasa sufficient root on this hair to produce nuclear DNA,a profile was developed that matched Danielle’s with a statistical frequency constituting an individual match. (24 RT 6466-6467, 6469-6470; Ex. 151.) *° The actual frequencies obtained in the San Diego lab were the sameasfor the jacket. (21 RT 5780.) The frequencies estimated at Bode Technology, where the stain was retested were 1/660 quadrillion for Caucasians; 1/14 quintillion for blacks; 1/31 quintillion for Southwester Hispanics; and 1/52 quintillion for Southeastern Hispanics. (24 RT 6467-6470; Ex. 151.) *3 The numbers, developed at Bode Technology, were: 1/25 quadrillion for Caucasians; 1/340 quadrillion for blacks; /% quadrillion for Southwestern 36 2. Mitochondrial DNA for humanhair Forall other human hair presented as evidencein this case, the prosecution resorted to mitochondrial DNA, because there either were no roots on the trace hairs recovered or insufficient root to produce nuclear DNAresults. By contrast, mitochondrial DNA existed along the hair shaft, and couldalso yield result at lower quantities than nuclear DNA could. (21 RT 5852-5853; 22 RT 6113-6114; 24 RT 6458-6459.) However, the use ofmitochondrial profiles were limited in two related ways: first, mitochondrial DNA matches includedall personsin the maternal line, and secondly,the statistical frequencies could not be extrapolated from small data bases, as they could with nuclear DNA, but could be measured only in reference to the actual numberofprofiles in the testing lab’s data base. Thus, an individualized identification was not possible with mitochondrial DNA. (21 RT 5850-5851, 5865-5867; 24 RT 6476, 6481-6482.) i. The hallway carpet. After the % inch bloodstain wascut out of the blue hallway carpet, evidence technicians cut out all five or six feet of this carpet to be examined for trace evidence. Amongthe hairs and fibers found onit, the criminalists discovered a single, 1.5-inch strand meeting the criteria for Danielle’s known hair sample. (20 RT 5512-5513; 22 RT 5970-5971, 5981-5986; Ex. 126.) The hair yielded a mitochondrial profile consistent with Danielle’s maternal profile. This profile did not match any others contained in the 4021-person database maintained by Bode Technology where the hair wastested. (24 RT 6477, 6481-6482; Ex. 124.) ii. The bathroom rug. The motor home bathroom wasonthe driver’s side of the hallway connecting the kitchen to the bedroom. Inside, there wasa rug that was seized. (20 RT 5525; Ex. 96.) At the lab, criminalists removed a single 6- inch strand of natural blond hair, which wastested at the FBI lab and which yielded a mitochondrial DNAprofile consistent with Danielle’s maternalline. Hispanics; and 1/200 quadrillion for Southeastern Hispanics. (24 RT 6469-6470; Ex. 151.) 37 The profile did not match any other profile in the FBI’s 5071 person database. (21 RT 5861, 5863-5866; 22 RT 5973, 5981-5982, 5987; Exs. 124, 126.) iii. The laundry. In the February 5 search of Westerfield’s house,his laundry wasseized by the police. (20 RT 5484-5490.) In the batch taken from the washing machine, the criminalists found a single 8-4 inch blond hair. (22 RT 5956-5957; Ex. 126.) Among the laundry taken from inside the dryer, a single 6- inch blond hair was found on a pair ofboxer shorts. (22 RT 5959, 5980-5982; Ex. 126.) Both hairs were tested at Bode Technology and yielded a mitochondrial profile consistent with Danielle’s maternal line. (24 RT 6480, 6481-6482; Ex. 124.) iv. The bedding. From the sheets and pillowcases collected from the master bedroom at Westerfield’s house, the criminalists removed six hairs meeting the screening criteria for Danielle’s: an 8 %-inch strand found on a pillow case; a 6-inch and 6 1/3-inch strand found on the fitted sheet; and an 8-inch and two 5 1/2-inch strands found onthe flat sheet. (20 RT 5494-5497; 22 RT 5988-5959; Ex. 127.) All these hairs yielded profiles consistent with the Van Dam maternal mitochondrial profile. (24 RT 6480-6481; Ex. 124.) v. Dryerlint from trash in garage. The police took the garbage bag from the trash receptacle in Westerfield's garage. Among the trash there was dryerlint, from which the criminalists were able to tease out three humanhairs (1 % inches, 3 % inches, and 4 inches) meeting the criteria for Danielle’s head hair. (20 RT 5497-5500; 22 RT 5963-5965; Ex. 126.) At Bode, the hair yielded a profile consistent with the Van Dam maternal profile. (24 RT 6480-6481; Ex. 124.) 3. Mitochondrial DNAand animalhair There were animal hairs amongthe trace evidence recovered at various scenes. The ones selected for DNAtesting were chosen based on their consistency with the characteristics ofknown samples plucked from Layla, the Van Dam Weimaraner. The criteria were gray/brownfor color; length between .5 and 1.3 centimeters; and, on the shaft of the hair, microscopically visible pigmentation 38 granules that were large and ovoid in shape. (19 RT 5243-5244, 5407-5409; 22 RT 6002-6004; Ex. 130.)** Noneofthese hairs sent on for testing yielded nuclear DNAresults (22 RT 6112-6113), but some ofthem yielded mitochondrial DNA results. i. The comforter from the dry cleaner. There were two comforters amongthe dry cleaning dropped off at Twin Peaks Dry Cleaner. (18 RT 5134- 5138.) On one of the comforters, the criminalists found two animalhairs in two separate tape lifts. (22 RT 5977-5978.) These hairs were tested at Quest-Gen,a lab specializing in animal DNA,andyielded a partial mitochondrial DNA profile consistent with Layla’s maternal line. It was also consistent with 55 profiles in Quest-Gen’s database of 267 dogs. (25 RT 6868-6869, 6877-6878; Ex. 155.) ii. The hallway carpet. In the same piece ofmotor home carpet containing the % inch stain and the single strand of human hair consistent with Danielle’s, the criminalists found two hairs consistent with the selection criteria for Layla’s hair. (22 RT 6001; Ex. 130.) These hairs yielded a mitochondrial profile consistent with Layla’s maternal line and with 23 profiles in the Quest-Gen database. (25 RT 6875; Ex. 155.) iii. The bathroom rug. In the same motor home bathroom rug containing single hair consistent with Danielle’s, there was also one animal hair meeting the criteria for Layla’s. (22 RT 5978-5979, 6005; Ex. 130.) At Quest-Gen,a mitochondrial profile consistent with Layla’s maternal line was found. (26 RT 6868, 6875; Ex. 155.) iv. The laundry. Amongthe laundry collected from the top of Westerfield’s dryer, there was a white towel containing a single animal hair consistent with the selection criteria for Layla’s. (22 RT 5960, 6001-6004; Ex. ** On February 6, Hopi, a golden rust colored Viszlas, had been releasedinto the motor home to do a dog search. (24 RT 6494-6495, 6508-6509.) A sample of Hopi’s hair was taken. (23 RT 6164.) Layla’s hair was not consistent with Hopi’s, and thus none of the questioned hairs consistent with Layla’s were consistent with Hopi’s. (22 RT 6002, 6003-6004.) 39 130.) However, at Quest-Gen, the hair yielded no mitochondrial results. (26 RT 6865; Ex. 155.) v. Dryerlint from trash can in garage. In addition to the three blond hairs teased out ofthe lint from the trash in the garage, the criminalists also obtained 18 animal hairs meetingthe criteria for Layla’s. (22 RT 5965.) At Quest-Gen,the results established only that these hairs could not be excluded as having comefrom a dog in Layla’s maternal line. (26 RT 6872-6874; Ex. 155.) 4. Fibers consistent with Danielle’s bedroom carpet Fibers were plucked from the carpet in Danielle’s bedroom. (19 RT 5245.) They were tan polyester fibers with a trilobal cross-sectional shape and a length of 32.5 micrometers. (22 RT 5989-5990, 5993, 5996, 5999; Ex. 127.) However, because carpet fibers are manufactured in hundreds of thousandsofyardsat a time (23 RT 6217-6218), and because in the newer housing developments, ofwhich Sabre Springs wasone, the contractors usually gave the buyera limited selection of carpeting to choose from (22 RT 6084-6085), any correspondences could establish only the possibility of the same manufacturing source. (22 RT 6001, 6101-6201.) Ofthe fibers recovered from the trace evidence in this case, three fibers were found in the motor home hallway carpet that were tan and polyester, but were 35 micrometers. (22 RT 5994, 6001; Ex. 127.) In the bathroom rugin the motor homethere was a single tan polyester fiber that was, however, 37.5 micrometers in length. (22 RT 5978-5979, 6001; Ex. 127.) Finally, in a tape lift taken from the carpet in the motor home bedroom,there wasonetan polyester fiber that was 32.5 micrometers long. (20 RT 5510-5511; 22 RT 5994-5995, 6001; Ex. 127.) °° The criminalist attempted to find out from Shaw Industries, the manufacturer of the questioned fibers, how many miles of carpet fiber Shaw produced, but no one from Shaw called her back and she did not press the matter. (22 RT 6083- 6084.) 40 5. Correspondingfibers unconnected to a known source Amongthe laundry seized from Westerfield’s house, the criminalists began to notice a relatively large quantity of long, orange acrylic fibers and short blue- gray nylon fibers. (22 RT 5956-5962; 23 RT 6171-6176, 6191, 6199; Ex. 133.) Specifically, there were 20 to 30 orange acrylic fibers and 7 blue-gray nylon fibers in the laundry from the washing machine; 50 to 100 orange acrylics and one blue- gray nylon in the laundry from the dryer; and 10 to 20 orange acrylics in the bedding from the master bedroom. (23 RT 6193-6195; Ex. 133.) These fibers were notattributable to any possible or even hypothetical source, but they correspondedto fibers found in items connected to Danielle’s person. Entangled in a plastic curlicue necklace recovered at the autopsy, there wasa Single long orange acrylic fiber, identical in appearance with the orange acrylic fibers in Westerfield’s laundry and bedding. In Danielle’s head hair taken at the autopsy, there was a single blue-gray nylon fiber, and one such fiber was also found in the vegetal material scraped from her lower buttocksat the autopsy. Finally, in the white sheet used to transport her body from the Dehesasite to the Medical Examiner’s Office, criminalists recovered 19 blue-gray nylon fibers. (19 RT 5252-5253, 5256-5260, 5262; 23 RT 6173, 6179, 6186-6187, 6195-6196, 6199-6201; Ex. 133.) Once this correspondence was made,the lifts from the motor home werere- examined and revealed 11 blue-gray fibers from the headboard of the bed; 31 from the kitchen bench seats; 1 from the front passenger seat; and 3 from the couch. (29 RT 7699-7713; Ex. 164.) Thelifts from the Toyota 4-Runner yielded one orange fiber from the front passenger seat; two orangefibers from the back driver’s seat; 4 orange fibers from the rear passenger armrest; three from the rear passengerseat; and ten orange fibers from a towel found inside a laundry bag that wasin the rear cargo area of the Toyota. (29 RT 7753-7763; Ex. 165.) 4] 6. Dog-scent Evidence On the morning of February 6, Jim Frazee, a volunteer canine handler for the Sheriff's Department brought his dogs Hopi and Cielo to the impoundlot. Hopi wasa “trailing dog,” trained to follow a specific scent. Cielo was a “search dog,” trained to find any missing human being. A dogcertified as a search dog, could obtain a specialized certification as a “cadaver dog,” trained to find human remains or body fluids. Cielo, whom Frazee obtained in October 1999, when the dog was eight weeks old, wascertified for search in April 2000, and for cadaver search in November 2000. Thecertification body was the California Rescue Dog Association (CARDA), which was recognized by the Governor’s Office of Emergency Services. (24 RT 6493-6495, 6499, 6503, 6504-6505, 6507, 6509- 6510.) Cadaver dogs weretrained to give an “alert” when they found what they were trained to find. Cielo’s “alert” was to sit down in front of Frazee, make eye contact with him and bark. (24 RT 6499.)°° That morning Frazee scented Hopito find Danielle Van Dam’s scent. The dog was allowed inside the motor home, but without result. (24 RT 6511-6513.) After this, Frazee worked Cielo. Frazee began by directing Cielo to the tires and fenders. This wasa test to see if Cielo would be distracted by dead animal scent, since vehicles sometimes run over dead animals. Assured that the dog was not 36 A “search dog” wastrained by havingit released by a strangerto findits handler; the process was then reversed so that the handler released the dog to find the stranger. Success was awarded with food or somesort of toy. (24 RT 6500- 6501.) For “cadaver dog”training, the handler began by exposing the dog to cadaver scent, and then bestowing somesort ofgratification on the dog to create a sense in the dog of pleasurable association with this otherwise morbid scent. Using such items as human blood, cerebrospinal fluid, portions ofplacenta, or even cremated human remains, the handler required the dogto find these items. Forcertification as a “cadaver dog”, training records had to show the dog’s success in finding such itemsin various situations — above ground, buried, hanging, or in a building, -- and the discovery hadto be out of the sight of the handler, whom the dog fetches and leads back to the finding. (24 RT 6504-6506.) Since Cielo’s certification in November 2000, he had located remainsin a real-life search on two occasions. (24 RT 6507.) 42 distracted, Frazee proceeded to the seam between the passenger door and the exterior compartment. The intensity and duration of the dog’s sniffing increased a little. As Frazee moved the dogto the other end of this compartment, there was a further increase in Cielo’s sniffing. As he movedto the next compartment, Cielo swung around, sat, made eye-contact with Frazee, and barked. This was the cadaveralert and meantthat he had detected a cadaver scent. (24 RT 6513-6515.) With this, Frazee continued around the motor home, again to make sure that Cielo had not been distracted by animal scent. The dog continued to sniff, but showed no interest and madeno further alerts. (24 RT 6515.) Frazee then had the police open the door to the compartment whereCielo alerted. Cielo showed an interest by sniffing for extended periods twoarticles inside that compartment: a folded up lawn chair, and a shovel. (24 RT 6515.)°” 7. Computer Evidence During the February 5 search of Westerfield’s office, computer forensic examiners, one from the San Diego police and one from the FBI, examined the computers and computerrelated material in the home office on the secondfloor of Westerfield’s house. (21 RT 6282-6284, 6289.) Ona shelf near the computer table, the examiners discovered two CD’s andthree zip-disks. The CD’s were marked “Spectrum,” which was the name of Westerfield’s business. On these disks, the examiners, using their equipment, viewed “questionable” material, i.e., pornographic material involving minor females underthe age of 18. (21 RT 6300- 6302, 6306-6307.) These were seized (20 RT 5495-5497) and examinedin greater detail in the computer forensics lab. (21 RT 6303.) On these media, there were 15 °7 Rosemary Reddit, a lieutenant in the volunteer canine unit was present as an observer. She witnessed Cielo stopping at the exterior storage bin on the passengerside ofthe motor home. The dogsat, looked at Frazee, and barked. (26 RT 6830-6831.) As to the “interest” shown by Cielo in the lawn chair and shovel, she testified merely that the dog placed his paws in the open compartment and sniffed, until Frazee recalled him. (26 RT 6831-6832.) 43 to 17 images appearing to involve a female under the age of 18, some ofwhich were possibly pornographic. These were shownto the jury. (21 RT 6311-6315; 24 RT 6414; see 42 RT 9397; see also Exs. 136 and 139.) In addition, from all the computers seized in the house, about 8000 pornographic images were recovered, consisting of adult pornography, animated pornography, and about 68 other questionable images of possible child pornography. (24 RT 6390-6398, 640-6408; 14 CT 3489; Exs. 144-148.)*8 Defense Case a. Alibi From 8:50 a.m. on February 4, Westerfield was almost constantly in the presence ofthe police. Even after he left the Northeastern substation at 11:30 p.m., he was followed back to his house, and kept outside by officers securing the residence pending the issuance of a warrant. At 2 a.m., a tracker was placed on his vehicle, and from that time until his arrest on the afternoon ofFebruary 22 he was under continuous police surveillance. (26 RT 6999-7002; 30 RT 7814-7819, 7923-7927, 7931.) Also during that time period, the media followed Westerfield around wherever he went. (30 RT 7938-7939.) This constituted an alibi based on the entomological evidence, which established that Danielle’s body could not have been placed at the Dehesa Roadsite before February 14 or 16. (30 RT 7968-7969; 33 RT 8116-8117.) February 16 wasthe earliest date determined by forensic entomologist David Faulkner, who had been called in by the police to the autopsy on February 28, and whocollected the insect evidence both there andlater that day from the Dehesa Roadsite. (30 RT 7940, 7945-7948.) Faulkner, in addition to teaching forensic entomology, had been the assistant curator and head of the Entomology Department of the Natural History Museum in San Diego form 1975 until 1993, and from 1997 to 2001, he was the 38 A full accountofthe materials shown and described to the jurors is given below. (See pp. 227-229, 258-259, 263-265, 284-285.) 44 collection manager in that department. (30 RT 7941-7942.) His current research was involved the determination of the abundance anddistribution of various insect species in San Diego County. (30 RT 7943-7944.) He had done forensic work in both civil and criminal cases. He had worked for local law firms, for the San Diego Police, and for the District Attorney’s Office and had eventestified for the specific prosecutor in this case. (30 RT 7943-7944.) His primary experience was with the prosecution in criminal cases, having been retained 196 times by that party compared with the 39 time by the defense. (30 RT 7944-7945.) The importance of forensic entomology wasin assessing the time of death based on the development of the insects found on a dead body. Within a very short time after the availability of a dead body, certain species offlies, especially the species calliphora or blow flies, will have deposited eggs — an event technically denominated as “oviposition.” To reach adulthood, the hatched insect had to go through a larval and pupal stage. These stages lasted various amounts of time as established both in the literature and in the experience of the forensic entomologist. The latter, after obtaining a sufficient sample of larval or pupal maggots from the body, and after identifying the appropriate species, could then infer the amount oftime between oviposition, which should correspond to when the body wasavailable for fly activity, to the time the body was found. (30 RT 7950-7956, 7960-7965, 7969-7970.) Faulknertestified that insofar as he wascalled in at the autopsy and hadfull access to the site ofrecovery of the body, as well as police help in conducting his study, this case had presented to him the most ample opportunity he had ever had to do a thorough forensic entomological investigation. (30 RT 7948-7949, 7979.) Once he had gone through the appropriate steps and collected the appropriate information, he concluded that February 27, the date of the body’s recovery, was ten to twelve daysafter the first infestation of flies and their oviposition. This meant that the body wasfirst available for insect activity between February 16 and 18. (30 RT 7968-7969.) This finding was supported by the beetles of various 45 species he found on the body. They were all adults, and there were no non-adults or grubs. This meant that beetle oviposition, which happens only two weeksafter a dead bodyis available for insect activity, had not yet occurred, and the elapsed time between February 16 and February 27 wasless than two weeks. (30 RT 7973-7974.) The only complication in this case was the weather conditions. Unusual weather conditions could affect the availability of flies. The actual weather throughout February, 2002 was warmerthan usual. There had also been no significant rainfall that year. The fly populations were definitely low that year compared to previous years. Nonetheless, this did not change Faulkner’s conclusions. First, there was a housing development about a mile up the road. The availability ofwater and food in such a setting would sustain significant fly populations to compensate for the weather conditions. Secondly, in February, 2002, Faulkner had actually been doing workin the area just above where the body was found and he was very familiar with the insect environmentthere. In his opinion, even considering weather conditions, there was no entomological way to explain the availability of the body for ovipostion to be any earlier than February 16. 30 RT 7968, 7974-7979.) Neal Haskell, a forensic entomologist, who had done forensic work for law enforcement and prosecutorial agencies across the United States and in Canada (33 RT 8110-8115) examined the insect evidence collected by Faulkner, Faulkner’s report, the autopsy report, a transcript of Faulkner’s testimony, photographs and crimescene narratives. He examined the Dehesasite in person the day before he testified, and he also studied the hourly climate data from Brown Field, which was 16 miles from the Dehesasite. (33 RT 8094, 8116-8117.) His conclusion, which he considered consistent with Faulkner’s, was that oviposition occurred sometime between February 14 and February 23. February 12 or 13 was possible, but unlikely; anything before February 12 was impossible. (33 RT 8117- 8118.) 46 b. Forensic evidence With Westerfield’s alibi, which was heavily dependent on forensic entomology, the case became a competition with the forensic sciences. The prism through which the prosecution’s physical evidence could be reconciled with the defense’s physical evidence depended on the following principles: fingerprint identification cannot establish when or under what circumstances a print was made (20 RT 5620, 5569); biochemical analysis cannot determine how or when a biological fluid was deposited (21 RT 5735, 5830-5831, 5843); and, trace evidence offibers and hairs are highly mobile, easily transferred, and need not indicate a direct contact, but might only be evidence of a derivative contact. (19 RT 5269-5270; 22 RT 5948-5949, 6087; 23 RT 6212, 6242-6243.) These were the forensic principles around which the defense presented circumstantial evidence to explain the fingerprints, the DNA,and the hair and fiber evidence. 1. Accessibility of house and motor home Regarding the hairs found in the houseitself, it will be recalled that Danielle Van Dam was actually in Westerfield’s house on Tuesday, January 29, and that she may even have gone upstairs. (15 RT 4285; see aboveat pp. 15-16, 23.) That her hair was found in the house was not remarkablein light of the fact that humansshed about 50 to 100 head hairs a day. (22 RT 6012.) Furthermore, Brenda Van Dam andher son Dylan were present in the house, and the identification of the hairs recovered there were based on mitochondrial DNA, which allowed only for a generalized profile of the maternal line, and not an individualized identification. (See above,p. 37.) Regarding the evidence recovered from the motor home, including the nuclear DNA andfingerprint evidence, it will be recalled that before Westerfield found a space at Keith Sherman’s property, he parked his motor homein the neighborhood, near Danielle’s house, either on Mountain Pass or Briar Leaf, and still did so for lengthy periods of time before or after a trip in order to load or unload. (See above, pp. 13-14, 26.) The Sabre Springs neighborhoodhadlots of 47 children of elementary school age. They were often out on the streets, whether walking to or from school, or playing. (16 RT 4520; 17 RT 4726-4727; 26 RT 6956, 6976-6977; 30 RT 7876.) Inevitably, children would walk by the motor home, as Mark Rohr, Westerfield’s across-the-street neighbor, had actually witnessed. (26 RT 6927-6928.) Danielle L., the daughter of Susan L., Westerfield’s formergirlfriend, testified that one time when they were unloading the motor home on a return from the desert the neighborhood children gathered to watch. (29 RT 7675.) Moreover, the evidence established that when the motor home was parked in the neighborhood, Westerfield left its door unlocked for substantial periods of time. Janet Rohr, Mark’s wife, testified that she had witnessed Westerfield going into and out of the motor home onseveral occasions without having to unlock the door. (26 RT 6956.) Susan L. testified that whenever they were loading or unloading the motor homebefore or after a trip, they would leave the door actually open. (30 RT 7875.) Stephanie Escadero,a friend of Susan L., once attended a barbeque at Westerfield’s house. The motor home wasparked onthe street and he gave her a tour of it. They entered without him havingto use a key and exited without him locking the door. (29 RT 7652-7653.) Asfor Danielle Van Dam andher brothers, Damontestified that they were allowed play in front of the house and could go upthe hill on the sameside of the street, which wasthe side of the street for Westerfield’s house as well. According to Damon, however, the Van Damswerestrict about this, and if they had to cross the street, they had to first obtain permission. Furthermore, most ofthe time, either he or Brenda was with them when the children were playing in front of the house. (12 RT 5372-5373.) There was evidence, however, casting some doubt on whetherthe professed rigor of this regimen was invariable and inflexible. Brenda herself testified that she sometime let Danielle and Derek walk to school. (13 RT 3776-3777, 3858.) From time to time, Brenda allowed Danielle to go with 48 neighborchildren to play in the park at the end of Mountain Pass, past Westerfield’s house. (13 RT 3858.) There was more evidence ofBrenda and Damon’s laxness from the very Friday of the crucial weekend in this case. On Friday afternoon, February 1, Brenda went shopping with Danielle at Mervyn’s to buy some clothes. Derek and Dylan accompanied them, and Brenda allowed the boys to go by themselves next door to “The Toy Depot”to shop for a birthday present. When she wentto pay for the purchase at “The Toy Depot,” Brenda sequestered Danielle into a dressing room at Mervyn’s andtold her to wait until Brenda returned. (13 RT 3903-3904.) After this shopping trip, when they arrived home, Brenda, knowing Damon would soon be home from work, did not wait, but left the children alone so that she could pick up the family’s pizza dinner from Dominoes. (13 RT 3799-3801.) There were also witnesses whotestified at trial to seeing the Van Dam children outside their house without a parent in the vicinity. Janet Rohr had recently seen the youngest boy playing ball in front of his house. Whenthe ball rolled across the street, Janet stoppedtraffic for him toretrieve it. She did not see the parents around. (26 RT 6956.) Angela Elkus had seen Danielle and her brother playing outside (17 RT 4727), and Barbara Crum had, on occasion, seen Danielle on her bicycle riding near Crum’s house, which was aroundthe corner on Briar Leaf. (16 RT 4616.) 2. Ease of Transferability of Trace evidence As noted above,trace evidence is highly mobile and easily transferred. This is a fixed premise of forensic science andis called the “Locard”principle. (20 RT 5532-5533; 22 RT 5948, 6085-6086; 23 RT 6212.) The import of the Locard principle is that trace evidence found in a foreign environment did not necessarily establish direct contact between the first carrier of evidence and the location where the evidence was found. (22 RT 6087.) Thus,tan, trilobal fibers found in the motor home (see above, p. 40) did not establish direct contact between the motor home and Danielle’s home. Moreover, 49 most carpet fibers were trilobal. (22 RT 6089.) Furthermore, as noted above, carpet fibers were manufacturedin large lots, and in newer subdivisions,like Sabre Springs, contractors tended to offer a limited range of carpeting for the newly built houses. (22 RT 6084-6085; 23 RT 6217-6218.) Asfor the orange acrylic fibers and the blue nylon fibers, which, again, could not be connected to a specific source, the exclusive uniformity of orange in the SUV and the exclusive uniformity of blue in the motor home conferred a random quality to their presence rather than a significant one. (See above,p. 41.) Further, there was also evidence of direct, but non-incriminating contact between Westerfield’s “environment” and the Van Dam “environment.” Quite apart from the presence ofBrenda, Danielle, and Dylan at Westerfield’s house on Tuesday, January 29, several witnesses present at Dad’s on February 1 had seen Westerfield and Brenda dancing together. (27 RT 7192, 7200-7201, 7224-7225, 7228-7229, 7236-7237; 28 RT 7304-7306.) One witness, Patricia LePage, testified that Brenda seemedto be “rubbing herself all over him” with her hips and her bosom. She characterized it as “dirty dancing.” (28 RT 7322-7324.) Duane Blake, another witness described their dancing as “huggie huggie.” (28 RT 7369- 7373.) In this connection, witnesses at Dad’s on February | had Brenda wearing a red sweateror shirt (13 RT 3974; 14 RT 4086; 27 RT 7321), and red fibers were also numerousin the laundry seized from Westerfield’s house. (23 RT 6216- 6232.) Further, dyed blond hair, such as Brenda’s, was found in the motor home and in the bedding from Westerfield’s house. None ofthese were examined or tested for similarity to Brenda’s hair because they did not fit the criteria for Danielle’s. (22 RT 6069-6072, 6078-6079.) 3. Significant absence of incriminating forensic evidence Theintense effort to recover fingerprints, hairs, fibers, and biological residue failed to establish anything from Westerfield inside the Van Dam house. Three hundredandfifty-eight latents were developed; 122 prints were identified; none ofthem belonged to Westerfield; and Westerfield was specifically excluded 50 from several, including prints developed on the patio table in the backyard, on the sliding glass door into the house, on the door handle for Danielle’s bedroom, and on the adjacent dry wall. (19 RT 5225-5226, 5235, 5290-5301, 5333; 20 RT 5609-5612; 29 RT 7611-7615.) A serious question also arose regarding the absence ofDNA, whichis contained not only in blood, butin saliva and in perspiration. (22 RT 5919, 5928- 5929, 5945.) In this regard, Detectives Keene and Parga noted Westerfield’s excessive perspiration during the morning interview on February 4. (15 RT 4252, 4287, 4403; see above, p. 25, fn. 24.) Westerfield’s close friends, David and Debra Lapisa furthertestified that Westerfield had a sweating problem on his neck and underarms (28 RT 7444, 7503), while Westerfield’s former girlfriend, Susan L., testified that the problem manifested itself on his head, face, and armpits, even when the weather was cold. (30 RT 7881-7882, 7911.) The police did collect several items from Danielle’s bedroom in a quest for biological evidence: a pair ofpajamas, which were on the floor and were turnedinside out; a shirt turned inside-out; a bean bag chair; and her bed cover. (19 RT 5227-5231; 5237-5238; 21 RT 5706-5711; 22 RT 5911-5916.) These items either produced no DNA results or results that excluded Westerfield. (22 RT 5913-5920; 24 RT 6463- 6464.) In regard to fibers and hairs, if the police found and collected any foreign fibers from the Van Dam house, the prosecution produced notestimony aboutit. The only hair attested to was one that was collected in the side yard nearthe exit gate. (19 RT 5232.) This turned out to be an animal hair. (23 RT 6153-6154.) In regard to Danielle’s body, her fingernails were examinedfor biological evidence. In the scrapings there was even recovered a small flake of somesort of tissue. The DNAresults obtained from these scrapings producedprofiles and partial profiles consistent with Danielle’s DNA, but inconsistent with Westerfield’s. (19 RT 5255-5256; 21 RT 5821-5823, 5830; 23 RT 6160-6163; 24 RT 6464-6466.) Swabs taken from Danielle’s neck and body,includingoral, 51 vaginal, and rectal swabs, produced no evidence of semen and yielded no DNA results. (19 RT 5256-5257; 21 RT 5823.) 4. Computerforensics A defense expert on computer forensics examined the two Hewlett Packard computers from Westerfield’s homeoffice as well as a Gateway Computer and a laptop belonging to Westerfield’s son Neal. The expert discovered that on the two Hewelett Packard computers, there were emails sent to Dnwest at Hotmail.com,-- Neal’s address, -- from pornographysites that were accessed aroundthe time the emails were received. (27 RT 7032-7033, 7038-7041, 7058-7077, 7090-7092; 35 RT 8465-8471, 8473-8474.) The expert also examined the loose media containing the “questionable images.” Based on a forensic examination, he concludedthat someofthe pornographic files on Neal Westerfield’s Gateway had been downloadedfrom the loose images on December 17, 2001. (27 RT 7094-7095.) Neal himself, called in the prosecution’s rebuttal case, testified that he used his father’s computers for Internet access, which included not only his email but occasional forays to pornographic sites. (35 RT 8473-8474.) He in fact did copy onto his Gateway the pornographyfolders from a CD he found on his father’s bookshelf, but, according to Neal, the pornography was already on that CD. (35 RT 8485-8486.)°” 5. Dog-scent evidence Cielo, Jim Frazee’s dog, who had, according to Frazee, given an alert for cadaver scent at the impound yard on February 6, had also been used on February 4, whenthe police went up to Skyridge Road with Westerfield to examine the motor home. Cielo, circuiting the exterior of the vehicle, detected no scent on that °° Apart from the question of whopossessed the pornography that wason the loose media from Westerfield’s office, there was a factual issue ofwhether the “questionable images” represented actual minors. The defense expert testified that in his experience, pornographic sites offering images of teenagers never used teenagers under 18. Oftentimes, apparent child pornography involved the use of actors and actresses. (27 RT 7076, 7169-7170.) 52 occasion, according to Frazee, but did show aninterest in the mudflaps andtires by sniffing them longer than he did other places. (26 RT 6818-6820.) Astothe February 6 alert, Frazee had told no one about it until February 22. (26 RT 6806-6808.) Detective Tomsovic, who was in charge at the impound lot that day, wrote a report simply noting that the dog was taken around the motor home. There was no mention of an alert, and Frazee did not say anything to Tomsovic. (26 RT 6913-6917.) He also said nothing to Rosemary Reddit, who, as a volunteer lieutenant in the Sheriff's Search and Rescue Canine Unit, was present on February 6 as an observer, and who knew Jim Frazee. (26 RT 6827- 6828, 6832.) However, on February 22, Frazee revealed the alert to Cielo’s breeder Maria Zucconi, boasting aboutit in an email he sent after the news of . Westerfield’s arrest was broadcast. (24 RT 6530-6531; 26 RT 6808-6809.) In the first paragraph Frazee prefaced the announcementwith, “I could get in trouble for telling you this, but I’m kind of bursting with pride over Cielo, and I have to tell somebody besides Jan [his wife] what he did.” (26 RT 6802-6803.) However, in the email, he related that “I wasn’t sure but I thought Cielo was giving me his cadaversign. I thought he might have been doing these behaviors just to please me. So I took him aroundtherest of the motor home but got no further alerts.” (26 RT 6809-6810.) But then, according to Frazee’s email, Frazee asked that the compartment prompting Cielo’s alert be opened, whereupon Frazee saw a Sight that was “quite chilling.” Frazee testified that he used this phrase because the compartment contained a shovel, which Frazee simply assumed Westerfield had used to bury the body. (26 RT 6810-6811.) The email ended with this paragraph: “Reminiscent of his water find, I didn’t know what to make ofwhat Cielo did and had to leave the scene wondering. Today, however, came newsofthe suspect’s arrest. And it was revealed that they had found a body in the motor home. (I’m sorry.) Found blood in the motor home. Notwithstanding my sympathy for the 53 little girl and her family, this was pretty cool, given that it backs up Cielo’s alert.” (26 RT 6893-6894.) Reddit, an experienced dog handler andtrainer, testified that an “alert” was supposedto be so clear, unequivocal, and unambiguousas to leave no doubt in the handler’s mind that an “alert” had been given. (26 RT 6836, 6844.) “0 c. Defense evidence bearing on Dad’s and on the weekendtrip The defense presented various witnesses to underminethe prosecution’s claim that various details of the weekend’s events were incriminating. Glenn Seebrush testimony established that Westerfield was planning a weekend motorhome trip at least on Friday afternoon, February 1. Seebruchs was the engineering manager at Nokia, on whose behalf he contracted with Westerfield for some design work. Healso lived on Sky Ridge Road not far from Keith Sherman, on whose property Westerfield parked the motor home. (28 RT 7423-7424.) On February 1, 2002, at about 1:45 p.m., Westerfield telephoned Seebruchs from the lobby of Seebruchs’ building. He wantedto tell Seebruchs that he had dropped off some parts. The discussion turned personal and Westerfield talked about his plans for the weekend, saying that he plannedto go to the desert to do some ATV’ing. (28 RT 7245.) He mentioned that he could not find anyone to go with him, which Seebruch took to be an implied invitation that Westerfield was extending to Seebruch. Seebruch, however, had to cut the conversation short because someone had comeinto his office. Seebruch told Westerfield he would call him backlater, but he forgot to do so. (28 RT 7426.) In regard to whether or not Westerfield had the physical capacity to effect an undetected kidnapping ofa little girl from a fully occupied house, Glennie Nasland, a friend of Westerfield, who had introduced him to his formergirlfriend, “° Redditt, whotestified that she had witnessed Cielo’s alert on February 6 (see above, p. 43, fn. 37), had herselftold no one aboutit until June 28 (26 RT 6834), well into trial, and after Frazee’s credibility was challenged. 54 Susan L., testified that she was at Dad’s on Friday night February 1 and had seen him leaving at midnight. She had said goodbye to him,and, according to Nasland, Westerfield was drunk. Whenshe asked him where he wasgoing, he said he was going home. (27 RT 7234-7235, 7241, 7251-7252, 7285-7286; 28 RT 7301- 7303.) In reference to Christina Hoeffs’ claim that it was unusual for Westerfield to have his backyard lights on (see above, pp. 25-26), Paul Hung, wholived next door to Westerfield on Mountain Pass, gave a different opinion. Hetestified that it was not unusual for Westerfield to leave his backyard lights on all night and even into the day time. (26 RT 6971-6972, 6977.) Regarding the wallet, Susan L., Westerfield’s formergirlfriend, who had dated him for several years, testified that she often went camping with him. According to Susan L., Westerfield kept only his credit cards in his wallet. Cash he kept separately in his pocket, and they would often stop at Union Bank before a trip to get cash. (30 RT 7867-7869, 7877.) Donna Boes, the operating assistant at Union Bank, where Westerfield kept his account, testified that the ATM machine issued only twenties. (28 RT 7433-7434.) SusanL.also testified that there were times they started out going to Silver Strand, staying only an hour or two and then leaving for the desert because of the bad weather. When going to Silver Strand, Westerfield did not bring his ATV trailer. (30 RT 7872-7873.) Danielle L., Susan’s 16-year old daughter, and Danielle’s friend, Jennifer L., remembered a specific motor hometrip in which they went to Silver Strand for a short while and then left because the weather was cold. This trip occurred sometime around the beginning of 2001. (29 RT 7670- 7675, 7690-7691, 7694-7695.) Donald Raymond, the volunteer camp hostat Silver Strand, whotestified that he had seen Wethersfield pull out a wallet to show Raymondthat he had only twenties (17 RT 4918; see above, p. 28), had not told the police about the wallet until a second interview. Between the two interviews he had found out something about Westerfield on television and in the 55 newspapers. (17 RT 4928-4929.) Indeed, when Raymond wasfirst interviewed on Tuesday morning February 5, he could not identify Westerfield’s photograph as the person he had encountered on Saturday. (29 RT 7550-7552.) In regard to the back-country route Westerfield took Glamis, Dave Lapisa, Westerfield’s long-time friend and fellow ATV’er, testified that the route was the scenic, and often used by motor homers coming from the San Diego area and heading to Glamis. (28 RT 7435-7436, 7445-7448.) Eugene Yale, a San Diego attorney unconnected with either party to the case, and an experienced motor homer whooften went to Glamis, came forward to confirm this. (29 RT 7836- 7837, 78407841, 7857-7858; Ex. 41.)"! Regarding Westerfield’s claim to have gone to Glamis to look for his friends, Lapisa and his wife also testified that they had certain days each year whenthey traditionally took family trips to Glamis; Westerfield was familiar with these days, one of which was Super Bowl Sunday, when the crowds then were sparser at Glamis. According to the Lapisas, there were times that Westerfield met them in Glamis without prearrangement. (28 RT 7439-7442, 7502-7503.) In regard to other aspects of Westerfield’s account of his time at Glamis, Lapisa and Susan L. attested that it was not uncommonto get stuck in the sand while motor homing in the desert. (28 RT 7442-7443; 30 RT 7879.) Moreover, in a motor homethat had electronic levelers, which Westerfield’s did, the wooden levelers were used only for traction, and it was common to abandon them as Westerfield had, since a motor homecould not stop in the sand without getting stuck again once it obtained sometraction. (28 RT 7458-7459; 30 RT 7879.) Finally, in regard to Officer Britton’s failure to spot Westerfield at Coronado Cays, Heather Mack,a security workertheretestified that she was working on patrol on February 3 on the 4 p.m. to midnight shift. At one point, she “Tn the prosecution’s rebuttal case, Neal Westerfieldtestified that he thought their usual route to Glamis was by Interstate 8. However, Neal, usually busy with video games, did not pay muchattention. (35 RT 8444-8445.) 56 wasaskedto relieve a guardat the security gate for fifteen minutes so he could take his lunch. (28 RT 7519-7521.) At this time, someone in a motor home drove in. The driver looked directly at her, smiled, and waved. She waved back. When she saw the television coveragelater, she recognized Westerfield as the driver she had seen. (28 RT 7518-7522, 7574.) After having relieved the guard, she returned on patrol, but did not see that motor home again. However, the Coronado Cays were 14 square miles. Furthermore, it was her experience that motor homes turned away or excluded from the Strand did cometo the Caysto park, and sometimes parked in the yacht club, which wasnotpart ofthe patrol area. (28 RT 7575-7576.) Prosecution Rebuttal The prosecution brought in Madison Goff, a forensic entomologist, who was head ofthe Forensic Science Department at Chaminade University in Honolulu. He had a PhD.in entomology form the University of Hawaii in Manoa. (38 RT 8942.) Goff reviewed the reports of Faulkner and Haskell, but not the insect samples themselves. Based on their qualifications, Goff trusted their identifications as competent. (38 RT 8958.) He did his own calculations, however, based on a wider range oftemperature data — an important factor since ambient temperature could accelerate or retard the developmentofthe blowfly larvae. (38 RT 8964.) Based on his calculations and judgments, Goff could not say that Danielle Van Dam wasnot dead from February 1 through February 12, which,in the earlier range militated against the alibi defense. (38 T 8094) On cross-examination, Goff concededthat in his opinion insect activity began on February 9. (38 RT 9021-9022.) But as to the actual time of death, Gofftestified that he would haveto defer to the forensic pathologist and the forensic anthropologist. (38 RT 8094.) In this regard, Dr. Blackbourne, the medical examiner, hadtestified in the case in chief that based on the condition of the body, he could only give a “ball 57 park” estimate that Danielle had died anywhere from 10 days to six weeks before the autopsy on February 28. (12 RT 3751.) But for the rebuttal case, the prosecution hired William Rodriguez, a forensic anthropologist, who worked for the Department of Defense, but whoalso did private consulting for $300 an hour. (36 RT 8641-8643.) The expertise of a forensic anthropologist was making inferences of identification and time of death from the break-down ofremains. This was known as “taphonomy.” Although Rodriguez was not an entomologist, entomology played a role in his expertise. Although he was not a medical doctor, physiology also played arole. (36 RT 8645-8646, 8664.) In Rodriguez’s opinion, the entomological evidence had to be discounted because ofthe mummification or drying-out of Danielle’s body. The examination of the autopsy photos and the weather data indicated that her epidermal skin dried out rapidly. This would slow downblowfly colonization of the body because the mouth ofthe fly was unable to penetrate the dried tissue, and colonization would have to proceed more slowly through any orifices exposed. If the onset of insect activity did not coincide moreor less with the time of death, then the entomological evidence would be inaccurate in that regard. The time would also be affected if the body was in a contained area that was inaccessibleto flies. (36 RT 8666-8669, 8675-8678, 8698-8699.) In Rodriguez’s opinion, science cannot attain to any greater accuracy in this case than to give a windowoffourto six weeksprior to the autopsy for the time of death. The primary factors in his consideration were the mummification of Danielle’s body and the ideal conditions in temperature for rapid mummification. (36 RT 8704-8705.) “- Rodriguez had considered Blackbourne’s estimate of 10 days to six weeks. He also considered the report of Cyril Wecht, a forensic pathologist with an international reputation. Wecht estimated a time of death between 10 days and four weeks. (36 RT 8705, 8710-8711.) Rodriguez denied that the poles of his range were merely the maximumsgiven by the two pathologists. (36 RT 8745.) 58 Defense Surrebuttal Robert Hall, the Vice Provost for research at the University of Missouri, an entomologist with a PhD. in entomology from Virginia Polytechnic and a J.D. from the University Missouri, was also a forensic entomologist with consulting experience with the FBI and the Army’s criminal division. He had also taught courses in forensic entomology for quite some time. (39 RT 9076-9079.) He had reviewedthe various reports and the insect data in this case. He had also reviewed the temperature data, the relevant testimonies, and the insects themselves. (39 RT 9079.) Based onall this, his opinion was that blow fly oviposition did not occur in this case any later than February 23 and noearlier than February 12, 2002. (39 RT 9082.) Hall knew William Rodriguez professionally. Rodriguez was not a forensic entomologist and his estimate of a four to six week windowfor time of death was not consistent with the entomological evidence. (39 RT 9085.) Although Hall himselfwas not an expert on mummification, in every experimenthe had been involved or with or with which he wasassociated, there was always some degree ofmummification present in the corpse or cadaver, and this hadlittle effect on blow fly colonization of the body. (39 RT 9089.) Even if the body in this case had been in a contained area for a day or two, this would not change his conclusion that oviposition occurred no earlier than February 12 and that it occurred fairly quickly after death. (39 RT 9090-9091.) He also disagreed with Wecht’s recommendation of a forensic entomologist for a more accurate range of time of death. (36 RT 8742-8744.) 59 GUILT PHASE ARGUMENTON APPEAL I. APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE ON FOURTH AMENDMENT GROUNDS WAS IMPROPERLY DENIED Introduction Beforetrial, the defense filed a motion to suppress the evidence obtained pursuant to five search warrants. (3 CT 505.) Thetrial court denied the motion, finding that the warrants were supported by probable cause, and that in any event, the first search, on whoseresults the justification for the subsequent four were predicated, was consensual. (SE RT 1920-1922; 5F RT 1970; 5 RT 2054.)* This ruling was erroneous. As appellant will elaborate in the following argument, the first warrant, whose validity vel non determined the validity of all the subsequent warrants (see Wong Sun v. United States (1963) 371 U.S. 471), was based,at best, on reasonable suspicion — a level ofproof insufficient to establish probable cause (Alabama v. White (1990) 496 U.S. 325, 331; see also Florida v. Royer (1983) 460 U.S. 491, 498;); further, the warrant was not otherwise justified by the good faith reliance of the police on the magistrate’s endorsement ofthe warrant (see United States v. Leon (1984) 468 U.S. 897, 922); and finally, Mr. Westerfield’s consent to the search in question wasnot freely given. (See Bumper v. North Carolina (1968) 391 U.S. 543, 548-549.) Thebasic predicate of the claim of a Fourth Amendmentviolation hereis that a suspect’s failure to pass a polygraph examination provides no evidentiary “Throughoutthis brief, subvolumesofthe reporter’s transcript, indicated by a letter following a volume number, refer to proceedings that had originally been closed to the public and whosetranscripts were sealed. Most ofthese has been unsealed, either by Judge Muddshortly after judgment (71 RT 10706-10711), or recently, pursuant to proceedingsin the Superior Court to perfect the record. (45 CT 10724-10726, 10761-10769.) The citations in this brief are only to currently unsealed transcripts. 60 weight, and has no consequence, for the determination ofprobable cause. For Mr. Westerfield’s failure of a polygraph examination waspart of the warrant application for the first warrant, and indeed, wasits most striking feature, without which, as will be argued, there was insufficient evidence ofprobable cause. The legal premise informing this contentionis that, just as polygraph evidenceis barred for use at trial in almost every jurisdiction in the United States, soit is not competent for Fourth Amendmentpurposes, which require that information submitted in support of a warrant have some inherentreliability. (See Alabama v. White, supra, 496 U.S. 325, 330.) The Fourth Amendment competency ofpolygraph evidence, the question of probable cause, the good faith exception to the warrant requirement, and consent vel non to search will require, of course, more elaborate legal argument and, especially in regard to the question of consent, an examination ofthe factual details developed in the pretrial evidentiary hearings. But since a motion to quash a warrant is determined from the sufficiency or insufficiency of the information contained within the four corners of warrant and its supporting affidavits (see United States v. Anderson (9" Cir. 1971) 453 F.2™174, 175; see also Peoplev. Costello (1988) 204 Cal.App.3™ 431, 451),it is advisable to set forth a summary of the five warrant applicationsat issue. A. The Warrants 1. Warrant No. 27818 The first warrant was obtained telephonically from Judge Bashantat about 2 a.m. on Tuesday February 5, not quite three days after the discovery of Danielle Van Dam’s disappearance. The supporting information was provided by Detective Alldredge, whotestified under oath, under the questioning of Deputy District Attorney David Lattuca. (4 CT 746-747.) The transcript ofthis testimony 61 wasattached to the warrant and wascertified by Judge Bashant herself. (4 CT 767.)" After describing Mr. Westerfield’s house and vehicles, Detective Alldredge listed the types of items sought pursuant to the warrant: items of children’s clothing, including Danielle’s necklace and Mickey Mouse earrings; a wide range of items for purposes of developing trace evidence and biological evidence; evidence contained in photographs, videotapes, and the like, all ofwhich might be relevant to “juvenile abduction”or to sexual preferences for juveniles; biological evidence from Westerfield himself; and finally, evidence of dominion and control of the premises. (4 CT 747-748.) Detective Alldredge described his own experience: He had been anofficer for 11 years, and a detective for 6 of those years. He had assisted other detectives in other abduction and child abuse cases, and had attended post-police-academy training on abductions and child abuse. (4 CT 749.) The information he was providing in this case had been obtained from discussion with San Diego police officers, from reading official reports, and from personal involvementin the investigation of the missing juvenile, Danielle Van Dam,“now considered to be abducted, San Diego PD case No. 02-008101.” (4 CT 749.) According to Alldredge, the “kidnap occurred”on February 2, 2002. Danielle Van Dam wastaken “possibly” from her house at 1200 Mountain Pass Drive (sic) sometime between 10 p.m. and 3:30 a.m. She was discovered missing by the family about 9 a.m. The parents telephonedthe police, who responded and did a door-to-door search looking for “the victim.” Most of the immediate neighbors were at home and contacted. However, the neighborliving at 11995 Mountain View Drive(sic), identified as David Westerfield, was not at home. (4 CT 749-750.) On February 3, there was a second canvassofthe neighborhood by the police, and Westerfield wasstill not home. (4 CT 752.) “4 The warrants and relevant documents were submitted by the prosecution as exhibits. (4 CT 744 et seqg.; 5 CT 1060 et seq.) 62 Aspart of the investigation, Alldredge himselfhad interviewed the victim’s mother, Brenda Van Dam,for two hours on February 2. Van Dam related her outing to a local bar on February 2 (sic). She and twogirlfriends had arrived there sometime around 8 p.m. They encountered two male friends there, and all of them started to play pool. David Westerfield, her neighbor, approached andstarted playing pool with them. (4 CT 750.). When Alldredge questioned her about her relationship to Westerfield, she recounted having seen him at the same bar a week earlier on Friday, January 25. She noticed him looking at her and believed him to be a neighbor, and they exchanged hellos. (4 CT 750.) On January 30, 2002 (sic), Brenda Van Dam was walking Danielle and Danielle’s brother, Dillon (sic), through the neighborhood selling Girl Scout cookies. When Westerfield answered the door, Van Dam recognized him from the previous Friday. In thecourse of their contact, he referred to that occasion and asked, “‘Hey, why didn’t you introduce me to yourfriends the other night at the bar?’” to which Van Dam responded, “I didn’t even know your name.” Westerfield then introduced himself: “Hi, my name is David Westerfield, your neighbor.” (4 RT 750-751.) Westerfield gave Van Dam his business card and told her he sometimes had adult parties and barbecuesat his house. He invited her to call him and bring her husbandto the next party. According to Van Dam,she was at Westerfield’s house for about 10 or 15 minutes before leaving to sell other cookies. (4 CT 751.)* On February 4, at about 8 a.m., as Alldredgetestified, the San Diego police were watching and waiting for Westerfield to arrive home. He arrived sometime around 8:30 a.m. The officers contacted him, told him about the missing girl, and ** The encounter at Dad’s Bar was, of course, on February 1, not February 2. The Girl Scout Cookie encounter was January 29, not January 30. (13 RT 3890.) Discrepancies between the testimony in support of the warrant and the evidenceat trial are pointed out not as legally significant for the issue ofprobable cause, but in order to keep the readerofthis brief oriented to the facts properly established at trial and to avoid a distorting conflation oftrial evidence and warrant evidence. 63 obtained his written permission to search his house and motor home, which was parked 30 miles away on Skyridge Road in Poway. (4 CT 752.)* A general search of the housefailed to discover the missing girl. (4 CT 752.) A search of the motor homeproduced the same negative result (4 CT 754), but during that search, Westerfield, according to Alldredge, “displayed an unusual amountof cooperativeness by opening drawers, lifting cushions, and pointing out .. . areas missed by detectives.” (4 CT 753.) After this initial search of the house and motor hometo locate Danielle, a search and rescue dog named Hopi wasreleased into the house. Alldredge himself knew nothing about the qualifications ofHopi and his handler, but had been told by Detective Keenethat the handler wasa private citizen, and that Hopi was a “scent” dog who had been involvedin several search and rescue operations. (4 CT 752, 760.) In the house, Hopi showedan “interest” in the garage door. However Hopi’s handler stated that this “interest” was not “an alert.” The handler walked Hopi away from the location, returned, and again Hopi showedan “interest” but not an “alert.” (4 CT 752.) Later in the evening of February 4, around 8 p.m. Hopiwastaken to the Skyridge property where the ownerhad given permission for a search. Hopi was taken aroundthe exterior of the motor homeand did not 46 The Skyridge Road property was between 8 and 9 miles from the Sabre Springs neighborhood. (15 RT 4254.) “7 Alldredge’s times were loose and inaccurate. As noted in the statement of facts, after the police contacted Westerfield coming out of his house at about 8:30 a.m., Detectives Keene and Parga responded. Keene interviewed Westerfield on his doorstep, after which Keene and Parga searched the house, and then traveled to the motor hometo search that. It was after the return from the motor homethat there was a dog search. (See abovep. 24.) 8 In an in limine foundational hearing on dog-scent evidence, it was established that Hopi’s handler, Jim Frazee, could only speculate as to what Hopi’s various reactions meant, and the evidence of the dog’s reactions were excluded as unreliable for purposesoftrial. (LOA RT 3302-3303.) 64 even display an “interest.” However, according to Alldredge, it had been discovered earlier during an interview with Westerfield that Westerfield had just completed a 250-mile trip in his motor home. According to Alldredge, the freeway wind could have removed anyscent ofthe victim from the exterior. (4 CT 754.) The earlier interview in which Westerfield told the police about the trip was with Detective Keene. Westerfield also confirmed the earlier encounters with Barbara (sic) Van Dam.In regard to the Girl Scout Cookie meeting, Westerfield stated that Danielle and her brother had run all over the house, including the garage. According to Alldredge, Westerfield offered this as a possible explanation for Hopi’s “interest.” (4 CT 752-753, 754-755.) When Alldredge had interviewed Brenda Van Dam on February 2, however, she said that the children never went into the garage or upstairs in the house. Alldredge sent a detective to ask her again on February 4, and she confirmed this. (4 CT 752-753.)” Westerfield had also told Keene that at Dad’s on Friday, February 2 (sic) Van Dam talked about her daughter Danielle and an upcoming father/daughter dance at school. Van Dam related how she had bought Danielle a new blouse for this event and how Danielle’s father was concerned about how fasthislittle girl was growing up. (4 CT 755.) When Alldredge had interviewed Brenda Van Dam on February 2, she said she did not discuss her family with anyoneatthe bar, including Westerfield. She did remembertelling some unknown male that she had three children. The man told her she did not look like a mother, which remark ” Alldredge’s source of his claim that Westerfield had offered a theory for Hopi’s reaction is unclear. Nowhereis this otherwise attested. Keene,in the hearing on the motion to traverse, testified that Mr. Westerfield never said anything about children running in the garage (SA RT 1137-1139), and in any event, the dog search was after Keene’s interview. (SA RT 1094-1097, 1099.) In regard to whether Westerfield maintained that the children went upstairs, Keene’s testimony and the evidence of Westerfield’s actual statements, showed that Westerfield offered this tentatively, maintaining that he was notreally paying attention to the children. (SA RT 1137-1139; 15 RT 4285; 48 CT 11307.) 65 struck Van Dam as a “pick-up line.” (4 CT 751-752.) When Alldredge had a detective re-contact Van Dam on February 4,the latter stated that the only persons aware of the father/daughter dance were immediate family members and one next- door neighbor. (4 CT 755.)” Finally, Keene reported that “out of the clear blue sky during the interview” Westerfield “stated, ‘She said a baby sitter was watching her children, not her husband.’” According to Alldredge, “Keene was aware Danielle’s father was watching the children, but that was not common knowledge. In fact, on Friday nights, Brenda and Damon, D-A-M-O-N Van Dam will have a baby sitter watch the children while they go out for the evening.” (4 CT 756.) In regard to the trip, Westerfield reported to Keene that it began at 7:30 a.m. on February 2, when Westerfield drove his 4-Runner to Skyridge and returned with the motorhometo his residence, where he loaded it with food and water. The detectives noted that the hose used for this purpose wasstill unfurled on Westerfield’s front lawn. This apparent carelessness contrasted with the immaculate condition of the house. This contrast, according to Alldredge, indicated “‘that someone wasin a hurry to leave.” (4 CT 756.) In addition to the hose, “it should be noted,” continued Alldredge,“that although Westerfield told Detective Keene that he had drove [sic] to the location of the motor homeon 2/2/02, a neighborthe night prior noticed the motor home parked next to his residence.” The neighbor noted this because the parking of the motor homein the neighborhood had drawn many complaints, which in fact was the reason appellant found a different place to park it. That night the neighbor in question had to swing wideto get around the motor home. (4 CT 757.)”! °° In her testimonyat trial, Van Dam testified that she indeed did talk about the father/daughter dance in Westerfield’s presence. (13 RT 3944.) Alldredge found this out sometime between February 11 and 15. (SE RT 1799-1800.) *' The neighborin question nevertestified at trial, and there were no other witnesses whoattested to the motor home’s presence in the Sabre Springs neighborhood on Friday, February 1. 66 Westerfield told Keene that the trip started at Silver Strand in Coronado where Westerfield paid for several nights of camping. However, as Alldredge noted, Westerfield later told Keene that he, Westerfield, had forgotten his wallet and waslow on gas. In any event, at The Strand, the ranger knocked on the camperdoorat about 2 p.m. to return an overpayment Westerfield had made. The ranger knockedseveral times for several minutes before Westerfield answered. When hefinally did answer the door, he immediately stepped outside and closed it. The ranger noticedalso that the blinds of the motor home were closed. After the ranger had given Westerfield the money and drove off, Westerfield lingered outside the motor home. Theranger, according to Alldredge, thought that Westerfield’s actions were suspicious. (4 CT 756-757.) Westerfield told Keene that it was too cold at the beach at Silver Strand, and he returned hometoretrieve his wallet. He arrived there some time around 3:30 p.m. He saw several police cars and a policetrailer in the neighborhood. Unable to find parking close to his house, he parked downthe street, walked back toward his house, and encountered a neighbor, who told him about the missing child. Westerfield responded by mentioning that Danielle had been in his house earlier in the week and had beeninterested in his pool. Westerfield then wentto check the pool for the child. (4 CT 757-758.) After this, Westerfield left the area, realizing that he had left his wallet in the 4-Runner where the motor home had been parked. He drovethere, retrieved his wallet, and then decided to go to Glamis, a dune area just west of the Arizona border, and about 120 miles east of San Diego. There, he got stuck in the sand and spent the night in the dunes. He waseventually pulled out of the sand, went to a second location in the desert, and eventually ended up in Borrego Springs, where his motor homegot stuck again. Westerfield stated that after he had dug his motor homeout, “we drove back to Silver Strand.” Alldredge noted that Westerfield had 67 used “we” as if someoneelse was in the motor home. Nonetheless, when he was questioned about that, Westerfield stated that “we’ wasjust a slip. (4 CT 758.)” Alldredge related to Judge Bashant what was learned from a conferencecall at 2 p.m. on February 4 with FBIprofilers from Quantico. According to Alldredge, who participated in the call, the profilers were provided with a “complete” synopsis of the case. Althoughthe profilers were unable to provide a specific type ofperson to look for, they did acknowledgeit to be “a distinct action of a person involved in abductions to wantto help or display overly amount of cooperativeness.” (4 CT 753.) They further noted that according to a 10-year study, most abductions of children older than five were for sexual purposes. Most abductors were males, who were usually either acquainted with the victim’s family or wholived close by the victim’s residence. According to Alldredge, the profilers thoughtit was highly unlikely the abduction in this case was committed by a stranger “because ofthe high risk of entering an unknownresidenceto take a victim.” The profilers believed that the abduction was committed by someone familiar with the interior of the residence. As Alldredge noted, Westerfield’s residence wassimilar to the victim’s house. (4 CT 754.)° In regard to the qualifications of the profilers, they were supposed to fax him the information,but had not yet done so. (4 CT 759.) Finally, as Alldredge related, on February 4 Westerfield completed a polygraph test administered by Paul Redding (sic) of the San Diego Police, who reported that Westerfield failed the test.* Redden had been a polygraphersince 2 The impression from Alldredge wasthat this statement was made to Keene. However, whethertrue incrimination or simple pronominallaxity, the statement occurred in the interview with Paul Redden. (15 RT 4888; 8 CT 2034.) Alldredge did not include information he had obtained from Brenda Van Dam, viz., that Westerfield had never been in her house. (5E RT 1806-1807.) Alldredge was referring to Paul Redden, who had interviewed appellant at the Northeastern Station beginning around 3 p.m. on February 4. (SA RT 1168; 15 68 1981, had completed over 6000 polygraph tests, and had testified in court many times as an expert. He had asked Westerfield several “controlling questions” to which Westerfield answered no. The test indicated that Westerfield was being deceptive. (4 CT 758.) Tim Hall, another polygrapher with the San Diegopolice, checked Redden’s findings and concurred. (4 CT 758-759.) Judge Bashant’s only questions were in regard to the polygraph test. She wanted to know whatthe polygraph questions were. Alldredge answered from Redden’s notes: “ There wasa factual dispute regarding the loose media. Youngfleshtestified that while looking for passwords on the bookshelf, the loose media marked “X” and “XO”werein plain sight if you were looking at the bookcases; he also noted that nothing had to be movedto get at them. (5D RT 1738-1739.) According to Watkins, Youngflesh told him that he, Youngflesh, found the items behind the bookcase. (5D RT 1755.) Detective Tomsovictestified that Watkins showed him wherethe items were found, and based on what Watkins told him, Tomosovic noted in his report that they were “well hidden.” (SD RT 1770-1772.) Alldredge testified that he was at the house and Watkins told Alldredge that the items were in plain view, and both Youngflesh and Watkins showed him where they were. (SE 1815-1816.) The court acknowledged the factual conflict, but found that because of Alldredge’s good faith, the warrant could not be traversed if Youngflesh was wrong. (SE RT 1850-1851.) 71 was Detective Torgerson. Again, the warrants 27818 and 27802 were incorporated and attached. (4 CT 801-806, 812-813.) Torgerson represented that during the February 5 search of Westerfield’s house, Detective Howie had found two dry cleaning receipts. Torgerson tried to find the establishment that day, but wasnot successful until the next day, February 6, when Detective Ott said that the receipts looked like ones from Twin Peaks Cleaners. (4 CT 806.) Torgerson went there, and confirmed that the receipts were from there and were for dry cleaning Westerfield had left there on February 4. (4 CT 807.) 5. Warrant No. 27830 This was issued by Judge Bashant on February 13, 2002. (4 CT 818) The affiant was Detective Hegenroather, who incorporated warrants 27818, 27802, and 27813. (4 CT 821-822, 832-834.) This fifth warrant aimed at a return trip to Westerfield’s house for more evidence. (4 CT 818-821.) Hergenroather’s own showing included results of the first search of the house, andthe results of the search of Westerfield’s computers and loose media. (4 CT 832-828.)*° B. Validity of the first Warrant, Warrant No. 27818, From Which All Ensuing Warrants Depended The standard of review for assessing the validity of a search warrant is well known. A reviewing court must determine whether there was a substantial basis for the magistrate to find probable cause to issue the warrant. (//linois v. Gates (1983) 462 U.S. 213, 238-239; People v. Kraft (2000) 23 Cal.4" 978, 1040.) “Probable cause” consists in a “fair probability” that a crime has occurred and that °° ~Hegenroatheralso recited in his affidavit statements made by Westerfield to Detectives Ott and Keyser during a trip they took on February 5 with Westerfield to retrace his route in the desert over the weekend. (4 CT 823.) However,all statements made by Westerfield after Ott and Keyser took over the case were found by Judge Mudd to have been involuntary under the Fifth Amendment. (5E RT 1890-1891.) They were therefore excised from the affidavit. (SE RT 1894.) 72 evidence ofit will be uncovered in the person or place to be searched. (Gates, supra, at238; Bailey v. Superior Court (1992) 11 Cal.App.4" 1107, 1111.) The determination ofprobable cause is to be made on the basis of “the totality of the circumstances” presented in the information conveyedto the magistrate in the application for the warrant (Gates, supra, at 233; People v. Carrington (2009) 47 Cal.4" 145, 161), and, as may be seen in the summary ofthe first warrant, Mr. Westerfield’s failure ofthe polygraph examination stood out as a supposedly clear and unequivocal beacon ofincrimination. However, as noted in the introduction, the claim here is that polygraph evidence is incompetent for Fourth Amendmentpurposes. Fourth Amendmentprobable cause “is dependent upon both the content of information possessed by the police and its degree of reliability.” (Alabama v. White, supra, 496 U.S. 325, 330, emphasis added; People v. Bennett (1998) 17 Cal.4™ 373, 387.) Polygraph evidence doesnot qualify under this constitutional standard, and the impeachmentofthe warrant may begin with the examination ofthis issue. 1. Polygraph Evidence and Probable Cause a. Survey ofexisting law governing the use of polygraph evidence The forbidden status ofpolygraph examination results as trial evidenceis fairly notorious and well established. Forty-six states impose a per se bar on the use of polygraph evidenceorrestrict its admissibility to situations in which the parties have stipulated in advance that the examination results will be admitted at trial. (State v. A.O. (N.J. 2009) 965 A.2™ 152, 162; State v. Porter (Conn.1997) 698 A.2" 738, 773-774.) Only New Mexicoallows polygraph evidence without stipulation. (State v. A.O., supra, at p. 162; Lee v. Martinez (N.M.2004) 96 P.3" 291, 306-307.) Fourstates, after extensive experimentation with the admission of such evidence, rejected it in favor of a return to the traditional rule of inadmissibility. (State v. A.O., supra, at p. 162; Commonwealth v. Mendes (Mass.1989) 547 N.E.2™ 35, 41; State v. Dean (Wis.1981) 307 N.W.2"628, 653; 73 State v. Geier (N.C.1983) 300 S.E.2"! 351, 359-360; Fulton v. State (Okla.Crim.App.1975) 541 P.2" 871, 872.) The federal circuits had uniformly raised a per se bar to polygraph evidence at trial until relatively recently, when per se exclusions of any expert or scientific evidence was abrogated. (United States v. Scheffer (1993) 523 U.S. 303, 310-311 and fn. 7.) Underthe rule ofFrye v. United States (D.C. Cir.1923) 293 F. 1013, which, incidentally, was the first case to examine the competence ofpolygraph evidence and found it wanting, the test is whether the science or expertise in question has found acceptancein the relevant expert or scientific community. Now, under Daubert v. Merrill Dow Pharmaceuticals (1993) 509 U.S. 579, the trial court is vested with discretion to determine, in the specific case, whether the evidence in question is simply relevant and reliable. Nonetheless, even under Daubert, there is “no new enthusiasm”for polygraph evidence (United States v. Cordoba (9"Cir.1997) 104 F.3"225, 228), and “even when presented with an opportunity to admit polygraph evidence, most [federal] district courts are decidedly reluctant to do so.” (State v. Porter, supra, 698 A.2"4 739, 776-777.) In California, before the enactment of the Evidence Code, polygraph evidence wasassessed under the Frye standard andits California equivalent, People v. Kelly (1976) 17 Cal.3™ 24, and was barred from useattrial absent a stipulation. (People v. Wilkinson (2004) 33 Cal.4™ 821, 844.) In 1983, in response to one court of appeal’s flirtation with allowing thetrial court to entertain the possibility of admitting polygraph evidence on a proper showing of relevance and probative value (Witherspoon v. Superior Court (1982) 133 Cal.App.3”24, 30-35), the Legislature enacted Evidence Code section 351.1, reinstating the per se bar on the use ofpolygraph evidenceattrial absent a stipulation. (People v. 74 Espinoza (1992) 3 Cal.4" 806, 817-818; Peoplev. Kegler (1987) 197 Cal.App.3" 72, 89-90.) The United States Supreme Court, in United States v. Scheffer, supra, 523 U.S. 303, has held that state and federal jurisdictions not governed bythe federal rules of evidence are free of any federal constitutional restraint to imposea per se bar on polygraph evidence becauseofits unreliability. (United States v. Scheffer, supra, 523 U.S. 303.) This Court, following Scheffer, has upheld Evidence Code section 351.1 as constitutional, justified by the unreliability ofpolygraph evidence (People v. Wilkinson, supra, 33 Cal.4™ 821, 850; People v. Maury (2003) 30 Cal.4™ 342, 414) -- a conclusion it had reached even in advance of Scheffer. (People v. Espinoza, supra, 3 Cal.4" 806, 817.) Only just recently this Court has emphasizedthat the bar against the use of this type of evidenceat trial is categorical: “Thestate’s exclusion ofpolygraph evidence is adorned with no exceptions andits stricture on admission of such evidence has been uniformly enforced by this court and the Court of Appeal.” (People v. McKinnon (2011) 52 Cal.4th 610, 663.) In regard to Fourth Amendmentprobable cause,there is, it seems, an incipient trend toward acceptance ofpolygraph evidence, especially in the federal courts (see Cervantes v. Jones (7" Cir.1999) 188 F.3rd 805, 813, fn. 9) andina scattering of state courts. (State v. Henry (Kan.1997) 947 P.2™ 1020, 1027-1028; State v. Clark (Wash.2001) 24 P.3™ 1006, 1015; Johnson v. State (Tex.App.1988) 751 S.W.2" 926, 929.) Onestate,Illinois, has expressly barred the use of polygraph evidence for all purposes, including that of establishing probable cause. *’ Evidence Code section 351.1(a) provides: “Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any referenceto an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.” 75 (Cervantes v. Jones, supra, 188 F.3" 805, 813, fn. 9; People v. McClellan (Ill_App.1992) 600 N.E.2™ 407, 415; People v. Booker(Il.App.1991) 568 N.E.2"™ 211, 218; People v. Haymer(Ill_App.1987) 506 N.W.2™ 1378, 1384.) But perhaps as a testament to an instinctive restraint in the use ofpolygraph evidence, there are simply not many cases from around the country from which to generalize a consensus. In California, there is only the dictum — a rather pale dictum at that — in People v. Lara (1974) 12 Cal.3™ 903. In Lara, this Court suggested that polygraphresults can be used for purposes ofprobable cause. (/d., at p. 909.) Lara was a second capital appeal after remandandretrial of the penalty phase. (Id., at p. 905.) The defendant nonetheless re-raised the guilt phase issue of lack ofprobable cause, proffering a new argumentthat the investigating officer should not have been allowedto testify at the suppression hearing that a material witness to probable cause had passeda “lie detector test,” which substantiated this witness’s credibility for the officer. Ud., at p. 909.) This Court’s initial reaction wasto doubt whetherthe issue was properly raised: “Althoughthere is considerable question whether defendant may properly make these points in the present proceeding[citation], we need not resolve the matter becausethe points themselves are without merit.” (/bid.) On the merits, “whatever may be the rule on admissibility of the results of a polygraphtest as evidence of guilt — a question wedo not reconsider today — weare cited to no authority holding such collateral use of the test for investigative purposes to be improper.” (/bid.) In any event, Lara wenton,in the first appeal, this Court had “placed no reliance on the foregoing testimony in determining [in the first appeal that] there was probable cause for the defendant’s arrest. [Citation.].” (bid.) If one may sum upthe discussion ofthis issue in Lara: there was no authority to support a contention that was probably not even properly before the Court in the instant appeal, and whosefactual predicate wasirrelevant to the Court when the matter had been properly before it in a previous appeal. This can hardly 76 be deemed a serious examination of the question. Some dictum is so casualthat it is obviously not intended to provide future guidance or authority. (See People v. Lozano (1987) 192 Cal.App.3™ 618, 632-633.) Whenthe dictum is issued by the very Court that provides supreme guidance and authority to the other courtsin this state, then there is no substantial reason for not re-examining the question properly and in detail. ® b. Polygraph evidence,if unreliable, is unreliable for purposes of probable cause. The rationale for justifying the use of polygraph evidence in a Fourth Amendment context has been formulated as follows: “The fear that a jury may overestimate the probative value of such evidence when considering an individual's guilt or innocence-- the factor that led some courts to preclude and other courts to limit the use ofpolygraph examsas evidenceattrial -- is absent when a magistrate relies on such an exam to determine whetherthere is probable causeto issue an arrest warrant. Unlike a lay jury, a magistrate possesses legal expertise; when determining probable cause, he is unlikely to be intimidated by claimsofscientific authority into assigning an inappropriate evidentiary value to a polygraphreport or to rely excessively onit. “A magistrate, moreover, may determine probable cause from evidence inadmissible at trial to determine guilt. [fn. omitted.] The preliminary nature of the probable-cause determination, as well as the magistrate's expertise in evaluating the evidenceto reach that decision, permits the issuance of an arrest warrant on ‘muchless evidence’ than is required to convict an individual. [Fn. omitted.] Thus, ‘probable cause may be founded upon hearsay’ or ‘upon information received from informants’ -- evidence circumscribed at trial -- if ‘the information put forth is believed or appropriately accepted by the affiant as true.’” (Bennett v. Grand Prairie 5" Cir.1989) 883 F.2"4 400, 405.) °° Along the samelines, ifLara can be deemed a “ruling,” this Court has the powerand authority to reconsider it in any event. 77 Thus, there are two basic reasonsfor allowing polygraphresults for establishing probable cause. Thefirst is that an experienced magistrate, as opposedto a lay juror, will not be misled or overmatched by the aura ofscientific competence emanating from the claims for polygraph evidence. The secondis that probable cause requires less rigorous evidence than the standards ofproof and evidentiary competence usedat trial. A rebuttal, then, must address both rationales. The question whetheror not there is any specific legal expertise that enables a judge or lawyer to penetrate the ever unresolved dispute as to the scientific competency ofpolygraphresults will be discussed below; butfirst,it will be useful to demonstrate the fallacy of the rationale based on the lesser burden ofproof required for probable cause determinations. It will be helpful to begin with a clear idea ofwhat the probable cause standard is. As with many other elemental concepts, the meaning of “probable cause” becomesclearer with a negative gloss as to whatit is not: it is not suspicion, or even a reasonable suspicion such as would warrantfurther investigation. (Alabama v. White, supra, 496 U.S. 325, 331; People v. Huggins (2006) 38 Cal.4" 175, 242; People v. Bennett, supra, 17 Cal.4" 373, 387.) Rather, it is a level of proof that renders it “substantially probable”that the suspectis guilty of a crime or that evidenceofthis will be found in the premises to be searched. (People v. Carrington, supra, 47 Cal.4" 145, 161, emphasis added, internal quotation marks omitted.) Probable cause, as already noted, is a matter not merely of a certain quantum ofevidence;it is a matter of the quality of that evidence, which meansits inherent reliability. (Alabama v. White, supra, 496 U.S. 325, 330.) Reliability, like other evidentiary qualities, such as substantiality or credibility, either inheres in a piece of evidence to some extent or degree orit is completely absent. In other words, whatis insubstantial is not substantial to any extent or degree; whatis 78 incredible is not credible to any extent or degree; and what is unreliable is not reliable to any extent or degree. Indeed, the absence or lack of these evidentiary qualities constitute a deficiency regardless of the standard of review thatis applied. (See Sabbah v. Sabbah (2007) 151 Cal.App.4™ 818, 823 [“A reviewing court applies the substantial evidence standard or reviewto a trial court’s factual findings, ‘regardless of the burden ofproofat trial.’”.]; see also Otonoye v. United States (E.D.N.Y.1995) 903 F.Supp.357, 363, fn. 8 [“Because of the serious question of plaintiffs credibility in this case, my findings would not change regardless of the burdens ofproof and persuasion applied.”].) Thus, if-polygraph evidence were in any wayreliable, there would be no objection to admitting it as evidenceat trial, even if the overall standard governing the proceeding is the rigorous and demanding proof beyond a reasonable doubt: “.. The relevancy of proffered proof in a criminal case depends upon whetheror notit tends to sustain a legitimate hypothesis of guilt [or innocence] of the defendant and, generally speaking, an incidental fact is relative to the main fact in issue when, in accord with the ordinary course of events and common experience, the existence of the incidental fact, standing alone or when considered in connection with other established facts, tends in some degree to make the main fact in issue morecertain. It is not necessary that the incident fact should bear directly upon the main fact in issue, for it will suffice as a pertinent piece of proofif it can be said to constitute a link, however small, in a chain of evidence, and tends thereby to establish the existence of the main fact in issue.” (People v. Billings (1917) 34 Cal.App. 549, 552-553, emphasis added; see also People v. Torres (1964) 61 Cal.2"! 264, 266.) 79 Without someprobative value “however small”, evidenceis notfit for use whether the standard is proof beyond a reasonable doubt or proof enoughto establish probable cause.” But if logical analysis refines a question, it does not answerit, and whether or not polygraph evidenceis atall reliable must be resolved by a resort to experience and reality. As seen from the foregoing there is indeed a good deal of judicial experience to draw uponin resolving this question, and it has not been favorable to the use ofpolygraph evidencein regardto trial. To explain clearly why this samedistrust is warranted in the realm of probable cause, one mustfirst give a summary ofthe theory and practice ofpolygraph technique. The polygraph machinerecords certain physiological responses such as blood pressure, pulse rate, respiration, and flow ofelectrical current through the body, which are measured by a cardiosphygmograph, a pneumograph, and a galvanometer, respectively. (State v. Porter, supra, 698 A.2" 739, 759; State v. Dean, supra, 307 N.W.2"4 629, 632; see also People v. Kegler, supra, 197 Cal.App.3rd at p. 86, fn. 2.) “There is no question that a high quality polygraph is capable of accurately measuring the relevant physical characteristics.” (State v. Porter, supra, at p. 760.) But whether and whatcorrelation there is between a physiological response and deception is highly problematical. Indeed, “there is no reason to believe that lying producesdistinctive physiological changes that characterize it and only it. .. . There is no set of responses — physiological or °° This is undoubtedly whythereis little discussion in the Illinois cases about the reasons polygraph evidenceis barred in that state for purposes ofprobable cause: the matter is taken for granted from the general rule that polygraph evidenceis inadmissible at trial. (See People v. McClellan, supra, 600 N.E.2"4 407, 415; People v. Booker, supra, 568 N.E.2™ 21 1, 218; People v. Haymer, supra, 506 N.E.2™ 1378, 1384.) Indeed,it is worth noting that New Mexico,the only state that allows polygraph evidenceattrial solely within the discretion ofthetrial judge, cites as one of the reasons the fact that polygraph evidence can be used for purposesof establishing probable cause. (Lee v. Martinez, supra, 96 P.3"* 291, 306.) This too represents a self-consistent position. 80 otherwise — that humans omit only whenlying or that they produce only when telling the truth .... No doubt when wetell a lie many of us experience an inner turmoil, but we experience similar turmoil when weare falsely accused ofa crime, when weare anxious about having to defend ourselves against accusations, when we are questioned aboutsensitive topics --- and, for that matter when weare elated or otherwise emotionally stirred.” (/bid., internal quotations omitted.) Thus,it is incumbent on the examiner to design and implementthetest in such a way that it is properly linked to the subject’s deceptiveness, and not just to his nervousnessor other unrelated emotional responses. (/bid.) The “control question test” is the technique most often used in criminal investigations to facilitate this goal. (/bid.) It operates on the theory that fear of detection causes psychological stress. The procedure followed in this type of testing goes roughly as follows: In a pretest interview, the accuracy andreliability of the polygraphis emphasized in order to aggravate the deceptive subject’s fear of detection and to calm the innocent subject. The exam questions are reviewed to minimize the effect of surprise. And then the actual control test occurs, consisting of a sequence often to twelve questions repeated several times. There are three types of questions to be answered yes or no: neutral; relevant; and control. (/d. at pp. 760- 761.) The “neutral” question seeks an affirmation or negation on such anodyne matters as the examinee’s name, date of birth, and the like. The “relevant” question is accusatory and seeks an affirmation vel non on a matterdirectly related to the crime in question andis tailored to remove any ambiguity: “Did you take that diamond ring from a desk in the Behavioral Sciences Building on July 1?” A control question seeks affirmation vel non of a generalized question thatin fact is difficult to affirm or deny: “During the first twenty-four years of yourlife, did you ever take something that did not belong to you?” (/d., at pp. 760-762.) The supposed effectiveness of the “control question technique”lies in the difficulty of the “control question” for even an innocent subject. The technique 81 requires “that the examiner, during the pretest interview, manipulate the subject into both (1) lying on the control questions, out of fear that he examiner will otherwise react negatively to the subject’s prior antisocial conduct, and (2) fearing that this same deception will taint the entire exam.” (/d., at p. 761, fn. 42.) Thus, whetherthe subject is innocent or not, he or she will exhibit stress, but the innocent will exhibit more stress in response to the control question while the guilty will exhibit more stress in response to the relevant question. (/d., at p. 761- 762; see also Commonwealth v. Mendes, supra, 547 NE.2™35, 39.) This removes the need for some absolute correlation between a subject’s physiological response and his supposed veracity or mendacity. “The art of the polygrapherlies in composing control and relevant questions that elicit the appropriate relative responses from truthful and deceitful parties.” (State v. Porter, supra, 698 A.2™at pp. 761-762.)° In speaking ofthe “art of the polygrapher’, however, something more than technical competence appears to be required: “The examiner's training, competence, integrity and conduct during the test is as critically importantto the reliability of the polygraph as the machine and the examinee. The examiner must obtain background information on the crime and the examinee; must screen out the psychologically or biologically unsuitable examinee; must conduct a pre-test interview; must prepare the test questions; must supervise the environmentofthe test to eliminate distortive influences; must ask the questions during the examination; must conduct a post-test interview; and mustinterpret the results of the test. A crucial part of the testing and of the interpretation of the physiological data is the examiner's evaluation of the examinee's °° There are other techniques such as the “guilty knowledge” test, which measures cognitive reactions of a subject supposed to possess concealed knowledge ofthe crime (/d., at p. 763, fn. 45), and the relevant-irrelevant technique, whichis the “control technique” without the control, and which is fairly unanimously rejected in the literature, although some polygraphersuseit. (/d, at p. 762, fn. 43.) 82 visible behavior, such as squirming, coughing, sniffing, and hesitancy.... “The determination of truth or deception cannot be made directly from the examinee's verbal responses or from the recordings ofthe machine but rather depends on the examiner's interpretation and analysis of the physiological changes measured and recorded on the charts. The analysis of the chart requires establishing timing between stimulations and responses, accounting for idiosyncrasies of the examinee as well as usual or unusual physiological responses due to anger, anxiety or other emotions. The examiner's analysis of the charts is not based merely on the recorded physiological measurements but on the examiner's subjective impressions of the outward behavior of the examinee. Thus while the polygraphis envelopedin an aura ofscientific precision and objective measurement ofbody responses, in large measure the result of the polygraph is dependent on the opinion of the examiner, and that opinion is drawn from a process whichis almost completely in the control of the examiner.” (People v. Kegler, supra, 197 Cal.App.3™ 72, 87, fn. 2, quoting State v. Dean, supra, 307 N.W.2"™ 628, 632- 633.) Indeed, the ideal attributes of a competent polygrapher have been described in rather non-technical terms as those of a person of somesocial standing, well adjusted in his work, experienced in the ways ofthe world, and graced with affable manners: he or she “must be an intelligent person, with a reasonably good educational background — preferably a college degree. He should have an intense interest in the work itself, a good practical understanding ofhumannature, and | suitable personality traits which may be evident from his otherwise general ability to ‘get along’ with people and to be well liked by his friends and associates. No amount oftraining or experience will overcomethe lack of these necessary qualifications.” (d., at p. 633, fn. 4, quoting Reid & Inbau, Truth and Deception 304-305 (2™ ed. 1977.).) The severe doubts as to the reliability of the mechanical, technical, and scientific aspects of the polygraph examination to correlate with human 83 truthfulness and deception, have led to the conclusion that the accuracy of the polygraph is nothing morethan the talent of the polygrapher reading the demeanor and intuiting the credibility of the subject he or sheis directly able to observe under probing questions: “ ,. [W]e do not dispute that polygraphers may often reach a correct conclusion regarding a subject’s guilt or innocence. [Fn. omitted.] We conclude, however,that this fact, in and ofitself, is irrelevant. Asillustrated in part II B 2 of this opinion,the ability of the polygraph techniqueto tell whether a subject is lying ortelling the truth is still highly questionable. Thus, one cannot say with any degree of certainty that a polygrapher’s ultimate conclusion about a subject’s veracity is in fact based upon the polygraph machine — that is, based upon science. It is just as likely, if not more likely that a polygrapher’s conclusion will be based either on chance or on his or her general impressions of the subject’s credibility. An assessment ofwitness credibility based simply on chance oron intuition is not, however, admissibleat trial. [Citation.] Indeed, forming impressions and intuitions regarding witnesses is the quintessential jury function; moreover, to the extent possible, luck should be excluded from the assessment processaltogether.” (State v. Porter, supra, 698 A.2™ 739, 771.) Thus, extra-mechanical human judgment cannotbe separated from the polygraph results nor can the polygraph results be shown to be independentofthat human judgment. In short, the polygrapher doeslittle more than humanly assess the subject’s demeanor. Ifjurors or judges in a trial do also do this (see People v. Adams (1993) 19 Cal.App.4" 412, 438), their impressions are conjoined to evidence carefully screened to remove hearsay andall that is irrelevant and misleading. The polygrapher’s hunchesor suspicions, or even articulable suspicions, predicated on observations or statements by the subject during the interview do not exist in such an evidentiary context. They either emanate from, 84 or are measured against, his machines and his convoluted system of test questions. Thereis in all this a false certitude that exceeds the level probable cause, while, in reality, the hunches and suspicionsofthe polygrapher are in themselves insufficient to meet even that standard. (Florida v. Royer, supra, 460 U.S. 491, 498; People v. Dolly (2007) 40 Cal.4" 458, 463.) c. Special competence of magistrate to assess polygraph evidence. What, then, of the supposedability of a judicial officer to see through polygraph evidence as a second rationale for submission of such evidence to a magistrate in a warrant application? Ifthe “expertise” of the magistrate amounts to his or her having been schooled in the law’s attitude toward polygraph evidence, one might well question whether this perspicuity is confined to lawyers and judges, since it seems widely knownthat polygraph evidenceis not admissible in court. In any event, this distrust does not provide the magistrate or judge or lawyer with any positive standard by which to judge polygraph evidence in general or in a specific case. How couldit possibly do so, when “the scientific community remains extremely polarized aboutthe reliability ofpolygraph techniques” (United States v. Scheffer, supra, 523 U.S. 303, 309; see Collier v. Reese (Okla. 2009) 223 P.3" 973, fn. 18), and has been so for the 87 years since the Frye decision in 1923? The experience under the Daubert standard in the federal courts is not leading to any significant changein the situation. The termsofthis impenetrability has been well-rehearsed in the case-law. A distillation of the literature that purports to study the matter “scientifically” has reachedthe level of legal stereotype: “The contentions of respondent and the dissent notwithstanding, there is simply no consensus that polygraph evidenceis reliable. To this day, the scientific community remains extremely polarized about the reliability ofpolygraph techniques. [Citation.] Some studies have concluded that polygraphtests overall are accurate and reliable. See, e.g., S. Abrams, The Complete 85 Polygraph Handbook, 190-191 (reporting the overall accuracy rate from laboratory studies involving the common‘control question technique’ polygraphto be ‘in the range of 87 percent’). Others have found that polygraphtests assess truthfulness significantly less accurately — that scientific field studies suggest the accuracy rate of the ‘control question technique’ polygraphis ‘little better than could be obtained by the toss of a coin,’ that is, 50 percent. See Iacono & Lykken, The Scientific Status of Research on Polygraph Techniques: The case Against Polygraphy Tests, in 1 Modern Scientific Evidence ... .” (United States v. Scheffer, supra, 523 U.S. 303, 309-310; see also People v. Wilkinson, supra, 33 Cal.4" 821, 850-851; Commonwealth v. Mendes, supra, 547 N.E.2™35, 39.) The 87 percent number, which represents the number advanced by proponents favorably disposed to polygraph evidence,refers to the rate of accuracy for those found deceptive, which leaves a 13 percentfalse positive rate, i.e., subjects found truthful whoare deceptive. (State v. Porter, supra, 698 A.2"™ 739, 764-766.) Even more disturbing, however, is the 41 percent false negative rate, i.e., innocents found deceptive. (/d. at p. 766; see also Commonwealthv. Mendes, supra, 547 N.E.2"™35, 39 [The experts in this case agreedthat the rate of innocents misidentified as guilty is roughly twice the rate of guilty subjects who passthetest.”’].) Is 87 percent accuracy for guilty subjects, or 59 percent accuracy for innocent subjects —- numbers found overwhelmingly wanting for purposesoftrial- - good enoughfor probable cause? It is difficult to see how they can be. Even these dismal percentages do not fully reveal the deficiencies of the polygraph approach, because an accuracyrate in the form of a percentage or number presupposes an independent wayto assesscredibility in order to verify the result of a polygraph examination, and there is no such tool available. The proponents of the use ofpolygraph evidence acknowledge thatfield studies are preferable in this regard, but admit that they are beset with the difficulties of determining actual guilt vel non of an actual subject. They puttheir faith, however, in what they 86 deem to be laboratory studies well designed to approximate field conditions. (State v. Porter, supra, 698 A.2™ 739, 764-765.) Critics ofthis argue that laboratory simulation is almost completely invalid. The accuracy of the polygraph depends on the subject having the “right” emotional responses, and these cannot be assured wherethere is no real threat or punishmentat stake for the volunteer subject in the lab, whois likely to view the matter as an “interesting game.” (/d., at p. 766.) If the question remains impenetrable to scientific expertise, what specifically does legal expertise add to the issue, whether in generalor in a specific case? How will a magistrate, who operates under far more pressing circumstancesthan a trial judge or juror, assess the value of a specific polygraph test based on a hearsay ex parte showing, when the impossibility of doing so ina more leisurely adversarial setting has led to the prevalence of a per se bar, whether dejure or de facto, of this evidence in almostall jurisdictions? Even if the magistrate’s probable cause determination is subject to a less stringent standard than the jury’s credibility determination, that does not mean that the magistrate is relieved of applying any standard at all. And, as indicated above, there simply is no valid standard ofreliability in the polygraph context. The impenetrability of polygraph evidence is what it is, and the magistrate, in reality having no better tools to assess the polygraph evidence than a jury, either rejects the polygraph evidence as meaningless for purposes ofprobable causeor acceptsit as establishing probable cause ipsofacto. If he imaginesthat he is using the polygraph evidence carefully in some subordinate or corroborative role to other information, he is adding a false weight that will defy any possibility of meaningful review. The conclusionis clear: there is no adequate rationale for the 87 use ofpolygraph evidence for probable cause that vouchsafes that evidence under the Fourth Amendment.” The polygraph issue is but an example of the recurring question of the ability of science to quantify the qualitative aspect of evidence of human action and interaction. Forif it can be done, then even 59 percent should be good enough for admissibility at trial, even when the burden is proofbeyond a reasonable doubt, since, as noted above,a discrete fact in a case does not require much weight in itself. (People v. Billings, supra, 34 Cal.App. 549, 552-553; see also People v. Torres, supra, 61 Cal.2"" 264, 266.) But if one were to draw the proper inference from the previous judicial experience with polygraph evidence,it is that one simply cannotattach a significant numberto whatis not susceptible to number, and that the errors of polygraph science confirm this fact. What used to be denominated as “moral evidence” (Victor v. Nebraska (1994) 511 U.S. 1, 11), 1e., evidence whosesignificance reveals itself “in light of human experience” (People v. Adamson (1946) 27 Cal.2"! 478, 485), is suffused with “the countless nonmathematic variables that exist in reality” (People v. Cella (1983) 139 Cal.App.3 391, 406) — a reality that includes the unquantifiable and enduring experience of “humanerror” and “falsification.” (People v. Collins (1968) 68 Cal.2"? 319, 330-331.) Although the debate over polygraph evidence is conducted in terms of technical considerations based onscientific assumptions, this does not mean that those terms and assumptions meaningfully illuminate matters that the 61 One also wonders how much “experience” regarding polygraph examination is to be garneredin a legal or judicial career in a country where polygraph evidence is disfavored or barred per se. The instant case is fodder for skepticism in this regard. Judge Bashant indeed queried Detective Alldredge regarding the polygraph questions asked by Redden. Although Reddenusedthe “control” technique, Alldredge’s version ofwhat Redden asked allowed only for the conclusion that Redden had used the universally rejected “relevant-irrelevant” question technique ofpolygraph examination. (State v. Porter, supra, 698 A2™at p. 762, fin. 3; see above p. 82, and fn. 60.) That anyone even lightly versed in the polygraph controversy passed over this without commentis remarkable. 88 judicial system always has treated, and will continueto treat (as the widespread rejection ofpolygraph evidencefortrial shows), as subject to the rational judgment of mature and autonomouscitizens. Any supposed mechanization ofthe processis not only averse to the premisesofa trial, but to those of the Fourth Amendment, whichrequire a “fair probability” that a crime has occurred and that evidence ofit will be uncovered in the person or place to be searched. (//linois v. Gates, supra, 462 U.S. 213, 238-239; People v. Kraft, supra, 23 Cal.4" 978, 1040.) As is evident from the preceding description of the judicial analysis of polygraph science, and particularly from the 41% false negative rate for innocent persons, polygraph evidenceis very far from supporting a “fair probability.” If there was probable cause to support the issuance of the first warrant in question, then it had to exist apart from Mr. Westerfield’s failure of the polygraph examination. 2. Probable Cause for Warrant No. 27818, without Polygraph Evidence A reviewing court must determine whether there was a substantial basis for the magistrate to find probable cause to issue the warrant. (/linois v. Gates, supra, 462 U.S. 213, 238-239; People v. Kraft, supra, 23 Cal.4" 978, 1040.) Again, “probable cause” consists in a “fair probability” that a crime has occurred and that evidenceofit will be uncovered in the person or place to be searched. (Gates, supra, at p. 238; Bailey v. Superior Court, supra, 11 Cal.App.4™ 1107, 1111.) Itis not, again, mere suspicion, or even such reasonable suspicion that would provide a warrant for further investigation. (Alabama v. White, supra, 496 USS. 325, 331; People v. Huggins, supra, 38 Cal.4™ 175, 242; People v. Bennett, supra, 17 Cal.4™ 373, 387.) Without the polygraph information, whatin the balance ofDetective Alldredge’s telephonic affidavit to Judge Bashant supports a finding ofprobable cause in this case? Alldredge’s application for the first warrant has been summarizedin full detail. Westerfield caught the special attention of the police because of the 89 coincidence of his absence and of Danielle Van Dam’s disappearance. But apart from the coincidence, a weekend absence betokens nothing so remarkable as a vacation. But Mr. Westerfield’s vacation, as he related it to the police, was somewhateccentric and turned out not to be what most people would find leisurely paced for relaxation. But vacations go wrong;different people travel differently; and however far from home one goes, one’s idiosyncrasies go too. There was the further coincidence of Westerfield’s presence at Dad’s when Brenda Van Dam andherfriends were there on the eve of Danielle’s disappearance. But this was a neighborhoodbar on a Friday night — or as Alidredge hadit, on Saturday night.” The coincidence was augmented by the mid-week encounter with Brenda and Danielle, who was canvassing the neighborhoodto sell Girl Scout cookies, and by the encounter with Brendaat Dad’s where she had gone with the sameset of friends the previous Friday. Did Westerfield seek out these encounters? There wasa sense in Alldredge’s telephonic affidavit that these coincidences required fortification even at the low standard ofprobable cause. He therefore seemed to emphasize following details: 1) Whenpolice contacted Westerfield, he was “unusually” cooperative in helping them search his house ~ a search that did not turn up any suspicious or incriminating evidence (except for Westerfield’s “unusual” cooperation). FBI profilers, who were not able to provide a profile, nonetheless assured Alldredge that over-cooperation is something that occurs among nervous kidnappers or abductors whoare investigated by the police. (4 CT 753.) 2) The dog Hopi showed“interest” in Westerfield’s garage door, but did not give an “alert.” (4 CT 752, 760.) ® One wonders whether Judge Bashant noticed the incoherenceofthe dates and corrected it from what she knew through the pervasive media coverage. 90 3) Westerfield, to explain the “interest” of Hopi, speculated that Danielle may have goneinto the garage when she wasthere for the Girl Scout cookies, while Brenda Van Dam wascertain that Danielle had not gone into the garage. (4 CT 752-753, 754-755.) 4) Westerfield related to the police that Brenda, at Dad’s, had talked about Danielle’s upcoming father/daughter dance, while Brenda denied that she had ever mentionedit to anyone outside the family. (4 CT 751-752, 755.) 5) In his interview on the moming ofFebruary 4, Westerfield spontaneously stated to Detective Keene, that Brenda had said that a baby sitter, and not her husband, was watching the children, which , accordingto Alldredge was not common knowledge. (4 CT 756.) 6) Westerfield’s hose, which he had usedto fill his motor home on Saturday morning before leaving on his driving trip, was unfurled on the front lawn, although Westerfield, as evidenced by the condition ofhis house, was meticulously neat otherwise. (4 RT 756.) 7) Although Westerfield had related how he drove up to Skyridge on Saturday morningto retrieve his motor home,a neighbor had told the police that Westerfield’s motor home was parked by Westerfield’s house on Friday night. (4 CT 757.) 8) At Silver Strand, the blinds on Westerfield’s motor home were drawn shut; Westerfield did not answer the door immediately when the ranger knocked to return the overpayment; Westerfield stepped outside the motor home, closing the door behind him, to deal with the ranger; and Westerfield lingered outside to watch the ranger drive off after the latter had completed his errand. (4 CT 756-757.) 9) Westerfield, in relating his return to San Diego from Borrego Springs, used the first person plural pronoun to say “we drove back to 91 Silver Strand,” though this usage was pointed out to him, he deprecatedit as a simple slip of the tongue. (4 CT 758.) 10) The FBI profilers who had been unable to come up with a profile also assured Alldredge that most abductors are males, who are usually acquainted with the victim’s family or wholive nearby the victim’s residence. Alldredge himself added in this regard that Westerfield’s house was similar to that of the Van Dams. (4 CT 754.) If this list seemsat first glance to be impressive for its length, closer examination reveals that it is little more than a garrulous quantity of suspicious, quasi-significant, and insignificant information. The supposed over-cooperation of a householder with no criminal record, confronted the first thing in the morning with a large numberofpolice officers at his doorstep, or his unfurled hose on a neatly kept lawn,are virtually meaningless; the dog Hopi, who could not be questioned, showed an “interest” but not an “alert” in the vicinity ofwhere Danielle Van Dam had been only a few days earlier when she wasselling Girl Scout cookies; Westerfield’s rendering of a speculative explanation in the face of police officer at least impliedly demanding an accounting from him is completely unremarkable; the rather unremarkable insights of the FBI profilers were given a good deal of room in the application, yet they could not even come up with a profile. All this, combined with Westerfield’s unusual activity over the weekend, or even his (perhaps) false statements as to when he obtained his motor home, or his use of “we”at one point in his narrative may have provided suspicion, but noneofthis, taken singly or all together in the totality of the circumstances, provided a substantial basis on which to find probable cause. (See Florida v. Royer, supra, 460 U.S. 491, 507.) Some measure ofthe deficiency of the showing here may be derived from an examination of other cases in which courts have rejected the finding of probable cause under circumstances in which the coincidences and suspicious facts were much morepressing than those presented here. 92 In Miley v. State (Ga. 2005) 614 S.E.2™ 744, the dead body ofAshley Neves was found on May 21. A warrant for the search of Miley’s house recited that Miley wasidentified as the last person seen with Neves on May 20. Thekiller had removed someofher clothing from the scene, and Miley had been seen with a book bag in the area in which the murder had been committed. Miley had told police he was willing to bring the book bag out to them, but refused to consent to their entrance into his houseto retrieve it and to conduct a search. (/d., at pp. 744- 745.) The Georgia Supreme Court foundthis insufficient to establish probable cause. First, the refusal to consentto a search had no evidentiary weight as a matter of law, since such a refusal wasa valid exercise of a constitutionalright. (id. at p. 745.) As to Miley’s being the last person seen with Nevesonthe date, time, and place ofher death, and that he had a book bagat that time: “These assertions were insufficient to show probable cause to believe Miley wasthe perpetrator, because they failed to detail how close to the time of the murder’s commission Miley had been seen with the victim, because they failed to describe the circumstances under which Miley andthe victim had been seen together, and because an innocent person could have had a book bagat the unspecified scene of the murder.” (/d., at p. 745.) If having a book bag is more seemingly innocent than an unusualdriving trip or the use ofthe first person plural pronoun, the trip and the pronoun were simply a bit unusual, and more than compensated for by the fact that here Mr. Westerfield, unlike Mr. Miley, was not the last person seen with Danielle Van Dam aroundthe time of her disappearance. If it is objected that that was because he took pains to hide her from sight, this is a circular speculation that applies to Miley, who,ifhe was the murderer, took pains to hide this fact. 93 People v. Dace (Ull.App. 1987) 506 N.E.2™332is also instructive. In Dace, the body ofRoseleen Kilcoyne was found onthe floor of Rudy’s 700 Club in Joliet, Illinois on February 21, 1985 at 7:40 a.m. (/d., at p. 333.) A warrant was issued to take teeth impressions from defendant to see if they matchedthebite marks on the victim’s arm. (/d. at p. 335.) To support the issuance of the warrant, it was stated in the affidavit that the defendant wasthe last person knownto be present with the victim at the club while she wasstill alive in the early morning hours of February 21. Further, defendant had been interviewed on February 28, and he told police that he was in fact the last person in the club besides the victim, and that while he wasthere he entertained thoughts of having sex with her. (/d. at pp. 335-336.) The Court in Dace rejected the lower court’s finding ofprobable cause for the warrant. The fact that defendant wasthe last person with the victim in the early morning hours of February 21, and that he may have contemplated having sex with her, “may have given the police reason to suspect that he was involved in the homicide,” but “suspicion . . .does not constitute probable cause.” (Id., at p. 337.) Dace seemsto establish an even stronger connection between the suspect and the crime than the facts in Miley did, and even if, in Dace, one might disagree with the court’s conclusion regarding whetherthese facts do rise to the level of probable causeor not(see id. at p. 338, Heiple, J., dissenting), nonetheless this ambivalence that makes Dacedifficult is still illustrative ofwhat makesthis case easier. Mr. Westerfield was not the last person seen with Danielle Van Dam;there wasno information establishing a particular relationship between Mr. Westerfield and Danielle Van Dam; and there was no evidence of a motive that could be imputed to Mr. Westerfield for abducting Danielle Van Dam. In sum, both Dace and Miley provide an illuminating measureofthe deficiency of the application for the first warrant in this case to establish probable cause. 94 3. Probable Cause for the Remaining Four warrants With the failure of the first warrant, the others fall if they were derivative of this initial illegality, or, in the words of the metaphorical legal cliché, if they were the “fruit of the poisonoustree.” (Wong Sun v. United States, supra, 371 U.S. 471.) There can belittle doubt that they were. The second warrant, aimed at a search of Westerfield’s computers, was issued on the basis ofwhat was discoveredin “plain view” during the entry made possible by the first warrant. (4 CT 773-775.) The third warrant, to search Westerfield’s cell phone records, incorporated the applicationsfor the first and second warrants, and recited information derived from the searches conducted under those warrants. (4 CT 790, 794-799.) The fourth warrant, for Westerfield’s dry cleaning at Twin Peak Cleaners, also incorporated the applications for thefirst two warrants, and specifically relied on dry cleaning receipts discovered during the execution ofthe first search warrant. (4 CT 789-790, 794-799.) Finally, the fifth warrant incorporated the applications and results of the first two warrants and searchesto justify a second search of appellant’s house. (4 CT 821-822, 832-834.) Asis apparent from their respective incorporations, warrants 2 through 5 were entirely derivative ofthe first warrant, and the items seized pursuant to these warrants should also have been suppressed. C. The Good Faith Exception to the Exclusionary Rule Does not apply The lack ofprobable cause to support the warrants is not, of course, the last wordin the enforcement of the exclusionary rule. The Fourth Amendment exclusionary rule does not bar the use of evidence procured by officers acting in good faith reliance on a search warrant issued by a detached magistrate even if ultimately the warrant is found to be unsupported by probable cause. (United States v. Leon, supra, 468 U.S. 897, 922; People v. Willis (2002) 28 Cal.4" 22, 31.) This does not meanthat the exclusionary rule is abrogated ipso facto by the 95 warrant’s approval by the magistrate. The exception does not apply where the issuing magistrate had wholly abandonedhisjudicial role; or where “the affidavit wasso lacking in indicia of probable causeas to renderofficial beliefin its existence entirely unreasonable.” (/d., at p. 32, internal quotation marks omitted; People v. Camarella (1991) 54 Cal.3592, 596.)® It is this last category that is pertinent here. The determination, of course, depends on the specific facts of the case, and the burden is on the governmentto establish that the reliance of the officers on the magistrate’s finding ofprobable cause was objectively reasonable. (People v. Willis, supra, at p. 32.) Here, because ofthe finding of probable cause, the government wasnotcalled on to meet this burden below, but will have to meet it here on the appellate record. As with the issue ofprobable cause itself, the question of reasonable reliance resolves itself into two parts: 1) without the polygraph evidence, was the information presented sufficiently colorable to render the magistrate’s finding ofprobable cause dispositive for the reasonable officer; and if not, 2) was the magistrate’s implied approval ofpolygraph evidence to support probable causesufficiently colorable to save the warrant under the good-faith exception to the exclusionary rule? In discussing probable cause absent the polygraph evidence, appellant listed the ten salient points from Alldredge’s testimony before Judge Bashant and demonstrated that none of them individually nor taken as a whole emerged from the murk of even reasonable suspicion into the relative light ofprobable cause. 6 Another category of exemption from the good-faith rule coincides with the standard for traversal of a warrant, whereby the magistrate issuing the warrant had been intentionally or recklessly misled by the affiant as to key facts presented in support ofprobable cause. (United States v. Leon, supra, 468 U.S.at p. 923; see also Franks v. Delaware (1978) 438 U.S. 154.) There wasin this case a motion to traverse the warrant based on several falsehoods existing in Detective Allredge’s testimony in support of the first warrant. (3 CT 559, 562-564.) The court denied the motion after a hearing on the ground that there were no intentional falsehoods or any made with reckless disregard for the truth. (SE RT 1850.) 96 The deficiencies were both serious and obvious. Westerfield's supposedly unusual cooperation, the inarticulate “interest” of the dog Hopi coupled with his equally inarticulate disinterest in the motor home, the FBI profilers, who were unable to come up with a profile, except in terms of a rather anodyne generalization about male abductors familiar with the child, the wayward water hose, and Westerfield’s pronominal solecism in using the first person plural “we”for the singular “I” — all of these easily explicable facts, none ofthem of any real significance, apparently provided the backgroundfeeling of indiscriminate urgency on the part of the police forcing them to invoke quantities of obscurely equivocal “facts” in lieu of probable cause. But were the unusual driving trip and Westerfield’s supposedly unexplained knowledgeindicia ofprobable cause, whether alone or combined with the information contemnedin the previous paragraph? The unusual driving trip coincides in time with the disappearance of Danielle Van Dam,but, given the lack of any direct evidence showing the presence ofDanielle Van Dam in the motor home or Westerfield house, or of Westerfield in the Van Dam house,this only rises to the level of, at most, suspiciousness. What of Westerfield’s knowledge of the father/daughter dance? Alldredge strainedto assert that this information could only come from Danielle, and this was based on Brenda Van Dam’s characterization of this as some sort of family secret — a characterization patently absurd when talking about a public event at a local grammar school. And what of Westerfield’s expression of mild surprise that Damon was babysitting? If one ignores the media attention to this case, one cannot discount the fact that Brenda Van Dam wasin a crowded neighborhoodbar without her husband on Friday night, drinking, playing pool, and dancing. That somefriend or acquaintance mightask her, or Barbara Easton, or Denise Kemal, where Damon was washardly unlikely; nor was it unlikely that this information would be overheard by, or subsequently percolate to some extent among, other people in the bar who knewherwell, or casually, or even slightly. 97 This leads to the question of the polygraph. The recordin this case establishes in this regard that what Judge Bashant failed to see as a matter of law, the police grasped intuitively and reasonably from the fact that the evidenceis deemed unreliable to use in court: that polygraph evidenceis unreliable to use for probable cause. “The record”referred to is the evidence and testimony adducedin the combined evidentiary hearing on both Fourth and Fifth Amendment suppression in this case. One ofthe witnesses at this hearing was Paul Redden, the polygrapher. On cross-examination of Redden, defense counsel was attempting to establish, for Miranda and voluntariness purposes, the indicia of custody surroundingthe three hours Redden was with Mr. Westerfield, interviewing him and conducting the polygraphtest. There is one passage in that cross-examination that bears on the presentissue: “Q. ... And you communicated into the room [i.e., where the other officers were gathered] to all of the individuals your opinion,is that correct? “A. My opinion of the exam,yes,sir, that he had failed my test. “Q. Okay. ‘ The Fourth Amendmentsuppression issues were not only the motion to quash the warrants, which is the subject of this argument, it also included a motion to traverse the warrants for the use of false information in the affidavits. (3 CT 505, 556.) The Fifth Amendmentsuppression issues consisted of a claimed violation ofMiranda (Miranda v. Arizona (1966) 384 U.S. 436) and actual involuntariness. (2 CT 487.) The focus of the hearing was appellant’s almost continuous encounter with the police from 8:30 a.m. on Monday, February 4, 2002 until the morning of February 6, with the trial court suppressing as involuntary all statements made by appellant after Detectives Ott and Keyser came ontothe case at about 2 a.m. on February 5. (5B RT 1273; 5E RT 1890-1891.) The motionto traverse, as pointed out above(see fn. 63), was denied on the ground that the falsehoodsin the affidavit were not intentional or reckless. (SE RT 1850.) 98 “And your opinionthat, therefore, he may have been a suspect in the case. “A. I did not say a suspect. My opinion wasthat he had failed my test. I did not state that he was a suspect. “Q. What was the purpose in giving the exam,sir? “A. Was to determine whether or not he had any involvement or knowledge about the disappearance of Danielle Van Dam. “Q. And if he would have passed thetest, that would have been the end ofit, correct? . “A. That would have been the end ofit. “Q. But since he didn’t pass the tests, he then became a suspect, isn’t that right? “A. He could not be eliminated, that’s for sure, yes. “Q. One of the purposes of the polygraph as your agency uses it is as an investigative tool, isn’t that right? “A. Yes, sir. “Q. And one of the things you’re trying to develop or may develop as a result of the administration of the polygraph could be probable cause,isn’t that right? “A. Generallyprobable cause, the polygraph is generally not used as probable cause.” (5A RT 1180-1181, emphasis added.) The last answeris italicized because it seemsto establish the existence of a policy or practice or to use polygraph evidence to establish probable cause. Further evidence bears this out. Oneofthe detectives sent in to guard or interrogate Westerfield after Redden completed his polygraph exam and left was Jody Thrasher of the robbery 99 unit. (SA RT 1103-1104.) Aswill be seen in more detail below, once Westerfield failed the polygraphtest, he became concernedthathis relations with the police were now adversarial and was uncertain abouthis rights. Toallay his fears, Thrasher assured him that he could not be arrested on the basis of the polygraph evidence alone. (48 CT 11144-11145.) After Thrasherleft, Detective Parga returned with Detective Cramer. (5A RT 1129-1130.) Cramer,trying to interrogate Westerfield, who instead kept focusing onhis failure on the polygraph test, assured him that the police did not rely very much on the polygraphtest, and that it was “not something that could be used in court.” (48 CT 11155.) But the mosttelling evidence comes from Sergeant Holmes, the head of the homicide unit. Although Westerfield was allowed to go homeat 11:30 p.m. on February 4, long after the polygraph test had ended, he found himself barred from his house by officers who had secured it pending the issuance of a search warrant. (SA RT 1105; 5B RT 1361-1363.) As appellant was discovering the restrictions on his homecoming, the homicide unit was being called in to take the case over from the robbery unit. The homicide detectives were briefed, andafter the briefing, Sergeant Holmes dispatched Detectives Ott and Keyser to interview Mr. Westerfield. (SA RT 1193-1194; 5C RT 1542, 1549-1550; 5D RT 1699.) The following wasthe testimony of Sergeant Holmes: “Q. When youindicated that Mr. Westerfield wasa potential suspectat that initial briefing, what do you meanbythat? “A. Well the information we were givenat the briefing, the trip to the desert seemed not to make a lot of sense. The Silver Strand trip where he went downthere originally going to the desert, then the Silver Strand, then he left the Strand because it was cold, and drove back hometo the desert, all that didn’t seem to make a lot of sense. And then the fact that he failed the polygraph on being involved in Danielle Van Dam’s disappearance. 100 6s “Q. Did you indicate to your two detectives, Ott and Keyser, that they were supposed to place Mr. Westerfield underarrest? “A. No, sir. We didn’t have enough to arrest him.” (5D RT 1705-1706, emphasis added.) The question “Why not?” presents itself with urgency in the present context. Probable cause to arrest and probable cause to search require precisely the same quantum of evidence (Greene v. Reeves (6 Cir.1996) 80 F.3™ 1101, 1106), and although the question whether the person has committed the crime and the question whether evidence of a crime will be found can be different (ibid., United States v. Henderson (9" Cir. 2000) 241 F.3" 638, 648), sometimes they are identical. (People v. Temple (1995) 36 Cal.App.4" 1219, 1228; Filitti v. Superior Court (1972) 23 Cal.App.3™ 930, 934.) Here, probable cause to search the motor homewaspredicated precisely on the presence ofprobable cause to believe Westerfield had kidnapped Danielle Van Dam. Holmes’s testimonyis particularly significant in this context. He was an officer in a position of responsibility. He referred to the inadequacy ofprobable cause based notonly on the polygraph but also on the information conveyedin the briefing, which was taking place moreor less at the same time Alldredge was obtaining the warrant from Judge Bashant. In addition to this, by the time the homicide unit became involved, the District Attorney’s Office was already actively involved in this case, and undoubtedly commenting on the sufficiency of the aggregating evidence. (SA RT 1140-1141; 5E RT 1799-1800.) Again,it is respondent’s burden to establish the objective reasonableness of reliance on the magistrate’s approval of the warrant. (People v. Willis, supra, 28 Cal.4" 22, 32.) In doing so, he will have to address the points and considerations raised in the foregoing argument, which includesa refutation that the official position of law enforcementitselfwas that there was a lack ofprobable cause as of 101 the early morning hours of February 5, 2002 to arrest, and therefore (by necessary implication) to search. This, respondent cannot do. The application of the exclusionary rule is not prevented here by the good-faith exception. D. Underthe Totality of Circumstances, Appellant’s Consent to Search was not Consensual “(T]he search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment.” (United States v. Matlock (1974) 415 U.S. 164, 165-166; Florida v. Royer, supra, 460 U.S. 491, 498; People v. Panah (2005) 35 Cal.4" 395, 466.) It was noted above that when the homicide unit took over the case after midnight on February 5, Sergeant Holmes sent Detectives Ott and Keyser to Westerfield’s house to interview him. Butthat was not the only reason. He sent them to obtain from him a consentto search his house, his vehicles and the motor home. (5A RT 1195- 1196, 1202-1203; 5C 1567-1568; 4 CT 900-902.) This was the consentthat Judge Mudd foundto be knowing, intelligent and voluntary, and that justified that first search of Westerfield’s house even if the warrant was defective. (SE RT 1921- 1922.) However, Judge Mudd made anotherruling that seemsirreconcilable with this one. In holding that all of Westerfield’s statements made after Ott and Keyser appeared had to be suppressed on Fifth Amendment grounds (5E RT 1888-1890), Judge Mudd found that Westerfield was effectively in custody and, as a reasonable person, would not feelfree to leave: “When Detectives Ott and Keyser come along, they know he’s notfree to leave. They give lip service to it, but that’s all it is. Why do we knowthat. Numberone, he can’t go in his house. Numbertwo, he can’t stay in his car ’causeit’s the subject of the warrant. He can’t use his motor home. He can’t use histrailer.” (SE RT 1888.) In short, Judge Mudd foundthat Keyser and Ott used custodial coercion to produce an involuntary statement, and, 102 as noted in the above paragraph voluntariness vel non is the touchstone to determine whetheror not a consent to search was consensual. The standard by which a waiverof constitutional rights is measured as free and voluntary is uniform, regardless if the right is grounded in the Fourth or in the Fifth Amendment. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227; Ohio v. Robinette (1996) 519 U.S. 33, 40; People v. Zamudio (2008) 43 Cal.4" 327, 342.) A detailed examination of the record is necessary in order to understand how Judge Muddcould justify a ruling regarding the validity of the search that was so obviously dissonant with his ruling regarding the voluntariness of Westerfield’s statements, as such reasoning is not obvious. The matter will, unfortunately, be no more obvious, after such an examination, and the examination will reveal the error of his ruling regarding the validity of the search. The following is an account of the almost continual contact between Mr. Westerfield and the police from the morning ofFebruary 4 through the contact with Ott and Keyserin the early morning hours ofFebruary 5, when Westerfield signed a consent to search form. The facts presented at the combinedevidentiary hearings on Fourth and Fifth Amendment suppression motions will show that Westerfield’s exposure to the police, to their implied show offorce, to their air of authority and control over him, at some point beganto takeits toll, and he began to show only a grudging willingness to cooperate. When Ott and Keyser appeared, Westerfield’s willingness to cooperate was so attenuated that his signing of the consent-to-search form at that point was little more than an expression of helpless acquiescence and submission to the apparent authority of an inevitable search warrant that he had been informed was on its way. The facts will be summarized in accord with the segments ofthat day. 1. 8 a.m. to noon, February 4, 2002 Asnoted in the statement of facts (see above, p. 17), Westerfield was interviewed on Monday morning, February 4, on his doorstep by Detective Keene 103 from the robbery unit. Before that, at about 8 a.m., the Special Investigations Unit (SIU), whose assignment wassurveillance and assistance to other units, had been dispatched to detain Westerfield for questioning by the Robbery Unit. (SA RT 1023-1026; 5B RT 1393-1395.) Sergeant Wray, the head of the SIU team that was sent, was there, along with four other detectives from his team, and they all arrived in separate cars, which they parked in the front and side of his house. The SIU detectives then lingered around the driveway in front of Westerfield’s house, and this was the sight that greeted Westerfield when he emerged from his house that morning to retrieve the mail and was accosted by Sergeant Wray. When Keene and Pargaarrived, the SIU detectivesstill lingered in the driveway while Keene wasinterviewing Westerfield. The interview’s purpose, of course, was to have Westerfield account for his weekend activity, but before Keene’s formal interview, more than one of the SIU detectives engaged Westerfield in casual questioning in this regard. (5A RT 1025-1026, 1028-1033, 1066-1068, 1070; 5B RT 1396-1397, 1399-1400, 1411, 1419-1420, 1428-1424, 1450-1451, 1453-1456.) After the doorstep interview by Keene, Westerfield signed a written consentto allow the detectives to search his house and motor home. Westerfield was completely cooperative and showednohesitancy or reluctance in giving his consent. (5A RT 1071, 1087-1088; 5B RT 1457; 4 CT 895-897.) Westerfield guided them through the house, and after a ten minute search, he led a motorcade, consisting of one car with Keene and Pargain it, and then four other cars each containing one SIU detective, on a twenty minute drive to Skyridge Road where the motorhomewasparked. (5A RT 1089-1092; 5B RT 1404-1405.) After fifteen minutes of searching the motorhome, again with Westerfield’s cooperation, they all left, with the SIU detectives veering off to go to lunch, while Westerfield drove back to the house by a different route than that taken by Keene and Parga, whoarrived there before he did. It was now around noon, and Westerfield consented to a dog search of the house, which displaced him for about fifteen minutes, during which he gave an interview to the media gathered outside. 104 According to Keene and Parga, Westerfield appeared to enjoy talking to the press. (SA RT 1092-1099, 1146; 5B RT 1408-1409, 1456-1458, 1461-1466, 1499.) 2. 2:30 p.m. to 7 p.m., February 4, 2002 Keene and Parga, who hadleft Westerfield’s house to go to lunch, returned to Westerfield’s house shortly after 2:30 p.m. to ask if he would cometo the station to take a polygraph test. Keene said that the reason for the test was because some parts of Westerfield’s story did not make “a whole lot of sense.” Westerfield hesitated, expressing some diffidence because he did not know how a polygraph machine worked. Keenedid not know,but said that the polygrapher could explain it. With this, Westerfield agreed, but asked the detectives if they thought he needed an attorney. Parga told him he was not underarrest and was free to take the test or not. Keene told him that he, Keene, could not advise him one wayor the other, but assured Westerfield that he was free to consult an attorney. Westerfield gave the matter a moment’s thought, and then agreed to come down to the station, which he did in his own car. (SA RT 1099-1102; 5B RT 1466-1467; 5C RT 1500-1501.) At the station, Westerfield was introduced to Paul Redden, who wasto conduct the test. Redden explained how the polygraph worked, assured him that it was “very accurate,” and would discover whether or not he was involved in the disappearance ofDanielle Van Dam. Reddentold Westerfield that the test was voluntary, and that he could stop it at any time. Westerfield acknowledged that he understood this and signed the consent form. (SA RT 1168-1171; 4 CT 989-899; 46 CT 10835-10838.) After further explanations, Westerfield expressed some hesitancy about the test and asked Redden whatthe latter thought Westerfield should do; Redden answeredthat he, Redden, would takethe test if he were Westerfield. (45 CT 10881.) In the course ofeliciting some backgroundinformation and talking further about polygraph tests, Westerfield explained how difficult the day had been for him and how the stress affected his memory. “Yeah,” he explained to Redden, 105 “you’re standing out in your front yard, I don’t know ifyou’ve gone throughthis. But I was standing on my front yard, these two guys walk up, bigger than me, which is good, but um,then all of a sudden two more guys joined them. It was like the squads of cars came wee Andit was like, oh shit, what’s going on, you know.” (46 RT 10891.) Thepre-test interview proceeded with Reddeneliciting from Westerfield an account of the weekend. (46 RT 10893-10933.) After this the preparatory questions for the test were given; the appropriate sensors were attached to Westerfield’s body; and the test was administered. (46 CT 10941-10963.) At the end ofthe test, Redden told Westerfield that he did not pass, and that he was, according to Redden “somehow involved in the disappearance of Danielle Van Dam.” (46 RT 10966.) Westerfield expressed his surprise, insisted that he was not, and offered to take the test over again. Redden ignored the request and showed him “the charts,” which, according to Redden showed a probability of deception greater than 99 percent overall, and 100 percent for the question “ “Did you have anything to do with the disappearance of Danielle Van Dam’”, and 100 percent for the question “ ‘Are you personally responsible for Danielle Van Dam’s disappearance.’” (46 CT 10966-10968.) Westerfield wasstill chagrined and puzzled by the results. He offered theories as to what had happened onthetest and offered to take it over, all ofwhich Redden either deprecated or ignored. Finally, Westerfield announced, “Well if I failed the test, I should get a lawyer, don’t you think?” Redden told him that he, Redden, could not advise him. Redden’s only concern wasto “get this little girl back and I need your help on that.” (46 CT 10976.) This went on for a little while more with more questioning from Redden. Westerfield again talked about needing a lawyer, needing someone on “hisside,” since the test must have been flawed. He knew he was innocent. (46 CT 10986- 10988.) At this point, about 7 p.m., Reddenleft the room to see if anyone else had any questions for Westerfield. He informed the detectives in the conference room 106 that Westerfield had not passed the polygraph test, and then Detective Parga went into the interview room. (5A RT 1172-1175; 5B RT 1468; 46 CT 10989.) 3. 7 p.m. to 11:00 p.m., February 4, 2002 Parga questioned him a short while, with Westerfield responding and again asking Parga whether he should get a lawyeror not. Parga left, and Detective Thrasher came in simply to watch Redden’s equipment. (SC RT 1519-1520; 48 CT 11125-11132, 11135.) Westerfield told Thrasher he would like to call his 18- year-old son, who should beat his house by now,to tell him what going on. When Thrasher told him to wait until she found out what was going on, Westerfield complained that “someone else” was deciding whether he could call or not, whereupon Thrasher protested that she did not say he could not makea call, and offered to make a the call for him. (48 CT 11125-11139.) At this point Westerfield complained that no one would give him an honest answer whether the polygraph results were valid and about whether he needed a lawyer. Thrasher said she herself could not tell him about the polygraph, but as for a lawyer, Westerfield was not underarrest. (48 CT 11141.) After Westerfield asked again abouta call to his son, and Thrasher promised to check on it (48 CT 11143), Westerfield asked, “Well, if they are conducting an investigation and I’m not underarrest . . . can I leave?,” to which Thrasher answered,“Ah,notright now.” Westerfield then said, “Okay, so they’re deciding whether I’m going to be underarrest based onthis test.”” Thrasher answered that she wasonly a “worker bee” here and did not know where the processstood at this time. (SC RT 1526; 48 CT 11144.) Parga returned with Detective Cramer, who wasintroduced as wanting to hear Westerfield’s side of the story. When Westerfield asked to call his son, who would be expecting him to be home and who would worry, Parga and Kramer put him off. (48 CT 11149-11152.) When he complained about the polygraph, Cramertold him not to worry about it, that was between him “and Paul.” Westerfield was now here with “Cassie [Cramer], okay.” (48 CT 11161.) For 107 Cramer, Westerfield again recited the events of the weekend. (48 CT 11162- 11174.) Another request to call his son wasstalled, but soon afterward a phone was brought in; however,hiscall did not go through. (48 CT 11174-11177.) The account continued. (48 CT 11180-11243.) As the detectives began asking, to his embarrassment, what Mr. Westerfield liked to do sexually with his recent girlfriend Susan, Keene entered the room. (48 CT 11243-11245.) Westerfield asked Parga if Keene knew about the polygraphfailure, and Parga answeredthat she had told him. This initiated the following exchange with Parga: “WESTERFIELD: Sosee, it’s proliferating. I told you it was proliferating. “PARGA: But you know what, what I want you to understand. ’Cause you know,I’ve been together with you all day and we’ve got a pretty good rapport going. But I want you to know whatever happenshere tonight, you’re going home, okay. I want you to understandthat. “WESTERFIELD: Well you know it... “PARGA: I'll give you a soda, give you water, whatever. “WESTERFIELD: I’m bending, I’m bending overas far as a I can. The only thing I’m upset about is not being able to get ahold ofNeil because... “PARGA: Yeah. You wantto try calling him again. “WESTERFIELD:I, I asked for that again, so... “PARGA: Okay, well listen, I got a phone for you... “WEsTERFIELD (Unintel) if the phone works okay. “PARGA: “Yeah. But I just want you to understandthat you’re going hometonight, okay. “WESTERFIELD: Well, okay.” (48 CT 11245-11246.) 108 With Keene present, Cramer continued questioning Westerfield about his sex life. Keene took over to go overthe time line of the weekend again. Westerfield answered this lengthy course of questioning (48 CT 11247-11311), when Keene himselfturned to the subject of the polygraph and asked Westerfield why he thought he had not passed. Westerfield said he was “totally astounded” and “at a loss” to explain. (48 CT 11311.) Hetried various conjectures, but Keene announcedthat he, Keene, agreed with Redden that Westerfield was lying because Westerfield had failed so badly. (48 CT 11313-11314.) 4. 11 p.m. February 4 to 3:30 a.m. February 5, 2002 It was now I|1 p.m. As Keene and Kramerpressed the accusation that Westerfield had something to do with the little girl’s disappearance, Westerfield complained again that they would nottell him if he needed an attorney. (48 CT 11314, 11319-11320.) Westerfield noted that it was now close to 11:15 p.m. and that “at some point this has to stop becauseit’s not... I’m not doing something,I didn’t do anything and .. . but I’m sitting here. Now tell me what I need to do. Whatare my rights? I’ve been in here since what time, 4:00? I don’t, I don’t remember what time we cameover.” (48 CT 11322.) Westerfield continued in this vein: “WESTERFIELD: I’m being lost. Well, I understand that but we keep, we’ve been doing it what... nine hours now? At what point doesit stop? Tell me where are myrights about that? It’s been nine hours now.I’m nottrying to be defensive. I’ve beennice. You met methefirst time, we went through the house, I was very positive about everything that was going on. I failed this test, I don’t know whyI failed it, and all of a sudden I’m the bad guy, quote. I understand. I have no problem with that. But I havesit, sat, here again you knowfor nine and a half hours. I’m guessing. At what point do I have... We’re not getting anywhere. You’re trying to convince me I did something and I didn’t do something. You’re 109 trying to get information from mespecifically that I don’t have knowledge of. So just tell me whenis this going to stop? “KRAMER: You’re here... “WESTERFIELD: Moe[i.e., Parga] te. .. Moe tells me ’m going home. “KRAMER: You’re here on a voluntary basis aren’t you? “WESTERFIELD: I’m not allowed to make a phonecall. “KRAMER: You were allowed to make a phonecall. “WESTERFIELD: IfI wanted . . . l asked to make a phone call and... “KRAMER: And we got up how many times? “KEENE: And Moe, and Moe opened the doorand said, ‘Let’s go make a phonecall.’ And yousaid, ‘Wait a minute, let’s do this, there’s some discrepancy,let’s go through it.’ It was your choice not to go make a phonecall right then. “WESTERFIELD: Okay,if that’s what you remember, that’s fine.” (48 CT 11323-11324.) This discussion continued with Westerfield asking to take the test again. Keene told him that he could not, but that it was not only the test. Westerfield’s “body language”indicated that he was lying. He had his armsandlegs crossed during almost the entire interview this evening. Westerfield was incredulous: “Is, is this a bad way to sit?” And when Keene and Kramerinsisted it was significant, Westerfield answered, “Um, it doesn’t mean. . . that doesn’t mean anything to me.” (48 CT 11325-11326.) Once the topic of body language was exhausted: “WESTERFIELD: Okay,so tell me whatelse is there? Now I’m being defensive. And J haven’t been all night, okay. 110 “KEENE: So whystart now? “WESTERFIELD: Because I’m getting angry. You guysare on the attack. Neither ofyou believe what I’ve, I’ve, P’ve said... um, you’re, you’re being abrasive in your conversations with me and so I’m sitting here like this and you’re sitting there like this. You know, you’re sitting forward on our seat, and I’m not doingthat. Talk about body language. “KRAMER: Um hum. “WESTERFIELD: Okay. All I needis the spotlight and a rubber hose. Tell me what... where are we gonna go. What... it’s, now it’s 11:30. LI... “KRAMER: You’re watching your watch, which you didn’t before. “WESTERFIELD: Ah, because I want to go home,okay.. . .” (48 CT 11326-11327.) Asthe detectives pressed little more, Parga came back into the room. (48 CT 11328.) Westerfield observed that the polygraph obviously made him the focus. (48 CT 11329.) The other matters they were throwing in his face were “trivial.” (48 CT 11330.) He told his story several times; he told it willingly to every policeman that talked to him. He could not help them any more. (48 CT 11330) At this point Parga told him he wasfree to leave and could go home. When he asked to take the polygraphtest, she said no, that he wastired, and that maybe he could take it again after a night’s rest. In response to his question as to whether there was anything else he could do to help, she suggested he might show the police tomorrow his route through the desert. He said he would be gladto dothat, but noted that he did run his own business and had work to do. (SA RT 1105; 5C RT 1505-1506; 48 CT 11331-11335.) When he asked if he was going to be 111 charged, Parga said no. Asshe hadtold him, he could go home. (48 CT 11138.) She escorted Westerfield out of the station to the parking lot, and Westerfield left in his own car. (5B RT 1470; 5C 1506-1507.) Throughout the time Westerfield was in the interview room at the Northeastern Substation, the briefing room wasthe center of activity for Alldredge to collect information and to debrief the other detectives with a view to obtaining a search warrant. The officers at the Northeastern Substation were all generally aware ofthis, and were even briefed on Alldredge’s efforts. (SA RT 1164-1165; 5C RT 1510-1512, 1529; SE RT 1796-1797.) At about 9:30 or 10 p.m., Detectives Maler, Thrasher, and Borquez from the Robbery Unit were dispatched to Westerfield’s house to secure the premises pending the issuance of a warrant, and to intercept Westerfield if he attempted to enter the house. (5B RT 1358-1360; 5C RT 1526-1528, 1536-1537.) Followed by twopolice cars, Westerfield pulled into his driveway shortly before midnight, but as the garage door wasrising, Maler stepped in front of the car and placed his hands up to stop Westerfield. Then Maler, Thrasher, and Borquez approachedthe driver’s window. Maler told Westerfield that he could not enter the house. When Westerfield asked why, Maler stated that “a search warrant was being secured.” Westerfield, according to Maler, seemed disappointed, saying he had done everything the police had asked and had been cooperative. He wanted to go inside the house, but Malersaid that he could not. (5B RT 1361-1363, 1381-1382; 5C RT 1527-1528, 1551.) When Westerfield asked if he at least could talk to his son, Maler obtained permission from his supervisor to summonthe son, but to warn thelatter that if he left the house, he would not be let back in, and that if he wanted to leave in a car, the police were in the process of obtaining a vehicle warrant. Maler, after relaying this information to Westerfield, who wanted his son to stay with his ex-wife in Poway, knocked on the doorto tell Neal for Westerfield that his father wanted him to leave. Neal talked briefly with his father while Maler did a consensual search 112 ofNeal’s car. After this, the boy left. (5B RT 1365.) Westerfield also left for about forty-five minutes. When returned he parked on Briar Leaf and wentto sleep in his car. (5B RT 1366-1367.) Backat the substation, the Homicide Unit wasbeing briefed to take over the case. Detectives Ott and Keyser were assigned as the lead investigators. They were told of the progress of the investigation, including Westerfield’s failure of the polygraph test. At that time, as Ott and Keyser were told, Westerfield was parked outside his house, barred from entering, because the Robbery Unit was in the process of obtaining a warrant. Ott and Keyser’s assignment wasto go to Westerfield’s house and interview him. In addition, they were to obtain from him a consentto search his house andhis vehicles. (SA RT 1193-1196; 5C RT 1542- 1543, 1549-1551, 1568.) The two homicide detectives arrived at the house at about 2 a.m. Maler took them over to Westerfield’s car, tapped on the window,and introduced the two detectives when Westerfield stepped out. Because it was cold, Keyser suggested that they talk inside the car. With Ott in the front passenger seat and Keysersitting in the rear, Westerfield picked up a Styrofoam container, noting that this was his lunch, and handing it back to Keyserto place on the floor in the back. (5A RT 1198-1200; 5C RT 1551, 1562, 1570.) Within about a minute, the two detectives announced that they believed Westerfield had something to do with Danielle Van Dam’s disappearance. According to Ott, this was said calmly, but during the fifteen minute interrogation in the car, Ott, who considered himself an aggressive officer, conceded that he probably raised his voice and used profanity. It was during this 15 minute period that Westerfield signed a consent-to-search form. (SA RT 1202-1203; 5C RT 15673-1568; 4 CT 900-902.) When he signed it, Westerfield expressed some concern that they had to do this again since the detectives and the dogs had already been through the house and could notfind anything. (5A RT 1206.) 113 During the interrogation in the car, Westerfield stated that he had gas receipts anda receipt to confirm that he had been towed out of the sand in Glamis. The three men then wentinsideto retrieve them, and Ott directed Westerfield to sit downin the kitchen., while Ott collected the paperwork on the counter. (SC RT 1566-1569.) At about this point, at 2:30 a.m., Detective Tomsovic knocked on the door and handedthe warrant to Ott, who then announced to Westerfield that there was now awarrant. Westerfield expressed some alarm, exclaiming something to the effect of, “A search warrant?” Ott handedit to him to read. (SART 1207- 1208; 4 CT 746.) When Westerfield asked how they got the warrant, Ott explained to him the technicalities. After reviewing the papers, Westerfield said that he wanted to stay in the house while it was searched. Ott and Keyser deflected the question and began talking about a trip to the desert, urging him to show them where Danielle was. “We know you took Danielle,” said Keyser, “All we want to know is where she’s at. We need to bring her back to her family.” (5A RT 1208-1209.) | Westerfield eventually agreed to take them and retrace his weekendroute. After obtaining permission for this from Sergeant Holmes, their team leader, Keyser and Ott prepared to leave with Westerfield, whofirst asked permission to changehis shirt. Accompanied by Ott and Keyser, Westerfield wentupstairs, changedhis shirt, and brushed his teeth. (SA RT 1209-1213; 5D 1661-1662.) By 3 a.m., the actual search of the house had begun underthe direction of Detective Tomsovic. (5D RT 1769.) By about 3:30 a.m., Ott and Keyserleft with Westerfield to go on their excursion in Ott’s vehicle, with the first stop being the Northeastern Substation to get gas. (SA RT 1213; 5D RT 1593.) This then is an accountnot only of the encounter with Ott and Keyser but of all of Westerfield’s contact with the police that day through the final encounter. Althoughthere is no contention that Westerfield’s statements andactionsup to the 114 encounter with Ott and Keyser were involuntary in the legal sense, it is clear that subjectively he felt more and morerestricted as evidenced notonly by his increasing reluctance to cooperate, his increasingly constant queries about custody and attorneys, and by his later expressions of exasperation and fatigue in the midst ofwhat was, objectively, an increasingly, and unremittingly, accusatory atmosphere. Whenhefinally left the police station to go home, he was met with the unwelcome news from Detective Maler that he could not go into his house because the police were in the process of obtaining a search warrant. It wasafter this that Ott and Keyser came on the scene to accuse him even morebluntly, to interrogate him, and to obtain his signature on a consent-to-search form, which he gave unwillingly. It must be kept in mind that when Maler barred Westerfield from his own house, informing him that a warrant was being obtained, there had been an entire day ofwhatfelt like police constraint even if it was not, legally, custodial restraint. That constraint became increasingly coercive, and a reasonable man would have understood Maler’s announcement to mean that there was no contingency to the issuance of a warrant. As seen from the above, this warrant that was soon to issue, wasinvalid and without probable cause, and Westerfield’s signing ofthe consent- to-search form presented to him thereafter cannot be deemed voluntary. (Bumper v. North Carolina, supra, 391 U.S. 543, 546-549.) The Fourth Amendment problem here cannot be obviated by a claim that Westerfield in any event consented to the search ofhis housethat resulted in [describe]. E. Concluding summary One may sum up the previous argument. Without polygraph evidence, the first warrant obtained by the police on February 5, 2002 was without probable cause, and all subsequent warrants obtained in this case were the fruit of that poisonoustree. As to the polygraph evidence, it was shownthat neither logic, legal precedent, or experience could justify its use as sufficiently reliable 115 information to support probable cause in accord with the standards of the Fourth Amendment. It was further demonstrated that the good faith exception to the requirementofprobable cause did not apply here because the San Diegopolice were indeed aware of the deficiencies of the warrant and the unreliability of polygraph evidence. Finally, on the issue of consent, which Judge Mudd invoked as an alternative ruling on the Fourth Amendmentsuppression issue, it was demonstrated that, with respect to the [clarify which warrant/search/evidencethis applies to], on the totality of the circumstances that Westerfield did no more than acquiesce to a show offalse and coercive authority. All this of course meansthat the evidence seized pursuant to the warrants issued in this case should have been suppressed. There is no need to catalogue the vast array of this evidence, but it includes the items which provided the DNA evidence,the trace evidence, and the computer evidence. Without this there was no case against Westerfield except for his statement to Detective Keene andto Paul Redden neither ofwhich statement provided anything like sufficient evidence to convict him. There is no reasonable doubt that the Fourth Amendmenterror in this case was prejudicial, which of course meansnecessarily that respondent cannot show beyond a reasonable doubtthat it was harmless. (Chapman v. California (1967) 386 U.S. 18, 23-24.) Westerfield’s convictions must be reversed. 116 Il. WITHOUT THE ADDITIONAL PEREMPTORY CHALLENGES, AS REQUESTED BY THE DEFENSEIN THIS CASE, APPELLANT WAS NOT REASONABLY LIKELY TO HAVE OBTAINED A FAIR AND IMPARTIAL JURY, AND THE DENIAL OF THE DEFENSE REQUESTSIN THIS REGARD CONSTITUTED A VIOLATION OF DUE PROCESS Introduction: Nature of the Claim Andits Federal Constitutional Status Jury selection began on May 17, at which time questionnaires were distributed to 263 prospective jurors. (14 CT 3413; 5 RT 2113-2115, 2165; 5H RT 2178, 2187-2188.) At that time, defense counsel, Mr. Feldman, noting that a large numberofthose summoned for that day had failed to appear, requested that the number ofperemptory challenges be increased in proportion to the numberof truants. Judge Mudd denied the request, certain that there wasa sufficient cross- section of the community present for purposes ofthis case. (5 RT 2142-2144.) Later in the case, after the Jury Commissionerhad gathered the precise Statistics for the May 17 summons, the defense was allowed to make a record in connection with the request for more peremptory challenges. The 263 veniremen were the remainder of 5625 prospective jurors actually summoned: of the 5625, 530 had legally postponed their jury service; 3331 had legal excuses submitted in advance; 611 persons actually appeared, and of these, 347 were released for hardship excuses; 1268 prospective jurors summonedhad simply ignored the summonsand failed to appear. (40 RT 9254-9256.) This failure-to-appear rate was 22.5 percent. (40 RT 9258.) Thus, in terms of Mr. Feldman’s requestfor a proportional increase in peremptories, this would mean 4 or 5 more peremptory challenges beyondthe statutory 20 (Civ. Proc. Code, § 231) for selection of a petit 117 jury, and 1 or 2 more overthestatutory 6 for the selection of 6 alternates. (Civ. Proc. Code, § 234.) In any event, voir dire began on May 28, and by May30 the defense had exhausted its twenty challenges. Before the jurors were sworn, co-counsel, Mr. Boyce, registered the defense dissatisfaction with the panel as constituted. He noted the multitude of defense challenges for cause denied by the court, and he requested, again, additional peremptory challenges. Judge Mudd also deniedthis request. (14 CT 3415, 3417; 6 RT 2215-2218; 8 RT 2951.) The next day, during the voir dire of alternates, Mr. Boyce made a supplemental record to specify that the defense was particularly dissatisfied with Jurors Number2, 4, 6, 11, and 12. (9 RT 3106.) Judge Mudd respondedthat if this was a third request for further peremptory challenges, the panel had already been sworn. Nonetheless, he declared that even if Mr. Boyce’s supplemental representation had been timely, he still would have denied the request for additional challenges. (9 RT 3106.) Atissue, then, is the denial of the defense requests for additional peremptory challenges -- one madeat the beginning ofjury selection, and one madeafter the defense had exhausted its peremptory challenges in the voir dire of the petit jury.” It may be appropriate here to emphasize this as the nature of the claim; for one might recognize, at least in the second request for additional peremptories, the elements of a claim for erroneous denial of challenges for cause: namely the citation to unsuccessful challenges for cause; the exhaustion of peremptory challenges; the expression ofdissatisfaction with the sitting panel; and 6 Mr. Boyce’s supplemental record specifying which jurors the defense found unsatisfactory was in fact a belated part of the request for additional peremptory challenges made before the jury panel had been sworn the day before. /fsuch specification is deemedto be a procedural requirement for preservation ofthe instant issue, it is clear from Judge Mudd’s statements that a timely representation of which jurors the defense found unsatisfactory would have been futile. (See People v. Abbaszadeh (2003) 106 Cal.App.4" 642,648; see also In re Antonio C. (2000) 83 Cal.App.4™ 1029, 1033.) 118 the requestitself for additional peremptory challenges to remove the unsatisfactory jurors. (People v. Bittaker (1989) 48 Cal.3™ 1046, 1087-1088; People v. Raley (1992) 2 Cal.4™ 870, 904-905; People v. Hamilton (2009) 45 Cal.4™ 863, 891- 892.) The twoissues indeed overlap insofar as the erroneous denial of for-cause challenges forces the aggrieved party to resort to the expenditure ofperemptory challenges, whose exhaustion then leaves the party without resources to remove an unsatisfactory juror. (People v. Bittaker, supra, 48 Cal.3"at pp. 1087-1088; People v. Yeoman (2003) 31 Cal.4™ 93, 114.) But the exhaustion ofthe statutory limit oftwenty peremptory challenges can impose the samerestrictive dilemma independently ofwhether or not any challenge for cause has been improperly denied; and a simple claim that the defendant should have received some peremptory challenges beyondthestatutory limit is independently cognizable. (See People v. Bonin (1988) 46 Cal.3™ 659, 679; People v. DePriest (2007) 42 Cal.4™ 1, 23-24; and People v. Lewis (2008) 43 Cal.4™ 415, 490, 496.) The focus in this argument is on the independent impropriety of, and prejudice from,the denial of additional peremptory challenges, while in the next argument (see below p. 158), this denial of additional peremptories will be a subordinate part of the claim that for-cause challenges were improperly denied. Further, the claim here of a due processviolation in the denial of peremptory challenges also requires some prefatory explanation and emphasis, because the proposition that the erroneous denial of a peremptory challengeis without federal constitutional consequenceis almost a jurisprudential cliché. (Stilson v. United States (1919) 250 U.S. 583, 586; Ross v. Oklahoma (1988) 487 U.S. 81, 88-89; United States v. Martinez-Salazar (2000) 528 U.S. 304, 307; Riverav. Illinois (2009) 129 S.Ct. 1446, 1450.) Nonetheless, the incidence of external factors in a specific case can transfigure the constitutional balance to such an extent that the proposition must be qualified: “[T]he mistaken denial ofa state- 119 provided peremptory challenge does not, without more, violate the Federal Constitution.” (/d., at p. 1454, emphasis added.) This slight, two-word qualification reflects an important dividing line betweenstate and federal concernsin jury selection procedures. The Fourteenth Amendmentindeed accords broad deference to the States to set their own proceduralrules regarding jury selection; it accords broad deference tothetrial courts to apply or adjust these rules to the specific conditions of a given case; but federal constitutional intervention is appropriate when the proceduresor their application threaten the fairness of the proceedings — a matter that is the concern of the Fourteenth Amendment. (Ham v. South Carolina (1973) 409 U.S. 524, 526; Mu’minv. Virginia (1991) 500 U.S. 415, 424-426; see also Fay v. New York (1947) 332 U.S. 261, 294 [“[T]Jhe function of this federal Court under the Fourteenth Amendmentin referenceto state juries is not to prescribe procedures but is essentially to protect the integrity of the trial process by whatever method the state seesfit to employ.”].) In regard to the peremptory challenge as a procedure in general, its historical pedigree and modern universality in all Anglo-American jurisdictions has induced the United States Supreme Court to concede that at least “[o]ne could plausibly argue . . . that the requirementof an ‘impartial jury’ impliedly compels peremptory challenges”. (Hollandv.Illinois (1990) 493 U.S. 474, 482, emphasis in original.) One cannottherefore seriously deny that in a specific set of circumstances, the peremptory challenge, or as here, the addition ofperemptory challenges beyondthe limited statutory number, may be necessary to assure the selection of a fair and impartial jury in accord with due process. (See Skilling v. United States (2010) 130 S.Ct. 2896, 2918, fn. 21.) Again,it is the “something more”that confers actual federal constitutional status on the peremptory challenge. The “something more”can of course be the pretrial publicity surrounding the case. Whenthat is the circumstancethatraises the issue of due process in 120 regard to peremptory challenges, the question then becomes whether the record establishes that, unless the defendant received additional peremptory challenges, he was “reasonably likely to receive an unfair trial before a partial jury.” (People v. Bonin, supra, 46 Cal.3" 659, 679.) As will be seen from the following examination ofthe progress of events, from the disappearance ofDanielle Van Dam at the beginning of February 2002 through the completion ofjury selection at the end of May,the attendant, contemporaneous publicity was intense, was reflective of, and was provocative of a correspondingly intense public interest in this case to such an astonishing degree as to indeedraise the “reasonable likelihood [of]...an unfair trial before a partial jury” that warranted the grant of additional peremptory challenges. PretrialPublicity Media attention began within a day or two ofDanielle Van Dam’s disappearance. (15 RT 4323-4324, 4345-4345.) The case drew volunteers from all over San Diegoto help with the search. (11 RT 3440-3441, 3445-3446, 3472- 3474.) The public interest in this case certainly did not abate after Westerfield was arrested on February 22 or by the time he wasarraigned on the criminal complaint on February 26 — the day before Danielle’s body was discovered. (1 CT 1; 1 RT 1-2; 11 RT 3440, 3450.) On February 25, requests were filed by several local television stations for permission to broadcast the arraignment. An additional request wasfiled by the television show “America’s Most Wanted”, while permission to photographthe arraignment was sought notonly bythe local San Diego Union Tribune, but by AP, Reuters, and Agence France-Presse. (1 CT 4-19.) Onthe day of arraignment, the defense made an oral motion for a protective order, or “gag order,” because of problemsarising from media attention and intrusions, such as a media request that the search warrants and supporting 121 affidavits, chock full of inadmissible evidence, be unsealed and made public. At that point, Judge Deddeh wasnot prepared to issue such an order. (2 RT 2-5.) On February 27, 2002, the day Danielle’s body was found, Judge Bashant, whohadissued the main search warrant , granted the motion of the attorneys for The Copley Press, and ordered all of the warrants unsealed. In the face of vigorous objection from the defense, however, she agreed to keep the supporting affidavits themselves confidential and to allow the defense time first to submit further authorities and argument. (2 RT 9-12, 28, 30.) In the course ofthis ruling, Judge Bashant madea statement that opens a window onthe intensity of the community’s emotions surroundingthis case. As Ms. Cummins,the attorney for The Copley Press, invoked the First Amendment and arguedthat the “public should not be delayed in obtaining information” aboutthis case (2 RT 30), Judge Bashant expressed her sympathy: “And I understand your point, and I agree that it is very important, particularly in criminal proceedings. The cases discuss the community therapeutic value, and I can’t think of another case that has more community therapeutic value in San Diego than this one.” (2 RT 30.) Although ultimately Judge Bashant had to give some deference to the demands of due process over any doctrine ofpublic catharsis inhering in the First Amendment (2 RT 30-31), the judge’s remarks nonetheless provide a vivid measure of the public pressure impinging on the court proceedingsin this case.* 6° Asit turnsout, the warrants were not unsealed,at least pretrial. The defense filed a writ against Judge Bashant’s order on March 4, 2002, and although the Court ofAppeal upheld the order in a written decision issued on May3, this Court, pursuantto the defense petition for review filed on May7, stayed the Court ofAppeal decision. Although review was eventually denied by this Court, 122 On March5, the defense filed a written request for a gag order, and attached to the motion a numberofnewspaperarticles and reports on the case. (1 CT 47.) Like Judge Bashant’s statement, these articles too provide a window into the nature of the community interest in this case, not merely because the facts of the case were being reported, but also because, and perhaps especially because, anonymous governmentofficials seemed drawnto the notoriety like moths to a flame. An article from the San Diego Union Tribune spoke about how otherjail inmates were harassing Mr. Westerfield. The article explained, “Even among the criminal population, suspected pedophiles and child-killers are held in contempt and officials frequently separate them from other prisoners to prevent physical attack.” When Mr. Westerfield arrived in jail, “he was greeted with shouted threats and curses.” While being escorted to a third-floor jail cell, he had to run a gauntlet of verbal abuse from other inmates. “Sources in the Sheriff's Department,” the article went on to report, “said some of the inmates held up copies of The San Diego Union Tribune containing his picture. On someofthe papers, inmates had drawn a noose around Westerfield’s neck. Other inmates scrawled messages on Westerfield’s photograph describing how much they wanted to see him die.” (1 CT 66.) The article reported that Westerfield was taken aside, and it was explained to him, as “one Sheriff's Official said,” that “‘cows eat their own cud’ ... and that this occurred on June 26, which waswell into the prosecution’s case-in-chief, which presented problemsrelated to the issue ofjury sequestration. (See below, pp. 198-199.) In denying review, this Court ordered the Court ofAppeal decision depublished. The procedural information in the preceding paragraphis available partly on the record of appeal in the instant case (see 5E RT 1864; and 14 CT 3451), andis fully set forth in court records in case number D039640 in the Court of Appeal, and in case number $106505 in this Court. It is requested that this Court take judicial notice of these records. (Evid. Code, §§ 452(d)(1) and 459(a).) 123 accusedkillers of children are considered the cud. ‘When you have an inmatelike that, if that guy gets sentenced tolife imprisonment, it could be worse than death,’ oneofficial said. [{] ‘He would be living on pins and needlestherest ofhislife. There is honor among thieves. And child-killers are considered the lowest of the low evenin jail.’” (1 CT 66.) Anotherarticle from the Union Tribune recounted the details of the police investigation beginning with the first 911 call on February 2. The article related Westerfield’s version of his travels. “‘His time line never made any sense, the inconsistencies were glaring,’ a detective said.” (1 CT 67.) From thearticle one also learned that Westerfield was cooperative “[a]t first”; that the Van Dams passed the lie detectortest, as “[a]uthorities said”; but that “they [also] said” that “Westerfield failed... .” (1 CT 67.) Thearticle described further how the police werecertain that the blood on the clothes seized from the cleaners wasthat of Danielle Van Dam. (1 CT 67.) Still another article from the Union Tribune hadthe headline: “Kidnap case opens doors to a secret world built on sexual fantasy.” These werethefirst two paragraphs: “David Westerfield is a twice-divorced design engineer who waslittle noticed in his suburban Sabre Springs neighborhood except when he washed his motor homeorrepaired his cars in his driveway. “Yet, prosecutors say, Westerfield had another side that none of his neighbors knew about. Police searching his home in connection with the disappearance of 7-year-old Danielle Van Dam say they found child pornography. Official say Westerfield kidnapped Danielle for sexual purposes, then killed her.” (1 CT 68.) Therest of the article reported the results of the author’s consultation with experts on the question of pedophilia. The author’s high-minded purpose was to answer 124 the question for the public: “Could Westerfield, 50, have been a pedophile who hid his sexual interest in children for years?” (1 CT 68.) There were furtherarticles attached to show the extent of the public interest in the case. Between February 23 and March 1, 2002, there weresix stories about the case in the New York Times (1 CT 69); five stories in the Chicago Tribune(1 CT 71); five stories in the Sacramento Bee (1 CT 73); several stories in the San Francisco Chronicle (1 CT 76); several stories in the Orange County Register(1 CT 77); stories in the Los Angeles Times (1 CT 99); and stories broadcast by MSNBC,CNN,and Fox News.(1 CT 93, 95, 97.) Judge Domnitz, who wasassigned to handle the preliminary hearing, was indeed bothered by the leaking of inadmissible evidence, such as the lie detector results, and did issue a gag order on March 8. (1 CT 142-144; 3 RT 57-59; 1 PX RT 10.) “There has been,” he recounted in the order, “substantial pretrial publicity in this case. There have been media reports, allegedly from law enforcement sources, detailing clearly inadmissible evidence, giving conflicting and confusing reports of the ‘evidence,’ and discussing the defendant’s guilt or innocence in detail. If allowed to continue it would violate defendant’s Sixth Amendment rights and prevent him from receiving a fairtrial.” (1 CT 143.) However, Judge Domnitz also issued an order allowing the preliminary hearing to be televised. (1 CT 140-141; 14 CT 3377.) The preliminary hearing took three days, March 11, 12, and 14. (14 CT 3378, 3380-3381.) An information wasfiled on March 22. (1 CT 174-175.) On March 28, 2002, the case wasassignedforall purposes to Judge Mudd,anda trial date ofMay 17 wasset. (3 RT 602.) On April 2, 2002, the defense filed a “Pitchess” motion®’, seeking personnel records of the various detectives involved in the detention and questioning ofMr. Westerfield. (1 CT 193-219.) The filing of this motion generated a surge of frenzy in the media. As Judge Mudddescribed Pitchess v. Superior Court (1974) 11 Cal.3" 531. 125 it a week later on April 9, when Mr. Dusek, the prosecutor, himself felt obliged to calendar an in camera meeting to discuss sealing all future motions (4 RT 609- 610), because “the media has just been going ballistic.” (4 RT 610.) His proposal to seal future motions found no opposition. (4 RT 610-612, 614-616, 631.) Judge Muddalso ordered that Judge Dominitz’s gag order continue. (4 RT 616.)* In open court on April 18, the attorneys for the media were allowed to argue againstthe protective orders issued by Judge Mudd. In regardto the sealing of motions, Judge Muddabidedin his decision. The right ofboth sidestoa trial conducted in this community by a fair and impartial jury outweighed any public right or interest in the records that were to be sealed. (4 RT 701-702.) Judge Mudd adducedthe Pitchess motion as a good example of what was happening. Such a motion wasa simple and straightforward procedure; but as soon asit was filed by the defense, “almost a celebration, in which numerous, | will refer to them as talking heads in our community becameinvolved, and a simple Pitchess motion became an extensive debate regarding everything from the conduct of Mr. Westerfield to the conduct of the police. Andthis is all done before the People even have a chanceto file a response.” (4 RT 702.) Judge Mudd continued: “This overriding interest supports conditionally sealing the pretrial motions until the start of the hearing on May 6". And I want to emphasize the fact that this is a conditional sealing in that they are only being sealed until the start ofthe hearing on May 6", when they ° But the leaks continued also. The defense, on April 3, had filed a writ in the Court ofAppeal to obtain court-appointed status for Mr. Feldman and Mr. Boyce. (See Harris v. Superior Court (1977) 19 Cal.3"! 786.) The writ had beenfiled underseal, and a decision granting court-appointed status issued on April 10, 2002, underthe caption of “Doe v. Superior Court”. On Saturday, April 13, 2002, a front-page article appeared with the headline: “Westerfield to receive public aid,” and the informant was from the county administration. (4B RT 663-671; 4C RT 689-690.) Appellant requests judicial notice of the court records in Court of Appeal case number D039797. (Evid. Code, §§ 452(d)(1) and 459(a).)) 126 will be made available. At that time, however, the motions and the responses will both be available, so that if the media wantsto fairly report the two sides, they are welcometo do that. But as I learned and as counsel learned from the filing of the Pitchess motion,that is not what is going to happen. Whatis going to happen is every time a motionis filed, it’s going to be plucked, reported, and the talking heads are going to go out there and comment. oe “Based on the extensive -- and on this I’m going to draw on my own experience. I’ve been practicing law, criminal law,in this community since 1970 and I’ve never experienced a caselike this. I’ve handled numerousdeath penalty and other high profile cases, and nowhere have I ever seen what I have experienced thus far both on radio, on television, and in the print media. So it is my conclusion that there’s a substantial probability that the overriding interest will be prejudiced if the motionsare not sealed until the start of the hearing.” (4 RT 702-703.) The reasoning was the sameasthat supporting the gag order. Noting that the trial, like the preliminary hearing, wasto be televised, Judge Mudd saw no prejudice to the media from the continuation of this order: “The pervasive and I’ve referred to it as a tsunami of media attention to this case, makes it very unique to this community. And as a result, I find no prejudice to the media, and we are certainly not depriving the public or the media or anyoneelse of access to the courtroom when thetrial is conducted. But until that time, the order remains in effect.” (4 RT 707-708.) Indeed, on the request of the defense, Judge Mudd extended the order to include county employees and Judge Mudd’s ownstaff. (4 RT 713.) (See above,fn. 68.) Judge Mudd then re-affirmed that there would be no cameras allowed in the courtroom pre-trial and extended the ban to the hallways as well: “Tn addition to that, I have to admit that I have had whatis probably the most unpleasant experience this Court has ever had 127 with media on the day I wasassigned this case. I wasin trial. I had a jury and alternates; I had a witness on the stand. I was called off the bench to be advised that I was being assigned this case, and my marching orders were basically when the lawyers came down,please recess yourtrial, do your scheduling work and go back. “T took the bench. Within ten minutes the floor was shaking. Bodies were coming down here. A newsnetwork placed a reporter under my shingle and turned on light and I am assumingfilmed a talking head. The witness on the stand stopped testifying and wondered what was going on out there. That jury, when I took that break, was inundated with human bodies. That is unacceptable. “There will be no television camerasin the hallwayat the north end of the building. None. Unless they are filming a case other than the Westerfield matter. Eventually, I’m going to have twelve jurors and probably six or more alternate jurors who are going to have to go in and outofthis courtroom, and they will not be exposedto that kind of activity.” (4 RT 710.) On April 30, in in camera proceedings, the defense brought to Judge Mudd’s attention the publicity generated by the story of another child abduction case. The Van Damswerein the newsrelating the new case to their personal experiences. This, in the view of the defense, wasa violation ofthe gag order. Judge Mudd wasnot certain whether talking about emotions wassuch violation, but asked the prosecutor to contact the family and relay to them that the Court was concerned about them being in the public eye. The prosecutor, Mr. Dusek, agreed to do this. (4I RT 869-871.) Earlier, on April 25, the defense hadfiled a request that the motions remain sealed beyond the May6 date and that the hearings on these motions also be closed to the media and public until it was determined that the evidence atissue in these motions wasruled to be relevant and admissible. (3 CT 652 et seq.; see also AH RT 833-836.) Judge Mudd, on May7, agreed that this was appropriate, despite the protests of Ms. Cummins, the attorney for the media, in response to whom, Judge Muddstated: 128 “AU right. “Well, I intend to do it. I’ve explained this before. But I think I have a perfect example in this community. I mentioned in passing a motion that would be kept underseal, and that motion dealt with lifestyles.[°] I left the community to go to San Jose for a weekend, and on myreturn, in Sunday’s paper, on the front page is an article about swinging andlifestyles and how it’s going to be an issue in the Westerfield case. Yesterday on the evening news swingers are being interviewed abouttheirlifestyle and their way of life. “The media in this community apparently cannot exercise restraint is my humble opinion. The two lawyers or the twosides in this court are going to attempt to find twelve citizens and six alternates of this community to try this case in this community where they wantit tried by citizens who cantry it based only on the evidence presented in this courtroom. “And the only way that I have been able to make some modicum ofeffort to keep that is to keep under seal certain issues that it appears to the court may neversee the light of day in trial, one ofwhich may very well be the issue that has been bandied about for the last two days in the media to some great glee.” (5 RT 993-994.) For the next two weeks, in camera hearings on the various motions proceeded. (14 CT 3400-3410.) On May 15, two days before the venire was to gather in court, it was decided, in response to media inquiries (5B RT 1413-1415), that while jury selection would be public, the proceedings would not be televised ° This was a motion filed by the prosecution on April 15 to prevent the defense from introducing evidence regarding the Van Dams’ “lifestyle” in trading sexual partners. (2 CT 318-321.) On May2, in open court, Judge Mudd announcedthat one of the motions to be kept under continued seal was onefiled by the People entitled “‘Points and Authorities in Support ofMotion to Preclude Cross- examination About Lifestyles.’” (4 RT 932.) 129 or even photographed, and the prospective jurors would be allowed anonymity through the use of numbers instead ofnames. (5 RT 2053-2060.) This then wasthe public atmosphere in which jury selection, and, as will be seen, the entire trial, took place. The defense accordingly took measuresto protect itself under the circumstances, beginning with a motion entitled “Motion to Sequester Jury After Panel is Sworn In Lieu ofMotion for a Change ofVenue” (3 CT 581), which the parties and court agreed could be deferred pending actual voir dire (5 RT 974-977); there was a defense motion for discovery ofjuror information possessed by the prosecution, which information the prosecutor agreed to share to the extent he himselfused it (5 RT 977-978); and then there was the request made by Mr. Feldman on May 17 to increase the number of peremptory challenges in proportion to the numberoffailures-to-appear, and the request by Mr. Boyce for more peremptory challenges just before the panel of twelve jurors was sworn. (See above, pp. 117-118.) This account of the progress of the case gives someidea ofthe community tensions impinging on the court proceedings because ofthe intense interest they provoked. It remains to examinethe actual jury selection itself to see how the public atmosphereactually manifested itself there and justified the defense claim that additional peremptory challenges were necessary.” ” It may be appropriate here to briefly address an objection some may have conceived in reading this accountofpretrial publicity: that the solution to the problemsarising from such publicity was a change of venueor a waiveroftime, or both. The response, which may be elaborated if respondent adoptsthis point, is that a defendantin a criminal case is not required to surrender any ofhis federally guaranteed constitutional rights in order to vindicate anotherfederally guaranteed constitutional right. (Simmons v. United States (1968) 390 U.S. 377, 393-394; McGauthav. California (1971) 402 U.S. 183, 213.) The Sixth Amendment providesthat “[iJn all criminal prosecutions, the accused shall enjoy theright to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law... .” To require immediatetrial in San Diego before fair and impartial jury is not a case ofhaving one’s cake andeatingit. 130 Quantitative and Qualitative Survey of Venire in Relation to Pretrial Publicity 1. Quantitative assessment In examining the voir dire, one may usefully begin with the numbers to see in a general sense how the case affected the venire. (See People v. Bonin, supra, 46 Cal.3" 659, 675.) Ofthe 263 veniremen given questionnaires (SH RT 2178- 2188), 261 filled them out.” Of the 261 remaining veniremen,only three, or 1 percent, claimed to have no awareness whatsoever about this case. (19 CT 4767, 4769; 26 CT 6479, 6527.) One ofthese was dismissed for cause becauseofher opposition to the death penalty and her declared inability to imposethis penalty. (19 CT 4771-4776; 6 RT 2462.) The second was dismissed for cause because of language problems. (26 CT 6476-6477; 9 RT 3128.) And the third was dismissed for cause because she had a four-year-old daughter and “it’s kind of hard to be a fair person for this case for me, speaking as I am a mom,andit’s really hard to look at things like that and not see your own child’s face.” (9 RT 3142, 3143.). The remaining 258 veniremen, or between 98 and 99 percent, were all aware of the case, and many were awarein great detail. This means of coursethat a// the veniremen who were eventually sworn as jurors and alternates knew about the case. Juror number | had watched Brenda Van Dam ontelevisiontestifying at the preliminary hearing. She” had seen newsabout the case on television, in the Union Tribune, had heard about it on radio and on talk radio shows, and had talked about the case herself with her coworkers. (15 CT 3541; 6 RT 2218-2219.) ” Oneprospective juror refused to fill out the questionnaire in protest against the death penalty and was dismissed for cause (20 CT 4806; 6 RT 2471); the other had simply stopped at question 32 on the 123-question-questionnaire (30 CT 7503- 7518), but jury selection ended before he could be called up for voir dire. ” Jn referring to sworn jurors and alternates, the proper gender of any pronoun used has been determined circumstantially from the record, since the names have remained confidential. 131 What she knew about the case was “the arrest, the search, the mother’s testimony,” which she knew from watching the preliminary hearing on television. (15 CT. 3541.) Juror number2 had seen television news about the case and had heard about it on the radio. He recognized Mr. Westerfield and trial counsel from television. (15 CT 3626, 3635, 3637.) Juror Number3 had heard about the case on television, on radio, and had read aboutit in the Union Tribune, and in the New Yorker. (15 CT 3685.) Juror Number4 had heard aboutthe case ontelevision, had read about it in the newspaper, and had chatted aboutit with friends. (15 CT 3589.) Juror Number5 recognized Westerfield and Mr. Dusek from television. (15 CT 3563.) She had heard about the case on radio and onthe talk radio shows, and she might have had conversations aboutit at work. (15 CT 3565.) Juror Number6 recognized Westerfield from television. Six had heard aboutthe case on television, knew that the little girl was abducted from her home and found dead, and that the neighbor was accused. (15 CT 3779, 3781.)”, Juror Number7 had heard aboutthe case on television and had read aboutit in the newspaper and in Newsweek. (15 CT 3661.) Juror Number 8 recognized Mr. Westerfield from television. (15 CT 3611.) She had seen news aboutthe case on television, heard it on the radio, and had talked about the case with family and co-workers. She knew that a girl was taken from her home andthat a neighbor wasbeing charged with her murder. (15 CT 3613.) Juror Number 9 heard about the case on television and had talked about it with friends and family members. (15 CT 3733.) Juror 10 recognized Westerfield from television, had heard about the case on television and on radio talk shows, and had talked about it with co- workers. Thegirl had been kidnapped in North County, killed, and then her body was dumpedin El Cajon. (15 CT 3803, 3805.) Juror Number 11 recognized * Jn the transcript ofjury selection, the prospective jurors were designated by their numberin the venire. Here, appellant refers to them by their ultimate number as an empaneledjuror or alternate juror. There is a conversion chart at 40 CT 9873. One might note that Juror Number1 wasalso, by coincidence, Venireman Number1. 132 Westerfield and his counsel from television and had heard about the case on the local news. (15 CT 3707, 3709.) He stated that he did not know a lot about the case, but it was clear from what helisted as known that he was familiar with the sum and substance ofthe prosecution’s case: “Westerfield is charged w/murder based on DNAevidence found in his RV? Clothes? Some porn. Watched PX on TV.” (15 CT 3709.) Juror Number 12 recognized appellant and his attorney from television, had learned about the case from television and radio, and had talked about the case with his wife. (15 CT 3635, 3637; 7 RT 2776.) Alternate number 13 learned about the case from television, hearing friends giving their opinions, and overhearing other people’s discussions aboutthe case. (15 CT 3829.) Alternate number 14 recognized everyone from the newspaper and television, where he also learned about the case. He also heard “water cooler type talk” about it. (15 CT 3947, 3949.) Alternate Number 15 heard about the case on television and read aboutit in the newspaper. (15 CT 3925.) Alternate number16 learned aboutthe case from the television, radio, newspaper, and from “watercooler conversations” he overheard. (15 CT 3901.) Alternate number 17 recognized Westerfield from television, learned about the case on television, radio, on radio talk shows, from newspapers, and from co-workers. (15 CT 3875, 3877.) Finally, Alternate number 18 had seen Westerfield on television and had read about him in the newspaper. (15 CT 3851, 3853.) This brief survey simply confirms the universal awarenessofthe case, remarkable only insofaras this was achieved in a large metropolitan area like San Diego where one would expectto find at least a substantial minority ofpersons exhibiting that healthy oblivion that attends people minding the salutary business of their own lives. But what is more striking and remarkable here is not simply the result of media saturation of the community, but the community’s reciprocating interest in the case as manifested by the numberof sworn jurors and alternates who had not merely read or heard about the case, but talked aboutit with other individuals in the community. Ofthe sworn panel of twelve,six (nos. 133 4,5, 8, 9, 10, and 12) had either talked to others about the case or had heard others talk about the case. Ofthe six alternates, four (nos. 13, 14, 16, and 17) had talked about the case with others. If one examines the remaining venire of 240 persons (258 minusthe 18 sworn jurors and alternates), the questionnaires reveal that multiple media sources werethe rule for knowledge about this case; and where there wasonly a single source, it was most commonly television. Furthermore, of these 240 veniremen, 136 had talked about this case with others. This constitutes 57 percent of the venire without the sworn jurors, and when onetallies up the percentage ofthetotal venire of 261, adding in the 6 jurors and 4 alternates noted above, the percentage comes downonly one point to 56 percent. Again, this is not merely the percentage ofpeople who had heard about thecase, --- that figure is between 98 and 99 percent, -- but it is the percentage ofpeople who had beentalking aboutthecase. If the venire represented a cross-section of the community, then the intensity of community interest in the case wasclearly in proportion to the intensity of the media attention, which, as Judge Mudd describedit, was a “tsunami.” Whowerethe people to whom prospective jurors in the community were talking? They were talking to their spouses, their families andrelatives, their 7 Record citations to the veniremen whohad talked about the case are as follows: 16 CT: 3973, 4021. 17 CT: 4118, 4167, 4191, 4215, 4239. 18 CT: 4337, 4409, 4505, 4529. 19 CT 4721. 20 CT 4937, 4961, 5033. 21 CT: 5057, 5081, 5105, 5153, 5178, 5226, 5298. 22 CT: 5322, 5346, 5419, 5467, 5515, 5539; 23 CT: 5587, 5661, 5685, 5759, 5783. 24 CT: 5879, 5975, 6023, 6047. 25 CT: 6095, 6119, 6143, 6191, 6311. 26 CT: 6359, 6431, 6455, 6551. 27 CT: 6599, 6623, 6671, 6695, 6719, 6743, 6767, 6791. 28 CT: 6887, 6911, 6935, 7031. 29 CT: 7079, 7103, 7127, 7175, 7247, 7271. 30 CT: 7389, 7413, 7437, 7461, 7485, 7535, 7559. 31 CT: 7607, 7655, 7679, 7751, 7822, 7846. 32 CT: 7870, 7907, 7966, 8038, 8086, 8158, 8182, 8206. 33 CT: 8278, 8327. 34 CT: 8375, 8423, 8447, 8495, 8567, 8591. 35 CT 8639, 8663, 8687, 8711, 8735, 8783, 8807, 8831. 36 CT: 8927, 9047, 9095, 9119. 37 CT: 9143, 9167, 9191, 9215, 9288, 9312, 9336, 9360. 38 CT: 9481, 9529, 9577, 9601, 9625. 39 CT: 9649, 9769, 9793, 9817. [CHECK AGAIN] 134 friends and neighbors, their co-workers and customers.” They talked to “just about everybody”they “kn[e]w””° , or to “no onein particular.” They talked about the case to waitresses in restaurants” and to strangers on the bus.” They talked on the golf course”, at church*’, and in schoolto their professors and classmates.” They talked to the repairman’, the babysitter™, to their roommates®, to their kids’ teachers®, to “Stephanie” and “Tod”*®’, and to “Bob”.* In short, this ” 16 CT 3973, 4021; 17 CT 4167, 4191, 4215, 4239; 18 CT 4337, 4409, 4481, 4505, 4529; 19 CT 4721; 20 CT 4937, 4961; 21 CT 5057, 5081, 5105, 5153, 5178, 5226, 5298; 22 CT 5322, 5346, 5419, 5467, 5515, 5539; 23 CT 5587, 5685, 5759, 5783; 24 CT 6023, 6047; 25 CT 6095, 6119, 6143, 6191, 6311; 26 CT 6359, 6431, 6455, 6551; 27 CT 6559, 6623, 6671, 6695, 6719, 6743, 6767, 6791; 28 CT 6887, 6911, 7031; 29 CT 7079, 7103, 7217, 7175, 7247, 7271; 30 CT 7389, 7413, 7437, 7461, 7485, 7535, 7583; 31 CT 7607, 7655, 7679, 7751, 7822, 7846; 32 CT 7870, 7966, 8038, 8086, 8158, 8182; 33 CT 8206, 8278, 8327; 34 CT 8375, 8423, 8447, 8495, 8567, 8591; 35 CT 8663, 8687, 8711, 8735, 8783, 8808, 8831; 36 CT 8927, 9095, 9119; 37 CT 9143, 9167, 9191, 9215, 9288, 9312, 9336, 9360; 38 CT 9481, 9529, 9577, 901, 9625; 39 CT 9649, 9769, 9793, 9817. 7 24 CT 5879 " 20 CT 5033; 23 CT 5661; 24 CT 5975; 30 CT 7559. *% 31 CT 7655. % 28 CT 6935. ° 27 CT 6695. *' 26 CT 6551. ® 25 CT 6311; 30 CT 7461; 35 CT 8639. 8 32 CT 7907. * 21 CT 5081 ® 23 CT 5587; 36 CT 9047 *° 30 CT 7485 135 wasnot a case whosepublicity provided vaguely entertaining background noise to the serious day-to-day business ofpeople’s lives; it was a case that engendered interest and provoked emotionifnotreflection. Lf one stays with numbers,it is useful to count the numberof for-cause challenges grantedto the parties in the actual course of voir dire. Of a venire of 263 people, the court granted 13 challenges for cause issued by the defense”, and 27 sua sponte orstipulated dismissals for cause.” Thisis atotal of 40 for-cause dismissals or about 15 percent of the venire. If one adds in the 4 challenges granted onthe prosecution’s motion’, the figure becomes 16 to 17 percent. Thus, about a sixth of the venire manifested biases so apparent as to appear hopelessly prejudiced to the court and at least one ofthe parties, if not both. But the morerealistic number must take into account the denied challenges for cause. For the purposes of gauging the temperamentofthe venire, these denied challenges cannot be denigrated as mere partisan expressions. Although the trial court represents neutral interests, the resolution of such challengesis neverclear cut (United States v. Martinez-Salazar, supra, 528 U.S. 304, 319, Scalia, J. conc.), and often involves “shades of gray.” (/d. at p. 316, maj. opn.) 7” 23 CT 5612 8 16 CT 3973 8 6 RT 2291, 2324; 7 RT 2538-2539, 2590, 2692-2693, 2709, 2775; 8 RT 2842, 2866, 3038, 3054, 3082; 9 RT 3128. % 6RT 2266, 2299, 2309, 2315, 2406, 2411, 2412, 2445-2446, 2462, 2470, 2471; 7 RT 2490, 2533-2534, 2766; 8 RT 2797-2798, 2887; 8 RT 3030-3031; 9 RT 3143, 3158. * 7 RT 2559; 8 RT 2831; 8 RT 3012; 9 RT 3163. 136 Thus,it is appropriate to take into consideration the fact that another 17 challenges for cause issued by the defense were denied by the court”, as wellas the 8 denied challenges issued by the prosecution.” This brings the percentage up to about 26 percent as representing those with which one party or another was dissatisfied in this case. Oneis also justified in taking into account the number ofperemptory challenges exercised. For these are the means by which the parties themselves are oe 6 9 99given the powerto eliminate ‘the extremesofpartiality’ short of cause, yet inimicalto a fair trial. (Hollandv.Illinois, supra, 493 U.S. 474, 484.) Thus,if one adds in the twenty peremptories the defense had exhausted in choosing the petit jury in this case, and the 18 exhausted by the prosecution, as well as the 5 and 6 exhausted by the defense and prosecution, respectively, in choosing alternates (see 9 RT 3108-3111, 3174-3175), this brings the total challenges (peremptory and for-cause) to 118, or about 45 percent of the venire, or almosthalf. 2. Qualitative assessment Butthe real story is never, or never completely, in numbers. One mustalso take a sampling of the attitudes expressed during jury selection by the prospective jurors themselves. It will be useful to begin with examples of those who openly declared their bias and regardedit as fixed and immoveable. Although they were all dismissed for cause, they help illuminate the character of the rest of the venire. For when one considers that most people do not see themselves as unfair or biased (see People v. Riggins (1910) 159 Cal. 113, 120), those who do declare themselves as such represent a kind of extreme that helps define where the relative mid-point lies. If this relative point is too far from the equitable mid- point, then there is a problem that needs remedy. ° ORT 2248, 2257-2258, 2307, 2335-2336, 2398-2399, 2405, 2422, 2428; 7 RT 2566-2567, 2602, 2732, 2753; 8 RT 2876, 2895, 2929, 2940, 3060. *° 6 RT 2299, 2393, 2436, 2445; 7 RT 2523-2524, 2532-2533, 2583-2584, 8 RT 2849. 137 Venireman 24 was a 42-year-old married womanwith a three-year-old daughter. (18 CT 4494-4495.)™ Both she and her husband worked, and she had held her job with the county for fourteen years. (18 CT 4494, 4496.) When asked on the questionnaire whetherherattitudes toward the criminal justice system in general would influence her in favoring the prosecution or defense, she wrote, “prosecution — physical evidence is huge -- & he soundslike heis a sick person.” (18 CT 4500.) She then checked off her disagreement with the proposition that “fa] defendant arrested for murder is presumed innocent” (18 CT 4500) andthat “a] defendantis innocent until the State proves guilt beyond a reasonable doubt.” (18 CT 4501.) Later in the questionnaire, she wrote that “kiddie porn” could affect her ability to be impartial in this case. (18 CT 4504.) She stated also that she believed that Westerfield was guilty and that she could not put this opinion aside. (18 CT 4505-4506.) She confirmed herbias in court during group voir dire, openly renouncing the presumption of innocencein this case in front of others who pledged the more commonplaceloyalty to it. (6 RT 2366.) She was excused by the court sua sponte. (6 RT 2406.) Number25 was a 48-year-old single man. He had graduated college with a B.A.in sociology, had been a helicopter mechanic in the Navy, and was now working for the city. (18 CT 4518-4522.) He too gave a specific answer abouthis general attitude toward the criminal justice system: “I believe there is already strong evidence ofguilt or there probably would be[sic] a trial to begin with. Physical evidence is powerful.” (18 CT 4524.) He registered his agreement with the presumption of innocence and proof beyond a reasonable doubt. (18 CT 4524- 4525.) He had a negative view ofpornography,butit did not provoke any strong prejudice in him. (18 CT 4528.) Nonetheless, in the section on publicity, Number 25 also wrote, “I already think he’s guilty because of the blood in his mobile home. I think he’s guilty of possessing child pornography found on computers.” ** The sex of the prospective juror is determined from the tables in CT 40. 138 (18 CT 4529.) In voir dire, he said he had heard a good deal about the case, and that the news media hadled the public to believe that Westerfield was guilty. “AndI feel,” he said, “he’|l have to prove his innocence because he’s already been shownto be guilty based on what the news media had reported.” (6 RT 2368- 2369.) Venireman number 25 was excused by the court. (6 RT 2407.) Number 69 was a 56-year-old engineer, had been married for 33 years, and had a grown, married daughter. (22 CT 5432-5433.) On the questionnaire he registered his agreement with the presumption of innocence and proof beyond a reasonable doubt (22 CT 5438-5439), to which he was “philosophically” committed (22 CT 5442); nonetheless, he thought “that in high profile/high publicity crimes (especially) and murders, arrests are made only after detailed info gone overby police systems/leadership + DA leadership to insure can gototrial.” (22 CT 5438.) Thus, later he wrote in the publicity section of the questionnaire: “T think Westerfield is guilty based on published inaccuraciesin his story andalibi and dueto circumstantial/physical evidence (hair, blood, DNA).” (22 CT 5443.) When asked if he could put aside this opinion, Number 69 wrote, “I already have formed the opinion that he is guilty of murder and should be given the death penalty.” (22 CT 5443.) 69 was removed by stipulation. (7 RT 2487, 2635.) Before proceeding to more examples, some commentis appropriate at this point. This Court once observed: “Oneofthe striking instancesofthe frailty of humannatureis the fact that a prejudiced person usually believes himself fair- minded and impartial.” (People v. Riggins, supra, 159 Cal. 113, 120.) This apothegm into which so much judicial experience has been compacted seemsto find some refutation in these examples. The moderate and restrained tones in which the prospective jurors expressly declared their preconceived notions to be immoveable and fixed seem to betoken an unusualinsight into one’s own biases and prejudices — but this is not the case. What it betokens is morethe likelihood that these prospective jurors believe that their biases and prejudices are the fair and impartial position. Whatis disturbing in this, from the point ofview of a 139 party choosing a jury from the remaining venire,is the lack of any feeling of pressure to qualify or restrain the admission that an actual trial was superfluous. In other words, there was, among someveniremenin this case, no feeling of public or, as it were, cultural pressure to at least acknowledge their preconception as a prejudice at odds with the most basic guarantees of the criminaljustice system, and this insouciance could only have been nurtured in a public atmosphere that was broadly interested in the case and broadly hostile to Mr. Westerfield. Not every preconception was moderately expressed. Venireman 43, a 19- year-old single woman, between jobs and schools (20 CT 4878-4880), registered “strong” disagreement with the presumption of innocence, though she conceded agreement with proof beyond a reasonable doubt. (20 CT 4884-4885.) Her questionnaire, however, exuded indignation and strong emotion. “Heis guilty. Noifs, ands or buts,” she wrote in response to the question ofwhether she had any prejudice that might influence herability to be impartial. (20 CT 4887.) When asked if she could return a guilty verdict facing the defendant in open court, she answered, “I would love to see his face whenheis proven guilty.” (20 CT 4888.) “HE IS GUILTY!” was the answer to whether she could return a not-guilty verdict if the state had failed to prove its case beyond a reasonable doubt. (20 CT 4888.) “Heis guilty, guilty, guilty!” she wrote when asked if she had formed any opinion from the publicity in this case. (20 CT 4889.) In regard to the death penalty, Venireman 43stated, “I think only people who should die are murderers. Slow and painfully.” (20 CT 4891.) Needless to say, Venireman 43 was dismissed by stipulation of the parties. (7 RT 2487, 2490.) Then there were those who admitted preconceptionsor strong biases, but who declared they could put them aside to judge the case fairly and impartially based on the evidence. Number78, a 34-year-old married woman, was one of these. (23 CT 5600- 5601, 5612-5614.) She registered “strong” agreement with both the presumption of innocence and proof beyond a reasonable doubt. (23 CT 5606-5607.) But she 140 admitted that she had a preconceivedbelief in Westerfield’s guilt because of his involvement with child pornography, and she wasreleased for cause by the stipulation of the parties. (23 CT 5609-5611; 7 RT 2763-2766.) Number13, a 42- year-old married woman with three children from ages 10 to 17, who worked as a paralegal (17 CT 4228-4229), was another who declared herself capable of fairness and impartiality, though she concededthat “it would be difficult.” (17 CT 4239-4241.) She was strongly influenced by Westerfield’s involvement in pornography (17 CT 4238) and “strongly believe[d] defendantis guilty.” (17 CT 4239.) She wasreleased for cause on the stipulation of the parties, but the consolation the defense might derive from the prosecutor’s agreement that she could be dismissed is somewhat offset by the fact that Number13 had also declared: “I am Catholic + do not believe in the death penalty.” (17 CT 4238.) Number 81, a 40-year-old patent agent for a large law firm, whose husband was a molecular biologist, and who had a five-year-old daughter (23 CT 5650- 5653), registered “strong” agreement with the presumption of innocence and proof beyonda reasonable doubt (23 CT 5656-5657), and declared herself capable of suspending judgment pending the presentation ofproper evidence in court. (23 CT 5661-5662.) But number 81 could not think about this case “without crying because of the injury to the younggirl” (8 RT 2826-2827; 23 CT 5659), and she wasreleased by a stipulation (8 RT 2831), --- a stipulation also perhaps made possible by her opposition to the death penalty. (8 RT 2829-2830.) The prosecution’s motive is perhaps moreclear-cut in the case ofNumber 72. Number 72 wrote, “Based on the blood stain and hair found at the mobile home, and basedon the trip Westerfield made during she was [sic] missing, seems he’s guilty.” (22 CT 5491.) Number 72 said she could nonetheless place this opinion aside and discharge her duty as a jurorin a fair and impartial manner. (22 CT 5492.) The “seems he’s guilty” gave the prosecutor a fighting chance to save this juror, but he stipulated to her release nonetheless. (7 RT 2620, 2635.) “Tama 141 Christian,” she wrote, “I disagree with death penalty because I feel no one should be accounted for another person’s life.” (22 CT 5490, 5493.) For the most part, with the exception perhaps of venireman 43, these examples strongly suggest a venire in which there would have been an abundance of well-qualified jurors in a normal case, and certainly even in a high-profile case of the usual kind(i.e., one garnering an occasional headline, but receding relatively quickly into quiescence and perhaps eveninto obscurity). This is apparentalso in the closer calls, in which some of the veniremen were dismissed for cause and some were not. These are “the shades of gray” (United States v. Martinez-Salazar, supra, 528 U.S. at p. 316) whose contrasts, again from the perspective of those trying to choose an impartial jury, are disquieting. Number68, who was released on a defense challenge for cause (7 RT 2709), wrote on his questionnaire that he was “not sure” he could be fair. (22 CT 5419, 5420.) He repeated this at voir dire, and explained that he had been on a jury before in a criminal case involving assault on a police officer. In that case, he had noreservations at all about his ability to be fair and impartial in evaluating only the evidence presented in court. But in the instant case, he indeed had serious reservations. (7 RT 2706-2707, 2709.) Venireman 3, on the other hand, stated in his questionnaire that pornography“is sick” (16 CT 3996), and at voir dire foundit difficult to say whetherhe could befair or notin light of the pornography evidence to be presented. (6 RT 2251.) Judge Mudd denied a defense issued challenge for cause, and the defense exercised a peremptory challenge to this juror. (6 RT 2557, 2473.) Similarly, Venireman 6 expressed doubt about whether he could be fair and impartial in the face ofthe pornography evidence. (6 RT 2298.) In this instance, the prosecutorissued the challenge for cause, though citing the pornography problem, which one would have thought was the concern only of the defense. The 142 court denied this challenge (6 RT 2299), and the prosecutor removed the venireman with a peremptory challenge. (6 RT 2472.) Venireman 19 was a principal at a school in the San Diego Unified School District. She lived in Poway. In her questionnaire, she stated, “I cannot abide crimes against children. This might color my objectivity, although I consider myself fair.” (18 CT 4383.) Later in the questionnaire she stated, “Children have been mylife for 37 years. I do not think I could be fair and impartial in this instance.” (18 CT 4383.) At voir dire, she affirmed these sentiments, adding that she had spent a great deal of her time as a school principal protecting children from abuse. (6 RT 2331-2332.) However, she ended up saying, “I honestly believe I am fair and impartial in this particular case. I’m not sure that my beliefs wouldn’t color the case.” (6 RT 2335.) Because ofthis, it seems, the defense challenge for cause was denied (6 RT 2335-2336), and she was eventually removed by a defense peremptory. (7 RT 2625.) Venireman 28, on his questionnaire, when asked if he would like to be a juror in this case, answered no. He wrote in explanation, “I have children at home and was devastated at what happenedtothelittle girl.” (19 CT 4599.) In regard to his feelings about the death penalty, he wrote, “I have neverparticipated directly in this matter, but if you kill children — well — eye for an eye.” (19 CT 4603.) At voir dire, he asserted that the killing of a child is “horrendous” and deserves the death penalty. (6 RT 415.) He would, however, do his best to follow the law, but wouldstill have a hard time being impartial. (6 RT 2416-2417.) A defense-issued challenge for cause was denied. (6 RT 2422.) Venireman 73 represents a slight departure from the previous two examples, in that she wasfirm and clear that she could base her decision only on evidence presented in court, although there was quite a bit of “published evidence” against Westerfield. (22 CT 5515.) However, as she’also revealed, she was the mother of a 19-month-old son. When newsbroke of Danielle Van Dam’s kidnapping, Number 72 becameafraid for her son, and she immediately drove 143 from her homein the Scripps Rancharea to Sabre Springs to see how far away it was. (7 RT 2725; 22 CT 5515.) She admitted that she probably favored the prosecution becauseofthe “published information” (7 RT 2727); and she thought that crimes against children were especially appropriate for the death penalty. (7 RT 2728.) The defense challenge for cause was denied. (7 RT 2732.) It becomesclear then, and would have been clearin the actual course of jury selection, that latent bias and prejudice were problems under the unusual circumstancespresented by this case. The next two examples are almost paradigmatic for this problem and perhaps sum up the urgency of the matter. Venireman 98 was a 48-year-old mother of three grown children, and married to a man ofpublic prominence. (24 CT 5988-5989.) She “strongly” agreed with the presumption of innocence and proof beyond a reasonable doubt. (24 CT 5994-5995.) She had been on twojuries in the past and was impressed with the fairness and good faith with which the jurors approachedthe task of making a judgment. (24 CT 5996.) The prospect of pornographic evidence provoked strong emotion in her, however. “I think it is disgusting and sick,” she wrote. (24 CT 5998.) She asked rhetorically “Why would anyone have child pormography?” and then answered, “They must have something wrong with them.” (24 CT 5997.) Whenaskedif she could place her opinionsto the side and bea fair and impartial juror, she wrote, “I think I could because I wouldlike to think of myself as a fair person even though it might be hard.” (24 CT 5999-6000.) But what was hard aboutit was not, as she affirmedin voir dire, the pornography. (8 RT 2928-2929.) Rather, as she wrote in answer to the question ofwhether or not she could return a not-guilty verdict if the state had failed to prove its case beyond a reasonable doubt, “Yes I could, but it might be hard considering public pressure.” (24 CT 5998, emphasis added.) Thus, Venireman 98, married to a public figure, registered the public mood as demanding judgment and punishment of Mr. Westerfield. Judge Bashant had also perceivedit in this way in her remarks on public catharsis. (See above, p. 122.) How many other membersofthe venire 144 felt it, whether consciously or not? Number 98 survived a defense-issued challenge for cause. (8 RT 2929.) The final example is Venireman number 109, whopersonifies the problem of latent prejudice and juror self-deception, as well as the degree of serendipity involved in the discovery of such matters. He was a Viet Nam veteran with combat experience. At the time oftrial, he had been married for thirteen years, and had a six-year-old daughter. (25 CT 2652-6253, 6256.) He had been employed by the same companyfor 22 years. (25 CT 6254.) He described his attitude toward law enforcementas “respectful” (25 CT 6257) and he was “strongly” committed to the presumption of innocence as well as the Fifth Amendmentright against self-incrimination. (25 CT 6258-6259.) Hebelieved he could be an impartial juror, and wrote, “I delay decisions until I hear the whole story, then I try to cross-reference data.” (25 CT 6260.) Asked about his feelings about jury service, he wrote, “It is an important duty, and a serious duty, especially in this particular case.” (25 CT 6260.) He had previously been on twocriminal juries, one in 1985, and one in 1995, and found the experience “favorable.” “The deliberations,” he wrote, “were tough but fair and thorough.” (25 CT 6260.) When asked if he wouldlike to be a jurorin this case, he checked “Yes”and wrote, “I feel it is important to find the truth in this case.” (25 CT 6261.) He did not have strong feelings about pornography nor would it affect his ability to be fair and impartial. (25 CT 6262.) Ifthe state was unable to proveits case beyond a reasonable doubt, he could return a not-guilty verdict. “It will not,” he explained, “serve Danielle or those who knowher, to punish someone who might be innocent.” (25 CT 6262.) In regard to publicity, he knew something aboutthe case in “outline” but not the details of the evidence. (25 CT 6263.) His family had attended oneofthe public memorials for Danielle. As he explained, “I feel sorrow, but this only makes it more important to find the truth.” When asked if he had formed an opinion about the case, he wrote, “I open [sic] to arguments, but I feel Danielle’s 145 death was not accidental. Beyond that I am undecided.” When asked if he could decide the case on the evidence rather than on the publicity, he wrote, “First, I don’t trust the media to give a full, accurate account, and rumorsare reported, too. I can make my own conclusions based onthetrial.” (25 CT 6263, 6264, underscoring in original.) In regard to the death penalty, he declared that “[I]t’s necessary, ultimate punishment in extreme cases.” But he could “support”life withoutparole, “if that’s called for.” (25 CT 6265.) In responseto the question, “Is there anything else that you feel the court should know about your qualifications as a juror?” he wrote, “I am committed to finding the truth, be it for or against the defendant.” (25 CT 6270.) On May30, during voir dire, the prosecutor Mr. Dusek informedthe court and the parties that he had received a call from Brenda Van Dam. While she was ice skating with her children in a public rink, a man cameup to her, expressed his sympathies, and said he wasa prospective jurorin the case. Later she received from him a memorial contribution of $100. The man’s name was on the check, and it belonged to Venireman 109. (8 RT 2790.) Whenit was 109’sturn that afternoon for voir dire, Judge Mudd asked him whyheviolated the admonitions not to become involvedin the case. 109 explained that he had seen Brenda Van Dam atan ice skating rink and talked to her about a memorial contribution. (8 RT 3030-3031.) Judge Mudd asked him pointedly, “Well, I think it’s safe to say that you can’t be fair and impartialin this case, can you?” (8 RT 3031.) 109 deniedthis, asserting that although he may have violated theletter of the court’s admonition, he did not violate its spirit “because a memorialis not related to the case”to which Judge Mudd replied, “TI don’t think this discussion is worth anything. It’s not going anywhere.” (8 RT 3031.) Venireman 109 wasthen released bystipulation. (8 RT 3031-3032.) 146 Comparison with Other High-Profile, High Publicity Cases The foregoing examination of the record attempted to recreate the public atmosphere surrounding this case from February through Mayof 2002, and to gauge the temperamentofthe venire summoned from the very public that contributed to, and was influenced by, this atmosphere. Does, then, this record establish that without the additional peremptory challenges requested, there was a reasonable likelihood of an unfair and partial jury? (People v. Bonin, supra, 46 Cal.3™ 659, 679; see also Sheppard v. Maxwell (1966) 384 U.S. 333, 363.) The affirmative answerto this question becomes apparentin a recapitulation that draws together from a broaderperspective all the detailed elements set forth above. A seven-year-old girl was taken from her bedroom at night while her brothers and parents were asleep in the house located in a middle class residential neighborhoodfull of young families who movedthereto raise their children and to take advantage of good schools andrelatively safe streets. Thelittle girl became the object of an intense and highly publicized three-week search, while a male, divorced, middle-aged neighbor, who had taken an odd weekend motor hometrip at the time the girl had disappeared, was the prime object of suspicion. At the end ofthe three-week search, the little girl was found dead, her bodyleft in a kind of rural garbage dump. One must add to these provocative features of the crime, the further reports that that the little girl’s mother wasat a local bar on a “girl’s night out” drinking and dancing with the man who would soon kidnap her daughter, and that there was hovering overall of this a background of suburban sexual promiscuity and spouse-swapping. This case was clearly something more than the run-of-the-mill crime story that appears frequently in the “metro” section of the newspaper and provokesin the readerlittle more than a passing mental note to be a bit more alert and vigilant. Rather,it is the kind of case that madeit “really hard to look at things like that and 147 not see your own child’s face” (9 RT 3143), as one of the prospective jurors declared in court — one of the few who had known nothing aboutthe case until summonedfor jury duty. (See above, p. 131.) It was the kind of case that roused Venireman 73 to immediately get in her car to see how far Sabre Springs was from her house whereshelived with her 19-month-old son. (See above, at p. 143.) It wasthe kind of case that made Venireman 109 seek out Brenda Van Dam to express his deepest sympathies, to do so in violation of a court admonition, and to asseverate all the while that he could be fair and impartial to the utmost. (See above, pp. 145-146.) It was the kind of case, which, as noted by Venireman 98, was generating public pressure for a guilty verdict (and death verdict) against Mr. Westerfield in advanceoftrial. (See above, p. 144.) And it was the kind of case that prompted Judge Bashantto perceive a need for somesort of massive metropolitan catharsis, and a case that engendered such a blast of media frenzy that Judge Muddlikenedit to a “tsunami.” (See above, pp. 122, 127.) One might be forgiven for belaboring this argument, as the burden on the appellant is heavy to the extent that the claim is unusual and depends on extraordinary circumstances. A further measure ofthe solidity and merit of his claim may be derived from a comparison — a negative one — with other high- publicity cases that have fallen short of the standard that is met here. People v. Bonin, supra, 46 Cal.3™ 659 involved the so-called Freeway Killer, convicted of killing 14 people on the freeways ofLos Angeles and of Orange County. (/d., at p. 668.) On his automatic appeal from the Orange County capital conviction, defendant claimed that his request for additional peremptory challenges should have been granted. (/d., at p. 679.) This Court first found that the claim was procedurally barred because defendant, when he requested more, had not yet exhaustedhis full statutory complement ofperemptory challenges — at that time, 26 — and did not renew his request for more after he had. (/bid.) Nonetheless, this Court proceeded to rule on the merits, and referred the reader 148 back to the analysis of the rejected claim that defendant’s motion for a change of venue was improperly denied. (/bid.) The relevant facts, as set forth in the decision, were the following: The defendant in Bonin wasarrested in connection with the “freeway killings” in June of 1980. He was charged in both Los Angeles County and in Orange County, but the Los Angeles action proceededfirst, starting in October 1981. The four Orange County murders were introduced as evidenceat the Los Angelestrial to establish identity. In January 1982, defendant was found guilty in Los Angeles of 10 counts of special circumstance murder, and in March 1982 he was sentenced to death for each count based on the jury’s finding ofpunishment. (/d. at p. 673.) As this Court noted, “[t]he news coverage relating to defendant and to the ‘Freeway Killer’ and the ‘freeway killings’ was extensive.” (/bid.) In July 1982, at the commencementofthe Orange County action, defendant moved for a change of venuebasedonpretrial publicity. An extensive hearing washeld, and in November 1982,the trial court denied the motion. (ibid.) Jury selection began in March 1983. Ud., p. 675.) Invoking the same “reasonable likelihood” standard to be used in the question of additional peremptory challenges (id., at pp. 672-673), this Court affirmed the rejection of the change of venue motion, quoting extensively from the trial court’s lengthy and considered ruling on the matter, but summing up the factors that rendered the claim deficient against the standard. Although the charges were serious and the publicity surrounding the case was extensive and sensational, “[t]he potentially prejudicial effect of the news coverage here must be presumed to have diminished.”For, “[a]s the trial court observed, the coverage had been minimal since imposition of sentence in the Los Angeles action. ‘That time soothes and erases is a perfectly natural phenomenon,familiartoall.’ [Citation.]” Ud. at pp. 677-678.) This, combined with the large size of the community, the defendant’s lack of any particular status within that community, 149 the lack of status similarly of the victims, all warranted the denial of the change of venue motion madeat the outset of trial before jury selection had begun. (/bid.) But there was a second change ofvenue motionat issue in Bonin, which motion was madeafter the voir dire and after the defendant had in fact exhausted his peremptory challenges. In describing the proceedings up to the second motion, this Court described a jury selection with numbers somewhatsimilar to, though less egregious than, those in the instant case: “ ... A total of 204 prospective jurors were subjected to voir dire. Of this number, 174 had been exposed in some degree to pretrial publicity either directly or indirectly, including 60 who had been exposed to news coveragerelating to the Los Angeles action; of the 204 prospective jurors 39 were excused because of bias. In the course of the selection process, but before he had exhausted the 26 challenges allotted to the defense, defendant moved for 8 to 10 additional peremptory challenges. The court denied the motion without prejudice to renewal later in the process. Subsequently, defendant exhausted his peremptory challenges but did not renew his motion. Twelve jurors and four alternates were eventually selected. Ten ofthe jurors andall the alternates had been exposedto pretrial publicity, including three jurors and one alternate who had come upon newscoveragerelating to the Los Angeles action. Most of these persons, however, had been exposed to such publicity indirectly and to a minimaldegree. “In June 1983, after selection of the jury was completed, defendant renewed his motion for change of venuein light of the record of voir dire. He argued, in substance, that practically all the jurors and alternates had been exposedto pretrial publicity and that their memories would be refreshed by evidence introducedattrial. The court denied the motion. ...” (Ud., at pp. 675-676.) This Court affirmed this ruling as well, concurring with thetrial court’s determination that any apprehensionthat the evidencein this case would trigger more extensive memories of the prejudicial Los Angeles case wasonly a “possibility” and based not on evidence, but on conjecture. (/d. at p. 676, 678.) 150 Again, the change-of-venue analysis in Bonin was deemed the same one applicable to the claim that the defendant in that case was entitled to more peremptory challenges. (/d., at p. 679.) Just as there were change ofvenue motions in Bonin made before andafter voir dire, so here there were requests for increased peremptories madebefore andafter voir dire. Again, the quantitative assessment of the venire in Bonin yielded numbers not dissimilar to the numbersat issue in this case. What then distinguishes Bonin from the instant case so as to require a different result here? One need notparse atrocities to determine whether the murder of a child of tender years, kidnapped from the very asylum of her own home,is more emotionally compelling than random murder on the freeway. But one might not be off the mark in suggesting that while the “Freeway Killer” might be viewed as pathologically aberrant, -- a circumstance that places a kind of consolatory distance between the normal citizen and the emotional horror of the crimes--, the horror of the instant case only increases to the extent that it was accompanied by all the accouterments of normal middle classlife. But placing this calculus aside, the time-frameat issue in the instant case was muchshorter than that involved in Bonin. In Bonin, jury selection in the Orange County case occurred about a year after the Los Angelestrial had ended, and about three or four years after the crimes themselves. The publicity had been minimal by the time the secondtrial started. Here the emotional intensity of the case wasstill prevalent when jury selection began only three months after Danielle Van Dam disappeared, and, as demonstrated by the facts set out above, the case proceeded forward in the very heart of a community still roiling with the publicity and media attention. In regard to the jury selectionitself, if the numbers in Bonin were somewhat comparable, they were not the same. In Bonin, ten of the twelve jurors were minimally aware of the case; in the instant case, all of the jurors were aware of the case and for the most part extensively so, and this wastrue ofthe entire venire of 151 263 people, exceptfor three, all ofwhom were excused for cause. Further, the emotional intensity provoked by the case did emerge in the voir dire itself and was reflected not only in the numbersbutalso in the qualitative and substantive answers that were given by the prospective jurors during voir dire. Finally, it should be noted, that while the jury selection in Bonin took three months, from March 1983 to June 1983 (id., at p. 675), the jury selection in the instant case took three days, from May 28 2002 to May 31, 2002. Bonin is thus distinguishable and corroborates the conclusion here that an increase in the number ofperemptory challenges was an appropriate remedy for the publicity and the communal emotion pervading the atmosphere surroundingthis case. Another case commanding comparable notoriety is Skilling v. United States, supra, 130 S.Ct. 2896. This case involved oneofthe federal criminal convictions arising from the collapse of Enron — an event that received nationwide publicity for a lengthy period of time. (/d., at p. 2907.) In that case, the United States Supreme Court rejected Skilling’s claim that the trial was vitiated by any implied or actual bias on the part ofthe jurors created by pretrial publicity. In Skilling, however, the case involved corporate bankruptcy, embracing the arcane subject of financial and accounting intricacies, none of which is provocative ofthe emotional arousalstirred by almost any other violent crime. (See id. at pp. 2908- 2909.) The newsreports surrounding the case tended to be confined to factual matters; the time between Enron’s bankruptcy and defendant’s trial was four years, by which time the publicity had abated considerably; and the venue for the trial, Houston, had a metropolitan area population of 4.5 million. (/d., at pp. 2914- 2916.) Finally, there was nothing in the actual voir dire that reflected an actual problem with pretrial publicity, and indeed, the District Court in Skilling had in fact granted the defendant two additional peremptory challenges. (/d. at p. 2918 and fn. 21.) By contrast in the instant case, publicity was intenseat the very time ofjury selection; the case involved a violent crime with easily assimilated facts of 152 a provocative nature; the emotional intensity surrounding the case wasreflected in the voir dire; and the defendant received no additional peremptory challenges. Skilling and Bonin, then, provide a kind of negative measure of what the instant record affirmatively shows: a reasonable likelihood that a fair and impartial jury was not obtainedin this case. If the claims in those cases were to be rejected, the claim in the instant case, subject to the same standard, cannot be. The failure of the court to grant the defense any additional peremptory challenges constituted a violation of due process. The only question remaining is that of prejudice; but that question does not require any further factual exposition, for the standard for establishing the erroritself is also the standard for reversal. E. Prejudice In United States v. Harbin (7" Cir.2001) 250 F.3"532, the Court found a due processerror in granting the prosecution a mid-trial peremptory challenge against an alternate who wascalled in to replace a sitting juror, which,in effect, denied defendant an equal number ofperemptory challenges. (/d. at pp. 540-542.) The Court in Harbin analyzed the appropriate standard of prejudice as follows: “_.. . The Supreme Court hasstated that ‘if the defendant had counsel and wastried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis.’ [Citations.] Here, however,the error calls into question the impartiality of the jury becauseit cripples the device designed to ensure an impartial jury by giving each party an opportunity to weed out the extremes of partiality. Therefore, the presumption is inapplicable. The right to an impartial jury is the sort of right that requires automatic reversal when denied. As with other such errors, however, the ‘nature, context, and significance’ of a violation may determine whether automatic reversal or harmlesserror analysis is appropriate. Minor or technical errors that do not significantly undermine the constitutional right do not require automatic reversal. [Citations.] 153 Wheretheerror is substantial enough to underminethe constitutional right, however, automatic reversal is required. We have such an error here. Unlike Patterson, this is neither an insignificant nor a technical error. See United States v. Polichemi, 219 F.3d 698, 705 (7th Cir. 2000) (distinguishing Patterson, in which theerror did not call into question the impartiality of the jury ultimately selected, from Underwood, wherethe entire process ofjury selection was infected with ambiguity). The error here adversely impacted the ability of the peremptory challenge deviceto fulfill its purpose of ensuring an impartial jury, and therefore reversal is necessary without engaging in a harmlesserror inquiry.” (Harbin,id., at p. 548.) The court in Harbin found that reversal per se was the only standard appropriate to deal with the typeoferror at issue, which defied any reasonably certain detection ofits effects. “.. . Are we to say that reversal is inappropriate in those instances becausethe jury that actually sat was impartial, based on the fiction that the challenges for cause eliminated all biased jurors and that peremptory challengesare a statutory creation not constitutionally-required? Although they are not constitutionally- required, the Supreme Court has long recognized that the right of peremptory challenges is one of the most important oftherights secured to the accused. They are a tool for achieving the constitutional mandate of an impartial jury, by allowing each party to eliminate those jurors with real or suspected biases. [Citation.] Although challenges for cause eliminate presumptively biased jurors, peremptory challenges weed out the extremesofpartiality on both sides. [Citation.] Thus, a system that grants the right to only one party threatensthat goal of an impartial jury by skewing the jury towards the favored party. This is different from an error that impedesthe ability of a defendant to maximizethe strategic use of his peremptory challenges, or that affects the number ofperemptory challenges available in a technical sense.” (Harbin,id., at p. 549.) Here, the need for additional peremptory challenges was generated by the intense pretrial publicity that occurred in this case. This takes the issue out of the 154 arena of a technical challenge to the number of peremptory challengesat issue, and the provenanceofthe claim is in something much moreserious than partisan jockeying for advantage. Moreover, since the publicity was overwhelmingly adverse to the defense, the prosecution, like the prosecution in Harbin, was at an undue advantage. If the Harbin analysis is correct, which it is, then once a reasonable likelihood of an unfair and partial jury is established, then the case mustbe reversed. The analysis in Harbin has been confirmed by implication in this Court’s pronouncements in Peoplev. Bittaker, supra, 48 Cal.3™ 1046. In Bittaker, the defendant objected to the denial of five of his challenges for cause. He used five peremptory challenges to dismiss the prospective jurors in question, exhausted his full complementof26, and then expressed dissatisfaction with the remaining jurors then sitting on the panel. Thetrial court, though satisfied that its ruling on the challenges for cause wascorrect, nonetheless gave both parties two more peremptories, which the defense exhausted, but the prosecution did not use. (/d., at p. 1087.) Before this Court, defendant renewedhis claim that his challenges for cause were improperly denied, and contended that even the erroneousdenial of one challenge required reversal of the conviction. (/bid.) This Court did not disagree with the principle: “The denial of a peremptory challenge to which defendantis entitled is reversible error whenthe record reflects his desire to excuse a juror before whom hewastried. [Citation.] Since the erroneous denial of a challenge for cause compels the defense to use a peremptory challenge, a similar analysis applies to denial of a challenge for cause. [Citation.] Defendant must show that the error affected his right to a fair and impartialjury. “Thus, defendant must show that he used a peremptory challenge to removethe juror in question, that he exhausted his peremptory challenges [citation] or can justify his failure to do so [citation], and that he wasdissatisfied with the jury as selected. But 155 if he can actually show that his right to an impartial jury was affected because he was deprived of a peremptory challenge which he would have used to excuse a juror whosat on hiscase,he is entitled to reversal; he does not have to show that the outcomeofthe case itself would have been different. [Citations.|” (Ud. at pp. 1087- 1088.) The Court disagreed only with Bittaker’s numbers. Because he had received two additional peremptory challenges, he had to show at least three erroneous denials of a challenge for cause. (/bid.) Thus, in Bittaker, this Court conceived of the prejudice from an erroneous denial of a challenge for cause as inhering in the loss of a peremptory challenge, whichloss is reversible per se if the peremptory wasactually used to dismiss the prospective juror who should otherwise have been dismissed for cause. Thatthis wasthe thrust ofBittaker is confirmed by the fact that this Court examined only the prospective jurors who were peremptorily challenged without considering the quality of those who remained on the panel. (/d. at pp. 1088-1089.) The case was not reversed, however, because this Court found only two erroneously denied challenges for cause. ([bid.)” Both Harbin and Bittaker take their cue from the nature of the error and the nature ofits effect. It is almost never possible on appellate review of a jury voir dire to ascertain with a high degree certainty the ills and debilities that only a peremptory challenge can cure, and the importance of a peremptory challenge to the selection of a fair and impartial jury is incontestable. It is also incontestable that a fair and impartial jury is the sine qua non of a fundamentally fairtrial. Whenthe circumstances show,as they do in this case, that without additional * For purposesofthis argument,it does not matter if Bittakeris ultimately correct about wherethe prejudice from an erroneous denial of a challenge for cause lies. (See People v. Yeoman (2003) 31 Cal.4" 93, 114.) The pointis that whenthe error consists, as here, of an uconstitutional impingementontheright to a peremptory challenge, independentofthe status of any challenge for cause, reversal per se is appropriate and necessary. 156 peremptory challenges there is a reasonable likelihood that a fair and impartial jury could not be, and wasnot, obtained, then the conviction proceeding from that jury must be reversed. 157 THE ERRONEOUS DENIAL OF A DEFENSE CHALLENGE FOR CAUSE ISSUED AGAINST VENIREMAN19 RESULTED IN PREJUDICIAL ERROR UNDER THE FEDERAL AND STATE CONSTITUTIONS The contention in the previous argument wasthat the request for additional peremptory challenges, beyondthe statutorily prescribed twenty, was warranted as a matter of due process under the circumstancesofa case attended by intense publicity and community interest. As noted in the previous argument(see above, pp. 118-119), the issue was independent of whetheror not there were erroneous denials of defense-issued challenges for cause; but these denials were nonetheless at least implied in the background ofthe issue since one of the functions of peremptory challenges in Californiais to redress the trial court’s error, or perceivederror, in denying a challenge for cause. (People v. Gordon (1990) 50 - Cal.31223, 1248, fn. 4; People v. Yeoman (2003) 31 Cal.4" 93, 114.) In the instant argument, the background comesto the foreground, and the question of the denial of challenges for cause is the question. Also as noted above also (pp. 118-119), the procedural requirements to preserve this issue have been met: the defense 1) used a peremptory challenge to removeajuror that it had unsuccessfully challenged for cause; 2) exhausted the allotted complement ofperemptory challenges; and 3) expressed dissatisfaction with the jury as actually constituted. (People v. Mills (2010) 48 Cal.4" 158, 186; People v. Bonilla (2007) 41 Cal.4™ 313, 339; see also People v. Bittaker (1989) 48 Cal.3" 1046, 1087-1088.) All this occurred here. (8 RT 2951; 9 RT 3106.) Butin addition to preservation of the claim, it is necessary to show prejudice in a specific form: the loss of a peremptory challenge to correct an improper denial of a challenge for cause must result in a petit jury thatis vitiated by the presence of an incompetent juror, who not only was subject to an 158 improperly denied for-cause challenge, but also could have been removedby the peremptory challenge that was otherwise wasted on a juror whoalso should have been removed for cause. (People v. Yeoman, supra, 31 Cal.4" 93, 114; People v. Carter (2005) 36 Cal.4" 1114, 1179; People v. Farley (2009) 46 Cal.4™ 1053, 1096-1097.) In effect, this means that appellant must show at least two erroneous denials of challenges for cause: one to a prospective juror who must be removed peremptorily, and one to an actual juror, who could not be removedbecause ofthe forced dearth of a peremptory challenge. At issue here is the challenge for cause issued to Venireman 19, who was removedbythe expenditure of a peremptory challenge, and Veniremen 34, who, eventually, became Juror 4. (40 CT 9855.) Focusing on these two should not be deemed a concessionthat the trial court was correct in the denial of the other fourteen defense-issued challenges for cause in this case. One must keep in mind that reviewing courts defer broadly tothetrial court’s wide discretion on the question of for-cause challenges (People v. Holt (1997) 15 Cal.4™ 619, 655-656, 779), and the principle of selection in this argumentis dictated by this imposing burden. But, as stated in the previous argument, the trial court’s determination, in actuality, is hardly ever clear-cut and is subject to subtle nuances interpretable in different ways. (United States v. Martinez-Salazar (2000) 528 U.S. 304, 316, maj. opn., and at 319, Scalia, J. conc.) * Thereis a third juror at issue as well. Venireman 51, who became Juror 2 (40 CT 9855), had also been the object of an unsuccessful challenge for cause issued by the defense. (8 RT 2566-2567.) However, the challenge was based on 2’s viewson the death penalty, and the propriety of his retention is thus better raised with the penalty phase issues to be addressed if this Court deemsnoneofthe guilt phase improprieties to be error or reversible error. (See People v. Tate (2010) 49 Cal.4" 635, 666-667; see below,pp. 430 et seq.) 159 A. Thereference to “cause” and to the “incompetence”ofajuror refers of course to juror bias, and morespecifically to actual bias. There are indeed other groundsforthe disqualification as a juror, but actual bias, as defined in the governingstatute, is “a state of mind onthe part ofthe juror in reference to the case, or to any ofthe parties, which will prevent the juror from acting with entire impartiality, and without prejudiceto the substantial rights of any party.” (Civ. Proc. Code, § 225(b)(1)(C).) This bias is disqualifying even whenit is informed moreby a prejudice against the type of charge than by a prejudice against the parties directly and personally. (People v. Harrison (1910) 13 Cal. App. 555, 558; People v. Compton (1971) 6 Cal.3"! 55, 59.) This last point is pertinent in the case ofVenireman 19. As mayberecalled from the previous argument (see above, p. 143), Venireman 19 was a 58-year-old elementary school principal. She lived in Poway, near Sabre Springs, and had worked for the San Diego Unified School District for 36 years, 15 ofwhich she had been a principal. (18 CT 4374-4376.) In response to question 77 on the questionnaire, which asked, “Would youliketo be a juror in this case?’”’, she checked off “No” and wrote in the explanation: “I cannot serve on a case wherethe victim was a child.” (18 CT 4383.) Question 78 stated: “Everyonehas biases, prejudices or preconceived notions. Do you haveanythat would affect the way you decide this case? [§] Explain.” She wrote: “I cannot abide crimes against children. This might color my objectivity, although I consider myselffair.” (18 CT 4383.) Question 80 stated: “In the course of this trial, you may be expected to view and discuss photographs ofthe deceased which will graphically depict her decomposed body. Will you be able to do so?” Number 19 checked off “No”, and then checked off “Yes” to the sub-question: “Will this affect your ability to be fair and impartial?” In explanation she wrote, 160 “Children have been mylife for 37 years. I do not think I could be fair and impartial in this instance.” (18 CT 4383.) In regard to publicity, she obtained her information about this case from the Union Tribune, and, as she describedit, she knew “the basic information—amissing child, parents ‘occupied,’ death of child, neighbor arrested.” (18 CT 4385.) She checked off “Yes” when asked if she had formed an opinion: “Parents are guilty of neglecting their responsibilities. The defendant acted strangely with driving to beach, then desert.” She believed that she could base her decision on the evidence presented in court, and commented, “This is the work J do each day — listening impartially before making a decision.” (18 CT 4385.) She could place that opinion aside, follow court instructions, and be fair to both sides. (18 CT 4386.) At the very end of the questionnaire, she checked “No” whenasked in question 123, “Is there any reason you would notbe a fair juror in this case?” (18 CT 4392.) This stark schizophrenia continued ten days later when Number 19 appeared for voir dire on May 28. She was examined by defense counsel, Mr. Feldman,as follows: “Q. Ma’am, on your questionnaire you indicated several concerns about yourability to be fair and impartial. Specifically,I think you told us, quote: I cannot serve on a case wherethe victim is a child, end quote,is that right? “A. That’s correct. You told us, quote, I cannot abide crimes against children. This might color my objectivity;’ Is that right? “A. Yes. “Q. And that children have been yourlife for 37 years and so you could not be fair and impartial in this instance; is that right? “A. [believe I would not be fair and impartial. 161 “Q. So are youtelling us that in this case, and I appreciate your honesty, you could not be fair and impartial because the crime involves an allegation of murder of a child? “A. I would — that would color my feelings. “Q. Well you’re using the word ‘color’ but in your questionnaire you used wordslike ‘I cannot serve’ and that’s —I don’t know,feels to mea little stronger. “Can youtell me what do you meanbythat, please? “A. I spend a great deal ofmy time protecting children. | have goneto the authorities about abuse for children. Therights of children are uppermost in my mind andI — we havea hard time looking at a defendant in a child — a case where a child has been a victim. “Q. I think you told us you have 15 years as a principal. Is that in San Diego County? “A. San Diego Unified. “Q. I think you reside in an area that’s close to Sabre Springs. That’s right, isn’t it? “A. [live in Poway. “Q. Yes. Andso all things considered — and in addition you have professional obligations;is that right? “A. Ido. “Q. So sitting as a juror for two to three months would create a hardship for you? “A. A great deal. “Q. What — the hardship would prevent you from doing your job? 162 “A. There would not — they would not get a replacementfor me. I would have to do the job of a juror during the day and the job of a principal in the evening. “Q. And since I guess the schools don’t go in the evenings, you wouldn’t be able to attend to your duties during the day, right? “A. Well I’d be doing the paperwork. That’s all I’d be doing. “Q. So for reasons ofpersonal bias and hardship, you can’t sit, is that a fair statement? “A. I believe I cannot. “MR. FELDMAN: Thank you.” (6 RT 2331-2333.) Mr. Dusek,the prosecutor, then undertook the rehabilitation: “Q. You’ve been a principal for how long? “A. This is my 15" year. “Q. Are you required to be fair and impartial in that type of work? “A. Always. “Q. Are you? “A. Yes. “Q. How do you doit? “A. Listen, listen very carefully, question. “Q. And when you have to imposediscipline at school are there times when youlike the kids and maybe someofthe other kids aren’t your favorites? 163 “A. Of course. “Q. On those situations where they’re not your favorites, can youstill be fair? “A. Absolutely. “Q. In your questionnaire youtold us,sir [sic] — a question wasasked ‘do you feel you can be an impartial juror?’ and you said yes. “What did you mean bythat? “A. You didn’t ask meif J could be an impartial juror in this case but — “Q. [just did. “A. Because I have an ability to listen and judge and do an awful lot ofjudging in my line ofwork I have to be impartial. “Q. Do you understand how importantthat is in this case? “A. Yes. “Q. That’s something you can do? “A. In this case? “Q. Yeah. “A. I can’t answerthat question. I don’t know if I can be fair and impartial. “Q. Let me ask youthis. “Ifyou were told that you had to make you decisions based upon the evidence that came forwardin this case and only that evidence, could you do that? “A. Yes. “Q. Ifyou found that you couldn’t, would you let us know. 164 “A. Yes. “MR. DUSEK: Thank you, ma’am.” (6 RT 2333-2334.) The court itself felt it necessary to continue the voir dire: “BY THE COURT: “Juror Nineteen, you’re sort of a rare breed. In reading your questionnaire you’re obviously very educated and so forth, but you give whatI will describe, as a judge, conflicting messages. “Counsel have each asked you questions from their perspective, and I’m goingto ask you point blank anddirect. Knowing everything that you know about yourself, and what you’ve seen and heard to this point in this case, do you believe you can be fair and impartial to both sides in this case? “A. I honestly believe I am fair and impartialin this particular case. I’m not sure that my beliefs wouldn’t color the case. Q. Okay. “A. I don’t know whatelseto tell you. “Q. And I appreciate that. You’re just not sure? “A. Yeah. “Q. You’re not sure. Okay. Just wait right outside.” (6 RT 2334-2335.) Mr. Dusek passed for cause, but the defense issued a challenge. (6 RT 2335.) The Court rejected it: “...[M]y own notes show what a dilemmasheis. Becauseofher experience andhertraining, she has madeit quite clear that she’s very objective and she’s a very fair individual. The answers she’s given do not 165 indicate an extremebias or prejudice that would prohibit her from doingherjob. I’ll note the challenge to nineteen, and it will be denied.” (6 RT 2335-2336.) The next day, defense counselfiled a written motion urging the Court to reconsiderits denial of the for-cause challenge to Venireman 19. (7 CT 1752.) After the Court rejected the motion, the defense usedits fifth peremptory challenge to remove 19, who would otherwise have become juror 12. (7 RT 2611, 2625.)” What then was before Judge Mudd in regard to Venireman 19? She expressed twoclearly delineated attitudes anchored in her 37-year professional experience: children were her vocation; fair and impartial judgment washer job. The former, in her own estimation, disqualified her as a juror in this case; the latter, in her estimation, qualified her as a juror in this case. She neverretreated from the strong expression of her bias, while she did retreat from her strong expression of her fairness and impartiality, by telling Mr. Dusek that she did not know if she could be fair and impartial, and by telling the judge that she was not sure. It is difficult to see how thetrial judge could possibly conclude that 19’s bias was not extreme, and that it was outweighed by any professional experience in resolving grade-school disputes — matters not quite commensurate with the steadiness required to resolve guilt vel non for child-murder. In People v. Bittaker, supra, 48 Cal.3™ 1046, this Court founderror in a denial of a for-cause challenge to “Juror Staggs” with the following analysis: 7 The written motion was aimed expressly at Venireman 19, correctly describing her as a school principal (7 CT 1754), but incorrectly imputing to her a friendship with a person whohad a daughter in Danielle Van Dam’s class at Creekside Elementary. (7 CT 1752.) This, however, described Venireman Number 8, whose friend had a daughter at the sameschool, but not in the same class. (6 RT 2287- 2288; 17 CT 4111.) Number8 wasin fact removed for cause. (6 RT 2291.) One might note that the written motion was prepared by an attorney who wasnot present at during jury selection (7 CT 1756; 14 CT 3415), and who undoubtedly received a hurried account from thetrial attorneys in the midst of preparation for the next day’s voir dire. In any event, it was impossible that the Court was in any way misled by the mistake. 166 “Juror Staggs had heard something about the case on television and in the newspaper. She recalled that the case involved people being picked up and raped in a van andalso that pictures were taken of the people who were killed. Staggs told the judge that she had workedat a rape crisis center, and did not believe she would be impartial in a case involving charges of rape. [Fn. omitted.] Her voir dire presents no unqualified statement that she actually felt that she could be fair and impartial in the penalty phase ofthis case. “Defense counsel asked Staggsif it was her position that, because of ‘your strong feelings about victims of rape, that you would be unable to really fairly and impartially judge and evaluation such a situation?’ She responded with an unqualified ‘yes.’ The prosecutor, attempting to rehabilitate her, could obtain only a statement that she would act impartially at the guilt phase. The judge asked if she would be willing to listen to the evidence and be a fair and impartial juror; she said that ‘I could try, but I believeit would be difficult. . ... [One] of the questions I do remember was listening to gruesometestimony. And I think I would have a tendency to have a saturation point perhaps below whatother people —an anger point, perhaps, or something to that effect. So that I wouldn’t be listening wholly to the evidence.’ “In short, Juror Staggs said she did not think she could be impartial at the penalty phase, and whenasked if she wouldlisten to the evidence and judge fairly, replied that she might not be able to listen to all the evidence. On this record, we conclude thatthe trial court erred in denying the challenge for cause.” (Ud., at pp. 1089- 1090.) Althoughnotidentical, the points of similarity here are striking. Staggs worked at a rape trauma center and never unqualifiedly said she could be fair and impartial at the penalty phaseoftrial, while here Number19 neversaid unqualifiedly that she could be fair and impartial at all. In short progression, Number19 told Mr. Feldman she could not be fair and impartial; she told Mr. Dusekshe did not know if she could be fair and impartial; and she told Judge 167 Muddthat she could be fair and impartial but was not sure. One might further note, that her expression to Judge Mudd cameafter the pressing observation by him that number 19’s contradictions were unworthy of her education. (6 RT 2334.) In Bittaker, Skaggs indicated that she might not be able to considerall the evidence, while here 19 expressed her complete aversion to viewing photographs of a decomposed body of a young child, and linking this to her attitude of horrorat the charges. (18 CT 4383.) If it was error to deny a challenge of cause for Juror Skaggs in Bittaker, it was error afortiori to deny a challenge for cause for Venireman 19 in the instantcase. B. The next question is whether Venireman 34, who became Juror number4 (40 CT 9873), was disqualified from serving on the jury because ofbias. In the initial voir dire, Number 4 was passed for cause by both sides. (6 RT 2460.) Nothing in her questionnaire or the voir dire itself stood out as a warning. She was a 65-year-old woman, born and raised in Germany, whose second language was English, but whosaid she had no difficulty understanding it. (15 CT 3578, 3586-3587.) She did not want to be a juror in this case because “I don’t feel qualified to make a death or life recommendation.” (15 CT 3587.) She knew very little about the case, but she could decideit on the basis of evidence presented in court, could place to one side her opinions, could be fair and impartial to both sides, and could follow the court’s instructions. (15 CT 3589-3590; 6 RT 2455- 2457.) She supported the death penalty as well as life without possibility of parole, and despite her reluctance to judge, she could make a decisioninthis case. (6 RT 2459.) After the defense exercised its fourth peremptory challenge, she was called to take seat number4. (6 RT 2476-2477.) The next day, May 28, she sent Judge Mudd a note claiming a hardship: 168 “After given [sic] more tough[sic] to this mater [sic] I have to tell you that it will be impossible for me to serve on a lenthily [sic] trial. My husband, whois 74 years of age, has been having continues [sic] health-problems[sic]. His blood-pressure [sic] goes out of control at times it is so high that he has to be hospitalized. Three weeksago he had another episode where he had to be hospitalized, it is very scary to both of us. Since there are only the two of us, I am the one whotakes care ofhim. So far he hasn’t recuperated well form his last ordeal. If something should happen while I am on jury-duty [sic] I would have to excuse myself from the case.” (40 CT 9924; 7 RT 2615.) The doctor’s phone numberwasgiven at the bottom of the note. (40 CT 9924.) Juror 4 was called in, and Judge Muddclarified that she was not available if her husband had a relapse, but was if he did not. (7 RT 2616.) Out of her presence, both the prosecution and defense were willing to stipulate to herrelease, but Judge Mudd ruled that she would be retained on the understandingthatifher husband had a relapse she would be excused. (7 RT 2616-2617.) The next day Judge Mudd received another note from Juror 4: “On the Courts [sic] questionnaire “T misunderstood the question aboutfriend or relatives in law enforcement. I though [sic] the question only applied to police officers. I have a close personal friend whose husbandisa retired deputy district attorney. We see each other on a regular basis socially and I have talked to him about the criminal justice system. Asa result of this relationship I have formed opinions which are favorable towards prosecutors.” (40 CT 9923; 8 RT 2935.) The question she wasreferring to did ask only for relationships to police or police-type officers. (15 CT 3582.)* But a few questionslater, it was asked, “Are °° Question 47 was: “Do you haveany friends or relatives involved in law enforcement(for example, F.B.I., D.E.A., C.LA., San Diego Sheriff's Department, 169 you personally acquainted with any judges, prosecuting attorneys, or criminal defense attorneys?” and she checked off ‘“‘No.” (15 CT 3583.) In any event, Judge Muddfelt there was no needto act on the note or conduct any further voirdire, but nonetheless acceded to defense counsel’s request that she be questioned. (8 RT 2935.) Number 4 wascalled in: “THE COURT: Ma’am, thank you very much for your candor and yourrecollection. [ “Yes, Mr. Feldman. Very briefly. “MR. FELDMAN: Ma’am,you just provided usa letter. Thank you very much. But theletter indicated that at least as I recollectjust reading it that you mightas result ofyour personal acquaintanceor friendships favor the prosecution — “VENIREMAN NUMBER34: Yes. “MR. FELDMAN:-- in this case. “As a result of that belief, do you feel that you can no longer be completely, one-hundred percent objective. “VENIREMAN NUMBER34: Yessir. “MR. FELDMAN: So asa result ofyour acquaintance with the prosecutors in your view, you havea bias such that it would prevent you from beinga fair juror in this case? “VENIREMAN NUMBER34: I would think so,yes. “MR. FELDMAN: Thank you.” (8 RT 2936.) Judge Mudd, who hadinitially felt there was no needfor voir dire at all, changed its mind: San Diego Police Department, California Highway Patrol, local police, military police) or employees of any such agency?” (15 CT 3582.) 170 “THE COURT: Ma’am, what made you change your mind? Theserelationships existed even though you didn’t put it in your questionnaire and you didn’t even come close to answering a question like you have today. What changed overnight? “VENIREMAN NUMBER 34: Whatit is I saw my friend last night, and he was surprised I wasstill on the jury. And he asked me if I was — if I had given you the information. I said no, I didn’t realize I had to. “THE COURT: Ma’am, you hadn’t given us the information. But what about that changes from I can be fair to both sides and I’m going to favor the prosecution? You knew these people when you filled out the application, [ mean whenyoufilled out the questionnaire. I want to know what overnight changed you from being a fair and impartial juror to one that’s going to favor the prosecution and can’t be fair to both sides. Please explain that to me. “VENIREMAN NUMBER34: Okay. Myfeeling onthisis I didn’t realize that before. See, I’m not familiar with the justice system the way everybody else seems to be “THE COURT: No. You know whatfairnessis, though, don’t you? You knowin your heart whether you can be fair. Now you can’t be fair, is that what youaretelling us? “VENIREMAN NUMBER34: I’m not a hundred per cent sure. But it seemslike I have to explain this to you that I have this connection, and we have talked aboutthe judicial system. So that’s all I’m trying to say here. “THE COURT: No. You’ve said more than that. You have told Mr. Feldmanthat you can’t be fair to both sides now. That is dramatically different than what you havetold us up to this point throughoutthis process.” (8 RT 2936-2937.) Judge Mudd then handed the inquiry over to Mr. Dusek: 171 “MR. DUSEK: Who’sthe friend? “VENIREMAN NUMBER34:It’s a formerDistrict Attorney from Los Angeles. “MR. DUSEK: Howold is he? “VENIREMAN NUMBER34: He’s retired. He’s sixty-three I think. “MR. DUSEK: Howlong have you know him? “VENIREMAN NUMBER34: Four years. “MR. DUSEK: And hetold you that you should let us know about knowing him? “VENIREMAN NUMBER34:Yes,sir, he did. Yes. He said otherwise I would perjure myself. “MR. DUSEK: And you’ve told us about him. “VENIREMAN NUMBER34: Yes. “MR. DUSEK: Did hetell you which way you should vote or anything like that. “VENIREMAN NUMBER34: Absolutely not. “MR. DUSEK: Did hetell you about being fair? “VENIREMAN NUMBER34: Hesaid I would perjure myself if I would not disclose this. “MR. DUSEK: Okay. So you havetold us aboutit. “VENIREMAN NUMBER34: Right. “MR. DUSEK: Do you think you wouldstill be able to be fair to both sides even though — “VENIREMAN NUMBER34:I think -- 172 “MR. DUSEK: You knew ofhim yesterday, didn’t you? “VENIREMAN NUMBER34: Yes. I think I can be fair, but the thing is I don’t — I did not tell you about this gentleman because I wasn’t awarethat this is required of me. “MR. DUSEK: Okay. “Now that you’ve told us and you said you think you can be fair even though youstill know the guy. “VENIREMAN NUMBER34: Yes. “MR. DUSEK: Okay. “THE COURT: Ma’am,youjust told Mr. Feldman you couldn’t be fair. I mean are you not understanding the questions or whataboutthis process are you not understanding? I have to make a call as to whether or not you can be fair and impartial to both sides. Mr. Feldman has asked you a series of questions to which youtold him you couldn’t be fair and impartial, that you would be pro prosecution. And now I ask you, Mr. Dusek has asked you, and you’ve told Mr. Dusek you can be fair and impartial. Now, whatis it, Ma’am? Can you befair and objective to both sides or not? “VENIREMAN NUMBER34: I don’t see why I can’t be, but Iam thoroughly confusedatthis point. THE COURT: So you don’t know any reason you can’t be fair and impartial. “VENIREMAN NUMBER34: No,I don’t.” (8 RT 2938- 2939.) Juror 4 was sent out while Mr. Feldman raised his challenge for cause. (8 RT 2939-2940.) He pointed out that her statements were unequivocal when he was examining her, but “[rJespectfully, the Court’s tone ofvoice with regard to this juror may have been construed as intimidating” due to the Court’s frustration with her. (8 RT 2940.) Mr. Feldman suggested also that the prospective juror had 173 difficulty understanding because of a language problem. (8 RT 2940.) Mr. Dusek, implicitly confirming Mr. Feldman’s remark about Judge Mudd’s tone, stated, “She told me without even the pressuring as to whetherornot she could be fair, and she volunteered that.” (8 RT 2940.) Judge Mudd responded: “The language I’m definitely satisfied there’s no cause challenge there. She clearly knows and understands. Reading the note would imply that she’s given the defense two pieces of information. One, that she knew a person in law enforcementthat she didn’t disclose who happensto be an L.A.retired deputy district attorney who she happenedto seelast night. And, two, that she may be pro prosecution as a result of knowingthat. “These are people that she’s known,I mean, throughoutthis process. That’s what’s so confounding about the whole thing. She has known these people the entire time and has represented to the court that she can be fair and impartial. I recognize what she told you, Mr. Feldman,but it doesn’t appear to the court that based on language groundsthat she is substantially impaired in any wayin her ability to be fair and impartial.” (8 RT 2940-2941.) There is, on this record, no basis to conclude that Juror 4’s initial statement on her questionnaire, that she knew noprosecuting attorneys, was an intentional falsehood. The matter was not explored expressly, but Judge Mudd andtheparties seemed to accept 4’s representations as to the omission at face value. When a material omission is unintentional, the question to be resolved is the sameasit is for any other challenge for cause: is the juror disqualified for actual bias? (People v. San Nicolas (2004) 34 Cal.4" 614, 644.) Here, the question is whether Number 4 wasin fact biased in favor of the prosecution as she stated unequivocally in her note and in her examination by defense counsel, or whether she could be fair and impartial, as she stated to the prosecutor. 174 The normalrule is deferenceto thetrial court’s resolution of conflicting statements by a prospective juror. The rule is based on the principle that “[e]xcept wherebias is clearly apparent form the record, thetrial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination.” (People v. McPeters 1992) 2 Cal.4™ 1148, 1175.) But whatifthetrial judge’s mannerof interaction with the juror contributes to the formation ofthat state of mind, or more properly, of its appearance? Here, defense counsel expressly stated that Judge Mudd took an intimidating tone with Juror 4; the prosecutor impliedly confirmedthis; and, to the degree one can discern such things from a written transcript, the Court’s diction and syntax was expressive of impatience and frustration. That Mr. Dusek could cite her answers to his own “gentle” questioning is of no momentif it occurred after the trial court’s less gentle inquiry. Indeed, when Mr. Dusekfinished, and Judge Mudd resumed,the voir dire concluded with a flustered Number 4 avowing in unequivocal language only her own confusion. (8 RT 2939.) The further dilemmaofthis record is that ifan intentional falsehood cannot be imputed to Number4 in the initial omission of the information she revealed later, Judge Mudd’s refusal to grant the challenge for cause necessarily implies her avowalof lack of faimess and impartiality was an intentional falsehood. She clearly did not want to be on the jury, and her friendship with a formerdistrict attorney wasin fact the second reason she belatedly discovered for her own disqualification. This kind of falsehood ipsofacto disqualified her from serving as a juror. (In re Hitchings (1993) 6 Cal.4" 97, 112; Herrera v. Hernandez (2008) 164 Cal.App.4" 1386, 1390.) Thus, what “confounded”the Court about the juror’s belated discovery of her ownprejudice wasitself the basis for a dismissal for cause. 175 C. If the court erred in not dismissing Venireman 19 for cause, and if Juror 4 was not competentto sit on the petit jury forthis trial, then appellant was denied his right to a fair and impartial jury as guaranteed by the Sixth Amendmentofthe United States Constitution andthis in itself requires reversal with no further showing of prejudice. (People v. Crittenden (1994) 9 Cal.4™ 83, 121-122; People v. Bittaker, supra, 48 Cal.3™ 1046, 1087-1088.) But even if this Court defers to the trial court’s ruling on Juror4, appellant, as he will maintain and demonstrate in the following,is entitled to reversal under the Article I, section 16 of the California Constitution, which is California’s constitutional guarantee of the right to trial by jury.” As noted in the previous section, a peremptory challengeis not part ofthe Sixth Amendmentguarantee ofthe right to an impartial jury, and the improperloss of a peremptory challenge alone cannot constitute the prejudice arising from an erroneously denied challenge for cause under the federal Constitution. (Ross v. Oklahoma (1988) 487 U.S. 81, 85-89.) Thus, to maintain that the loss of a peremptory challenge aloneis prejudicial error regardless of the impartiality any or all of the petit jurors, the peremptory challenge must be seen as essential in itself to the procurement of an impartial jury. At first blush, to-contendthat this is so by virtue of the California Constitution meets an apparently insuperable roadblock in this Court’s pronouncement in People v. Gordon, supra, 50 Cal.3™ 1223: “Insofar as [the claim for improper denial of challenges for cause] rests on the California Constitution, defendant’s claim mustalso be rejected. We find the reasoning ofRoss to be applicableto the state constitutional analoguesto the ° The California constitutional provision provides, in relevantpart, that “[t]rial by jury is an inviolate right and shall be secured to all... .” The language onits face is more absolute than that of the Sixth Amendment, whichstates that there is in a criminal case a “right to ... trial, by an impartial jury of the state anddistrict wherein the crime shall have been committed, which district shall have been previously ascertained by law ... .” 176 federal constitutional rights considered there. And wealso find that reasoning to persuasive.” (/d. at p. 1248,fn. 4.) One would of course accept this as conclusive except that it is contradicted by this Court’s pronouncementin anothercasethatis still authoritative. In People v. Bittaker, supra, 48 Cal.3™ 1046, Bittaker, this Court stated: “The denial ofa peremptory challenge to which defendantis entitled is reversible error when the recordreflects his desire to excuse ajuror before whom he wastried. |Citation.] Since the erroneous denial of a challenge for cause compels the defense to use a peremptory challenge, a similar analysis applies to denial of a challenge for cause. [Citation.] Defendant must show that the error affected his right to a fair and impartial jury. [Citation.] Thus, defendant must show that he used a peremptory challenge to removethe juror in question, that he exhausted his peremptory challenges [citation] or can justify his failure to do so [citation] and that he wasdissatisfied with the jury as selected. But ifhe can actually show that his right to an impartialjury was affected because he was deprived ofa peremptory challenge which he would have used to excuse ajuror who sat on his case, he is entitled to reversal; he does not have to show that the outcome ofthe case itselfwould have been different. [Citations.]” (Ud. at pp. 1087- 1088, emphasis added.) What this Court meant by an “actual showing”that the “right to an impartial jury was affected” is established by the course this Court then took in analyzing the denial of the challenges for cause to the five jurors defense counsel had to remove with peremptory challenges. (/d., at pp. 1088 et seq.) Before embarking on this analysis, this Court, noting that appellant had received 2 additional peremptory challenges to the full complement of (then) 26, which had been exhausted,stated, “[I]t is necessary for him to show erroneousrulings affecting three jurors to prove prejudice.” (Ud. at p. 1088.) As it turned out, 177 defendantin Bittaker could only establish two erroneous denials of challenges for cause, but the principle underlying Bittaker is clear: the loss of a peremptory challenge expendedto cure an erroneous denial of a challenge for cause is the prejudice and harm from that erroneous denial. Of course, this Court hasalso held that it is not, as stated in Gordon andin other cases (see People v. Yeoman, supra, 31 Cal.4" 93, 114), but the conflict has never been resolved. (See Peoplev. Baldwin (2010) 189 Cal.App.4™ 991, 1000.) It of course may be resolved by overruling Bittaker in this regard, butit would be hasty to deem this the proper resolution. This Court’s pronouncementin Gordon consisted of a single paragraph in a footnote, and there is more to say on the issue, part of whichis said in the above quotation from Bittaker. If one begins from the proposition that “the effect” of the California constitutional provision for trial by jury “is to preserve and continue in force the right oftrial by jury asit existed at common-law” (People v. Powell (1891) 87 Cal. 348, 354), and that at commonlaw,one of the elements deemed essentialto the right to trial by jury was the allowance of challenges, “not only for cause, but also peremptory, without assigning cause”(id., at p. 357), then it follows that peremptory challenges are mandated by the California Constitution. The ancient provenance of the peremptory challenge in the common law right to trial by jury has led California courts, including this Court not only in Bittaker, but in other cases, to treat the peremptory challenge as though it were a paramountright inextricable from the right to a fair and impartial jury. (People v. Armendariz (1984) 37 Cal.3™ 573, 584; People v. Din (1919) 39 Cal. App.695, 697-698.) It has led other jurisdictions to find the right to a peremptory challenge to be secured by their own state constitutions. (Dunlap v. People (Colo. 2007) 173 P.3™ 1054, 1081-1082; Eland v. State (Md. Ct. Spec. App. 1992) 607 A2™ 42, 61.) The difference in language between Article I, section 16 of the California Constitution and the language of the Sixth Amendmenthas been noted above. 178 (See p. 176, fn. 99.) The more exacting language of the California provision has already led to more exacting requirementsfortrial by jury in this state than is demanded by the Sixth Amendment. Thus, for example, Article I section 16 requires a jury consisting of a representative cross-section of the community (People v. Wheeler (1978) 22 Cal.3" 258, 276-277), while the Sixth Amendment requires only an impartial, but not necessarily a representative, jury. (Holland v. Illinois (1990) 493 U:S. 474, 476-480.) Or, while a unanimousjury is not required by the federal constitution for conviction in a state criminal case (Apodaca v. Oregon (1972) 406 U.S. 404), it is a requirement of the jury trial provision of the California Constitution. (People v. Feagley (1975) 14 Cal.3™ 338, 350, andfn. 10.) That the peremptory challenge, whose status even the United States Supreme Court concedes to be almost essential to the Sixth Amendmentjury trial right (Holland v. Illinois, supra, 493 U.S. at p. 482) is not within the California provision is implausible and inconsistent with the history ofmore exacting standards attendant uponthestate right. It follows from this that Bittaker represents the proper disposition of a claim brought under the California Constitution. In order to establish reversible error, one need only establish the forced expenditure of one peremptory challenge beyondthe full complement ofperemptory challenges granted, regardless of whether the challenge would have been used on a juror who should have been removedfor cause. This, along with an expressed dissatisfaction with the jury as constituted, requires reversal under the California Constitution. Thus, even if Juror Number4 is deemed to have been a competentjuror, the erroneous denial of the challenge for cause to Venireman 19 is sufficient to require reversal under the California Constitution. (People v. Bittaker, supra, 48 Cal.3™ at p. 1088.) 179 IV. THE TRIAL COURT’S FAILURE TO SEQUESTER THE JURY IN THE LATE STAGES OF THE GUILT PHASE, OR AT LEAST BY THE TIME THE CASE WAS SUBMITTED TO THE JURORSIN THE GUILT PHASE, RESULTEDIN A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT Introduction Oncethe jury was selected in this case, publicity did not abate. If anything, public interest intensified once the proceedings were broadcast ontelevision in their entirety starting with opening statements on June 4, 2002. During the guilt phaseofthetrial, the defense made ten unsuccessful motions to sequester the jurors (11 RT 3390-3392; 15 RT 4235; 25 RT 6561; 33A RT 8072-8073; 37 RT 8851-8852; 40 RT 9292-9293; 41 RT 9329-9330; 44 RT 9670; 47A RT 9733- 9736; 49A RT 9779-9783; 58 RT 10102; 60A RT 10463), and jury sequestration is the subject of the instant claim. Although our criminal justice system may have become more sophisticated and skilled in managing the frenetic extremes of electronic mediasince its surprising onslaught first provoked a firm judicial response (see Estes v. Texas (1965) 381 U.S. 532; see also Sheppard v. Maxwell (1966) 384 U.S. 333), nonetheless the two distinct, but sometimes overlapping, problems with such publicity abide: first, jurors must be insulated from information not presented as evidence in open court; and, second, where community passions run high, the jurors must be insulated from public pressure and influence. (Estes v. Texas, supra, at pp. 544-545; see also People v. Dixon (2007) 148 Cal.App.4" 414, 431- 432.) Asto the problem ofprotecting the jurors from extraneous information, Judge Mudd, from the day the venire was summoned and throughouttrial, 180 instituted a regimenof“self-policing”, requiring the jurors to avoid the various media accountsof, or related to, the case, and suggesting to them methods for doing so, including a (half-facetious) encouragementthat they become Padres’ fans and watch baseball instead of the news. (5 RT 2170-2172; 11 RT 3340-3342; 12 RT 3515-3517; 14 RT 3999-4000; 17 RT 4716-4717; 20 RT 5441-5442; 26 RT 6799-6800; 44 RT 9672.) At various times throughouttrial, when a special problem arose, such as media reports of an Orange County case involving the kidnap of a younggirl, or the appearance ofa television documentary about “body farms” where entomological experiments, such as those attested by the experts in this case (33 RT 8187, 8231; 36 RT 8651-8652), were conducted, Judge Mudd would give specific admonitions to the jurors to include these stories in their self- policing. (33 RT 8092; 37 RT 8851-8852; 38 RT 8872-8873.) But in regard to the second problem,the influence of community passions on the jurors, it is questionable how far self-policing or mediocre baseball could insulate the jurors in the overheated atmosphere surrounding this case. The problemsof a case’s celebrity and notoriety defy these measures, and whatJustice Clark, for the plurality in Estes v. Texas, supra, 381 U.S. 532, noted to be the unmeasurable but identifiable effects of televising a case, apply here not only to the televised trial but to the public fascination engendered by non-stop media coverage, before any camera had beenplacedin the courtroom: ee ... . The potential impact of television on the jurorsis perhapsofthe greatest significance. They are the nerve center of the fact-finding process. It is true that in States like Texas where they are required to be sequesteredin trials of this nature the jurors will probably not see any of the proceedings as televised from the courtroom. But the inquiry cannot end there. From the moment the trial judge announcesthat a case will be televised it becomes a cause celebre. The whole community, including prospective jurors, becomesinterested in all the morbid details surrounding it. The approaching trial immediately assumes an importantstatus in the 181 public press and the accusedis highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. And we must rememberthatrealistically it is only the notorious trial which will be broadcast, because of the necessity for paid sponsorship. The conscious or unconsciouseffect that this may have on the juror's judgmentcannotbe evaluated, but experience indicatesthat it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence. Wherepretrial publicity ofall kinds has created intense public feeling which is aggravated by the telecasting or picturing ofthe trial the televised jurors cannot help but feel the pressures ofknowingthat friends and neighbors have their eyes upon them. Ifthe community be hostile to an accused a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led ‘not to hold the balancenice, clear and true between the State and the accused... .’” (/d. at pp. 544-545.) In this passage one hears the discomforting resonance ofVenireman 98’s profession that returning a not-guilty verdict would be difficult in this case, even if the evidence warranted it, because ofpublic pressure. (24 CT 5998; see abovep. 144.) And here, unlike in Estes, the jurors were not sequestered, but in the ninety- seven days from May 17 (14 CT 3413), when the venire was summoned,to August 21 (14 CT 3498), when guilt-phase verdicts were returned, the jurors had fifty-two days in which they did not have to cometo court and wereleft to circulate amongtheir family, friends, and neighbors — a category that must be expanded metaphorically to embrace a metropolitan community ofinterest in this case. In addition to the 52 non-court days for the jurors, there were, of course, in the 45 court days daily recesses and overnight adjournments in whichthe jurors were part of the community free from direct court supervision. But the jurors did not even haveto leave the court to be accosted by the passions surroundingthis case. Those emotionsintruded into the courthouse and even into the courtroom 182 itself, such as when audience members wore buttons sporting Danielle Van Dam’s image, which were being handedout in the hallway (11 RT 3390-3393; 14 CT 3422), or when several of the jurors expressed discomfort at Brenda Van Dam’s glaring at them. (17B RT 4822-4866; 40 CT 9894.) In Texas, it is now mandatory to sequester the jurors only after they are instructed, but at the time of the Billy Sol Estes’ trial at issue in Estes v. Texas, supra, it was mandatory to sequester them for the entire trial. (Johnson v. State (Tex. Crim. App. 1971) 469 S.W.2" 581, 583; Maldonado v.State (Tex. Crim. App. 1974) 507 S.W.2" 206, 208.) In California, until 1969, sequestration was mandatory for jury deliberations (People v. Santamaria (1991) 229 Cal.App.3™ 269, 276), but now, the governing statute, Penal Code section 1121, vests discretion in the trial court to either sequester the jury or allow them to separate at any pointin thetrial process: “The 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. Where the jurors are permitted to separate, the court shall properly admonish them. Wherethe jurors are kept in charge ofa properofficer, the officer must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to them or communicate with them,norto do so himself, on any subject connected with the trial and to return them into court at the next meeting thereof.” Pursuantto this statute, Judge Mudd’s responses to the various motions to sequester may be summarized to the effect that, in regard to external publicity, “self-policing” worked (see 12 RT 3515; 20 RT 5440-5441; 23 RT 6309), and in regard to otherintrusions,the instant jury was,in his view, a “hardy group” and could be relied upon to decide for itself whether or not to be sequestered. (41 RT 9330; 44 RT 9689; 444A RT 9715.) Despite this, appellant contends that it was error in this case not to sequesterthe jurors, at the very least when the intrusion of 183 community passions into the case reached an intolerable point whenin the tenth weekoftrial, and then again just before deliberations itself, some jurors were stalked as they were leaving the courthouseto go to their cars (36B RT 8585- 8610; 49A RT 9766-9775), and whenat the outset of deliberations one of the jurors even requested sequestration because of the harassment he was experiencing at work. (40 CT 9905; 44A RT 9710-9714.) A detailed examination of these incidents as well as the other events and occurrencesin this case implicating the question ofjury sequestration will be described and discussed in greater detail. But before doing so, it will be useful to place the issue of sequestration in this case in its proper legal perspective, and further to clarify the standard of review by which this Court must assess the events and occurrences to be described. Although appellant will argue below that Judge Mudd’s effective delegation of the decision to sequester or not to sequester the jurors themselves wasan abuse ofdiscretion (People v. Sandoval (2007) 41 Cal.4™ 825, 847-848 [failure to exercise discretion constitutes an abuse of discretion]), the issue of sequestration in this case emerges well past the threshold of a due process problem,andthe issue of due processentails the necessity of de novo review by this Court. (Sheppard v. Maxwell, supra, 384 U.S. 333, 362.) A. Sequestration: Abuse-of-discretion vs. De Novo Review “The theory of our[trial] system is that conclusions to be reached in a case will be induced only by evidence and argumentin open court, and not by any outside influence, whether of private talk or public print.” (Patterson v. Colorado ex rel, Attorney General ofColo. (1907) 205 U.S. 454, 462; see also Skilling v. United States (2010) 130 S.Ct. 2896, 2913.) Sequestration of the jury is one of the procedurestraditionally available to advancethe goal of precluding such outside influence on the jurors. (See Sheppard v. Maxwell, supra, 384 U.S.at p. 363.) It is commonly viewed as an “an extreme measure, one of the most burdensome tools of the many available to assure a fair trial” (United States v. Greer (5" Cir. 184 1986) 806 F.2™ 556, 557, internal quotation marks omitted), and one might well concede the characterization “burdensome”while insisting that “extreme” requires at least some qualification. It has already been noted that in Texas, currently, sequestration is mandatory after the jury is instructed, and in California until 1969, it was mandatory for deliberating jurors. One might further considerthat strict sequestration ofjurors during trial was the historical common law norm (see Lowery v. State (Ind. 1982) 434 N.E.2™ 868, 870; State v. Magwood (Md. 1981) 432 A.2™ 446, 450; People v. Potts (Ill. 1949) 86 N.E. 2" 345, 347; State v. Craighead (La. 1905) 38 So. 28, 29), while currently almost half the states, of which Texasis one, retain some form of mandatory sequestration, whether during deliberations only or during the entire trial, or only in capital cases. !°° '00 Alaska: mandatory in all criminal cases (Lowery v. State (Alas. Ct. App. 1988) 762 P.2"! 457, 461-462.) Colorado: mandatory in capital cases (Jonesv. People (Colo. 1986) 711 P.2"! 1270, 1279 andfn. 7.) Florida: mandatory for deliberations in capital cases. (Bandav. State (Fla. 1988) 536 So.2™ 221, 224.) Georgia: mandatory in capital cases. (Williams v. State (Ga. 2010) 692 S.E.2™ 374, 377-378.) Idaho: mandatory for deliberations in 1° degree murdercases. (State v. Flint (Idaho 1988) 761 P.2™! 1158, 1161-1162.) Indiana: mandatory in capital cases. (Johnson v.State (Ind. 2001) 749 N.E.2™ 1103, 1107.) Kentucky: mandatory in all criminal cases after submission. (Fields v. Commonwealth (Ky. 2008) 274 S.W.3" 375, 398.) Louisiana: mandatory in criminal cases after the charge is given, and mandatory throughoutthe trial in capital cases. (La. Code of Cr. P. Art. 791; see also State v. Bowie (La. 2002) 813 So.2" 377, 389.) Michigan: mandatory in criminal cases upon submission. (Mich. Compl. Laws Serv., § 768.16.) Minnesota: mandatory in criminal cases upon submission. (State v. Mems (Minn. 2006) 708 N.W.2" 526, 534.) Mississippi: mandatory in capital cases. (Moody v. State (Miss. 2003) 841 So.2™ 1067, 1076-1077 and fn. 7.) Missouri: mandatory in capital cases. (Hadley v. State (Mo. 1991) 815 S.W.2" 422, 425.) Nebraska: mandatory in criminal cases on submission. (State v. Barranco (Neb. 2009) 769 N.W. gnd 343, 347-348.) North Dakota: mandatory in criminal cases on submission. (State v. Bergeron (N.D. 1983) 340 N.W.2"51, 57-59.) Ohio: mandatory during capital case deliberations. (State v. Elmore (Ohio 2006) 847 N.E.2™ 547, 565.) Oklahoma: mandatory in criminal cases after submission. (Landers v. State (Okla. Crim. App. 1955) 281 P.2™ 193, 194- 195.) Oregon: mandatory in criminal cases on submission. (Downes v. Plank 185 Asnoted above, in California, Penal Code section 1121 expressly refers to the discretion ofthetrial court, at all points in the trial, to allow sequestration or not, and the natural conclusion would be that the decision on review is subject to an abuse-of-discretion standard (People v. Manson (1977) 71 Cal.App.3™1, 26), the wisdom ofwhich has been well formulated as follows: “Decisions on sequestration and anonymity requirea trial court to makea sensitive appraisal of the climate surroundinga trial and a prediction as to the potential security or publicity problems that may arise during the proceedings. With so many factors entering the calculus, each varying subtly, an appellate court's de novo resolution ofthe issue would merely duplicate the trial judge's efforts and yet yield almost nothing of precedential value. ‘Fact- intensive disputes, those whoseresolution is unlikely to establish rules of future conduct, are reviewed under a deferential standard becausethe role of appellate courts in establishing andarticulating rules of law is not at stake.’ [Citations.] Furthermore, some of the relevant factors, such as the degree ofmenace presented by the defendants and the intensity of media interest, may be only incompletely captured in the written record, so that courts of appeal are particularly ill-equipped to second-guess these judgments. [Citation.] Finally, the factors counseling deferenceto thetrial court's decision to empanel an anonymousjury apply equally to its decision on sequestration. [Citation.]” (United States v. Childress (D.C.Cir. 1995) 58 F.3™ 693, 702-703.) (Or. 1964) 390 P.2™ 622, 623.) South Dakota: mandatory in criminal cases after submission. (State v. McComsey (S.D. 1982) 323 N.W.2™ 889, 890-891.) Tennessee: mandatory in capital cases. (State v. Furlough (Tenn. Crim. App. 1990) 797 S.W.2"4 631, 643.) Texas: mandatory in criminalcases after the charge has been read. (Harris v. State (Tex. Crim. App. 1987) 738 S.W.2" 207, 222-223.) Utah: mandatory in criminal cases after submission. (State v. Garcia (Utah 1960) 355 P.2"! 57, 58-59.) Vermont: mandatory sequestration in criminal cases absent the consent of the defendant to dispersal. (State v. Bailey (Vt. 1984) 475 A.2"4 1045, 1054.) Wisconsin: mandatory for life-sentence cases. (State v. Cooper (Wis. 1958) 89 N.W.2™816, 818.) Wyoming: mandatory in capital cases. (Hopkinson v. State (Wyo. 1984) 679 P.2™ 1008, 1027.) 186 On the other hand, sequestration is an issue that touches directly on the very center of due process, and the United States Supreme Court has been explicit that due processis not a matter of deference to a lower court’s exercise of discretion: “Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications andthe difficulty of effacing prejudicial publicity from the mindsofthe jurors, the trial courts must take strong measures to ensure that he balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation ofthe circumstances. Of course there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial newspriorto trial will prevent afair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration ofthejury was something thejudge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness ofthetrial, a new trial should be ordered. But we must rememberthat reversals are but palliatives; the cure lies in those remedial measure that will prevent the prejudiceat its inception.” (Sheppard v. Maxwell, supra, 384 U.S. 333, 362-363, emphasis added.) Bythis principle, this Court has long held that the question of change of venue to be a mixed question of law and fact requiring de novo review by the reviewing court, and that the standard of review for reversal is whether or not the circumstances prompting the need for such a measure presented a reasonable likelihood of vitiating the fairness and impartiality of the jurors. (People v. Tidwell (1970) 3 Cal.3"62, 69; People v. Bonin (1988) 46 Cal.3" 659, 676-677; People v. Farley (2009) 46 Cal.4" 1053, 1082-1083; see Mainev. Superior Court (1968) 68 Cal.2"' 375, 382 [‘The traditional[discretionary] approach, however,is no longer adequate since Sheppard v. Maxwell ... .”].) Sequestration of the jury, 187 another procedure designed to prevent the intrusion of external influences on the jury, should be no different. The resolution of the apparent tension between deferent and independent review in the sequestration context seemsto lie in discerning the threshold beyond which the scope of deference must diminish in the face of growing due process concerns. Sheppard, where “bedlam reigned in the courthouse” because of the media frenzy that took place in the courtroom itself (Sheppard v. Maxwell, supra, 384 U.S.at p. 353), represents a case clearly beyondthis threshold. In Rideau v. Louisiana (1963) 373 U.S. 723,the police filmed Rideau’s confession to robbery and murder, which wasthen broadcast on television in a small Louisiana parish. (Id. at p. 725.) In People v. Bonin, supra, 46 Cal.3"! 659,discussedin detail above (see pp. 148-152), the defendant, dubbed popularly or notoriously, “The Freeway Killer,” was the subject of extensive media coverage for his reign of homicidal terror on the freeways of southern California. (/d. at p. 673.) Again, these are cases falling on the Sheppardside of the line. Undoubtedly, in cases where there is more limited media coverage or intense interest on the part of a small segment ofthe community or even on the part of some threatening or overly intrusive individual, there should be more deference givento thetrial court’s discretionary assessments. This case falls on the Sheppard side ofthe line, as the account already given of the pretrial publicity and jury selection in this case establishes. (See above, pp. 121-130.) The more generalized principle, of which Sheppard represents a specific application, is that where “the inquiry requires a critical consideration,in a factual context, of legal principles and their underlying values, the questionis predominantly legal andits determination is reviewed independently.” (Crocker National Bankv. City ofSan Francisco (1989) 49 Cal.3™ 881, 888.) There can be no dispute that a fair and impartial tribunal free from external influencesis at the center of the legal principle of due process and is the very substanceofits underlying values, and when the subject comes up in an appellate context,it is 188 virtually impossible to escape the demands of independent and de novoreview. The case ofPeople v. Santamaria, supra, 229 Cal.App.3” 269is illustrative of this. In Santamaria, the Court found reversible error in a murder case from the trial judge’s adjourning, i.e., allowing the jurors to separate, for 11 days during deliberations. The Court in Santamaria purported to find on an abuse-of- discretion standard the adjournmenttobe,in effect, a continuance without good cause, which, here meant, that the judged did not announce whatthe causeofthe continuance was. (/d., at pp. 276-277.) This silence of the record, however, was not the only reason for finding error: “This absence of good cause is not our only concern; both the timing and duration of the continuanceare particularly troublesome. A long adjournment of deliberations risks prejudice to the defendant both from the possibility that jurors might discuss the case with outsidersat this critical point in the proceedings, and from the possibility that their recollections of the evidence, the arguments, and the court’s instructions may becomedulled or confused. [Citations.] Obviously, the longer the separation the greater the risk. A long adjournment of deliberations also disrupts the very process and pattern of the jury’s orderly examination of the evidence. The People cite no case in which an interruption ofjury deliberations of such length has been countenanced in a criminal case. [Citations.]” (Id. at pp. 277-278.) The Court then noted that Penal Code section 1053 provided a mechanism for a substitute judge, and then concluded the analysis of error as follows: “To summarize, appellant was faced with a serious charge, a special circumstance first degree murder. The risk of prejudice inherent in suspending deliberations for 11 days was considerable, from the prolonged exposure ofthe jurors to outside influences, from the strong probability that their recollections of the evidence and the 189 instructions would fade or become confused, and from the subversion of the pattern of orderly deliberation. The record is devoid of any good causefor the delay, and section 1053 provided an alternative. Under these circumstances, the only conclusion possible is that the trial court exceeded the bounds of reason and abusedits discretion with this inordinate interruption in deliberations.” (/d. at pp. 278-279.) The invocation of the abuse-of-discretion standard here is something of a paradox. The discussion showsnoreal sign of deference to thetrial court’s assessmentofspecific historical facts in the case, but is rather cast in termsofthe typified risks of a lengthy adjournment of a murdercase in the midst ofjury deliberations. Asto the trial judge’s silence as to the cause for adjournment,it will be rare that such silence will constitute an abuse of discretion when the burden is on the appealing party to establish the absence of good cause in orderto prevail on appeal. (People v. Panah (2005) 35 Cal.4" 395, 394; Peoplev. Beeler (1995) 9 Cal.4" 953, 1003; People v. Strozier (1993) 20 Cal.App.4™ 55, 60.) The paradox dissolves whenonerealizes that regardless what the Santamaria court stated expressly, it in fact applied de novo review to find error. In regard to prejudice, the Court expressly invoked the “reasonable probability” standard of Sheppard, and foundreversible error, again, based onthe typified risks of a lengthy adjournment during deliberations. (Ud., at pp. 280-283.) It must be emphasized that appellantis far from contending that Santamaria was wrongly decided. He is contending that the invocation in that case of the standard of review for abuse of discretion waslittle more than verbal obeisance to a legal dogma whoseapplication requires more discrimination than dogmacan usually provide. Santamaria clearly proceeded onthe basis of de novo review, or, what is really the same, on the basis ofreview of a discretion so circumscribed by legal principles and values as to amount to de novo review. Appellant has belabored the point of de novo review simply to untangle a contradiction betweenthe statutory language andthe constitutional requirements 190 of the issue. He addresses the issue because Judge Mudd,ifhe did not abuse his discretion in surrendering the sequestration decision to the jurors themselves, did not in any event employ a substantial-likelihood standard, but treated the matter as a kind of mistrial-standard where actual and incurable prejudice had to be established. (People v. Gonzales (2011) 51 Cal.4" 894, 921.) Thus, in assessing the following narrative, this Court should keep firmly in mindits obligation to evaluate the circumstances independently ofthetrial court’s assessment, and to determine whetheror not the occurrences and events recounted establish, at whateverpoint in their aggregation, a reasonable likelihood that the jury’s fairness and impartiality was vitiated by outside influences. (Sheppard v. Maxwell, supra, 384 U.S. 333, 362-363; People v. Santamaria, supra, 229 Cal.App.3™ 269, 280.) Publicity and Other Tutrusive Occurrences From the Beginning of Trial on June 4 Through the Guilt Phase Verdict on August 21 In the introduction to this argument, appellant identified the stalking of the jury as a cruxin the events and occurrences bearing on the question ofjury sequestration. The other crux mentioned was the actual request by one of the jurors that the jury be sequestered during deliberations because of the harassment he was experiencing at work. Thefirst stalking incident (there was more than one) occurred on July 25, well into the guilt phase oftrial, in the tenth week as measured from May 17 when the venire was summoned, but in the eighth week when measured from June 4 when opening statements were given. (14 CT 3422.) The juror’s request came on August 7, the day before the case was submitted for deliberations (14 CT 3487- 3488), in the thirteenth weekoftrial as measured from May 17, or the eleventh week as measured from June 4. But neither one of these events burst surprisingly on the scene as an inexplicable aberrance. They were culminating points ofa 191 series of events and occurrences whose steady aggregation throughout the guilt phase madethe sequestering of the jurors an ever-hovering possibility in this case. The following accounttraces this aggregation, relating events or occurrencesthat tend to illustrate the substantial likelihood that outside influences vitiated due process in this case. The accountrelates those occurrences that show not only the flood ofirrelevant and provocative non-evidentiary information bandied about by the media in broadcast fashion, but also, and more importantly, the occurrences that show or suggesta likelihood that the jurors felt the pressure of threats to their privacy and personal security. The accountis divided into two parts. The first part relating the occurrences from June 4 to July 24 serves asa ~ kind ofbackground andbuild-up to the stalking incident of July 25, at which point the secondpart of the accountbegins, tracing the increasing urgency of the need for sequestration, which need, at least by the time deliberations began, could not be reasonably debatable. 1. June 4 through July 24 a. Juror Privacy and Security That the pressure of public attention would intrude on the jurors’ privacy would not be surprising, given the pretrial publicity. But there were, from the beginning,indications that this intrusion could arise in surprising ways, in the very heart of the jurors’ own families, as indicated by Juror 9’s problem, brought to Judge Mudd’sattention in a note she submitted on June 3, the day before opening statements. On June 4, Judge Mudd called Juror 9 in to discuss the note she had droppedoffthe day before. The note indicated not only that she had an appointment with her cardiologist on June 13, but also mentioned a second problem. Whenshe advised her family that she had been chosenas jurorin this case, her brothertold her that he too had been summoned,but that he hadtotell the court that he was a registered sex offender, which wasthe first Number 9 had 192 ever heard of this. (10 RT 3313; 11 RT 3335-3336; 40 CT 9882.) Hernote to the court ended with: “I just don’t know if I can do this.” (Jbid.) She indicated that her brother’s problem would not affect her ability to be fair and impartial in this case (11 RT 3336), and madethestartling assurance that she would sequester herself from her brother and her other family membersfor the courseofthistrial. (11 RT 3336.) The following day, Wednesday June 5, Judge Mudd hadto address Juror 16’s concern over the sight of an acquaintance ofhers in the audience attending trial. The two womenused the same daycare, they talked to each other, and had socialized at children’s birthday parties. (12 RT 3682-3683; 40 CT 9886-9887.) 16 was anxious because the “women in daycare, we talk about everything. So the last thing I wanted wasfor her to leave the courtroom, go back to my, you know, the school, and say, hey, guess what? This is where Iam.” (12 RT 3683.) Asit turned out, Judge Mudd talked to the woman,ascertained that she was attending the case pursuant to someclass she was taking, and reported that she had assured him that she would not reveal Number 16’s identity as a juror or discuss this case with Number 16. (14 RT 4173.) Still on Wednesday June 5, Judge Mudd had to havethe bailiff confiscate the sketches someartist in the audience was making ofthe jurors, although the faces were left blank. (13 RT 3864-3865.) Again after lunch recess that day, as the jury reconvened in open court, Juror 13 raised her hand, which wasthe agreed-uponsign for a bathroom request. When Judge Mudd intimated somesurprise in that the recess has just ended, 13 assured him that it was not “that,” but rather that she was “kind of shaken up for what happened.” (13 RT 3867.) The Judge knew what she wasreferring to: “Just a minute. Let me comment on that. 193 “Ladies and gentlemen, oneofthe finer citizens of San Diego has seen fit to come to this courthouse and apparently in some form or someeffort, protest, make their opinions known. That was intentional and it was donein front ofyou intentionally. “Ladies and gentlemen,the only thing I cantell youis it has absolutely nothing to do, number one, with the job you have. Numbertwo,it has nothing to do with the lawyers on either side of this. And numberthree,it has nothing to do with the evidence. It is just one more form ofthe kinds of publicity or bias that you have been selected to overcome.” (13 RT 3867.) “So everybody take a deep breath, sit back, and relax. And we’re going to do everything wecan to insure thatthis is not repeated.” (13 RT 3867.) On Thursday June 6, Juror 7 expressed concern for her privacy. The press had somehowgotten hold ofa list of the jobs of each of the jurors and had published them. Juror 7 was a probate examiner for the Superior Court, and the calls started flooding in. The office properly did not reveal the juror’s identification, but her superiors required that she post her public hours. Since she only worked on Fridays during trial in this case, the posting ofher available hours would reveal her identity. (13A RT 3738-3739.) The matter was resolved by Judge Mudd, whocalled in the manager of the probate department and worked out a satisfactory arrangement. (13A RT 3740-3741; 14A RT 4224-4227.) On Monday, June 10, Judge Mudd hadto deal with the problem that the media were not using the room Judge Mudd had designated forcalling in stories. Instead they were in the hallway during recess giving their interpretation of the events inside the courtroom. (14 RT 4101-4102.) On Wednesday, June 12, Juror 14 had gonetothe post-office during lunch only to find outthat there was television there, and to hear the words “ ‘juror has been identified.’” (40 CT 9890; 16 RT 4503.) Judge Mudd was concerned about the alleged identification, but Juror 14 claimed he was only bothered by the 194 obstacle placed on him in mailing a letter now that the post office had a television in it. (16 RT 4503.) A weeklater, before lunch on Thursday June 13, some jurors expressly indicated in a note to the judge a feeling of anxiety about Brenda Van Dam. “Somejurors feel,” the note stated, “that Brenda Van Dam is glaring at us. [{] No juror numbergiven because that would let the media and Ms. Van Dam know identity.” (40 CT 9894; 17B RT 4822-4826.) Judge Muddassuredthe jurorsthat he had the discretion to bar the Van Dams from the courtroom if there was a problem, and that he would monitorthe situation. For the time being, however, he would have Mr. Dusek talk to the Van Damsand caution them. (17B RT 4822- 4823, 4826-4827.) Almost a weeklater, on June 19, just before the lunch recess, the Court retained the jury for a “chat” regarding “the comings and goings of certain people in and out of this courtroom.” (20 RT 5661): “T watch you folks and I watch the audience very carefully, and someofthe pundits in the courtroom indicated that when Mrs. Van Dam left the courtroom yesterday that a numberofyou appeared quite concerned. “T was watching that very thing and disagree wholeheartedly in their observations. But the fact remains that weprivately have discussed this subject, and I now wantto publicly remind you,that if at any time any ofyou see any personin this courtroom that you feel in any wayis intimidating to you or in any wayinterfering with your objectivity and the job you haveto do, please let me know that and I will correct the situation. “T stand by whatI told you privately and now I’ve told you once again. So if any ofyou become concerned for any reason that you’re being compromised, please let me know and we’ll deal with it.” (20 RT 5561-5562.)"”! '0l Tt might be worth noting here that there is no basis to reprehend Judge Mudd’s efforts to protect the jury from the bad behavior of the media, the Van Dams,and 195 b. Damon Van Dam’s Banishment Even when something did not happenin their presence, there was always the risk that the jurors would read aboutit, hear about it, or otherwise become aware ofit. This risk was substantial in the case ofDamon Van Dam’s expulsion from the courthouse, although this did not take place in the jury’s presence. In the hallways of the courthouse Damon behaved in a mannerintentionally calculated to imply a threat or menace to Westerfield and his attorneys. He engaged in a campaign of confrontation, aggressively staring at them in the hallways, and making passing remarks of a menacing implication. On Monday, June 24, in the fourth week ofthe prosecution’s case-in-chief, and the sixth week oftrial, Judge Mudd, in closed session, prompted by his bailiffs report of another incident involving Damon,decided that the matter could no longer be handled by Mr. Dusek’s unsuccessful mediation, and he ordered Mr. Van Dam expelled, not only from the courtroom, but from the courthouse, for the balance of the guilt phaseoftrial. (17B RT 4827-4828; 20 RT 5446, 5663-5664; 22 RT 6021-6022.) Later that day, before the evening adjournment, Mr. Dusek asked to approach the bench. “I’m seeking,” he said, “an added warning from the Court to the jury not to look at TV or the newspaper. Damon Van Dam hasthreatened to go to the media after he was excluded. We’ve done everything we can and will continue to do anything to keep him from them, but he may go today.” (22 RT 6136.) Underthis threat by a third party to manipulate the media in order to pressure the court, Judge Mudd admonishedthe jurors that there were rulings made today that might or might not makethe press that night, and that it should be “re-emphasize[d]” that the jurors must be vigilantin their self-policing. (22 RT 6136-6137.) other outsiders. The problem,as will emerge later, was that he was unwilling to makethe difficult decision that sequestration was necessary whetherthe jurors wantedit or not. 196 By the next day, Tuesday June 25, the media knew what had happened and were clamoring for a transcript. Judge Mudd saw nopoint now in keeping the transcript sealed, and hereleased it, denying the defense request to redact Judge Mudd’s conciliatory preface to the banishment, “And while as a father I can certainly appreciate the disdain to which you must hold Mr. Westerfield and his counsel ...”. (22 RT 6022; 23 RT 6260, 6308-6309.) Could Judge Mudd’spolicy ofself-policing possibly filter out an event so likely to provide a renewed impetus, if any was needed, for public discussion and interest in the Westerfield case? Evenif a juror had imposedstrict discipline on his family and friends and associates, and avoided the commonplacetransactions oflife involving the random garrulousstranger, could a television or radio station be changed, or a glance averted quickly enough to render unperceived the words, “VAN DAM FATHER BANISHED FROM WESTERFIELD CASE!’’? It would not take much to comprehendfully the force of these words and their meaning inadvertently in the very process of making the discrimination required forself- policing. And their full force and meaning,in light of the jurors’ perception of Mrs. Van Dam’s demeanor, would present groundsfor further anxiety to the jurors themselves.” c. Publicity and Outside Information Asto the issue of publicized information and opinions aboutthe case, opening statements were the occasionfor thistrial’s return to the blare and glare of the front page. (12 RT 3513.) On June 10, the admonitionto self-police had to be extended to the editorial pages of the newspaper, since an editorial cartoon had appearedin the Union Tribune. (14 RT 3996-4000.) On June 11, there was a newspaper advertisementfor a radio station, incorporating the jurors as part of the pitch. (15 RT 4325-4236.) On June 12, Juror 12 requested that the television in '02 By July 11, Damon Van Dam,on the motionofhis lawyer, was given a second chance and readmitted to the courthouse and courtroom. (31 RT 8046- 8053.) 197 the juror lounge be turned off during lunch — a measure opposed by the other jurors, prompting the Jury Commissioner to make the overflow lounge, where there was notelevision, available. (40 CT 9891; 16 RT 4566, 4568.) On June 13, there were press stories with quotes from Westerfield’s ex-brother-in-law; and a story in the Union Tribune purveying “news” about Mr. Feldmanin matters that had nothing at all to do with the case. Judge Mudd gavethe jurors a specific admonition to avoid the interviews with “a family memberofone ofthe participants,” to avoid that day’s Union Tribune, andalso to avoid the Los Angeles Times, whosefinancial page at least one juror was reading in the courthouse. (17A RT 4710-4711; 17 RT 4716-4717.) The prosecution had started presenting its pornography evidence on Tuesday, June 25 (23 RT 6313-6315), the day the press discovered Damon Van Dam’s banishment, and by Wednesday, June 26, the admonition for self-policing had to be expandedto the national news media because CBS was now presenting stories about “virtual” pornography (24A 6372-6373; 24 RT 6389-6390.) The pornography spawnedfurther sensationalism under the guise of the expertise of sometelevision psychiatrist on the local evening newsbroadcastpontificating on the similarities between Westerfield, Jeffrey Dahmer and Ted Bundy. (24 RT 6562.) By June 27, the media was reporting the gross inaccuracy that there were 8000 to 10,000 child pornography images recovered from Westerfield’s computers, when in fact the testimony wasthat there were only about 85 possible images of child pornography out of 8,000 to 10,000 pornographic images altogether. (24 RT 6392-6393, 6413-6416; 25 RT 6559, 6566.) On top ofall this, on June 26, this Court issued an order denying the defense’s writ of mandate against Judge Bashant’s order to unseal the search warrantaffidavits (see abovep. 122 and fn. 66), which now meantthat Westerfield’s statements to Detectives Ott and Keyser, found by Judge Muddto have been actually involuntary and obtained in violation of the Fifth Amendment, would soonbe in the press. (24 RT 6562, 6567-6568.) Judge Mudd recognized the problems, but saw no needat this point 198 to order sequestration without evidencethat the jury was not abiding by the court’s orders to avoid publicity. (24 RT 6567-6568.) The jurors, in addition to their three- or four-day weekends, one ofwhich wasfor the 4" of July holiday, which fell on a Thursday in 2002 (14 CT 3459- 3460), were excused for eleven days, from Wednesday July 10 until Monday July 22 (14 CT 3466), to allow the court and attorneys to address matters on July 11 and 12 (14 CT 3467-3468), and because Judge Muddhad a pre-planned vacation from July 15 through 19. (5F RT 2047.) Thefirst order of business on Monday moring July 22, however, was a motion for mistrial based on the massive publicity generated by this case. (33A RT 8071.) The motion provided a compendium of what had been going on from the beginning ofthe caseto this pointin thetrial: “Defendant David Westerfield is charged with the alleged abduction and murder of seven-year-old Danielle Van Dam. Danielle disappeared from the bedroom ofher suburban home on February 2; her body was found over three weekslater on February 27. The case has received an unprecedented amount of press coverage, often reported in a highly sensationalized manner, and commented on by local talk show hosts and lawyer commentators. Manyofthese commentators have publicly opined that Mr. Westerfield is guilty. “In the early weeks ofthe investigation, police officials selectively ‘leaked’ inflammatory inadmissible information regarding their investigation of Mr. Westerfield to the media. At Mr. Westerfield’s arraignment, he requested a gag order. This request was denied. In the following weeks, the press reported on prejudicial, inadmissible, and often speculative information regarding the investigation of Mr. Westerfield. An enormous amountofprejudicial pretrial publicity caused this court to issue a gag order to prevent ‘future prejudice’ to the defendant. “Notwithstanding the gag order, massive publicity of the trial continued, unabated. Every single proceeding that has not been closed to the public has been broadcast on radio and television. 199 Local radio and television stations, as well as Court T.V. provide continuous coverageofthe trial with the public and commentators voicing their views regarding the evidence and any inadmissible information the media obtains. The adjacent courtroom has been reserved for media representatives and broadcast equipment. An entire street adjacent to the courthouseis blocked off and lined with news vans, equipment, and mediatents. “Reporters have delved into Mr. Westerfield’s past, and televised a biography of Mr. Westerfield’s personallife, and an interview with Mr. Westerfield’s mother. A psychiatrist who specializesin serial killers’ psychological profiles — such as Ted Bundy and Jeffrey Dahlmer — was interviewed ontelevision regarding his views on Mr. Westerfield’s profile. “Just last week, search warrantaffidavits relating to Mr. Westerfield’s statements were released to the media. These affidavits contained Mr. Westerfield’s statements, which this Court found were involuntary. The media, not privy to the pretrial proceedings, speculated — inaccurately — that the statements were likely excluded based on some‘technical’ violation of the law. “There is absolutely no doubt that duringthistrial at least some ofthe jurors have been exposed to publicity about this case. Mr. Westerfield has repeatedly requested, both in limine, and during thetrial, that the jury be sequestered. The court has denied these requests. The jurors’ exposure to prejudicial publicity is simply inescapable, notwithstanding the court’s admonitions. “The case has become a media circus. Nearly half the courtroom is taken up by media representatives. A huge television camera takes up almost a quarter of the seating area in the courtroom. Every single day the case is featured prominently in the headlines of the local newspaper, The San Diego Union-Tribune. Highlights of the witnesses’ testimony, along with commentary,is aired every day and night on local television newsand radio stations.” (9 CT 2207-2209.) In oral argument on this motion, defense counsel, Ms. Schaeffer, emphasized the relentlessness of the media. Every night there was a recap on the newsand an hour-long show on KUSI devoted to this case, which was making headlines every day. (33A RT 8071.) At the beginning ofthe jury’s long break 200 from July 10 to July 22, the involuntary statements released with the warrant affidavits made the headlines. It defied possibility that none of the jurors were exposedto this inescapable bombardment of media. (33A RT 8071-8072.) All this was compoundedby newsstories of the Samantha Runnion case, in which a five-year old girl was kidnapped and sexually molested. This story appeared side by side in the Union-Tribuneonthe front page with an article regarding the child pornography, found on the computers in Westerfield’s house. (33A RT 8072.) Based onthe inexorable concentration of media attention, the defense felt compelled to request a mistrial. (333A RT 8072.) Judge Mudddenied the motion. He did not deny defense counsel’s factual representations as to the media coverage, but he reasoned that the coverage had not varied in quality since the beginning oftrial when Judge Muddinstituted self- policing, and did not vary during the long vacation break. In addition tothis, the judge himself had been monitoring the coverage, adding specific admonitions when necessary, and would doso in regard to the Orange County case of Samantha Runnion. (33A RT 8074.) In addition to all this, Judge Mudd had no evidence that the jury had been exposed to any of the coverage, and he said he had every reason to believe that the jurors were abiding by his order. (333A RT 8074.)'°° '°3 When Judge Muddreferredto the “quality” of the coverage he was not intending a laudatory commendation. Two daysafter the mistrial motion was denied, Judge Mudd,angered over the disregard of his orders, admonished the media on its “feeding frenzy”in the hallway to get photographsand film of appellant’s son Neal Westerfield coming to court to testify that day. The film had even already been shown ontelevision. “The scuffling, the stakeouts, if you will, remind me ofpaparazzi for some important moviestar.” (35 RT 8483-8484.) This was followed by Judge Mudd’s declaration of his impotence to control the activities of the press outside this courthouse. (35 RT 8484.) “But I need the messageto get out that this conduct on the part of the mediais so detrimental to the courts that it is unbelievable the impact it may have not only on this case but in future cases as well. [{] So if the media is so concerned abouttheir right to 201 Undoubtedly, in the posture of a ruling on a motion for mistrial, Judge Mudd did have considerably broad discretion to assess what he deemedto be or not be the actual effect on the jurors of the publicity and public atmosphere surrounding this case. (See People v. Panah, supra, 35 Cal.4" 395, 444; see also People v. Haskett (1982) 30 Cal.3"! 841, 854.) But the question hereis not whetherthe trial should have been terminated in a mistrial, but whether the jurors, at some point, should have been sequestered, and as established at length in the previous section ofthis argument, that question had to be decided onthe degree of likelihoodofprejudicial influence on the fairness and impartiality of the jurors (Sheppard v. Maxwell, supra, 384 U.S. 333, 362-363) — a standard that considerably reduces the scope of discretion and is subject to independent review by this Court. (Jbid.) With this, one may now turn to the stalking incident, which occurred the day after the motion for mistrial was denied. 2. July 25 to end the guilt trial a. The First Stalking Incident On Wednesday July 25, at about 5 p.m., Juror 2, using the court reporter’s phone number, which had been given to the jurors as a confidentialline to use, reported that he saw twoofhis fellow jurors being followed to the parking lot. Juror 2, who was not wearing his badgeat this point, peeled off from the other two whenhenoticed the man following. The man followed the other two, who werestill wearing their badges, into the trolley station and onto the streetcar to “Old Town,” where they got off. The two jurors proceededtotheircars,still being followed by the same man keeping his distance. The man than took out a piece ofpaper and pencil and wrote something downas the twojurors got into their cars. (36B RT 8588-8589.) The Court Reporter, Robert Stark, related this to Judge Mudd, whotook the matter up the next morning with counsel in closed session. (36B RT 8585-8588.) access, they need only look at their conduct in this case to know why many judges will not tolerate any ofthis at all.” (35 RT 8484-8485.) 202 Before calling in Juror Number2, there was a discussion about whetheror not to inform the other jurors. Judge Mudd did not wantto frighten them, but wanted them to report any sense they had that anyone was following them. Judge Mudd also indicated that he was seriously considering sequestration and that he had had the sheriff make a contingency plan for this. (36B RT 8590-8591.) Mr. Feldman thought the matter perhaps transcended the aggressiveness of 66the media. “... I don’t know whether the court is aware,” he stated, “but individuals have been sendingifnot threatening, pretty disgusting letters which implicate my religion, my family, my representations ofmy client, whatever.” (36B RT 8593.) There were a lot of angry people out there, so the possibility was that the stalker was not a memberofthe press. (36B RT 8593.) He nonetheless suggested that the judge have a heart-to-heart talk with the media to suggest that they might just self-police on this one (36B RT 8593) — a hope that Mr. Dusek did not share given the media’s disregard of the Judge Mudd’s orderinrelation to Neal Westerfield. (36B RT 8592; see above, p. 201, fn. 103.) Judge Mudd agreed, and ventured to add that if he spoke to the media, the matter would beall over television and radio today. (36B RT 8594.) Judge Mudd’s preference was rather for a heart-to-heart talk with the jurors only, informing them ofthe potential problem andputting them on alert until the Sheriffmade security recommendations. (36B RT 8594-8595.) When Mr. Clarke, the second prosecutor, suggested the jurors be given their own room to gather in, Judge Mudd respondedthat the only facilities were at the Hall of Justice where, at least in the view of the attorney for the media, Judge Mudd’s writ, so to speak, did not run. If the jurors were provided with their own room in this building, then, according to Judge Mudd, he would haveto provide them lunch and maintain them together — something he was notyet ready to do. (36B RT 8595-8596.) Mr. Feldman pressed Mr. Clarke’s idea, noting that as things were now mobsofpeople were in the hallway every day, with no other business there but to 203 gawk. Anyone who had beenin the courthouse knew whatthe jurors looked like. They were alwaysbeingstaredat, and all that needed to be done wastolet them use the adjacent jury room. (36B RT 8596.) Judge Muddsaid he would think about it, and if he chose that option, he would leaveit to the jurors’ choice. (36B RT 8596.) Atthat point, Juror 2 was brought in. Juror 2 related that the two others being followed were Juror 17 and Juror 18. The man whofollowed them did not seem to notice that 2 was following him. The man was about5-8, 200lbs., Caucasian, with sparse blondish hair, and was wearing a blue long-sleeved shirt and gray denimsor dockers. (36B RT 8597-8598.) He was not wearing a press- pass necklace. (36B RT 8600.) As 2 watched, the man looked like he was writing the license plate numbers of 17 and 18’s cars. The man duckedout ofthe way to hide when 17 and 18 began pulling out of the lot. (36B RT 8598-8599.) This morning, Number2 ran into 17 and 18 and apologized to them for seeming to ignore them. Hetold them he thought someonehad been following them. 17 respondedthat he too had seen the man and described what he was wearing. (36B RT 8599.) As for Number 2, he assured Judge Muddthat the incident would not affect his impartiality. (6B RT 8599-8600.) Number 17 camein and told Judge Mudd that he was aware of being followed. Number2 hadin fact alerted him to it at the time. 17 added that in the lot after they had gotten off the trolley, 17 had turned back to look two times, and both times the man following ducked outof sight so as not to be seen. 17 did not notice the man wearing a press badge. (36B RT 8601-8604, 8605-8606.) Number 17 was not happy about this incident, but, he assured Judge Mudd,it would not affect his ability to remain impartial. He did not inform Number 18 about the man following because he did not want to upset her. (36B RT 8604-8605.) Juror 18 told Judge Muddthat she was not sure about being followed because “I’m havinga little bit ofparanoia to begin with” and alwaysfelt as though she were being followed. Butasto last night, she had noticed nothing 204 specific. Now that she knew aboutthe incident for sure, this would notraise her level of paranoia to the point where she would be unable to be fair and impartial. (36B RT 8606-8608.) Judge Mudd then had the rest of the jurors called in and he addressed them as follows: “Ladies and gentlemen, I have something on a more serious note to discuss with you becauseit has cometo our attention that during the course of someactivities yesterday afternoon one or more of you may have been followed to yourcar. In this particular case I’m going to be very up front with you because that’s my style is not to play hide the ball.” (36B RT 8608-8609.) Judge Mudd,after relating what had occurred to Jurors 17, 18, and 2 in full detail (36B RT 8609) then continued: “Now,this is the very first indication that I have had that in any waythe integrity of this jury panel is being jeopardized. Now, we’vetalked to all of the three jurors involved, and they’ve basically indicated to us that this experience is not in any way going to affect their ability to be fair and impartial and do their job. But I’m bringing it to you r attention for a numberofreasons. “Numberone, you should rest assured that between the police department and the Sheriff's department we are going to work on trying to determine whothis individual is. That goes without saying. The second thing is I want to kind of remind you of something that goes way back when you wereofficially empanelled, and that wasthat I don’t want you to be paranoid, but I do want you to let us know about anything that might happen to you, anyonethat might approach you or anything that you see that appears to be out of the ordinary, which is exactly what has happenedhere. 205 “Now,it is no secret that this case has generated an enormous amountofattention, and you should know that I have told the media that whenthe case is over, those of you that want to talk to the media I will make available in an area where you can talk to them. It will be strictly your choice, with the understanding that youridentity will become known. Until that day arrives, however, I expect all of these folks to have absolutely no contact with you. And as I’ve indicated, if you have any contact with the media regarding this experience,it’s going to be a decision you make, not them. “So this has cometo our attention. And rather than have three jurors walking around wondering andso forth, I felt that it was appropriate to bring to your attention the significanceofthis. “Numberone, it has a tendency to undermine your confidencein the system. But more importantly, your comfort in doing your job. In other words, you should not feel on edge because somebody might be following you. That is just simply not acceptable. “The second thing you should know that along the course andthe history ofthis trial, there have been motions made to sequester you folks, not at the end when you’re in deliberations, but throughout the entire trial. I have felt frankly,that that is not appropriate. This is the first really serious violation of yourintegrity that I have seen. And it comes not from within but from without. Andthat is of great concern to me. “So you should be aware ofthe fact that I am reconsidering whetheror not the panel, the twelve that will be deliberating, will be sequestered. Thatis still a very real possibility if this kind of conduct continues. “So we don’t want you to be afraid; we don’t want you to be paranoid; we don’t want youto feel that somehow you're physically at risk. But we do want to make you awareofthe fact that this has occurred and that, you know, we don’t know whothe person is. We don’t know whetherit’s a media type or what is going on. And so weare going to attempt to find that. But you should rest assured we are doing everything we can.” (36B RT 8609-861 1.)'" 104 Throughoutthetrial, Judge Mudd engaged in admirable efforts to relax the jurors with humorous admonitions and observations. Thus, his tone here was in striking contrast. Moreover, one such piece of humor, -- a pleasant anecdote on MondayJune 10 whenit was delivered — might well resonate differently with the 206 b. More Publicity Problems On MondayJuly 29, a new publicity problem was brought to the Court’s attention. Although Judge Muddin one of his admonitions had suggested the jurors resort to cable television to avoid the news about this case, one of the cable stations was now running a documentary on the “body farm,” which figured into the entomological evidence in this case. (37 RT 8850-8851.) Also, there had been an acquittal in the Samantha Runnion case in Orange County, and Larry King was carping on this, using the motherofthe victim as his sounding board. Mr. Feldman renewed the motion to sequester, stating that “[t]he saturation levelI think is now beyond anything contemplated.” Judge Mudd stated that sequestration wasstill under consideration, but that this jury nonetheless seemed to be a “hardy group,” and the judge believed in their integrity. While the county was working on a contingency plan for sequestration, he said, the motion to sequester wasat this point denied. (37 RT 8851-8852.) When the jury returned on Tuesday July 30, the judge referred to the “body farm” show and the Runnion case in another admonition on self-policing, and also informed the jurors that the possibility of sequestration wasstill open. (38 RT 8870-8873.) On Thursday August 1, the defense rested in surrebuttal and the jury was excused until Tuesday August 6 for instructions and closing arguments. (14 CT jurors after July 25. “I got to tell you,” he told the jurors in June, “that I got discovered this weekend. My wife and I on Friday were at our local Petsmart getting dog food for our dog. And the dog, incidentally, to answer the St. Louis telepoll, is a retired, rescued greyhound. Anyway,I’m getting the IAMSfood, and all of a sudden this voice says you’re Judge Mudd, aren’t you? Now in my business, when somebody says that to you, that’s not a good thing. In this case, however,it turned out to be a Padre fan who wantedto let me know that they were winning. This was on Friday night. So, you see, we’restill out there. And taking twoout ofthree is a goodstart on the road trip. So hopefully you’all be Padre fans if anything else by the time you get out of here.” (14 RT 4000, emphasis added.) 207 3479-3780, 3483.) On Friday August 2, Judge Mudd, in session without the jury, made an announcementto counsel regarding sequestration: “And for Mr. Feldman, for your purposes, since you’ve raised this issue, I am letting you know right now that it appears to the Court that, based on the feelings of this jury and everything I’ve seen today, that I do not intend to sequester the jury. I realize you’ve madethat request andit’s over your objection. “The staff of the court have made inquiries and, due to the number of rooms and, what should I say, the season weare in, getting these folks in a nice place that J would wantto stay in, as everyone here would, as opposed to someotherplace,it’s been very difficult to find a place where we could basically allow them to stay in consecutive nights. Not knowing how longthis is going to take, some places could accommodate us for perhaps as much as a week, then we’re thrownout like every other person. “So at any rate, that hasn’t been the reason I’ve made the decision. It is part of the reason I take into account. | think this jury can still do its job and abide by the court’s order. So tentatively as of right now my intent will be to instruct them,that they’ll be permitted to return home each night and so forth.” (40 RT 9292.) When Mr. Feldman advised the Court that there were now alerts about kidnappedlittle girls on the freeways, that there was a San Diego Readerarticle about “Dad’s,” that there were reports that Brenda Van Dam hadtelephoned Samantha Runnion’s motherto talk about issuing a press release, and that Nancy Grace of Court TV was complaining about the defense in the instant case, Judge Mudd emphasized that the decision not to sequester the jurors wasstill tentative, but he wasstill inclined not to sequester. (40 RT 9294-9295.) On Monday August5, with the jurors still excused, Mr. Feldman renewed the motion to sequester. Over the weekend the Sunday newspaperhada front- pagearticle about CALJIC Nos. 2.60 and 2.61 on the defendant’s right not to testify. There were a numberofcriticisms ofthis instruction published. (41 RT 208 9329.)'In addition, the “San Diego Magazine” — a magazinedistributedin bookstores and supermarkets and devoted to rating restaurants — ran an article on the Van Dams and Dad’s. (41 RT 9329.) “So my request,” Mr. Feldman concluded, “is that your honor either sequester or specifically direct the jury that there are more landmines out there. And there keeps growing, the landmines keep growing, Judge.” (41 RT 9329.) Judge Mudd responded: “All right. Those are the same kinds of materialsthat the court obviously has been drawing the jury’s attention to. And I intend to once again indicate that by allowing them to not be sequestered, I am expecting them to abide by the court’s order. “T think one thing needsto be said because the record is often exceptionally dry, and for any appellate review,this is a hardy group ofpeople. And this court got the very distinct impression when we dealt with the matter of a numberofthem being followedand efforts to determine who they werethroughtheir license numbers,that they don’t wanttheir lives disrupted. And that’s exactly what sequestration would do. “And, in addition to that, sequestration has its own pitfalls as this local community has already discovered. So I am aware of what the articles were this weekend, and it was just a matter ofwhat was going to be today’s topic of discussion. And -- “MR. FELDMAN: Of course, the same problem with today’s newspaperalso, your honor. ‘5 CALJIC NO.2.60 provides: “A defendantin a criminaltrial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does nottestify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.” CALJIC No. 2.61 provides: “In deciding whetheror not totestify, the defendant may choose to rely on the state of the evidence and uponthe failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant's part will make up for a failure of proofby the People so as to support a finding against him on any essential element.” 209 “THE COURT: Absolutely. Absolutely. And I intend to pursue the question of whetherornot the sheriff is abiding by the court’s orders because it appears they’re not. So we’ll pursue that matter independently. p17] “At any rate, at this point in time my intent will be to allow them to commencedeliberation without sequestration. But, again,if it gets — anything more than whatweare seeing, and I think Mr. Feldman, you’re right to raise it on the record, because even though we’re not in session, there’s an article, there’s a picture. There’s commentators and talking heads. And so — butthat’s all the material that’s in the domain that they should know how to deal with. And I am assuming they are. Okay.” (41 RT 9330-9331.) c. Closing Arguments, Deliberations, and Juror’s Request for Sequestration Tuesday August 6 began with jury instructions for the guilt phase oftrial (42 RT 9343.) The balance of the day was given over to closing arguments. (42 RT 9366 et seg.) At the end of the day, a note from Juror 7 had been submitted asking if the Court could arrange to have the jurors excused from their jobs on Fridays, even though court was not in session, without the jurors’ therefore having to use vacation or sick leave. (42 RT 9490; 40 CT 9902.) Judge Mudd was somewhatsurprised at the request and thoughtit a matter, not for him to address, but for each juror’s conscience. (42 RT 9490.) Mr. Feldman suggested that the note might have to do with pressure on the jurors in their work places because of this case. Judge Mudd concededthe possibility, but let the matter stand. (42 RT 9491.) Closing argument continued on Wednesday August 7. In the course ofthe day, there was a note from Juror 12: 106 There was that day an article in the newspaper regardingthe visit of a defense expert to the jail to see Westerfield. This information was supposed to have been sealed from the public, suggesting that there was a leak from the Sheriffs Department. (41 RT 9307-9308.) 210 “What the letter about not going to work was a misunderstanding. “What is [unintelligible] is that due to the media ofthe case. Please understand that people are talking and you just can’t escape it. Self policing is working to a certain point but it’s getting hard to have a clear mind with people that have a big interest in the case at workplace.” (40 CT 9905.) Judge Mudd addressed this note generally with the entire panel before excusing them for the day: “Ladies and gentlemen, before we take the afternoon, break, I’ve received a note regarding the increased amount of exposure you folks are apparently starting to sense, either at the work place or in social gatherings and so forth, because the increased amount of conversation among yourfriends, colleagues, family members regarding the case. “The only thing I can tell you is what I have beentelling you all along. You haveto figure out ways to avoid personally becoming involved in those conversations. That’s number one. Numbertwo, you know whatyourobligation is, and your obligation is to make your decision based only on what you see andhearin this courtroom. So obviously, anything that you inadvertently or accidentally overhear, a colleague, and employee, or before you can get out ofrange of that conversation,is stuff that you’re easily going to be able to disregard “Folks, I have a lot of faith in you. I have an enormousfaith in our system and ofthis particular group. You’ve told me, you showed me, you don’t want yourlives disrupted. The only other choice I haveis to disrupt yourlives totally and put youin isolation. That basically is the choice I have. I don’t want to exercise that because I don’t think you want that to happen. And the only way that the system is going to workis ifyou abide by the court’s order. And when youare confronted with a situation where you know the case is being discussed, do yourbest to avoid it, and what you hear disregard. That is the only choice I have right now. And unless something gets really, really worse, or is reported to me, I don’t want 211 to basically isolate you from your families while you’re deliberating. I believe in you, and you haveto abide by the orders I haveset in order to make this work, and I’m going to assume you’re doingthat. “Please remember the admonition of the court not to discuss any of the evidence or testimony among yourselves nor with any other persons, nor form or express any opinions of the matter untilit is submitted to you.” (43 RT 9649-9650.) On the morning of Thursday August 8, before Mr. Dusek continuedhis final closing, various matters were addressed in closed session, one of which was a leak to the media as to what had occurred in closed session the day before after the jurors had been excused for the day. In that session, matters concerning the Van Damswere discussed (43A 9653-9655) and were related that evening on the Rick Roberts radio show — a “leak ofmonumental proportions”, as Judge Mudd characterized, since it could only have occurred if a camera or microphone had been left on, or if one of the participants had talked to the media. (44 RT 9961- 9962.)'°’ Mr. Feldmannoted that the pitch ofmedia coverage wasrising to an even moreintense level as the submission of the case came closer; media trucks were multiplying outside; and the crowdsin the hallways were even larger. He argued that it was impossible to insulate the jurors from all this. (44 RT 9670- 9671.) Judge Mudd did not respond. He hadthe public admitted to the courtroom, and he turnedhis attention to River Stillwood, the producer ofthe Rick Roberts Show, giving her an opportunity to identify the source of her information. Stiltwood claimed not to know, whereupon Judge Mudd peremptorily expelled her: “Good-bye. I will not tolerate this. Good-bye, ma’am.” (44 RT 9671-9672.) 107 The discussions concerned anonymous information about Brenda Van Dam purchasing a firearm — which information proved to be false. (43 RT 9496-9497; 43A RT 9653.) The other matter concerned Damon’s aggressive remarks to one of the defense attorneys and his family (43A RT 9654-9655), which occurrence in fact was true. (44 RT 9660-9661.) 212 This contrasted with his greeting to the jurors and his opening admonition when they reconvened: “Good morning, ladies and gentlemen. “T apologize for the delay. We had a few loose ends we had to take care of. “T want to alert you to the fact that now two weeksin a row ‘The Weekly Reader’ has anotherarticle, front page, on this case. Please avoidit. “Also, obviously, the television stations and radio are covering this quite extensively now that we’re reaching the end of the line. So listen to yourall-oldies station or whatever, but don’t pay any attention. We’restill self-policing. “How about those Pads. They finally won a ball game.” (44 RT 9672.) Mr. Dusek finished his final closing that morning and Judge Mudd gavethe closing instructions, which included the following: “The next instruction is very important, and I’m going to comment. “You will be permitted to separate at the noon and evening recesses. During your absence the jury room will be locked. During periods of recess you mustnot discuss with anyone any subject connected with this trial, and you must not deliberate further upon the case until all twelve ofyou are together and reassembled in the jury room. “This is obviously the instruction, ladies and gentlemen, with the choice the Court had to make. I didn’t sequester you. I know that you are a conscientious group and are going to deliberate conscientiously. If it becomes apparent to you collectively that you cannot do that given the freedom you have to go homeeach night, I 213 will expect youto alert me to that. I think I have done everything humanly possible to get you to understand how importantit is that you make the decision based solely on what you see andhearin this courtroom. “You will now start deliberations. You will now find outif you can do that. Ifyou cannot do that with the outside influences, the day off, the weekendoff, going homeat night, alert me to that. Andifyou wantto be isolated, I will do that. At this pointin time I don’t sense that you do wantto do that, and I have every confidence you'll be able to do our job without those influences. “I’m throwing that out to you only because now that you start deliberating forthe first time, you’re going to find out whether you’re going to be able to do that or not unhindered by these outside sources. So I leave that to your discretion.” (44 RT 9688-9689.) At 10:10 a.m. on August 8,the bailiff was sworn to take charge of the jurors and the case was submitted to them. (44 RT 9692.) But before noon,the following note was submitted by Juror 10, the foreman: “8/8/02 “Oneofthe jurors has co-workers harassing him about this case at work. This is to the point where he would rather be sequestered then [sic] go to work. “This (sequestering) would significantly affect the other 11 jurors. Weproposethe following: “1. Judge talks to this unresponsive employer. “2. Jury works on Fridays so this juror doesn’t have to work [This proposal is crossed out in the note.] “2. Ora % day on Friday. ““We are open to other ideas — this juror has talked to his employer extensively without cooperation.* 214 “Thanks, “Juror # 10 ““* ‘We wouldlike to orally discuss if possible.” (40 CT 9906; 14 CT 3488.) Atfirst in closed session without the jurors present, Judge Muddarticulated the connection between this note and the one submitted the day before by Juror 12. Judge Mudd inferred from the note that the majority of the jurors wanted to avoid sequestration, but agreed that it was appropriate to speak to all the jurors about scheduling for half-day sessions on Friday, and to Juror 12 alone. (44A RT 9701- 9706.) With the jury, Judge Mudd workedouta plan that allowed them to come on Fridays. Because of someofthe jurors’ pre-existing scheduling conflicts,all they would have to do was convenebriefly and leave, which would then be sufficient to excuse them from work — unless, of course, like Juror 5, one had to be in court at least for six hours in order to be excused by one’s employer. But number five was willing to go to work from the courthouse if it meant not being sequestered. (44A RT 9706-9710.) Judge Mudd then excused the jurors except for Number 12. First, Judge Muddascertained that 12, unlike 5, would be excused from work so long as he had to go to court for even a brief amount oftime. (44A RT 9710-9711.) As to what was happening at work, 12 related that “a lot ofpeople aren’t as respectful as they should be.” (44A RT 9711.) Under Mr. Feldman’s questioning, Juror 12 expatiated: “JUROR NUMBER12: Nothing’s been said to me [at work]. It’s just what I hear. Everyone at work has a radio, everyone at work reads the paper. Everyone — at my workit’s pretty family. To get hired there you have to know somebody. This is how it is. My father’s a manager there. Everyone knows my father. Everyone has 215 got —I don’t know howthey’vegotit, but they’ve got the clue I’m on this case. Everyone knows. It’s hard to stay away, to keep everything pushed away. And that’s what I’m doing. I feel that I’m doing a goodjob at it because I haven’t broken any rules. I’m doing self-policing as I stated, but it’s just getting hard to go to work.” (44A RT 9713-9714.) Therestofthe jurors were called in, and Judge Muddinquired further: “Now,can I read the consensus of the group right now that the majority ofyou, and we don’t haveto take votes, but the majority of youat this point would prefer not to be sequestered? Is that a fair statementstill? “(Responses of ‘Yes’.)” (44A RT 9716.) Whereupon,the jurors were told they were to report each Friday at 9 a.m. and could deliberate for an hour or two orthree as they chose. (44A RT 9716.) After the jurors retired again to deliberate at 2:10 p.m., Mr. Feldman announcedfor the record that the defense continued to request sequestration, and that nothing said today was intended as a waiverofthat request. (44A RT 9718.) In open court, Judge Mudd announcedthat the jurors would be deliberating five days a week, but that the exact hours would not be made public or released to the media. As to why a closed session was necessary, he gave the diversionary explanation that he had to resolve scheduling conflicts for the new schedule. (44 RT 9720.) d. Publicity, Pressure, and Second Stalking Incident During Deliberations The jurors deliberated on Friday August 9 for an hour (14 CT 3489; 45 RT 9724), and then returned on Monday August 12, when they deliberated fora full day. (14 CT 3490.) They had to be released from the courthouse by a different 216 entrance because of a demonstration taking place outside the Hall of Justice regarding the Westerfield case. (46 RT 9727.) Tuesday morning, August 13, began in closed session at Mr. Feldman’s request. It seems that on Mondaynight, the defense had received information from a Timothy Bakerthat Juror 12, the week before, had stated at work that he, 12, was not going to believe anything Feldmansaid because 12 did not like Feldman. After Feldman called Mr. Dusek about this, Feldman telephoned the court and left a message. The defense investigator then called Baker’s numberand talked to him further. It seems that his information came from a co-worker of 12’s. Baker gave a numberto contact the co-worker, but this yielded a voicemail message with 12’s voice and name on it. No message wasleft because ofthis. (47A RT 9731-9732.) Mr. Feldman requested that the court either inquire of Juror 12 or suspend deliberations pending resolution ofthis issue, since the co-worker wasnot available until August 15. Mr. Feldman emphasized that this was not an anonymouscall, and pointed out, as Judge Muddcorroborated, that Mr. Baker had called the court itself on August 9 with this information. (47A RT 9731, 9732- 9733.) Mr. Feldman then expanded his request in way that gives some sense ofthe public atmosphere outside the courthouse: “It does also seem as thoughthe increasing press tensions on the case, on the jury, on the parties are sufficient for us to renew our motion for mistrial. And we do so based upon the media circus that’s out there. We’re concerned at this point that there’s way too much pressure on the jurors basically to lynch Mr. Westerfield. “If anything similar is happening to the Court as is happening to counsel, we’re getting just walking the streets, the most outrageous statements, including profanities in restaurants, including threats in — I don’t know threats —- however you would construe the words. I could put them on the record ifyou wantto hear them. 217 “THE COURT: No. I can only imagine, Mr. Feldman. And I don’t have any doubtthatit’s accurate. “MR. FELDMAN:Thank you. “So wealso reported on the newspaper, I’m sorry, reported in the news there’s people coming from San Bernardino apparently to come march outside court to protest the length oftime ourjury is deliberating. On the news, on the radio news, I’m being called a sociopath for defending Mr. Westerfield. “THE COURT: Considerthe source ofthat. “MR. FELDMAN:I don’t know whoit is. “THE COURT: Well, I’m not even goingto say. “MR. FELDMAN:I don’t know whothe sourceis. I just know the namescalled. “You know,ifthe defense says this in open court, then the media is going to spin it against Mr. Westerfield, which is why I asked your honorto at least let me address you confidentially. “THE COURT:Theyare not here. So we will do it in here and just report to them what has occurred. “MR. BOYCE: Yourhonor, if I could add just little, the jurors are obviously not receiving the type of notoriety that counsel are. Even from our family and friends it seems like everybody has to give their personal opinion about the case or offer some advice about the case. And I’m sure that these jurors, although they don’t have the public, the public notoriety that we do, are receiving the sametype of influence from family and friends. Andit’s ongoing. “T think that the more time passes, the more obviousit becomesthat something should be done,either the jury needsto be sequestered, I think, if the Court doesn’t grant a mistrial.” (47A RT 9733-9734.) 218 Judge Mudddenied the motion for mistrial. He saw nobasisin fact for granting it, and agreed with Mr. Dusekthat counsel’s extrapolation of his own experience to that of the jurors was only a supposition. (47A RT 9734, 9736.) In regard to Juror 12, Judge Mudd was not going to follow up on this. He hadhis “hands full” with the internal investigation of the leak that had led to the expulsion ofRiver Stillwood from the courthouse. At this point, the matter was double hearsay, and the parties themselves were free to follow up on it. (47A RT 9737.) No mention was made ofMr. Boyce’s request that the jury should be sequestered. On Wednesday August 14, the defense filed a written motion to preclude media access to the jurors. This was based on article from Court TV referring to events ofMonday August 12. (10 CT 2397.) The article reported as follows: “Jurors weighing David Westerfield’s fate finished a third day of deliberations Monday with a request for the media — stop staring at us. “The plea, relayed through a court officer, came after the panel took an afternoon coffee break in a public hallway. As they had in the past, reporters watched the 12 as they chatted around a picnic table, but the prying eyes apparently became too much for some jurors whoaskedbailiffs to step in. Five minutes after they returned to the jury room, a court officer told journalists to cease further ‘peeking’ at the panel. “The six men and six women have spent 12 hours deliberating charges of murder, kidnapping and child pornography against Westerfield in connection with the slaying of Danielle Van Dam, his 7-year-old neighbor. If convicted, Westerfield faces the death penalty. “Beside their picnic table conviviality, jurors have offered little clues to their progress. The only note from the panel concerned jurors’ wish to deliberate five days a week instead offour. “One Los Angeles radio station expressed frustration with the pace of deliberations Monday by handingout broccoli spears and 219 fliers reading ‘Save the justice system ... Chop downthe Broccoli stocks(sic). Employees ofKFI AM,whichbills itself as ‘more stimulating talk radio,’ said ‘broccoli heads’ were holdoutjurors whofavored acquittal.” (10 CT 2400.) The Court set a hearing on the motion for the next morning, Thursday August 15, and was going to hearit in open court, even though it was filed under seal. (49 RT 9763.) First, however, the court and parties went into closed session to deal with another problem ofstalking. Juror 13 reported to the Court that on the previous Thursday (August8), she felt she was being followedto the trolley as she left court. She saw the same man again on Monday August 12 when she was returning to her car in the company of Juror 2, to whom she pointed the man out. She did not report it at first because she was only an alternate, even though she was bothered by the incident. Finally, she decided to inform the Court when her mother scolded her for not doing so. Juror 2, who had seenthe stalker in the earlier incident involving jurors 17 and 18, related to the Court that the person pointed out to him by 13 was not the same man. Healso thought that there was nothing unusual about the man in the secondinstance anddid not get the sense that the man was following, as he did with the stalker in the first incident. (40 CT 9911-9912; 49A RT 9766-9770, 9774-9776.) Coming out of closed session, but out of the presenceofthe jury, Judge Mudd announcedthat the reason for the closed session wasthat one of the alternate jurors had been followed “again”, and that, like the previous incident, the matter was being investigated “internally.” (49 RT 9778.) Judge Mudd then turned to the defense motion to preclude media access to the jurors. Mr. Feldman began his argument with the assertion that the jury was “under siege” and that the media wascreating a “lynch mob mentality.” (49 RT 9778.) He requested that the jurors be given a sequestered area in the courthouse to take their breaks free from the scrutiny of the media; but further, the defense still wanted full sequestration because the “environment” does not “allow[] for 220 independent, objective, non-emotional deliberations.” (49 RT 9779-9780.) Finally, the defense requested that the Court “pull the plug”on the television cameras, since the prospect of returning a verdict in the full glare of such a broadcast wasin itself intimidating. (49 RT 9780.) Mr. Dusek arguedthat any assertion about a verdict based on a siege mentality was “pure speculation.” They knew the jurors by now, knew their dedication to the cause ofa fairtrial, and there was no doubt that they would return a verdict based only on the evidence presented to them in court. (49 RT 9781.) The Court essentially agreed with Mr. Dusek. The motion for sequestration was denied, although the more limited request would be granted by designating a more sequestered area for jury recesses and lunch. Asfor the juror being followed, that was being investigated. (49 RT 9781-9782.) When Mr. Boyce pointed out that the Court did not rule on Mr. Feldman’s request to “pull the plug,” Judge Mudd gave his final word in this procedural account: “Let me just say that this Court, rightly or wrongly, and right now I’m ruing the day J madethe decision for the live feeds, nonetheless, based on my experiencesupto that point in time, my professional experience with the lawyers that were in the fishbow] on live television was nothinglike it is today. I think it would be inappropriate, given the fact that I can’t at this point in time point to any prejudice, so the live feeds, both radio and television, will remain at this point in time. I don’t see the prejudice. “T would say the odds are not good that it will ever occur again in this department, but that awaits a future date.” (49 RT 9788-9789.) The jury deliberated the rest of the day on August 15 (14 CT 3493-3494) and on Friday August 16 for one hour (14 CT 3495; 50 RT 9795), and went home for what wasvirtually a three-day weekend. They returned on Monday August 19 to deliberate almost a whole day (14 CT 3496); they deliberated a whole day on 221 Tuesday August 20 (14 CT 3497); and reached their guilty verdicts by 9:45 a.m. on Wednesday August 21 (14 CT 3498). C. Summation One can see from this account that from the stalking incidentto the verdict, the encroachmentofthe public atmosphere onthetrial intensified to the point that there was a substantial likelihoodthat this trial process would not conform to due process in providing a fair and impartial determination of guilt, free from outside influences. Judge Mudd,as the detailed account of the various incidents shows, wasnot using a substantial-likelihood standard, but rather a standard of actual prejudice, discounting the defense’s arguments for sequestration as based on suppositions and speculations, and relying on his intuitive confidencein the integrity and dedication of the jurors. Howeveraccurate that intuition mightbe,it is not the ground on which our jurisprudencerests its confidence andtrust for the protection of due process. To summarize: Mr. Westerfield was ontrial for a capital charge, involving the murder and kidnap of a seven-year old girl, which case had been the subject of intense publicity from the day the girl disappeared on February 2, 2002, through the deliberations of the guilt phase oftrial, which began on August 8, 2002 and ended in guilty verdicts on August 21, 2002. The jury worked and circulated freely in the community duringtrial, and on court days had substantial free time in a courthouse beset with crowds of spectators, which included responsible and irresponsible media observers and private individuals, including the Van Dams, whowere notclearly in the responsible category, and who,at least in Damon’s case, was not unwilling to manipulate the media for his own purposes regardless of the demandsofthe justice system. After the defense rested and the case headed toward its conclusion in a guilt-phase verdict, there was: a stalking incident; increased publicity corresponding to an intensification of public emotion as the denouement of the case approached; a request by one ofthe jurors for 222 sequestration because of harassment at work; a second probable stalking incident; and more. This record, reviewed de novo against a standard of “substantial likelihood” shows much more by wayofdue process violation than the record in Santamaria, where error was established simply on the fact of an 11-day separation in a murdertrial during deliberations. (People v. Santamaria, supra, 229 Cal.App.3" 269, 278-279.) But even if one must show an abuse ofdiscretion, this record supports the finding not only in the number of events and occurrences that demonstrated the need for sequestration, but in the very abdication by Judge Mudd ofthe decision to sequester no not. The discussion, prompted by Juror 12’s request for sequestration, as well as other earlier discussions in this case, was remarkable for the clear indication that Judge Muddlaid the matter of sequestration at the feet of the jurors themselves. They were to make the decision, and Judge Mudd was going to, and did, defer to that decision. Needless to say, a juror, whose life has already been disrupted by the fact of non-sequestered jury service, is not the best judge ofwhether circumstances require that service to become burdensomeinthe extreme. Legally, the jurors are not the judge ofthis at all, and Judge Mudd’s improper delegation in this regard is a failure to exercise discretion, or an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4™ 825, 847-848[“A failure to exercise discretion also may constitute an abuseofdiscretion”]; see also In re James R. (2007) 153 Cal.app.4” 413, 434-435 [‘“[I]mproper delegation ofjudicial powerovervisitation will necessarily be found to constitute an abuse of discretion.”].) Thus, if one is to take Santamaria’s reference to discretion at face value, there was here too an abuseofdiscretion, and the failure to sequester the jurors, at least during deliberations, waserror. But whetherthe route to a finding of a due process violation in this case passes through de novo review or through an abuse-of-discretion standard, the evaluation ofprejudice is in accord with the substantial-likelihood standard. (Sheppard v. Maxwell, supra, 384 U.S. 333, 362; People v. Santamaria, supra, at 223 pp. 280-283.) There can belittle or no argument that under the circumstances of this case, as presented in great and lengthy detail above, there was, andis, a substantial likelihood that Mr. Westerfield did not receive a fairtrial in accord with the Due Process Clause of the Fourteenth Amendment, and his convictions must accordingly be reversed. 224 V. COUNT THREE, CHARGING POSSESSION OF CHILD PORNOGRAPHY, DID NOT MEET THE REQUIREMENTS OF STATUTORY JOINDER TO COUNTS1 AND 2, CHARGING MURDER AND KIDNAPPING, RESPECTIVELY, AND IN ANY EVENT, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION TO SEVER COUNT 3 FROM COUNTS1 AND 2 Introduction The joinder of count three, misdemeanorpossession of child pornography (Pen. Code, § 311.11(a)), to counts 1 and 2, charging respectively, capital murder and kidnapping, wasthe subject of a pretrial severance motion by the defense. (2 CT 475.) The defense also presented a related motion objecting under Evidence Codesection 1101 to any pornographic evidence. (3 CT 588.)'°8 Judge Mudd rejected the severance motion and further ruled that selected pornographic images, someconstituting proscribed pornographyundersection 311.11(a) and somenot, were admissible as relevant to prove motive andintent in this case. (SE RT 1961; SF RT 1983-1985, 1993-1996.) The rulings, which so changed the complexion of this case, are the subject of the instant claim. 109 '°8 Section 1101(a) states that “evidenceofa person's characterora trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Section 1101(b) allows evidenceofspecific instances of conduct “when relevant to prove somefact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendantin a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” ' Tt will help in following the instant argumentto have an overview of whatis and is not proscribed under Section 311.11(a). A violation of this statute consists in the possession or control of “any matter, representation of information, data, or image” on somesort of “data storage media’, which the statute sets forth in a non- 225 The law ofjoinder and severance is contained in Penal Code section 954: “An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts. . . .; provided, that the court in which a caseis triable, in the interests ofjustice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each ofsaid groupstried separately.” This means, simply, that different charges must betried in separate proceedings unless they are either connected together in their commission or are the sameclass of crimes. (People v. Soper (2009) 45 Cal.4" 795, 771.) If the charges satisfy the requirement for consolidation, the trial court nonetheless retains discretion to grant a severance, but the defendant then bears the heavy burden of a clear showing of substantial prejudice from the otherwise proper exclusive list, which representation or image “involves the use of a person under the age of 18 years, knowing that the matter depicts a person underthe age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4... .” Section 311.4(d) defines “sexual conduct” as “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewdor lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whetheror not any ofthe above conduct is performed alone or between members ofthe same or opposite sex or between humansand animals. An act is simulated whenit gives the appearance of being sexual conduct.” Atthe timeoftrial, a violation of Section 311.11(a) was only a misdemeanor. In 2007, the statute was amended to make the crime a “wobbler.” (Stats. 2007, chptr. 579, § 38.) 226 joinder of counts. (People v. Ramirez (2006) 39 Cal.4™ 398, 438-439; People v. Ochoa (1998) 19 Cal.4" 353, 409; People v. Bradford (1997) 15 Cal.4™ 1229, 1315.) In assessing whether or not there was an abuseof discretion, one of the issuesis the cross-admissibility of the evidence (Ibid.; People v. Vines (2011) 51 Cal.4™ 830, 855; People v. Soper, supra, 45 Cal.4" at pp. 774-775), and in this regard, the principles governing Evidence Codesection 1101, albeit in modified form (Alcala v. Superior Court (2008) 43 Cal.4" 1205, 1222, fn. 11), will intersect, as they did here, with the question ofjoinder and severance. It is appellant’s contention that count three in this case did not meet the statutory requirement for joinder of counts as required by Penal Codesection 954, but that even if it did, it was an abuse of discretion to allow the joinder, not only insofar as the evidence wasnot cross-admissible, but also because joinder of counts in this case created an intolerable risk of improperly skewing the guilt and penalty determinationsin this capital case far in excess of any negligible benefit arising from consolidation. But before elaborating on the law, one must recount more detail the somewhatodd procedural course this issue took below in thetrial court. A. Procedural Course of Joinder Issue It was decided, at the suggestion of the second prosecutor, Mr. Clarke, that the defense’s motion to sever would be deferred until the motion to exclude the pornography under Evidence Code section 1101 was decided, since the two issues were “intermixed” and were “downtogether.” (SE RT 1943.) Butthe first step, for either issue, was for the prosecution to designate the selection of the pornographic images it was proffering to prove the misdemeanorpossession charge. (SE RT 1943-1944.) Pretrial (PT) Exhibits 30 and 34 consisted of the images the prosecution deemed to be child pornography, whose possession would actually constitute the charged crime. PT Exhibit 30 consisted of six video clips simulating the forcible 227 sexual assault of females who appeared to be pubescent minors, although the female in the last two clips appeared to have fully developed breasts, while the females in the previous clips had smaller breasts. (SE RT 1946-1948, 1953; 5F RT 1996; Ex. 139.)''® PT Exhibit 34, was a photograph showing a female, who appeared pubescent, facing the camera, andsitting on the lap of the man with whomshe was having sexual intercourse. (Ex. 138.) The remaining exhibits were not contraband, but were offered to establish the scienter element of the crime. PT Exhibit consisted of cartoon images, or “animé” (SE RT 1948), which did not therefore depict a “person” as required for a violation ofPenal Code section 311.11. (See above, p. 225, fn. 109.) Nonetheless, in cartoon images, PT Exhibits 31C, D, E, F, G, and I portrayed pubescentgirls engaged in forcible, or possibly forcible, sexual acts. (Ex. 138.) PT Exhibits 31A, B, and H weresingle-frame cartoon depictions of the rape of a female with a fully mature body, butgirlish facial features. PT Exhibits 32 and 33 were cartoon depictions of rape, conveyed in a series of frames, with captions, telling a continuous story. The females depicted were mature in body, but, as with PT Exhibit 31A, B, and H,they hadgirlish facial features as well as hairstyles and clothing. (Ex. 147.)'"' Finally, PT Exhibit 35A through L werealso not child pornography, and perhaps were not even pornographic. These consisted of photographs ofunclothed pubescent and prepubescent females. The poses in some ofthem were sexually suggestive, but in others they were not. (Ex. 138.) Asfor admissibility, or rather cross-admissiblity, under Evidence Code section 1101(b), the prosecution’s position wasthat the proffered evidence was relevant to prove motive and intent in connection with the kidnapping and murder. 0 This became Exhibit 139 attrial. ‘I Exhibits 138 and 147refer to the numberingoftheseastrial exhibits. All exhibits cited in this brief will be transferred to this Court. (Cal. Rules of Court, Rules 8.634(a) and 8.224(a)(1).) 228 (3 CT 682.) According to Mr. Clarke, who argued the matter for the prosecution, the fact that Danielle Van Dam’s body was found unclothed in a remote area was a sufficient predicate to raise the question of child molestation and sexual assault. The cartoons depicted sexual assaults on minor females, as did the movies, even if the actresses were actually over 18. Even the non-pomographic photographsin PT Exhibit 35 showed teenagers andgirls in seductive poses. (SE RT 1951-1953.) Oneofthem in this series, “even look[ed],” Mr. Clarke noted, “to some extent like Danielle Van Dam,in addition to being approximately her age.” (SE RT 1954; see Prosecution’s PowerPoint Presentation for opening statement, slide 15; see also Ex. 138, image IEA30527.JPG.) The proffered images, he argued, provided “an extremely rare insight into the reasons for this kidnapping and murder by Mr. Westerfield of Danielle Van Dam. They demonstrate graphically his special attraction to younggirls as evidencedbythis particular material” (SE RT 1953), and were “extraordinarily probative of intent”. (SE RT 1952) The evidence,in sum, was admissible not only to prove the violation of Penal Code section 311.11(a), but also to prove that Mr. Westerfield kidnapped Danielle Van Dam for sexual purposes and killed her in the course of committing a violation of Penal Code section 288. (SE RT 1954.)'" Mr. Boyce took exception to Mr. Clarke’s claim of a “special attraction” to girls, since the pornography involving minors was a small percentage of the pornographyseized from the computers in Mr. Westerfield’s home. If the prosecution’s evidence was introduced, Mr. Boyce argued, the defense might have to counter with the entire collection. (SE RT 1955.) Beyond that, the evidence wasextraordinarily prejudicial without much probative value, since there was here no “tie-in” with the charged crimeas in the cases cited by the prosecutioninits '12' Tt might be noted here that the murder charge was submitted to the jurors solely on a theory of felony-murder/kidnapping, and no instruction on felony- murder predicated on a violation of Section 288 was even requested, let alone given. (See below,p. 358; see also 10 CT 2522-2523; 42 RT 9357-9358.) 229 moving papers, in which cases there had been evidencethat the victim had been sexually molested. Here there was no such evidence. (SE RT 1955-1958.) After some questions directed to Mr. Clarke as to the location of Danielle’s fingerprint in the bedroom ofthe motorhome,the blood drop in the hallway, and the possible hair in the bathroom and other places, Judge Muddruled: “All right. “In order to makea ruling on this motion, the Court has to considerthe totality of the state of the evidence in termsofits relevance to these proceedings. When onelooksat a nude body, when one looks at blood, fingerprint, the hair evidencethat is currently known,whereit’s located especially the handprint or the fingerprint in the area of the bed, coupled with this type of material, it becomes highly relevant, highly probative on the issues of motive and intent. I sort of saw this one coming whenit was publically announcedthat the cause of death could not be determined. And as ofnow no physical samples were there: no semen, no other bodily fluids. “But whenone looksat the entire context ofwhat the People’s theory on the case is, it becomes almost the only theory that makes any sense when one couplesall of these factors together. I realize, as does everyone, the prejudicial nature of these materials, and whether I’m goingto allow all of these in or not, I’Il hear further argument on. “But as to the threshold issue of whetherit is relevant and probative on the People’s theory of the case, and whetherthere is sufficient evidence to sustain that theory, the Court finds that there is.” (SE RT 1961-1962.)'? 113 The next day, Judge Muddrecapitulatedthis ruling for the benefit of defense co-counsel, Ms. Schaeffer, who had not been there the day before, and who was urging that the only nexus between the proffered pornography and the charged murder and kidnapping wasspeculative and theoretical, not evidentiary. (SF RT 1982.) Judge Muddreplied: “The evidencein this caseis that the young girl was kidnapped from her house; her nude body in an advanced state of decomposition is found; her fingerprint is found immediately over the bed area ofyourclient’s 230 The next day, before the parties argued regarding which ofthe proffered exhibits should actually go to the jury, Mr. Feldman protested that there wasstill an analysis to do under Evidence Code section 352. The proffered evidence was extraordinarily prejudicial, while the vast majority of the pornography on the computers was adult pornography, which the defense might be forced to introduce to place the prosecution’s evidence in perspective. (SF RT 1971, 1976-1978.) Judge Mudd concededthat he had not considered the issue in light of Evidence Code section 352. However, the prosecution’s presentation of the material was succinct, while, if the defense wanted to offset the evidence with a presentation of the adult pornography,this could be done by stipulation or by reference simply to the numbers. (SF RT 1984.) In sum, “|. . LT have, as best I can balanced the interest of the defendant, the time that it’s going to take, the right of the People to present their case and their theory, and I have cometo the conclusion that a limited amountofthis material is relevant, it is probative, and whileit is true that it is inflammatory,the fact is it exists and the fact is there is evidence in this case to sustain the People’s theory.” (SF RT 1984-1985.) Once it was decided that proffered evidence of child pornography and supporting exhibits was within the range of admissibility under Section 1101(b), the Court proceeded to the question of severance. On this question, Mr. Boyce contendedthat a violation of section 311.11(a) was not the sameclass of crimes as motor home; her blood is found in the motor home,her hair is found in the motor home; and as I learned yesterday, more of her hair apparently may be found in other locations. [{] It is true that because of the advancedstate of decomposition the genitalia no longer exist to know whether or not there was molest, and no bodily fluids were found. But I have analyzed this and determinedthat based on all of the evidence that is involvedin here,it is appropriate that the People be able to explore their theory because ofwhatis located on you client’s computer.” (5F RT 1983.) 231 murder and kidnapping, and that in this case, the commission of the one was not connected to the commission ofthe other two. (SF RT 1988-1989, 1995-1996.) Mr. Clarke conceded that these indeed were not the sameclass of crimes, but, “as has been I think apparent from our previous argument yesterday and today, they are clearly connected together in their commission,justifying denial of the severance motion inasmuch as count three obviously is in our view part and parcel of the commission of counts one and two.” (5F RT 1990, 1996.) The motion to sever count three from counts one and two wasdenied. (SF RT 1996), and a narrowerselection of the proffered exhibits was made. Judge allowed the video clips showing the forcible sexual assaults (PT Ex. 30); the cartoons showing forcible sexual assaults on pubescent girls (PT Exs. 31 C,D,E,F,G, and J); the photograph of the apparently pubescent girl having sexual intercourse (PT Ex. 34); and the photographs of naked pubescent and prepubescent girls. (PT Ex. 35.) He excluded the cartoons showingforcible rape and sexual assault on females with fully mature bodies (PT Exs. 31A, 31B, 31H, 32 and 33). (SF RT 1992-1995.).)'"" ‘14 The exhibits excluded were later admitted by Judge Muddin a strangetwist of events, in which it was claimed that Mr. Feldman “opened the door’not only to these, but also to all the pornography seized in this case. (Jbid.) This issue is discussed in the next argumentofthis brief not only as independenterror, but as part of a gross unfairness in thetrial due to joinder, if in this argument, this Court rejects the claim that joinder was proper based on pretrial circumstances known to the court. (People v. Gonzales & Soliz (2011) 52 Cal.4™ 254, 281 [“[E]ven if a trial court's ruling on a motion to severis correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts resulted in gross unfairness depriving the defendant of due process of law.”]). In this argument, however, the discussion of error and prejudice is confined to the exhibits Judge Mudd held to be admissible in the pretrial hearing, and which were shownto the jurorsinitially, before the “door” wasallegedly “opened.” 232 StatutoryJoinder By beginning with the 1101 question and then proceeding to the motion to sever, one may wonderifJudge Mudd confounded the questions ofstatutory joinder and discretionary severance so as to misconstrue the appropriate considerations for each. Nonetheless, under the rule of appellate procedure that every presumption and intendmentis in favor of the order or judgment appealed from (Walling v. Kimble (1941) 17 Cal.2™ 364, 373; Schnabel v. Superior Court (1993) 5 Cal.4™ 704, 718), one may paraphrase Judge Mudd’sruling as having two parts: 1) the requirements of statutory joinder weresatisfied for the same, or similar, reasons that the evidence was cross-admissible; and 2) the defense did not meetits burden in showing the clear prejudice required for discretionary severance, because not only was the evidence cross-admissible under Evidence Code section 1101, the probative value of the evidence wasso high as to overcomethe extraordinary prejudice engenderedby it. This is the ruling one must address, and one may begin with the question of statutory joinder, whichis subject to de novo review,unlike discretionary severance, which is subject to an abuse-of-discretion standard. (People v. Alvarez (1996) 14 Cal.4™ 155, 187-1 88.) Asalready noted, Mr. Clarke conceded that possession ofproscribed pornography under section 311.11 was not of the same class of crimes as murder and kidnapping. (SF RT 1990.) Ifhis deference to the obvious requires any elaboration, it may be done in short compass. Crimes are “of the sameclass” when they possess “common characteristics or attributes.” (People v. Kemp (1961) 55 Cal.2™ 458, 476; People v. Smallwood (1986) 42 Cal.3" 415, 424, fn. 5.) Consistent with the word “class”, the commonality of characteristics or attributes is sought on the general or definitional level, so that, for example, murder and kidnapping are properly joined as forms ofassault against the person. (People v. Kemp, supra, at pp. 476-477.) Crimes involving the taking of property will constitute another class (People v. Koontz (2002) 27 Cal.4" 1041, 1075), and 233 undoubtedly sexual crimes constitute the class that embracesa violation of Penal Code section 311.11. (See Evid. Code, § 1108(d)(1)(A).) There can be cross- classification, such as robbery as an assaultive crime or property crime (People v. Lucky (1988) 45 Cal.3™ 259, 276), or rape as a sexualor assaultive crime (People v. Kemp, supra, at pp. 476-477.) Murder and kidnapping, however,are assaultive crimes, while criminal possession of pornographyis not; criminal possession of pornographyis a sexual crime only, while murder and kidnapping are not. Again, the matter is determined on the definitional level, so that even if one can posit the (meaninglessly) broad class of crimes involving minors, the classification of murder and kidnapping does not change simply becausein this case the victim of these crimes was a minor. Thereis no basis in law or reason not to accept the People’s concession. What the People did not concede, and what was pressed below wasthat the murder and kidnapping in this case were “connected together in their commission” with the criminal possession of pornography. The statutory phrase has been construed broadly and is not confined to crimes committed in the same transaction of events or in a continuing course of conduct. “Offenses committed at different times and places against different victims are nevertheless connected togetherin their commission whenthey are . . . linked by a commonelementofsubstantial importance.” (People v. Valdez (2004) 32 Cal.4™ 73, 119, internal quotation marks omitted; People v. Mendoza (2000) 24 Cal.4" 130, 160; People v. Lucky, supra, 45 Cal.3™ 259, 276.) Unlike the classification test, the ““common element” measure refers to the facts of the case, such as evidence that the crimes were part of the same course of conduct (see People v. Mendoza, supra, at p. 160), or when the same instrumentality, such as a gun, is used in each separate and separated crime(see People v. Scott (1944) 24 Cal.2"! 774, 779), or whenthere is an apparent correspondence between the two crimes on some 1101-like theory of intent or modus operandi based on apparent similarities between the crimes to be joined. 234 (See People v. Lucky, supra, 45 Cal.3™at p. 276 [In both jewelry store incidents the robbercarried a gold chain into the store, apparently on the pretext of attemptingto sell it.”]; see also Ghent v Superior Court (1979) 90 Cal.App.3™ 944, 955-956, 958 [frustrated attempted rape in the morning was evidence of motive for murder of same victim, whose nude and bound body wasfound the same afternoon.].) Here, although Mr. Clarke’s contention was that the pornography was“part and parcel” of the events surrounding the kidnapping and murder (5F RT 1990), there was no evidence that Mr. Westerfield had accessed this pornographyright before Danielle Van Dam was kidnapped (see Ghent, supra, at pp. 955-956, 958.); there was no evidence or even contention that Westerfield had created the images seized (see People v. Memro (1995) 11 Cal.4" 786, 861, 865); there was no evidence or contention that any of the images were of Danielle Van Dam herself (see People v. Bales (1961) 189 Cal.App.2™ 694, 701); nor did any of the pornography or photographs depict a scene corresponding to somesalient feature of the kidnap or murder. (See People v. Clark (1992) 3 Cal.4" 41, 129.) The absence of such factors significantly reduces the probative value ofpornographic evidencefor crimesthat are not inherently sexual in nature. (See People v. Page (2008) 44 Cal.4"1, 40-41.) Asnoted above, Mr. Clarke did assert that one of the non-pornographic photographs in PT Exhibit 35 showed a naked younggirl who looked “to some extent like Danielle Van Dam” (SE RT 1954) — and the prosecution would later highlight this photograph in its opening-statement PowerPoint presentation (People’s Opening statement PowerPoint, slide 15) — but the resemblance seemsto have been mostly of race and to some extent of hair color. The girl in the photograph seemed older. Moreover, her photograph did not stand out in any way from the other ones in Pretrial Exhibit 35, which showed many white and Asian girls, with hair colors ranging from black, to lighter brown, to blond. (Ex. 138.) Neither the so-called resemblance nor the circumstance ofthe placementor 235 possession of the photograph provided a substantial link to the murder and kidnapping. (See People v. Page, supra, at p.41. [“Here, the cover of Oriental Delight featured a model who merely looked similar to Tahisha; defendant apparently took no steps to conceal or destroy the image, and the model was only one ofperhaps hundreds of models who appeared in defendant’s extensive pomography collection.”].) For the “link” between conjoined counts to be “substantial” and thereby satisfy the statutory requirements for joinder, it must have an anchorto fix the connection in place. That is to say, the possession ofproscribed pornography had to connect to some evidentiary point in the evidence of the murder and kidnapping, and not to some speculation or theory of the prosecution as to how or why the murder or kidnapping was committed. Judge Mudd specified what those evidentiary points were, but before addressing them, one mightresort to the case ofPeople v. Guerrero (1976) 16 Cal.3™ 719 to help illustrate the general nature of the problem presented here where the evidence of sexual assault in the charged crime is problematical. In Guerrero, defendant was on trial for murder. The victim, Miss Santana, was walking to a party with her girlfriend when defendant and another male offered her a ride. They were unableto find the party and began to “cruise.” After buying someliquor, they stoppedin a parking lot. Defendant then dropped off his friend and Miss Santana’s friend, saying that he would drive Miss Santana home. A few hourslater, her body was found by a passerby. She wasfully clothed, but her blouse was hiked up aboveherbrassiere, which itself was in place. There was no evidence of sexual molestation or trauma. (/d., at p. 723.) At defendant’s trial, evidence of an uncharged act was allowed. Six weeks earlier, Irene Lopez and twogirlfriends left a party with defendant and two other males. They wentriding in defendant’s car. After a series of stops and the dropping off of passengers, Miss Lopez wasthe only female left in the car. She asked to be taken home, but instead, defendant drove to a secluded area where he 236 and his two friends forced her to commitacts of oral copulation and to submit to sexual intercourse. One of the males warned Miss Lopez notto tell. A few minutes later, defendant, while driving, picked up a lug wrench, turned to Miss Lopez and smiled. She interpreted this as a threat. (/d., at pp. 722-723.) This Court, in Guerrero, discussed the contention that the Lopez rape was admissible to show that Miss Santana was murdered in the course of an attempted rape. In rejecting this contention, the Court identified the problem succinctly: “In the Santana offense, there is no evidence whatsoever of sexual intercourse or attempted sexual intercourse which the Lopez rape might explain.” (/d., at p. 727.) The Court elaborated: “Thus, the argumentofthe Peopleis circular: (1) sexual activity must have taken place in the Santana offense because defendant's rape ofMiss Lopez demonstrates his aggressive sexual tendencies; (2) therefore, evidence of the Lopez rape may be introduced to show the intent with which defendanttried to engage in sex with Miss Santana. Thefirst premise, of course, seeks to prove defendant's conductin this case by meansof evidenceofhis criminal disposition. Such proofis expressly prohibited by Evidence Codesection 1101, subdivision (a). “The flaw in the rationale of the People is revealed if we hypothesize that instead of raping Miss Lopez, defendant andhis two friends had robbed her. Under the prosecution theory such Lopez robbery could then be admitted to show that the Santana offense was murderin the commission of a robbery, notwithstanding the fact that no property had been taken from Miss Santana. In short, the People may not conjure up an attempted rapein this instance in order to introduce evidence of another rape.” (/d., at p. 728.) In other words, the connection cannot be merely to a theory, and although Guerrero was decided under Evidence Code section 1101, the basic principle 237 should apply to Penal Code section 954 whenthe substantial link between the crimes to be joined is an 1101-like connection. Again, Guerrero is adducedto illustrate the general problem of using 1101(b) to confirm a speculation. Asto the specific evidence recited by Judge Mudd-- the kidnappingofa little girl from her bedroom,the nude state of her body when discovered, the evidence establishing her presence in the motor home, and her fingerprint on the cabinet above the bedin the back ofthe motor home-- one may turn to anotherset of cases, beginning with those submitted by the prosecution. In its pleadings andat oral argument, the prosecution cited the cases of People v. Jennings (1991) 53 Cal.3" 334 and People v. Robbins (1988) 45 Cal.3™ 867. (3 CT 675-676; 5E RT 1951, 1956-1957.) In Jennings, the unclothed, badly decomposed body of a young woman wasfoundin anirrigation canal. There was no other evidence to support an inference of sexual activity, but this Court held that the location of the body andits state ofundress was enoughto satisfy the corpusdelicti for the crime of rape. (Jennings, supra, at pp. 366-368.) In Robbins, a six-year-old boy disappeared, last seen riding a motorcycle driven by a blond man wearing shorts. Three monthslater, the boy’s skeleton was found, and the cause of death was determined to have been a broken neck. (Robbins, supra, at p. 872.) Again, this Court held the evidence sufficient to establish the corpus delicti for the crime of lewd and lascivious act on a child under 14: defendant was seen driving a motorcycle in the area where the boy waslast seen; defendantfit the description of the man driving the motorcycle; the defendant’s own experts gave their primary diagnosis as “pedophilia”: and no clothes were found at the scene of the crime. (/d., at p. 886.) But these cases do not provide support for Judge Mudd’sruling in the instant case. Again, for purposes ofjoinder, the link between the consolidated crimes must be substantial in an evidentiary sense. For purposes of the corpus delicti rule, however, the evidence need only be “slight or prima facie” (People v. 238 Jennings, supra, at p. 368), which will not be enoughto satisfy any test that requires substantial evidence. (People v. Johnson (1993) 6 Cal.4™ 1, 41.) Indeed, this Court’s precedent establishes almost as a rule the proposition that “ ‘the victim’s lack of clothing ... is insufficient to establish specific sexual intent.’” (People v. Holloway (2004) 33 Cal.4" 96, 139.) Thus, in People v. Craig (1957) 49 Cal.2d 313, the dead victim had been found lying on herback,partially underneath a jacked up car, strangled to death. Herlegs were extended andslightly apart. She was wearing only a raincoat over a slip, and the raincoat was ripped open. Herpanties were under her, having been torn apart, and her genitals were exposed. (/d., at 316.) Two daysbefore the woman's body was found, defendant had arrived in San Francisco from Fresno for a medical appointment. He checked into a hotel and wentto the hospital the next morning. At the hospital, he told an attendant that he wished he was married, and eeethat he would like to have a girl in order ‘to havea little loving.’” That evening, defendant went to a dance club. He was repeatedly rebuffed by one woman whom he kept asking to dance. Onherlast refusal, defendant showered her with abusive language, threatening that if she did not dance with him, “ ‘she would find herself picking herself up off the sidewalk.’” (d., at p. 315.) Later in the evening, defendant drank in variousbars,left at 2 a.m., and was seen encountering the victim outside. When she was found the next day, defendant's hotel room key was found in the pocket of her raincoat, and appellant had not spent the nightat his room. (/d., at p. 316.) In Craig, there was other evidence connecting defendant to the homicide and this Court rejected the claim of insufficient evidence to show that defendant in fact was the perpetrator. (/d., at p. 318.) But this Court did find that there was insufficient evidenceoffirst degree murder, predicated either on premeditation or on felony murder/rape. In reaching this conclusion the Court rejected the significance ofthe position of the body orits state of undress, especially in light of the lack of any other evidence of a sexual attack, which was not provided by either 239 his statements to the nurse or his obnoxious language and behaviorat the dance. (d., at 318-319.) In People v. Granados (1957) 49 Cal.2d 490, thirteen-year-old Elvira was found dead in her bedroom. Her skirt was hiked up aboveherprivate parts, while an apron had been pulled down below them. Elvira had been in the care of defendant, who claimed to remember nothing of what occurred that afternoon except that while he and Elvira were doing some chore, he asked herif she was virgin, to which shereplied that it was none of his business. (/d., at pp. 493-494.) This Court found that although the evidence wassufficient to sustain a finding of malice aforethought for murder, it was insufficient to establish that the murder occurred in the course of violating Penal Code section 288 — lewd and lascivious acts on a child under 14. (/d., at p. 497.) In People v. Anderson (1968) 70 Cal.2d 15, the defendant had repeatedly stabbed a 10-year-old girl all over her body. The woundsincluded vaginal lacerations. Her naked body was found undera pile of boxes and blankets, while her bloodstained and shredded dress was found underneath her bed. The crotch had been ripped out ofher blood-soaked panties. Because only defendant's shorts and socks werestained with blood, it was inferable that he was only partially clothed during the attack. (/d., at pp. 20-22.) This Court found this evidence insufficient to sustain a finding of an intent to commit a violation ofPenal Code section 288. (d., pp. 34-36.) Finally, in People v. Johnson, supra, 6 Cal.4th 1, the defendant admitted to the police that he had had sex with oneofthe victims, and made some unelicited statement suggesting that she might not have consented. In regard to the other victim, her body was found dressed only in a sweatshirt and bra, while she was naked from the waist down. She was in her bedroom,there was pantyhose on the floor, and she died from a severe beating that had left blood all over the bedroom. (Id., at pp. 38-39.) This Court found insufficient evidence offirst-degree murder predicated on the commission ofrape or attempted rape. (/d., at pp. 41-42.) 240 Whetherthe “substantial link” test of Penal Code section 954 is precisely identical with the “substantial evidence”test for sufficiency ofthe evidence, they mustat least be similar in calling for a “substantial” factual inference from specific pieces of evidence. In all of these cases involving the victim’s dead body found in a state ofundress or some degree of undress, the inference of sexual activity was found to be insubstantial, and in this case, the inference is no better — unless of course it was strengthened by other evidence. (See People v. Rundle (2008) 43 Cal.4™ 76, 76, 138-140.) Wasthere such evidence here? One can see from the discussion of the details of the above cases that evidence of the physical proximity of the victim and defendantat or around the time the crime was committed is not enough. In Craig, Granados, Anderson, and Johnson, there was noreal issue that the victim and defendants werein fact in each other’s presence, and, indeed, the cases seem to show that there were noreal disputes as to whetheror not the defendant had committed the homicide. Thus, the hair evidence in the bathroom andin other parts of the motor home, as well as the spot of blood found in the hallway of the motor home,if they show,in the prosecution’s version, Westerfield’s proximity to Danielle Van Dam,they do not add weight to an evidentiary inference of a sexual crime conjoined with the murder. But this leaves the question of the fingerprint found on the cabinet above | the bed in the motor home. The argumentimplicit in Judge Mudd’s citing this evidenceas significant is that the girl had no reason, under the circumstances, to be in the bedroom of the motor homeunless it was for sexual purposes. However, whateverforce this reasoning might have in regard to a bedroom in a fixed residence, whether a house or an apartment, it diminishes significantly in regard to a bedroom in a motor vehicle, which is compact enoughto traverse public thoroughfares, and where the residential appurtenancesofthe vehicle must be cramped together in small space for purposes of transport and portability. The diminished expectation ofprivacy in a motor home has been recognized in law 241 (see California v. Carney (1985) 471 U.S. 386, 393-394 [diminished Fourth Amendmentexpectation ofprivacy in a motor home]), and in both common experience and commonsensethe notion of child sitting or even lying on a bed in a motor homeas it moves from one point to another simply does not provide a substantial basis for concluding that there was sexual activity with that child. Indeed, in Granados, Anderson, and Johnson, the defendant and victim were together in fixed residential bedrooms withoutthis fact adding anything substantial to the weight of the evidence. There is one further point to consider in assessing this evidence,if in fact the considerations adduced already are not enough. If the “substantial link” and “substantial evidence”test differ at all, it is a difference that favors appellant’s position in this argument. If the burden is deemedto shift to the defendantto establish his right to discretionary severance once the requirements ofstatutory joinder are met (People v. Ramirez, supra, 39 Cal.4" 398, 438-439; People v. Ochoa, supra, 19 Cal.4" 353, 409; People v. Bradford, supra, 15 Cal.4" 1229, 1315), it follows that the prosecution bears the burden ofestablishing its right to statutory joinder. Thus, unlike the substantial evidence test, where the burden favors strongly the proponent of the judgment. (People v. Manriquez (2005) 37 Cal.4" 547, 576; People v. Memro, supra, \1 Cal.4® 786, 861; People v. Johnson, supra, 6 Cal.4" 1, 38), the burden here favors the party opposing joinder, andthis requires that the record in the instant case be construed most favorably against consolidation of charges. Count three, then, in the instant case was neither the sameclass of crime as those in counts 1 and 2, nor wasit connected its commission with the commission of counts 1 and 2. It follows that the prosecution in this case failed to establish the requirements for statutory joinder and such joinder was improper. The next step of course is to considerthe issue of prejudice. But this might be properly deferred until appellant explores the question of discretionary severance on the contingency 242 that this Court does not agree with the preceding analysis and doesnotfind that statutory joinder was here improper. C. Discretionary Severance Asnoted above, the question ofwhether the evidence supporting each of the joined counts individually is cross-admissible is one factor to be considered in regard to discretionary severance. Other considerations are whether certain of the charges are unusually likely to inflame the jury against the defendant; whether a relatively weak case is to be conjoined with a relatively strong case, or with anotherrelatively weak case so that the aggregation of the two distorts or disguises those weaknesses; or whether any of the charges carries the death penalty. (People v. Bradford, supra, 15 Cal.4" 1229, 1315; People v. Vines, supra, 51 Cal.4" 830, 855.) In the instant case, also as noted above,it is by no means clear whether Judge Muddconsideredall of the pertinent factors or in what way he exercised his discretion, if indeed he at all recognized the issue of discretionary severance and statutory joinder as separate and distinct. But one can confidently conclude from the record that cross-admissibility was the primary, if not exclusive, consideration in the decision to allow joinder. Although Evidence Code section 1101 requires a heightened scrutiny of the probative value of bad-act evidence becauseof its inherently prejudicial nature (People v. Abilez (2007) 41 Cal.4" 472, 500; People v. Ewoldt (1994) 7 Cal.4" 380, 402), this Court has madeit clear that if the joinder-and-severance question of cross-admissibility concerns the issue of bad-act or other-crimes evidence governed generally by Evidence Codesection 1101, the 1101 standards are relaxed in this context. If outside the joinder-and-severance context the proponent of other-crimes evidence must show the clear, unequivocal relevance ofthe other- crimes evidenceto a legitimate fact in issue other than character or propensity (People v. Thompson (1980) 27 Cal.3d 303, 316, 318), inside the joinder-and- severance context, the burden will shift to the opponent ofjoinder to show that the 243 _ evidenceis clearly irrelevant or that the prejudice resulting from the evidence clearly outweighs the values served by the consolidation of charges. (Alcala v. Superior Court, supra, 43 Cal.4" 1205, 1222, fn. 11; People v. Soper, supra, 45 Cal.4" 759, 772-772-774.) Do these loosened standardsfor other-crimes evidence defeat the instant claim? Onereturns to the Guerrero problem, which does not change with the context. This is easily illustrated by applying the looser standards of Evidence Code section 1108 to the question of cross-admissibility in this case. Section 1108 provides that “[i]n a criminal action in which the defendantis accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101... .” (Evid. Code, § 1108(a).) In other words, under 1108, in prosecutions for a sexual offense, evidence of an uncharged sexual offense is admissible as character evidence, and need not have any sort of specific evidentiary focus of such matters as motive and intent. In subdivision (d)(1), violations ofPenal Code section 311.11 and of Penal Code section 288 are listed as among the enumerated crimes constituting a “sexual offense” within the meaning of the statute. Murderis not listed, but can fall within the statute if committed as a felony-murder predicated on a commission of one of the enumerated sexual offenses. (People v. Story (2009) 45 Cal.4" 1282, 1294.) If one were then to apply section 1108 to the question of cross-admissibilityin this case the deficiency of evidence to establish the murder and kidnapping as sexual offenses remains the same and requires the same conclusion: even under the looser joinder-and-severance standardsthere is no cross-admissibility. In the discussion on statutory joinder, appellant cited to People v. Page, supra, 44 Cal.4" 1 for the proposition that there had to be some meaningful point of contact between the pornographic evidence and the evidence of the murder itself. Ud., at pp. 40-41; see above, p. 236.) Indeed, the abundance of evidence in Page that defendant had in fact sexually assaulted the murdervictim, heightens, by contrast, the deficiency in this case so as to show that even in underthe 244 unfavorable burdens on the defense in regard to discretionary severance, the defense argumentfor preclusion does not suffer. In Page, six-year-old Tahisha had disappeared chasinga ball down hill to an area outside of defendant’s apartment. Her body was discovered the next day in mine pit several miles away. She had been brutally beaten, suffocated, and strangled to death. On her body were injuries consistent with sexual assault. The vaginal walls were bruised and the hymen disrupted. According to the pathologist, the internal vaginal injuries suggested that something had been inserted into the vagina, and becausethe presence of inflammation and blood,the girl was alive whenthe insertion took place. A swab taken outside ofher vagina revealed saliva whose DNAprofile matched that of defendant’s, while blood found on one of defendant’s shirts matched the DNAprofile of the girl. Ud., at pp. 6, 13, 17.) In defendant’s apartment in Page, the police discovered magazines with adult pornographyportraying post pubescent women,but with props like stuffed toys and lollipops, with clothing such as knee socks and saddle shoes, and with hair chevelured in pigtails or adorned with bows. Many ofthe models were boundor blindfolded, and many exhibited expressionsthat reflected fear or pain. However, none ofthe photographs simulated strangulation. (/d., at p. 13.) At issue was whether the admission into evidence of this pornography was error. Because, in this Court’s view, the evidence wasnot sufficiently prejudicial to warrant a reversal of the conviction, this Court did not proceed to declare an error (id., at pp. 41-42), but its preceding remarks on the nature of the problem of the pornographic evidence in that case suggested that the evidence lacked probative value absent somespecial feature connecting it to the charged crimes: “In certain circumstances, evidence of sexual images possessed by a defendant has been held admissible to prove his or her intent. In People v. Memro [supra] 11 Cal.4th 786... (Memro), the defendant was charged with first degree felony murder based upon a violation of section 288, which prohibits the commission of a 245 lewd and lascivious act upon a child whois underthe age of 14 years. The defendant in Memro enjoyed taking photographs of young boysin the nude, and he had escorted his victim, seven years of age, to the defendant's apartment with the intent of taking photographsofthe victim in the nude. When the victim said he wantedto leave, the defendant strangled him and attempted to sodomize his dead body. Thetrial court admitted magazines and photographspossessed by the defendant containing sexually explicit stories, photographs, and drawings of males ranging in age from prepubescent to young adult. We concludedthetrial court did not abuseits discretion, because ‘the photographs, presented in the context of defendant's possession ofthem, yielded evidence from which the jury could infer that he had a sexualattraction to young boys and intendedto act on that attraction. (See People v. Bales (1961) 189 Cal.App.2d 694, 701... [photograph of molestation victim in the nude admissible to show ‘lewd intent’].) The photographs ofyoung boys were admissible as probative of defendant's intent to do a lewd or lascivious act with [the victim].’ (Memro,supra, at p. 865; see also People v. Clark (1992) 3 Cal.4th 41,129... [the defendant decapitated a victim and solicited oral copulation from other victims; picture from a pornographic book depicting a decapitated head orally copulating a severed penis “was probative of defendant's interest in that matter’ ].) “The magazines admitted in this case may have been probative with respect to defendant's commission ofthe crimes, but they had less probative value than the imagesconsideredin prior cases. None ofthe models whose photographs were staged to make them look younger than their age appeared to be as youngas the victim, and defendant did not involve children in the production of pomographic imagesas did the defendant in Memro, supra, 11 Cal.4th 786. Although the assault upon Tahisha wasviolent, the acts committed against her and the acts portrayed in Bridled magazine were not similar; in particular, there was no evidence Tahisha was bound. Finally, the photograph admitted in People v. Bales, supra, 189 Cal.App.2"694, wasofthe victim herself, and the defendant had ordered his wife to destroy the photograph. Here, the cover of [one magazine] featured a model who merely looked similar to Tahisha; defendant apparently took no steps to conceal or destroy the image, and the model was only one ofperhaps hundreds of models who appeared in defendant's extensive pornography collection.” (People v. Page, supra, 44 Cal.4" at pp. 40-41.) 246 The evidence of sexual assault on Danielle Van Dam in the instant case wasat best on the verge of non-existent, if not non-existent. If the probative value of the pornographic evidence in Page was low undersections 1101 and 352, then hereit was even lower, and lack of cross-admissibility should have been a factor weighing heavily in favor of discretionary severance. But, as this Court has made clear, even when cross-admissibility is lacking, the presumption in favor of properly joined counts weighs heavily in the discretionary balance, andstill to be considered is “whether the benefits ofjoinder [are] sufficiently substantial to outweigh the possible ‘spill-over’ effect of ‘other- crimes’ evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.” (People v. Bean (1988) 46 Cal.3™ 919, 938.) This is where the other factors mentioned above — the inflammatory nature of the evidence on some ofthe counts, conjoining of relatively weak and strong cases, and the conjoining of non-capital with capital charges — comeinto play. (People v. Soper, supra, 45 Cal.4" 759, 775.) Thefirst factor, -- the inflammatory nature of the evidence,-- while not dispositively significant in this case, is not without significance. The kidnapping of a seven-year-old girl from her own home, and her murder, with her body dumpedin a trashsite, is, without any pornographic evidenceat all, inherently inflammatory. But the pornographyitself did add a distinct quantum offuel to the fire, as it were. For the movies and the cartoons depicted sexual assaults on pubescentgirls, while there was no evidence specifically of what, if anything, the kidnapper/murderer had done sexually to Danielle Van Dam. In short, there was herean evidentiary vacuum to befilled by imaginations inflamed by pornographic exhibits. Further, the provocative force ofthe evidence surrounding the murder and kidnap alone fell on Mr. Westerfield only if it was proved that he was the perpetrator — a matter that was the primary factual issue in the case. There was 247 considerably less dispute that Mr. Westerfield was the possessorofthe pornography, which thereby brought the inherent prejudice in the murder and kidnapping hometo him,like the powerful tugboatthat pulls ocean liner into port. Finally, the special animus exhibited in jury selection against pornography was striking in a case in which there wasthe atrocious fact of murderinitself to draw the ire. Asto the conjoining of the weak with the strong, again, this was not a factor that favored discretionary severance, at least not based on what was known to Judge Muddpretrial. At that point, Judge Mudd knewonly about the fingerprint in the bedroom ofthe mobile home and the DNA identification of the blood spotin the hallway of the motor home. He did not yet know aboutthe overwhelmingly favorable entomological evidence, which established Mr. Westerfield’s alibi, and the measure of the issue of severance and joinderis based on what was knowntothetrial court at the time the court ruled on the matter. (People v. Gonzales and Soliz, supra, 52 Cal.4" 254, 281; People v. Cook (2006) 39 Cal.4™ 566, 581.) Butthe final factor, conjoining a non-capital with a capital offense, imports, along with lack of cross-admissibility and the inflammatory nature of the pornographic evidence, the decisive considerations in favor of discretionary severance. One may begin with the question ofwhat penological orjusticiary purpose wasserved by consolidating a crime, which at that time was punishable only as a misdemeanor(see above, p. 225, fn. 109), to a capital murder charge predicated on a homicide committed in the course of a kidnapping? If Mr. Westerfield was convicted of capital murder and sentenced to death, would a consecutive year in county jail, -- a term that will have been substantially or completely served pre-conviction in any event, -- add anything of significance to the values our justice system seeks to uphold? If acquitted of capital crimes, would a year in county jail, which, again, will have been substantially or completely served preconviction, vindicate the resources devoted to the attempt to 248 obtain a capital coviction? Again, one must keep in mindthat these questions pose themselvesin a context of a lack of cross-admissibility of the evidence. But this disproportion is notall that must be considered. One must keep in mindthat even in the guilt phase of a capital trial, the Eighth Amendment requires a heightened degree of factualreliability in the verdict. (Beck v. Alabama (1980) 447 U.S. 625, 628; People v. Cudjo (1993) 6 Cal.4™ 585, 623.) In this regard, one must note that the cross-admissibility problem is aggravated in this case because not only were the possessed images criminal contraband, but they portrayed and simulated the further crimes of forcible rape, sodomy, oral copulation, and other forms of sexual assault. Wasit realistic to expect jurors to observe the distinction between committing a crime and possessing images simulating the commission of that crime? If the jurors could recognize the theoretical difference, could they keep the two categories separate on an emotional level, so as to forestall the intolerable risk of speculation disguised as an evidentiary inference? There was, here, an obviousthreatto the reliability ofthe capital determination at the guilt phase. Butthe threat to the integrity of the penalty determination was, in advance, equally obvious and clearly definable. UnderCalifornia law, at the penalty phase of a capitaltrial, “the prosecution’s case for aggravationis limited to evidence relevantto the listed factors” in Penal Code section 190.3. (People v. Boyd (1985) 38 Cal.3" 762, 775; People v. Thompson (1988) 45 Cal.3™ 86, 123; People v. Wright (1990) 52 Cal.3" 367, 425.) Factor (a) of Section 190.3 consists of “[t]he circumstancesofthe crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.” Factor (b) consists of “[t]he presence or 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.” Was the evidence proffered by 249 the prosecution in support of count 3, and which would not be before the jurors except for the joinder of count 3 relevant under Penal Code section 190.3? IS First as to factor (a): Although evidence presented pursuant to Penal Code section 1101(b) constitutes circumstantial evidence, not all such evidence constitutes a circumstance “of the crime”at issue in the capital trial. A distinction is to be made between “other-crimes”that are inherent in the context of the evidence of the charged crime and form part of the historical facts of that crime; and “other-crimes” that form the logical basis for an inference about those historical facts, but are not part of those facts: “If the evidence of another crime is necessary or pertinent to the proofofthe one charged, the law will not thwart justice by excluding that evidence simply because it involves the commission 19 The focus here is only on factors (a) and (b). These, along with (c), which consists of “[t]he presence or absence of any prior felony conviction”, but which obviously has no application here, are what one maycall the primary prosecution factors. Factors (d) through (j) are formulated in the affirmative as mitigation (except for (i), which is formulated neutrally), and as aggravation only in the negative, and whose aggravating thrust can in any event conceptually be assimilated to factor (a). Thus: “(d) Whether or not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance. [§] (e) Whether or not the victim wasa participant in the defendant's homicidal conduct or consented to the homicidal act. [§] ( Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation for his conduct. [9] (g) Whether or not defendant acted under extreme duress or under the substantial domination of another person. [{] (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result ofmental disease or defect, or the affects of intoxication. [§] (i) The age of the defendantat the time of the crime. [§] (j) Whether or not the defendant was an accomplice to the offense andhis participation in the commission of the offense wasrelatively minor.” (Emphasis added.) Factor (k), “[aJny other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime’, pertains only to mitigation and allows the defense to exceedthelisted statutory factors. (People v. Thompson, supra, 45 Cal.3™ at p. 123.) 250 of another crime. [Citation.] The general tests of admissibility of evidence in a criminal case are: 1. Is it part of the res gestae? 2. If not, doesit tend logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not... .” (People v. Sanders (1896) 114 Cal. 216, 230; People v. Ellis (1922) 188 Cal. 682, 690.) Indeed, when the “other crime”is inextricably intertwined with the evidence of the charged crime,it is not even deemedto be “another crime”, at least as an evidentiary concept. (See United States v. Ripinsky co" Cir.) 109 F.3" 1436, 1442, amendedon o.g., (9" Cir. 1997) 129 F.3" 518.) If, for example, one ventured in this case to claim that evidence of kidnapping should have been excluded undersection 1101, the incantation of the Latin phrase “res gestae” would lay this sprite of an argumenttorest. By the sametoken,if the evidence deemed relevant to prove the misdemeanor count was also deemedrelevant to prove the murder and kidnapping charges, this was a relevance on the inferential or logical level, and not on the historical level. And even if the historical scope of factor (a) in a penalty trialis expanded and is broader than the res gestae at a guilt trial (see People v. Bramit (2009) 46 Cal.4™ 1221, 1240), it is still not broad enough to include 1101(b) evidence whose connection to the caseis purely logical. Noneofthis of course is to say that the 1101(b) evidencein the guilt phase cannot contribute to establishing a circumstance “of the crime” relevant at the penalty phase; but it is to say that the “other crimes” in themselves have no relevance to the penalty determination. Here, then, the pornographic evidence brought before jury, if it was relevant, was relevant only on the logical level and could not be deemed to be a circumstance “of the crime.” Yet, wasit realistic to expect that the jurors, even under correct instruction, would be able to separate the 1101(b) relevance of such inflammatory evidence from its 190.3 irrelevance? If 251 the jurors could recognize on the cognitive level a distinction, on the emotional level could they restrain the temptation to see in the pornography evidence militating strongly in favor of the death penalty? The answeris clearly no,this wasnotrealistic at all, and this was obvious in limine when the joinderissue arose. (See Rufo v. Simpson (2001) 86 Cal.App.4” 573, 599 [test for undue prejudiceis “(whether [or not] it would be impossible for a jury to follow limiting instructions” on the evidence in question].) The problem under factor (b) was perhaps even more urgently obvious. A good dealofthe proffered evidence for count 3, the cartoons and many ofthe photographs wasnot criminalat all. Factor (b) requires “criminal activity”, which meansthat the evidence must show violation of a specific penal statute, even ifit does not need to show an actual conviction. (People v. Phillips (1985) 41 Cal.3" 29, 71-72; People v. Bunyard (2009) 45 Cal.4" 836, 857.) But even when “criminal activity” is established, that activity must “involve”the use of “force or violence”or the threatened use of“force or violence.” (People v. Boyd, supra, 38 Cal.3"! 762, 776.) If the crime ofpossession of child pornography can conceivably be committed in a way that qualifies under factor(b), it certainly was not committed in that way in the instant case. But the obvious problem presentsitself: the videos proffered by the prosecution as contraband under count 3 consisted of portrayals of brutal sexual assaults, simulated in a highly realistic way so asto disguise the simulation. (See below, pp. 259-260.) The question should have poseditself again: wasit realistic to expect a jury to separate the violent simulation from the crime itself, whose criminality inhered in the portrayal of a sexual act with a minor whetherviolent or not? Again, even if the jurors cognitively could acknowledgethe distinction, there was an intolerable risk that the heat of emotion would not allow them to observe the distinction in making a penalty determination. (See People v. Waidla (2000) 22 Cal.4" 690, 724 [evidence must be excluded “‘if it poses an intolerable risk to the fairness of the proceedingsor the reliability of the outcome”’].) 252 These considerations pertaining to the joinder of a non-capital charge with a capital charge are not inconsiderable, and are compelling in themselves. But when throwninto the scale with the almost complete absence of any penological purpose in conjoining a misdemeanor count with a capital count; also with the merely trivial gain in expedience in the administration ofjustice; and finally with the complete lack, or at least virtually complete lack, of probative value of the pornographic evidence for the kidnapping and murdercharges, then there is here only one clear conclusion: the refusal to sever count 3 from counts | and 2 was an abuse of discretion. One may now turn to the question of prejudice. D. Prejudice Asnotedin the introduction to the statement offacts, the salient feature of this case wasthe battle of forensic sciences, between the entomology on the one side, and DNA and a fingerprint on the other. The entomology established the time of death by inferring when the deposit of eggs (oviposition) occurred from the developmental stage of the insects found on the body on February 27. The significance of this was that oviposition would occur very shortly after death occurred. The time of death wassignificant because Mr. Westerfield, from the morning of February 4 through his arrest on February 22 was under constant police surveillance and under almost constant media scrutiny. David Faulkner, a forensic entomologist, whose credentials and experience were extensive, and whoseservices were enlisted on this case, not by the defense, but by the San Diego authorities, attested that oviposition in this case occurred sometime between February 16 and February 18. (80 RT 7968-7969.) Faulkner was highly confident in his opinion, and he noted that because he had been given extraordinary access and resources, this was the most thorough forensic examination he had ever conducted. (30 RT 7948-7949, 7979.) The main source of variability in assessing insect development was ambient temperatures, and 253 Faulkner had taken this into account as well; in this regard his opinion was highly competent based not merely on his knowledge of entomological science, but on his experience and familiarity from working in the area, knowing the climatic conditions, as well as the normal baseline for seasonal insect populations. (30 RT 7968, 7974-7979.) In short, Faulkner’s testimony was substantial, highly credible, and compellingly exculpatory. Three more entomologists testified in this case. Neil Haskell, a leading forensic entomologist who washired by the defense (33 RT 8110-8115), examined the site, the insects collected by Faulkner, and the climatic data, and placed oviposition as occurring no earlier than February 12 and nolater than February 23. (33 RT 8117-811.) The prosecution upped the ante as it were, and brought in a forensic entomologist, who also had a PhD in entomology. Dr. Madison Goff did not examinethe insects themselves, but trusted the identifications made by Haskell and Faulkner. Hedidstatistical calculations based on varying climatic data only to conclude that he could not say with certainty that Danielle Van Dam wasnot dead between February | and 12. (38 RT 8094.) But his opinion — which was, after, all a professional and expert opinion — wasthat insect activity began on February 9. (38 RT 9021-9022.) The defense, on surrebuttal brought in Dr. Robert Hall, also a PhD in entomology, also with extensive forensic experience (39 RT 9076-9079), whotestified that the entomological evidence established a time period ofFebruary 12 to February 23 as when death occurred. (39 RT 9082.) If Dr. Goff could not carry the day for the prosecution in the entomological battle, he was not their shock trooperas it were, but only a skirmisher. The prosecution wasrelying for rebuttal of the entomological evidence on the forensic anthropologist William Rodriguez, who believed that because of the dry climatic conditions, mummification of the body would have impededinsect infestation, which impediment rendered the entomological assessments inaccurate. Rodriguez claimed that his independent assessment oftime of death was in a range of four to 254 six weeks before the body was discovered (36 RT 8704-8705), which placed February 2 to 4 well within the incriminating time period. Rodriguez claimed that the range of his earliest dates — four to six weeks-- wasan independentconclusion, although he was aware that Dr. Blackbourne, whodid the autopsy in this case, placed the earliest date at six weeks, and that Dr. Wecht, a leading forensic pathologist, who had been consulted in this case, had placed the earliest date at four weeks. (36 RT 8745.) But to show his independence, Rodriguez rejected Wecht’s recommendation that in order to obtain a more accurate range for the time of death, a forensic entomologist should be consulted. (36 RT 8742-8744.) But Dr. Hall, who knew Rodriguez and his work,testified that Rodriguez’s estimate of four to six weeks simply could not be reconciled with the entomological evidence. (39 RT 9085.) This did not mean that the entomological evidence had to give way. Hall was not an expert on mummification, but then Rodriguez was no more an entomological expert. If Rodriguez nonetheless had ancillary experience with entomology,Hall testified that in every experiment he had reviewed or been involvedin, there was always some degree of mumunification in the corpse or cadaver, and this never significantly affected or retarded insect colonization of the body. (39 RT 9089.) The real counter for the prosecution against the entomological evidence was the fingerprint and the nuclear DNA evidence matching the known DNAof Danielle Van Dam. One mustbe precise in this regard. This does not include the multitude of carpet fibers and of human or canine hairs rendering mitochondrial DNA.Thefibers were manufacturedin lots of millions of yards at a time, and given the ease of transfer of such fibers, it would be remarkableifthere was not a massive promiscuity of carpet fibers all over a subdivision in which all the houses were constructed and carpeted around the same time. (See pp. 49-50.) Asto the mitochondrial DNA from the humanhairs, this could only be traced to the Van Dam maternalline, and, again, given the ease of transfer, one 255 must consider that Brenda, Danielle, and Dylan were at Westerfield’s house on Tuesday January 29, that Brenda wasin close proximity to Westerfield when they socialized at Dad’s on January 25 and February 1, and that the defense produced witnesses who had seen Brenda dancing with Westerfield at Dad’s on February 1. (See above, p. 50.) As to the canine mitochondrial DNA,the testing andstatistical frequencies came from Dr. Halvorsen, a veterinarian who was now running Quest- gen, her own animal DNAbusiness, and whohad to use her own data base of the 267 dogs that happened to cometo herattention, and that yielded frequencies unamenableto the productrule at such blurry unhelpful rates of 23/267 and 55/267. (25 RT 6849, 6868-6869, 6875, 6877-6878; see above, pp. 38-40.) The prosecution’s forensic case depended rather on the fingerprint and the nuclear DNA that matched the knownprofile ofDanielle Van Dam. However, the fingerprint, the small drop ofblood on the carpet in the motor home, andthe hair with root DNA in the motor homebathroom sink wereall explicable by the accessibility of the motor hometo curious neighborhood children. The evidence established that it was often parked unlocked on the streets near Westerfield’s house; there wasalso evidence that Van Dam children were not underasstrict a visual supervision as their parents attested at trial. (See above, at pp. 47-49.) Thus, the very centerpiece of the prosecution’s case was the nuclear DNA match to the blood stain on the jacket. This was what Mr. Dusek called his “smoking gun.” (44 RT 9683.) But wasthere really a gun? Sean Soriano, the San Diegopolice criminologist, was the first person ever to see this stain. This occurred when he received the packaged jacket in the lab. When he took the jacket out he saw the almost 1/4 inch stain immediately andtested it for presumptive blood. This was sometime before the body was discovered. (21 RT 5688, 5694-5695, 5697, 5733.) If Soriano could see this stain immediately on a jacket that had been dry-cleaned, why did Detective Torgerson, who obtained the jacket on February 6, and Karen Lealcala, a criminalist, who received the jacket from Torgerson and packagedit, 256 not see the stain? (18 RT 5168-5175; 20 RT 5521-5524.) This is notable in a case in which the police from the beginning were urgently vigilant for the presence of any possible trace evidence, and the significance of a stain on a jacket broughtin by Westerfield to the dry cleaners on February 4 wasnot an object whose significance required extended reflection. Most remarkable wasthat Julie Mills, the clerk who received the jacket, and who had twelve years of experience as dry cleaning clerk at Twin Peaks, did not see the stain when she received the jacket. (18 RT 5127-1528, 5150.) Noneofthis is to say that anyone trumped up this evidence. Whatit is to say is that in this case, to which the San Diego police devoted an extraordinary numberofpolice officers and forensic personnel -- a case in which there were multiple crime scenes that had to be kept completely independent of each other in order to avoid cross-contamination, and in which the various serological abstractions were sensitive to mishandling or to cross-contamination, or to both -- the inference of a mistake wasnotat all far-fetched. When one considers further that the testimony was that nuclear DNA can break down when exposed to chemical agents (21 RT 5773, 5858), the fact of a perfect match ofall 13 loci (21 RT 5842) on a stain that had been dry cleaned and seen by no one before Sean Sorriano, then the inference of mistake or cross-contamination is strengthened. With the science at an impasse, the struggle becomes one between the persuasive and probative effect of the non-forensic evidence. For the prosecution there was Westerfield’s somewhat unusual peregrination over the weekend. But the prosecution was not able to advance beyond the unusual because the defense brought in witnesses whose testimony corroborated what wasin fact the ordinariness of the route taken for motor home enthusiasts, and of the ordinariness of the destination of Glamis for Westerfield himself. If his claim of parking in the Cays was supposedly refuted by the testimony of Officer Britton who shooed off a motorhomethat was not Westerfield’s (18 RT 5114-5118), it was corroborated by Heather Mack, the security guard at the gate of the Cays who identified 257 Westerfield as driving in there on the evening of February 3. (28 RT 7521-7522.) Even when one addsthe prosecution’s speculative inferences about unrolled-up hoses, over-cooperation, and sweaty armpits (see above, pp. 25, fn. 24, and 26, fn. 25), the non-forensic evidence wasnotsufficiently favorable to the prosecution to break the deadlock in the scientific evidence, Indeed, the prosecution had its own glaring problem in the non-forensic evidence in explaining how Westerfield, who had just spent the evening at a bar drinking, was ableto slip into a house he had never been in, remove a seven-year- old girl, first having to find her room, next having to wake her up, and next having to move her through the house and out the door, without disturbing the other three or four inhabitants of the house, who were each in their own bedrooms on the samefloor as the girl, and without alerting the six-month-old Weimaraner puppy — and doing all of this without leaving any trace evidence in a case that abounded with trace evidence everywhereelse? In this regard, the evidence of the Van Dams’ sexualpractices pointed in the direction of a relatively unexclusive knowledge ofthe house andits intimate quarters amonga group that did not include Westerfield. This lengthy description of the relative balance between the twocasesis the foil for the decisive effect of the child pornography evidence, which would not have been before the jurors if not for the improper joinder of charges. The cartoons of sexual assault, the photograph ofthe girl having intercourse, and the non-pornographic photographsofnaked girls were shownto the jurors as Exhibit 138, and the video clips were presented as Exhibit 139. (23 RT 6314-6315.) These have been described abovein sufficient detail (see pp. 226-228); but the movies, characterized only as simulated rape, require further description to comprehend their provocative and inflammatory impact. Thefirst clip showed an Asian girl being sexually assaulted on a bed. Her plaid jumper waspulled up revealing small breasts. The hands of a man otherwise 258 off camera was pulling down her underwear revealing pubic hair on her genitals. Thoughtheclip had no sound,the girl wasclearly resisting. (Ex. 139.) The second clip showed an Asian girl in a field. Her blouse was pulled up revealing small breasts, while her underwear revealed pubic hair. There was sound on this clip and she could be heard screamingas she struggled against two men holding her down. (Ex. 139.) The third clip involved the samegirl in the same situation and appeared to be a continuation. The men could be seen now and they were also Asian. One man held the girl’s arms down above her head while the second man orally copulated her as she screamed and struggled. (Ex. 139.) The fourth clip appeared to be again a continuation of the third. In addition to orally copulating the girl, who was crying and screaming, the manalso digitally penetrated her. (Ex. 139.) Thefifth clip wasstill another continuation. The samegirl, who was now either exhausted or unconscious, was lying limpas her assailant masturbated and climaxed on her face, as he rubbedthetip of his penis on her lips. (Ex. 139.) The sixth clip was a different Asian female wearing a sailor type blouse. A man, off camera, was copulating her from behind as she cried and whimpered. The same clip switched to a new scene with the same female on her back about to have frontal intercourse with her assailant, who pulls up her blouse to reveal moderate- sized breasts, not inconsistent with those of a mature woman. (Ex. 139.) The description of each of the clips does not do justice to their graphic and harrowing realism. Indeed, it would require a space of calm reflection before one realized that the exaggerated girlishness of the clothing was an obvious artificiality, as was the placement of the camera, and the setting of the scene. But calm reflection was notlikely in the face of such shocking material, and when the movie clips were shownat least three of the women jurors began to cry. (24 RT 6435-6436; see below,p. 284.) This evidence should not have been before this jury. It was there because the prosecution neededat least to create the impression that unnaturallusts 259 betrayed David Westerfield as the kidnapper and murderer of Danielle Van Dam. This is neither logical nor evidentiary, and the pretext of relevance and probative value cameonly from the improperjoinder of the misdemeanor charge of pommographypossessionto the capital charges of murder and kidnapping. If the trial court had properly severed the charges, it is reasonably probable that Mr. Westerfield would have been acquitted at the guilt phase oftrial. (People v. Watson (1956) 46 Cal.2" 818, 836-837.) Finally, for both the 1101 motion and the motion to sever, defense counsel specifically made objections underthe Fifth, Sixth, and Eighth Amendments and under the Due Process Clause of the Fourteenth Amendment, raising the question of the appropriate standard ofreview for the error in denying mandatory or discretionary severance. (2 CT 479; 3 CT 587-588; SF RT 1982, 1995.) Although this Court, on issues of severance and joinder, has tended to apply People v. Watson, supra, 46 Cal.2"* 818, andto treat the matter simply asstate law error. (People v. Brawley (1969) 1 Cal.3™ 277, 288; People v. Ortiz (1978) 22 Cal.3 38, 48; People v. McClain (1988) 46 Cal.3"97, 105-106; People v. Pinholster (1992) 1 Cal.4™ 865, 9381-932), nonetheless, the cross-over ofnon-cross- admissible evidence can be so prejudicial as to amount to a due process violation (United States v. LeMay (9" Cir. 2001) 260 F.31018, 1030; Whelchelv. Washington (9" Cir. 2000) 232 F.3™ 1197, 1211), and when an appellant meets the heavy burden of showing clear prejudice in the joinder of counts, this amounts to a showing of a due processerror in the improper joinder. (See Williams v. Superior Court (1984) 36 Cal.3™ 441, 447-448; see also People v. Musselwhite (1998) 17 Cal.4" 1216, 1243-1244.) Furthermore, for the reasons discussed in regard to the joining of count three to the capital charges (see above, p. 249), there was here a violation of the Eighth Amendmentright to reliable factual determination of guilt. (Beck v. Alabama, supra, 447 U.S. 625, 628.) Consequently, it is incumbent on respondent to show that the erroneous joinder of count 3 to counts 1 and 2 in this 260 case was harmless beyond a reasonable doubt. (Chapman v.California (1967) 386 U.S. 18, 23-24.) This is a burden respondent cannot, afortiori, meet in this case. 261 VI. WHETHERAS A DENIAL OF DUE PROCESS RESULTING FROM AN INCORRECT OR EVEN CORRECT JOINDER OF COUNTS,OR AS A RESULT OF INDEPENDENT EVIDENTIARY ERROR, THE ADMISSION OF ALL OF THE PORNOGRAPHY RECOVERED FROM THE COMPUTERSINVOLVEDIN THIS CASE WAS ERROR, WHOSE AGGREGATION AMOUNTED TO CHARACTER EVIDENCE OF NEGLIGIBLE, IF ANY, PROBATIVE VALUE, BUT WHOSE INHERENTLY INFLAMMATORY AND PROVOCATIVE NATURE CONSTITUTED A GROSS UNFAIRNESS AND DISTORTION IN THE TRIAL PROCESS Introduction. The discussion of prejudice in the previous argumentwasartificially restricted to assessing the impact ofthose exhibits Judge Mudd had,in the pretrial hearing, ruled to be admissible. For, as noted above(see p. 232, fn. 114), all the pornography recovered from the disks and computers seized in the search of Mr. Westerfield’s house, was described to the jury (24 RT 6390-6398, 6407-6409), admitted into evidence (24A RT 6567-6569), and then viewed by the jurors during deliberations at their request. (14 CT 3849; 40 CT 9907-9908.) This happened after the jurors had been shown Exhibit 138 and 139, constituting those items that wereheldpretrial to be admissible. (23 RT 6314-6315.) Judge Muddbelieved that Mr. Feldman, in cross-examining James Watkins, the prosecution’s computer forensic expert, on the proportion ofpossible child pornographic imagesto the total numberofimages on the computer, had misled the jurors and had “opened the door”to allofthe pornography recovered from the computers. (See 23 RT 6354-6360; 24A RT 6370-6372, 6378-6381; and 25 RT 6566-6567.) Although this concise formulation of the dispute has a rational soundtoit, the dispute was extraordinarily incoherent and puzzling, and one must describeit in detail from its 262 beginning. Butfirst, it will be helpful to identify precisely the evidencethatis at issue, and then to sort out the precise legal claims that are being advanced. Exhibit 144: Exhibit 144 consisted of 181 pages ofpornographic images, with 16 images on each page. These were recovered from the hard drives of the computers in the office and in the bedroom. The vast majority of these were images of clearly adult women engagedin various types of sexual acts. There were some questionable or possible images of minors scattered through this collection. (23 RT 6361; 24 RT 6393; Ex. 144.) Exhibit 145: Exhibit 145 consisted of 227 pages ofpornographic images with 16 images per page. Again, the vast majority showedclearly adult females. There were questionable images in this collection, some ofthem already shown to the jurors through Exhibit 138. (23 RT 6371; 24 RT 6393-6394; Ex. 145.) Exhibit 146: This consisted of 8 pages ofphotographs, each page containing an individual photograph: the first and the third were studio-type photographs of Susan L., Westerfield’s girlfriend, with her daughter Danielle L.; the fourth and eighth were the same photographs of Danielle L. in a bikini, sitting on the edge of a Jacuzzi in a backyard, and looking into the camera; the second, fifth, sixth, and seventh, showed Danielle L. sun bathing in a back yard on a chaise lounge, lying on her back, wearing a bikini, and her head covered by a towel. In these latter photos, taken from different angles, Danielle lay on the chaise lounge with her legs extended and spread apart in a V-shape to the same width as the chaise loungeitself. The fifth and sixth photographs were taken from the foot of the chaise lounge from a moderate distance away and were therefore up-body shots. (23 RT 6361; 24 RT 6397-6398; Ex. 146.) Ex. 147: Exhibit 147 consisted of the previously excluded PT Exhibits 32 and 33, which were described briefly in the previous argumentas cartoonstelling the story of the rape of a female who appearedat first to be a girl in her clothing, facial features, and hairstyle, but whose naked body, eventually exposed, wasthat 263 of a fully developed woman. (See above, p. 232; see also 23 RT 6361-6362.) A further more detailed description of is in order here. Each frame of the cartoon is captioned to help explain the story. (24 RT 6394-6395.) Theinitial frames show girl in some danksetting; she is being knocked unconscious, tied up, and then confronted with her assailant, who, as he waited for her to regain consciousness, anticipates his pleasure: “I can’t wait to give her the fucking her young body needs. Ha, ha.” (Ex. 147.) Frame six provides the caption that clarifies fully the mis-en-scéne: “Ourvillan [sic] haunts the basements ofgirls [sic] school. He often grabs and ravishes their young bodies. Follow us as we watchhis evil deeds.” (Ex. 147.) As we do, we are made privy to various graphic sexual acts embellished with our “villan’s” prurient commentary. (“Relax, sweety, I just want to feel you a while. Mmmm,wet pussy already.”) Frame 16 progresses to an even more odiously violent imagesofthe man holding a knife in one hand, forcing the female to orally copulate him, and reaching over with the other handto finger her anus or vagina. The caption has him saying, “Hmmm. Thatlittle pussy is getting all wet. Now, suck before I cut you,” to which shereplied, “Ahggh! No! Don’t cut me. [ll suck. [Il suck you. Mmmf, gawk, mmmph.” (Ex. 147.) The last frame, 20, shows the man having intercourse with the female from behind. His caption states, “Oh, yah. A good tight one. Ooo and cherry too. Man, am I lucky tonight. Quiet bitch or I'll hurt you.” Her caption states: Ahh! No! No! don’t do that. I’ve never doneit before. Aggh! You’re tearing me up. Aiiee! It hurts, it hurts. Oh, no. You’re fucking me.” (Ex. 147; see also 42 RT 9414, where Mr. Dusek quotesin his closing a caption from the cartoon that had constituted PT Ex. 32.) Exhibit 148: Exhibit 148 consisted of 46 additional questionable images not showntothe jurorsthe first time. There were 11 pages of these with four images on each page, and a twelfth page with two more images. They were graphically and explicitly sexual and involved females who were, or appeared to be, pubescent and post-pubescent. (Ex. 148.) The representations were not 264 realistic like the movies in Exhibit 139, but were stylized andartificial; in addition, unlike Exhibit 139, the representations were of consensual sexualacts. (Ex. 148.) A portion of Exhibit 148 contained 16 photographs ofwoman engaged in sexual acts with animals. The jurors were informed of the existence of these photographs through testimony, but, unlike the rest of the pornography,the jurors were not allowed to see these photographs. (23 RT 6362; 24 RT 6396-6397; 25 RT 6569; Ex. 148.)!7° A list of the legal claims being advanced will help, since an otherwise straightforward claim becomes complicated depending on whether one viewsthe matter presented here as a further aggregation of prejudice from improperjoinder, or whetherit is viewed as newerrorin itself, or both: 1. If appellant is correct, and consolidation of the child pornography charge waserror, then the admission of this evidence augments the prejudice already emanating from Exhibits 138 and 139, making the case for reversal even more compelling. (Chapman v. California (1968) 386 U.S. 18, 23-24; People v. Watson (1956) 46 Cal.2™ 818, 836-837.) 2. Even ifjoinder was appropriate based on the pertinent considerations apparent at the time Judge Mudd madethe ruling beforetrial, the manner in which the actual trial developed, with the admission of the additional pornographic materials, revealed the gross unfairness of the joinder of counts and vitiated the fundamental integrity of the trial under the Fourteenth Amendment(Peoplev. Rogers (2006) 39 Cal.4™ 826, 851; People v. Mendoza (2000) 24 Cal.4™ 130, 162; People v. Gonzales & Soliz (2011) 52 Cal.4254, 281), and under the Eighth Amendment. (Beck v. Alabama (1980) 447 U.S. 625, 628; People v. Cudjo (1993) 6 Cal.4™ 585, 623.) 6 The bestiality photographs, and the duplicates in Exhibits 147 and 148, were placed in a separate envelope and marked: “NOT TO BE SEEN BY JURY”; “Contains Original 147 + 148”. (See Exs. 147 and 148.) 265 3. Ifjoinder was appropriate, and the record does not meetthe level of “sross unfairness,”there is still a more circumscribed due process violation in the admission of Exhibits 144 through 148: a. If the jury could consider images of child pornography on the issue of motive and intent (Evid. Code, § 1101(b)), then jurors needed only to know the gross number of images of adult pornography recovered as relevant to rebut the prosecution’s claim about Westerfield’s motives. (See People v. Page (2008) 44 Cal.4™ 1, 41, fn. 17.) However, each actual imageitselfwas irrelevant (Evid. Code, § 210), cumulative, and unduly provocative. (Evid. Code, § 352.) Thus, Exhibits 144 and 145, consisting mostly of adult pornography, were inadmissible independently of the joinderissue. b. Similarly, Exhibit 146, the photographs of Danielle L., was inadmissible because the pornographic nature of the photographs waseither non-existent or by no meansclear, while, because ofthe identity of the name with that of the victim’s, along with the emotionally aggravated suspicions fostered by the prosecution that this case was about perverted sexuality, the evidence was both misleading and inflammatory. (Evid. Code, § 352.) ce. Exhibit 147 the cartoon story of the rape with the pornographic captions, if not completely irrelevant, was almost completely irrelevant, adding to the mix anothersalient element ofprovocation that stood out even in the midst of a large amount ofhighly provocative evidence. (Evid. Code, §§ 210, 352.) d. Exhibit 148, containing 46 more questionable photographs, was simply inadmissible ifjoinder was improper; but, even ifjoinder was proper, the evidence was cumulative and unnecessary for any purpose of proving the charge ofpossession of child pornography or motive for murder and kidnapping. (Evid. Code, § 352.) And as for the testimonial 266 evidence ofthe existence of bestiality photographs, this was completely irrelevant. (Evid. Code, § 210.) e. The individual effect of each piece of evidence erroneously admitted, and its aggregate effect, especially as conveyed through the medium ofMr. Dusek’s closing argument, wasto turn the entire issue of pornographyinto one of pure character evidence, of such misleadingly inflammatory and provocative implications as to induce a conviction based on irrelevant and incompetent evidence in violation of the Fourteenth Amendment(Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6; People v. Valentine (1986) 42 Cal.3™ 170, 177) and, in a capital case, in violation of the Eighth Amendment. (Beck v. Alabama, supra, 447 U.S. 625, 628; People v. Cudjo, supra, 6 Cal.4" 585, 623.) Thislist is not intended as an outline of the following argument, but rather more as an identification of the interrelated legal themes that emerge from the record as the issue ofpornographic evidencearoseattrial, beginning with the pretrial motion to sever counts. The following argument will be organized around a description of the procedural progress of the issue as it developedin the case, for the actual legal structure applied below tended toward incoherence. At the appropriate points, the argumentwill digress into an elaboration of the legal points generalized in the abovelist, and the argument will end with a recapitulation of the legal permutations noted aboveas related to the question of prejudicial error. A. The Propriety of Mr. Feldman’s Cross-Examination The parties knew from James Watkins’ report, and Judge Mudd from Watkins’ pretrial testimony on May 13 during the hearing to suppress evidence seized pursuant to the warrants, that Watkins had found fewer than 100 questionable images from the thousands and thousands of images recovered from the computer. (SD RT 1758-1761.) At the pretrial hearing concerning joinder and cross-admissibility, both Mr. Boyce and Mr. Feldman,as noted in the previous 267 argument(see above, at pp. 229, 231), pointed outthat if the court intended to permit introduction of any child pornography, then the defense might have to offer a significant amount of the adult pornography in order to place the small sampling of questionable material into its proper perspective and context. (SE RT 1955; 5F RT 1977-1979.) Judge Mudd’s responseto this was incorporated into his assessment of the 352 situation, which waspartially quoted above. (See, p. 231.) Hestated first that the exhibits that prosecution wanted to present wereall “succinct and to the point” and could “be presented virtually in as much timeasit took yesterday sans whatever experts they may call relative to that evidence.” (SF RT 1984.) But as to Mr. Feldman’s need to make a counter offer of evidence,this wasnot a problem: “How muchtimeis it going to take to show the other, assuming you want to show this to the jury, which I doubt you will. I don’t believe it’s going to take that much time because what you will do is you will say there are a hundred thousand more images, Judge. We’ll get a stipulation that there are a hundred thousand more images, or whatever the numberis, without showing them to the jury, which is appropriate, because then you can argue out of twenty thousand or whateverthe total numberis, there are X number.” (5F RT 1984.) This has been quoted verbatim because,as noted at the beginning ofthis argument, Judge Mudd accused Mr. Feldman of circumventing the pretrial ruling in doing, almost precisely, what Judge Mudd outlined in the above paragraph. Since this cross-examination was the alleged hinge that “opened the door” through whichthe remainder of the pornography entered the case,it is appropriate to detail precisely what wasraised in that cross-examination. Watkinstestified at trial on June 25, about a month after the pretrial hearings. Mr. Feldman’s cross-examination of Watkins began shortly after the jurors had seen Exhibits 138 and 139 during Watkins’ direct examination. (23 RT 268 6314-6317.) Early in that cross-examination, Mr. Feldman probed the question of the proportion of questionable imagesto the total amount of images recovered: Q. Okay. So with regard to the computersin the office, the H.P. computers, did you do a search of those computers to determine how manystills, JPEGS, GIFS, whatever were in there? ‘ ‘ “A computers. “Q. “A. above. “Q. I examinedall the computers and — for a total for all the A total ofwhat, sir? Of graphic image files which would includeall of the Okay. “How many graphic imagefiles did you find? “A, “0, “A, «Q, “A, «0, “A, “0. causeI putit in quotes. “WESTERFIELD: Okay. “REDDEN: [ll read you my notes as I was typing. And I want you to look right . . “WESTERFIELD:I, I can’t read that. “REDDEN: Alright. I just put the cursor and highlightedit on there. And whatis that word that ’ve highlighted right there? “WESTERFIELD:It’s ‘We’. “REDDEN: Alright. “WESTERFIELD: Yeah. 314 “REDDEN: And what you said to meat that point was... pulled off the side of the road, you ate, you showered, and yousaid ‘we’ were at Warner Springs. What you just told me wasthat there was somebodyelse with you. “WESTERFIELD: There wasn’t anybody else with me. “REDDEN: There was somebody else with you. Otherwise you don’t say we. “WESTERFIELD: I didn’t say ... If I, IfI said we... “REDDEN: Yousaid we, ’cause I can play the tape back and show you... “WESTERFIELD: That’s fine. “REDDEN:. . . where you said we. “WESTERFIELD:If, if] said that... and I’m not gonna... I’m not gonnasay I didn’t say it, it’s one of those mix-upsI use in my head. “REDDEN:Freudian slip is what wecallit. “WESTERFIELD: Well no,it’s just that it... you know, I . . .it soundslike lie, but it’s not.” (46 CT 10976-10977.) All of this was fair game for cross-examination. Moreover,all this was important in light of the importance of Westerfield’s statements to the prosecution case, and, in the Redden statement, the importance placed by the prosecution on the use of the pronoun “we”as a “Freudian slip” betraying Westerfield’s guilt. In this regard, the limitation on cross-examination transcendeda state law violation of Evidence Codesection 356; it constituted a violation ofthe Sixth Amendment right to confront and cross-examine adverse witnesses. (Olden v. Kentucky (1988) 488 U.S. 227, 231-233.) 315 If it is objected that Judge Mudddid not precisely bar Mr. Feldman from engaging in his desired cross-examination, the judge nonetheless exacted a price for it: if Mr. Feldman proceeded, then the entire tape would comeinto evidence. But this merely shifts the constitutional violation to another aspect of the Sixth Amendment. Conditioning relevant and competent cross-examination on the admission of incompetent evidence constitutes an unwarranted interference in the right to assistance of counsel. (Brooks v. Tennessee (1972) 406 U.S. 605, 611- 613.) Finally, the jury was not given a true and complete picture of Westerfield’s statement not only to Redden but to Keene as well. His state ofmind on the morning ofFebruary 4 when he wentout to his driveway simply to collect the mail, only to find himself suddenly confronted by nine or ten San Diego policeman, certainly must have had some bearing on how nervousanddistracted he was during both interviews. As for the Redden interview alone, the jury was not given a true picture of the pronoun evidence so bruited by Mr. Dusek as a confession of guilt. Thus, the improperrestriction on cross-examination of Reddenresulted in a violation of the Eighth Amendmentrightto a reliable determination of facts in the guilt phase of capital case. (Beck v. Alabama (1980) 447 U.S. 625, 628; People v. Cudjo (1993) 6 Cal.4" 585, 623.) Is there a possibility that the restricted cross-examination ofRedden contributed to the verdict of guilt? As set forth in detail above (pp. 253-257), the forensic evidence put this case at an impasse. The battle was to be decided by the non-forensic evidence and it would not take much one wayorthe otherto tip the scale. Westerfield’s statements to both Keene and Redden described an unusual trip, but not one that was incredible, especially after certain details were rendered anodyne for prosecution purposes through the testimony of various witnesses, like Eugene Yale, who verified the ordinariness of the route (see above, p. 56), or like the Lapisas, who verified that Westerfield often camped with them at Glamis on 316 Super Bowl Sundays. (/bid.) Thus, there was a sub-battle over the statements themselves, and even a small amount of key evidence was important. The evidence of Westerfield’s mental and emotional condition in rendering an account ofhis trip would be evidence in favor of the defense. An explanation ofwhy he used the pronoun “we”instead of “I” in that briefpassage with Redden would also be ofhigh importance. Under the circumstancesofthis case, it cannot be shown beyond a reasonable doubt that the erroneousrestriction on the cross- examination of Paul Redden was harmless. (Chapman v. California (1967) 386 US. 18, 23-24.) Onthe other hand, if this Court does not deem this error to be of constitutional magnitude,orif it deemsit not to be sufficiently prejudicial even underthe favorable standard of review for constitutional error, nonetheless, combined with the prejudice emanating from the pornography evidence, whether from all ofit, ifjoinder was improper, or from the additionslet in after Mr. Feldman had supposedly “opened the door”to it, requires reversal of the guilt phase verdict n this case. (See People v. Glass (1975) 44 Cal.App.3™ 772, 780; see also People v. Woods (2006) 146 Cal.App.4" 106, 117.) 317 IX. THE TRIAL COURT ERRED IN NOT ALLOWINGAS A DECLARATION AGAINST INTEREST THE FEBRUARY15 TELEPHONE CALL TO BRENDA VAN DAM REGARDING DANIELLE The defense proffered evidence that on February 15, 2002, at about 4 p.m., Brenda Van Damreceived a telephonecall from an unknown male, whoasked her if she wanted her daughter back, and whotold her that Danielle wasstill alive, but had been abused. (9 CT 2200-2201, 2205; 13 RT 3852-3853.) This was offered not only as declaration against interest pursuant to Evidence Code section 1230, but also on federal due process grounds. (9 CT 2201, 2203; 13 RT 3853-3854.) Judge Muddsustained a hearsay objection when the matter wasfirst broached during the cross-examination of Brenda Van Dam (13 RT 3852, 3854) and again, after the 11-day recess, when the defense made a formal motion to have the evidence admitted. (833A RT 8077-8078.) Evidence Code section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, wasso far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminalliability, or so far tended to render invalid a claim by him against another,or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community that a reasonable man in his position would not have made the statement unless he believed it to be true.” Underusual circumstances, a statement by an anonymousdeclarantis not deemedto be against interest since the declarant has taken painsto shield himself against criminalliability or social opprobrium by maintaining this very anonymity. 318 (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.app.4" 150, 170-172.) But this case does not present the usual circumstances. In the instant case, as may be seen from previous arguments, virtually the entire metropolitan community was aware ofthis case, and a substantial portion of this community must also have been aware of the intensity of the investigation and search for Danielle Van Dam before her body was discovered on February 27. It was not unlikely that Brenda Van Dam’s telephone calls would be monitored for contacts from the perpetrator of the abduction of Danielle, and indeed they were. Detective Alldredge hadinitially obtained a warrantto install a “tap and trace” on the Van Dam telephone basedonhis experience that abductors will often contact the victims. He had allowed the warrantto lapse inadvertently, distracted as he wasbythe intensity of the investigation. It was this particularcall at issue that alerted him to his negligence, whereupon he immediately had the tap andtrace reinstalled on an emergencybasis, while he sought a renewal of the warrant. (9 CT 2205-2206.) In a case under such intense police and public scrutiny, it would be either against penal interest or against social interest for anyone under any circumstances to make the declarations at issue here. That there was only one such call only reinforces this view. That there was only onecall also reinforces the reliability of the statement, which, along with the unavailability of the declarant, is a further foundational requirement for the hearsay exception at issue. (People v. Lucas (1995) 12 Cal.4™ 415, 462.) But not only the singularity — in both quality and quantity — ofthecall was an indicium ofreliability. There was also, as the defense argued, the entomological evidence from David Faulkner that placed the earliest date for oviposition at February 16, which meant that Danielle was alive on February 15 whenthe telephone call was made. (9 CT 2202-2203; 13 RT 3854; 33A RT 8075- 8076.) Thus, under the circumstancesofthis case, there was a declaration against interest by an unavailable declarant, whose statement showedsufficient indicia of 319 reliability to be admitted under Evidence Codesection 1230. To have excluded this evidence constituted an abuse of discretion. But even if Judge Mudd acted within his discretion underthe statutory strictures for the hearsay exception at issue, there is still the question of due process. In Chambers v. Mississippi (1972) 410 U.S. 284, the United States _ Supreme Court held that the application of the technical rules of evidence could not, underthe specific circumstances, be allowed to deprive the defense of crucial evidence, and that to do so constituted the denial of the right to a fair trial. (/d., at pp. 294, 297-298, 302.) As this Court has glossed the decision in Chambers, a foundational requirement for a hearsay exception that is somehowirrational in principle or mechanistically imposed cannot be invoked to preclude or obstruct the presentation of a defense. (People v. Hawthorne (1992) 4 Cal.4"" 43, 57-58.) In the instant case, to say that Judge Mudd’s finding was reasonable and therefore within the scope ofhis discretion, is not to say that the opposite conclusion was not reasonable (see People v. Gordon (1990) 50 Cal.3™ 1223, 1253), i.e., that the anonymouscall under the circumstances of this case was a sufficiently reliable declaration against interest. The jurors would indeed be capable of weighing the probative value of the evidence in context, and there would be no real danger ofmisleading or confusing them. (See Evid. Code, § 352.) When oneconsiders the closeness of the question, and the crucial nature of the evidence in regard to Mr. Westerfield’s alibi defense, then the exclusion of the proffered evidence constituted a denial of due process. Finally, one further consideration must weigh in the balance either as part of the due process calculation or as an independent one. This consists in the Eighth Amendmentright in a capital case to a heightenedlevelofreliability in the determination of guilt. (Beck v. Alabama (1980) 447 U.S. 625, 628; People v. Cudjo (1993) 6 Cal.4" 585, 623.) If the evidence was,strictly speaking, inadmissible underthe statutory rules of evidence, it was nonetheless important for the integrity of the guilt determination for the jurors to know such important 320 information before making such a momentousdecision on Mr. Westerfield’s eligibility for the death penalty. In regard to prejudice, one returns to the paradigm informingthis case: a virtual equipoise between the competing forensic evidence to be decided by the balance ofnon-forensic evidence. (See above, pp. 253-261.) It is clear that evidence tending to show that Danielle was alive on February 15 strongly corroborated the entomological results, which in turn wasthe centerpiece of the alibi defense in this case. On this record, respondent cannot show beyond a reasonable doubtthat the exclusion of the evidence of the February 15 telephone call to Brenda Van Dam was harmless. (Chapman v. California (1967) 386 U.S. 18, 23-24.) 321 x. CALJIC NO.2.16, ON DOG-SCENT EVIDENCE, IS INADEQUATEIN NOT EXPRESSLY ADMONISHING THE JURORS TO VIEW SUCH EVIDENCE WITH CARE AND CAUTION 3 “The dog-scent evidence of Cielo’s “alert” at the outside compartmentofthe motor home,andhis “interest” in the lawn chair and shovelinside the compartment was summarizedin detail in the statement of facts, both from the prosecution’s perspective, and from the defense perspective. (See above, pp. 42- 44, 52-54.) This evidence promptedinstruction to the jury in accord with CALJIC No. 2.16, as follows: “Evidence of dog tracking has been received for the purpose of showing,if it does, that the defendantis the perpetrator ofthe crimes ofkidnapping and murder. This evidenceis notby itself sufficient to permit an inference that the defendantis guilty of the crimes of kidnapping and murder. Before guilt may be inferred, there must be other evidence that supports the accuracy ofthe identification of the defendant as the perpetrator of the crimes of kidnapping and murder. “The corroborating evidence need not be evidence which independently links defendant to the crime. It is sufficientif 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 provenability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the tracking in question.” (10 CT 2500; 42 RT 9439.) 7” "27 Tn this argument, the term “dog-scent evidence”is used. It is more serviceable because it seemsto coverall the situations arising from forensic use of dog evidence. Thus, here, Cielo did not track or trail a cadaver; he identified, purportedly, a scent. Moreover, even ifhe had trailed or tracked, it would have been the scent that he trailed or tracked. There are now “scent lineups” and “scent-matchings” quite apart from tracking andtrailing (see People v. Mitchell (2003) 110 Cal.App.4"™ 772, 779-782; see also People v. Willis (2004) 115 322 In giving CALJIC No. 2.16 on the corroboration of dog-scent evidence, Judge Mudd wasdischarging a sua sponte instructional duty. (People v. Malgren (1983) 139 Cal.App.3™ 234, 241-242.) Butit is the burden of this argumentthat dog-scent evidence requires a stronger, more express admonition, to the effect that such evidence must be viewed with care and caution (see People v. Craig (1978) 86 Cal.App.3™ 905, 917-918; see also People v. Malgren, supra, 139 Cal.App.3™ 234, 246, Feinberg,J., dissenting), and that without this, CALJIC No.2.16 is seriously deficient.'* Cal.App.4" 379, 384), which canstill be grouped underthe concept of “dog-scent evidence.” '28 The defense proffered an alternative instruction, pinpointed moreto the actual evidence in this case. (10 CT 2294.) Judge Muddrejected it finding CALJIC No. 2.16 adequate to cover the subject. (40 RT 9258-9260.) The proffered instruction does not precisely touch on the deficiency in CALJIC No. 2.16 that is the subject of the instant argument, andis raised here pursuant to Penal Code section 1259. (People v. Prieto (2003) 30 Cal.4" 226, 247.) But the proffered instruction was, in any event, clearly intended as a cautionary instruction more pinpointed to the evidence in the case: “You have heard evidencein this case regarding the use of a dog in the identification of places where Danielle Van Dam’s bodyis alleged to have been. Before you can consider any evidence regarding the dogs’ behavior, you must be convinced beyond a reasonable doubtthat a dog alerted. [] Ifyou are so convinced, you are instructed to consider the following factor in determining what weight, if any, to be [sic] given to this testimony: [{] 1. Whetheror not the handler was qualified by training and experienceto use the dog, to recognize the significance of its behaviors andto interpret its behaviors. [{] 2. Whether or not the dog was adequately trained in locating cadavers. [{] 3. Whetheror not the dog has been found reliable in locating cadavers. [{] 4. Whetherthe dog engaged in clear and unequivocal behavior capable of interpretation. [{] 5. Whether the dog previously examined the samelocation and failed to alert. [§] 6. Whether, at the time of the alleged alert, the handler said he did not know how to interpret the dog’s behavior. [{] Before you may consider dog scenting evidence, you must concludethat there is other corroborative evidence which supports the accuracy of the handler’s interpretation of the dog’s behavior.” (10 CT 2294.) 323 A. The provenance of CALJIC No. 2.16 will be traced in more detail below, but it is apparenton its face that the instruction is parallel to, if not modeled on, CALJIC No. 2.15, whose subject is possession of recently stolen property as evidenceof guilt for a theft-related crime. CALJIC No. 2.15 provides in relevant part: “Tfyou find that a defendant was in consciouspossession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendantis guilty of the crimeoftheft. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However,this corroborating evidence need only be slight, and need notby itself be sufficient to warrant an inference of guilt.”!”? But there are other ways to formulate a cautionary instruction. For example, instructions on accomplice testimony begins in a similar manneras CALJIC Nos. 2.15 and 2.16, informing the jurors that “[y]ou cannotfind a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense” (CALJIC No. 3.11), but ends with the express 129 Like CALJIC No. 2.16, 2.15 also sets forth pertinent factors to consider in corroboration: “As corroboration, you may considerthe attributes ofpossession-- time, place and manner,that the defendant had an opportunity to commit the crime charged, the defendant's conduct, his false or contradictory statements, if any, and other statements he may have made with reference to the property, a false account ofhow he acquired possession of the stolen property, or any other evidence which tends to connect the defendant with the crime charged.” 324 admonition that such testimony, “[t]o the extent that [it] tends to incriminate the defendant, [] should be viewed with caution.” (CALJIC No. 3.18; see also CALCRIM No. 334.) Sometimes, there is no requirement of corroborative evidence butthere is only an express cautionary admonition, such as the admonition that “[e]vidence of an oral confession or an oral admission of the defendant not madein court should be viewed with caution” (CALJIC Nos. 2.70, 2.71), or that “[t]he testimony of an in-custody informant should be viewed with caution and close scrutiny.” (CALJIC No. 3.20.) Why do these matters require an express cautionary admonition while CALJIC No.2.15, regarding stolen property, does not, but is deemed sufficient with only the corroboration requirement? The answerlies in the inherent nature of the subject matter of each cautionary instruction. Recent possession of stolen property as evidenceofa theft crime needs only a relatively light restraint on the use of that evidence. Thus, while CALJIC No. 2.15 constrains the jurors from convicting solely on such evidence, the instruction was also designed also to permit a conviction for a theft crime on this evidence in conjunction with only slight corroboration. For “[p]ossession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (People v. McFarland (1962) 58 Cal.2™ 748, 754, emphasis added; People v. Vann (1974) 12 Cal.3™ 220, 224.) In other words, the cautionary element ofthe instruction arises to forestall the effects of overconfidence in what is typically highly probative evidence, and to promptthe jurors to considerat least a non- incriminating reason for the possession ofthe stolen property. (See People v. Najera (2008) 43 Cal.4" 1132, 1138.) By contrast, such matters as accomplice evidence, in-custody informant evidence, and oral confessions and admissionsare typically problematic, and the need for a cautionary instruction arises not from over confidence, but from its 325 opposite: diffidence, or a wariness and distrust grounded in legal experience. Thus, courts expressly caution jurors about oral admissions or confessions because “ce *...no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, andare liable by omission or the changing ofwords to convey a false impression of the language used. No other class of testimony affords such temptations or opportunities for unscrupulous witnessesto torture the facts or commit perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.’ [Citation.].” (People v. Bemis (1949) 33 Cal.2"4 395, 399; see also People v. Carpenter (1997) 15 Cal.4™ 315, 392-393; and Peoplev. Beagle (1972) 6 Cal.3™ 441, 456.) In the case of accomplice testimony, “[e]xperience has shownthat the evidence of an accomplice should be viewed with care, caution, and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.” (People v. Wallin (1948) 32 Cal.2"? 803, 803; People v. Tewksbury (1976) 15 Cal.3" 953, 967.) Similarly, an in-custody informant, like an accomplice, is among the “false friends” and “the other betrayals whichare ‘dirty business’” and “mayraise serious questions of credibility.” (On Lee v. United States (1952) 343 U.S. 747, 757.) Whichis the appropriate model for dog-scent evidence? Is the danger from overconfidencein its already high probative value, or is the danger in careless lack of scrutiny of evidence that presents a substantial risk of only a specious reliability? An examination of the broader topic of dog-scent evidence demonstrates clearly that it falls within the latter category, and that the popular faith in “the dogs’ inerrant inspiration”, -- to use Wigmore’s skeptical pun (quoted in State v. Streeper (Idaho 1987) 747 P.2™ 71, 75) — is a serious misconception 326 that warrants a more express cautionary admonition, in line with those given for oral admissions or accomplice testimony. A minority of states in this country bar the use dog-scent evidence as unreliable. Although the majority view is that dog-scent evidence is admissible in criminal cases to prove identity (State v. White (S.C. App. 2007) 642 S.E.2"™ 607, 614-615; People v. Malgren, supra, 139 Cal.App.3™ 234, 237) the unanimous view within the majority is that dog-scent evidence nonetheless requires heightened foundational requirementsto assurereliability. (See State v. Roscoe (Ariz. 1984) 700 P.2™ 1312, 132-1321; State v. White, supra, at pp. 614-615.) California’s list of foundational requirements is fairly representative: “ .. . Weconclude that the following must be shownbefore trailing evidence is admissible: (1) the dog’s handler was qualified by training and experience to use the dog; (2) the dog was adequatelytrained in tracking humans; (3) the dog has been found reliable in tracking humans; (4) the dog was placed on the track wherecircumstances indicated the guilty party to have been; and (5) the trail had not becomestale or contaminated. [Citations.].” (People v. Malgren, supra, 139 Cal.App.3" 234, 238.) The foundational requirements may be modified in accord with the specific canine function at issue. Thus, the cadaver scent, which seems detectible for a substantial period of time after it was originally emitted, will not require a showing thatthat scent or scent trail is fresh. (See Trejos v. State (Tex. App. 2007) 243 S.W.3™ 30, 52,)130 130“cent-lineups” and “scent-matchings” have been foundto require additional, and morestrict, factors as foundational requirements. (People v. Mitchell, supra, 110 Cal.App.4" 772, 793-794; People v. Willis, supra, 115 Cal.App.4™ 379, 386.) It has also been held that as to a Sensor Transfer Unit (STU), which is a vacuum device used in these procedures, and designed to preserve scents and render them portable without corrupting them, a court must apply a Kelly-Frye (People v. Kelly (1976) 17 Cal.3" 24; Frye v. United States (D.C.Cir. 1923) 293 F. 1013) test to 327 The heightened foundational requirements for this evidence arise from somelevel of diffidence in its forensic use. Thus we may congratulate ourselves on that celebrated sympathy between dog and manthat renders the animal philanthropically amenable to training in such matters as search and rescue. But this does not necessarily fit dog-scent evidence to forensic usage. (See People v. Bledsoe (1984) 36 Cal.3™ 236, 249-250 [Rape trauma syndrome, developed as a therapeutic tool to treat rape victims is inadmissible in court to prove that rape occurred.].) A dog’s skill in searching and rescuing can be adapted to makeit a useful investigatory instrumentfor the finding of remains or suspects, where the dog’s capabilities are validated by success or not. But an instrumentality of investigation is not necessarily relevant in proving the case in court. (See People v. Johnson (2006) 139 Cal.App.4™ 1135, 1150 [“The means by which a particular person comes to be suspected of crime — the reason law enforcement’s investigation focuses on him — is irrelevant to the issue to be decidedattrial, i.e., that person’s guilt or innocence, except insofar as it provides independent evidence of guilt or innocence.”].)) For use as evidence in court itself the acuity of the dog’s olfactory powers, combined with a popular over-estimation of these powers, has engendered the cautionary view, which is well formulated in Wigmore’s fuller statement of the issue: 4 ... . [Jn actual usage, evidence of the conduct of animals is apt to be highly misleading, to the danger of innocent establish that this novel scientific technique is accepted in the relevant expert community. (People v. Mitchell, supra, at p. 787; People v. Willis, supra, at pp. 385-386.) Indeed, it has been held that the highly artificial and sophisticated technique ofthe “scent lineup” must be subjected to a Kelly-Frye test quite apart from the STU. (Mitchell, supra, at p. 793.) Generally, however, dog-scent evidence is not deemedto be a novelscientific technique, let alone scientific evidence (People v. Craig, supra, 86 Cal.App.3°“905, 915; State v. Roscoe, supra, 700 P.2™* 1312, 1320; Debruler v. Commonwealth (Ky. 2007) 231 S.W.2" 752, 756-757)f— a matter that will be elaborated below. 328 men. Amidst the popular excitement attendant upon a murder and the chase ofthe suspect, all the facts upon which the trustworthiness of the inferencerests are apt to be distorted in the testimony. Moreover, the very limited nature of the inference possible is apt to be overestimated — a consequence dangerous whenthejurors are movedby local prejudice. ... The hesitation shown in some courts to the use of this evidenceis dueto the risks of its misuse by the jury, for in someregions of our country the mysteriously accurate operation of the dogs’ senses has givenrise to a superstitious faith in the dogs’ inerrant inspiration, and this gross popular creed might in a jury mislead them into giving excessive credit to the evidence of the dogs’ itinerary.” (1A Wigmore, Evidence, § 177, at 1852 (Tillers rev. 1983).” (State v. Streeper, supra, 747 P.2™ 71, 75.) °°" In someof the majority jurisdictions, in addition to the heightened foundational requirements, there is the additional requirements of corroboration and a cautionary instructions. (State v. White, supra, 642 S.E.2"™607, 615.) At the most extremepole, again, are the minority jurisdictions whose distrust of this evidence prompts them to raise a per se barto its admissibility. (Brott v. State, '3! In Brott v. State (Neb. 1903) 97 N.W. 593, the Nebraska Supreme Court also gave lively expression to distrust of dog-scent evidence: “The argumentofthe attorney generalis that the blood hound has an exceptionally fine perception of scent; that in following a trail and discriminating between smells, he seldom or nevererrs; and that knowledgeofhis extraordinary aptitude is so nearly universal that courts will act upon it without proof. The bloodhound has, of course, a great reputation for sagacity, and there is a prevalent belief that, in the pursuit and discovery of fugitive criminals, he is practically infallible. It is a commonly accepted notion that he will start from the place where a crime has been committed, follow for miles the track upon whichhe has beenset, find the culprit, confront him and, mirable dictu, by accusing bay and mien, declare: ‘Thouart the man.’ This strange misbelief is with some people apparently incorrigible. It is a delusion which abundantactual experience has failed to dissipate. It lives on from generation to generation. It hasstill the attractiveness of a fresh creation. ‘Time writes no wrinkle on its brow.’ But it is nevertheless a delusion, and evident and obvious delusion. The sleuthhound offiction is a marvelous dog, but wefind nothing quite like him in real life.” (Ud, at pp. 593-594.) 329 supra, 97 N.W. 593, 593-594; People v. Cruz (Ill. 1994) 643 N.E.2" 636, 662- 663; Brafford v. State (Ind. 1987) 516 N.E.2" 45, 49; State v. Storm (Mont. 1951) 238 P.2™? 1161, 1176-1182.) There is then no disagreementas to the fundamental nature of dog-scent evidence or on the need for someassuranceofits reliability. The minority position is predicated on the belief that any such assurance, at least for forensic use in criminal cases, can neverbe sufficient. Within the majority position, California has taken a conservative view, imposing not only the foundational requirements,but also an instruction that calls for corroboration. That instruction was,at the time oftrial, CALJIC No. 2.16, which, as noted above,is parallel to CALJIC No.2.15, but whose subject, as seen from this account, falls on the side of the line evidence requiring an express admonition of caution. '°* B. That could have been the end of the argument, except that CALJIC No. 2.16 has been approved as adequate even without an express cautionary admonition. (People v. Malgren, supra, 139 Cal.App.3™ 234, 241-242.) The matter thus requires more elaboration, beginning with the immediate history of CALJIC No. 2.16’s development — a development with a marked dissenting strain favoring an even stronger instruction containing express cautionary admonitions. 132 The currentinstruction is formulated in CALCRIM No.374, which is not substantially different from CALJIC No. 2.16. This instruction provides: “You have received evidence about the use of a tracking dog. You may not conclude that the defendantis the person who committed the crime based only onthe fact that a dog indicated the defendant[or a location]. Before you may rely on dog tracking evidence, there must be: [{]] 1. Evidence of the dog's generalreliability as a tracker; [J] AND [§] 2. Other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [{]] In deciding the meaning and importance of the dog tracking evidence, considerthe training,skill, and experience, if any, of the dog,its trainer, and its handler, together with everything else that you learned about the dog's work in this case.” 330 Dog-scent evidence was addressedfor the first time in California in People v. Craig, supra, 86 Cal.App.3 905, which enlisted California in the ranks of the majority ofjurisdictions in allowing the admission of dog-scent evidence on the laying of a proper foundationto assurethe reliability of such evidence. (/d., at pp. 915-916.) After finding that the evidence in Craig established the requisite foundation, the Court turned to examine the complaint that the defendant’s proffered cautionary instruction on dog-scent evidence wasrejected in favor of the modification by the trial court. The proffered instruction provided: “ “Testimony of dogtrailing has been presented in this case. Such dog trailing evidence must be viewed with the utmost caution and is of slight probative value. Such evidence must be considered if found reliable, not separately, but in conjunction with all other testimony in the case, and in the absence of someotherdirect evidenceof guilt, dog trailing evidence would not warrant conviction.’” (Ud., at p. 917.) The modified instruction given by the trial court was as follows: “ *Testimony of dog trailing has been presented in this case. Such dogtrailing evidence must be viewed with the utmost caution. Such evidence must be considered, if found reliable, not separately but in conjunction with all other evidence in the case. Dogtrailing evidencealoneis not sufficient to warrant conviction. In determining what weight to give such evidence you should consider the training, proficiency, experience, and provenability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding thetrailing in question.’” (bid.) The Court in Craig found the modified instruction was more appropriate, since the pronouncementin the proffered instruction, that the evidence has “slight probative value”, encroaches on the function of the jury to determineforitself the weight of the evidence. (/d., at p. 918.) 331 But it will be noted that the modified instruction approved in Craig admonishedthe jurors to view the dog-scent evidence not merely with caution, but with the “utmost caution.” In addition, when the Craig instructionstates that “(sJuch evidence must be considered, iffound reliable, not separately but in conjunction with all other evidencein the case”, it emphasizes the contingent nature of this question ofreliability in a way that CALJIC No. 2.16 does not even approach. Craig bestowsat leastan initial authority on the position taken in this argument, but one must proceed to discover why the Craig instruction did not become CALJIC No. 2.16. In People v. Malgren, supra, 139 Cal.App.3" 234, the Court agreed with Craig regarding the admissibility of dog-scent evidence, and rationalized Craig’s foundational facts into a systematic and numberedlist. Ud., at p. 238.) Malgren then went on to hold that a sua sponte cautionary instruction wasalso necessary, but not the same one as approved in Craig: “Tt did not take omniscienceto see the significance of dog tracking evidencein this case, and Craig was decided almostthree years before appellant’s trial. The principle that dogtrailing evidenceis not sufficient to warrant conviction was unquestionably a principle openly and closely connected with the facts before the court. Nevertheless, we disagree that the court was obligated to instruct that dog trailing evidence must be viewed with caution or that such evidenceisoflittle probative value. Unlike accomplice testimony, dog tracking evidenceis 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 stemsat least in part from a fear that a jury will be in awe ofthe animal’s apparent powers and will give the evidence too muchweight. [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 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 withits 332 weightleft to the trier of fact. [Citation.]” (People v. Malgren, supra, at pp. 241-242.) In fact, Craig did approve an instruction that dog-scent evidence be viewed with the “utmost caution” and that only the admonition that the evidence was of “slight probative value” was improper as encroaching on the jury’s function. (People v. Craig, supra, 86 Cal.App. 3"at pp. 916-918.) With that clarification, one may note that Justice Feinberg, in his dissent in Malgren, weighed in on the side of an express cautionary statement along with an admonition aboutthe slight probative value of the evidence. Justice Feinberg believed that the evidence of identity in Malgren was insufficient, but that if there was sufficient evidence, he wasstill unable to agree “with the majority that the court was not required to instruct, sua sponte, that the dog tracking evidenceis oflittle probative value and must be viewed with caution. While I agree with the majority that a sua sponte instruction is required as to the necessity for other direct or circumstantial evidence of the identity of the defendant(ante,p. 242), I would hold further that whenever the evidence is admitted after a proper foundation has beenlaid, the jury must be instructed to view it with caution. [Citation.] I do not believe that the scientific validity of dog-tracking evidence has been demonstrated even as well as voice printers; exercise of restraint is therefore warranted. [Citation.] I am concerned with the matter of undue weight as evidence gleaned from the efforts of dogs has been part of our folklore for centuries.” (/d., at p. 246, Feinberg,J., dissenting.) The Malgren majority, and not Craig, prevailed with the CALJIC Committee, whose instruction required only one more refinement. In People v. Gonzales (1990) 218 Cal.App.3™ 403,the Court confirmed Malgren’s pronouncementof a sua sponte duty to instruct the jurors that dog scent required corroboration, but “in so concluding, we emphasize that the corroborating 333 evidence necessary to support dog-tracking evidence need not be evidence which independently links the defendantto the crime; it suffices if the evidence merely supports the accuracy of the dog tracking.” (/d., at p. 408.) Why then is the Magren/Gonzales cautionary instruction insufficient? One can repeat thecriticisms of this evidence,thatit is fallible yet overly trusted, whichis the hallmark criterion placing dog-scent evidence in the category of requiring an express admonition of caution. But it will be more helpful to penetrate even farther into the debate of the degree to which dog-scent evidenceis or is notreliable. C. In this regard,it is instructive to examinerationale for not applying to dog- scent evidence the foundational requirements used for scientific evidence generally. The Court in Craig noted as follows why dog-scent evidence is not subject to Kelly-Frye standards: “Tn the area of new scientific techniques, especially dealing with electronic gadgetry, one piece of testing apparatusis essentially the same as another ofsimilar design, make and purpose. “When dealing with animate objects, however, we must assumeeach andevery unit is an individualandis different from all others. Within one breed of dog, or even with two dogsofthe same parentage, it cannot be said each dog will have the same characteristics and abilities. Therefore, while the reliability of a machine can be duplicated and passed down the assembly line with relative ease, the abilities and reliability of each dog desired to be used in court must be shown on an individual basis before evidence of that dog’s effort is admissible. We simply cannotsay all dogs can trail a human, or even that all dogs of specific breeds can do so.” (People v. Craig, supra, 86 Cal.App.3"™, 905, 915,)'” 133 See also People v. Brooks (Colo. 1999) 975 P.2"* 1105, 1112: “In our view the differences between a mechanical apparatus or standardized scientific procedure on the one hand, anda living, breathing, animate creature on the other, 334 Thereis in this passage identified the peculiar nature of dog-scent evidence. If it requires a human expert to draw inferences from circumstantial evidence, these inferences are not drawn from purely physical evidence. Nor are they drawn from the patterned behavior of the lower order of animals, such as the blow fly or beetle, whose swarming uniformity and regularity provides the basis for forensic entomology. Nor are they drawn from the range of natural behaviors of the higher order of animals unaffected by human interaction. They are inferences drawn from the behaviorofa relatively highly individuated animalthat is trained to communicate and to understand human communication directed at it in what, for the dog, is a highly artificial context. One neednot overstate the matter by characterizing dog-scent evidence as hearsay, as is done in the cases where the evidence has been held to be inadmissible per se: “Dogs and other dumb animals do not qualify as witnesses in the courts of this state. They know notthe nature of an oath. They may not be sworn. They cannot be cross-examined. Theytestify only through professed interpreters whosetranslations and conclusions are always hearsay.” (State v. Storm, supra 238 P.2™ 1161, 1176.) But the responseto this is equally glib: “Such evidence falls into the category of opinion evidencerather than hearsay[;] [t]he animals are not witnesses against a defendant any more than a microscopeor a spectrograph];] [t]hese are not subject to cross-examination any more than the animal. It is the handler who is the witness and heis merely askedto testify to what the animalactually did, not his opinion as to the guilt or innocence of a person.” (People v. Centolella (N.Y. Cty. Ct. 1969) N.Y.S.2" 279, 282; see also State v. White, supra, 642 S.E.2"! 607, 615.) A nice point; yet no one pets a microscopeorgivesit treats and pull toys to are weighty enoughto take scent tracking outside the realm of processesordinarily associated with the Frye standard.” 335 reward it for doing its magnification properly, or indeed swats it with a rolled up newspaper whenit doesnot. The dog, then, even if it does not speak English, French, or Latin,is engaged in a communication that involves not only the dog, which has its own desires and appetites, but the human handler and trainer, who has his ownbiases, interests, and, as one mayseein the instant case, vanities. This renders the evidence highly problematical for purposes of courtroom use, where precision and exactitude in establishingthe truth is the normative goal. The other rationale for exempting dog-scent evidence from the tests applied to scientific evidence is that the acuity of a dog’s olfactory powersis a matter of common knowledge and experience, and not the discovery of a scientific theory. (State v. Roscoe, supra, 700 P.2"? 1312, 1319-1320; People v. Brooks, supra, 950 P.2"™ 649, 653; Copeley v. State (Tenn. 1926) 281 S.W. 460, 461 [‘It is a matter of common knowledge, of which courts may take notice, that dogs of somevarieties . .. are remarkable for the acuteness of their sense of smell, which enable them to follow a trail upon whichthey are laid, even thoughthis trail be crossed by others.”].) But this points in the direction of the over-esteem in which dog-scent evidence is cloaked. For there is no doubt that the olfactory sense in the dog is more developed than in humans, and that dogs do remarkable things withit from the point ofview ofhuman beings. But not all dogs are remarkable forall purposes for which human beingsattempt to channel the dog’s powers, and “common knowledge”translates into a jury at trial conferring too much careless weight on the evidence, and misleads the jurors into thinking that the dog’s interpreted behavioris in fact more scrutable than it really is. In this regard, dog- scent evidence is akin to accomplice testimony. Thus, one of the primary reasons for advising a jury of caution in evaluating accomplice testimony is the tendency of the uncautioned jurorsto overly credit such testimony: an “accomplice is not merely a witness with a possible motiveto tell lies about an innocent accused but is such a witness 336 peculiarly equipped, by reason ofhis inside knowledge of the crime, to convince the unwary that his lies are the truth.” (People v. Tewksbury, supra,15 Cal.3™ 953, 967, internal quotation marks omitted.) The samerationale would apply to the testimony of an in-custody informant. In regard to oral admissions and confessions, a jury’s strong attraction to this kind of evidence requireslittle explanation. Similarly, the lay juror, if not the judge and lawyers as well, are likely to credit the dog-scent evidence uncritically in light of the “common knowledge”, whichrises to the level of a common misconception,or at least common dogma whosestereotyped truth does not do justice to the individual occurrence. If it is objected that the level of self-interest and its sophistication is high in accomplice and informant witnesses, or that the potential for human mistake or perfidy in reporting an oral admission presents a substantial risk, then one must answerthat that in dog-scent evidence the dog andits handler are not withoutself- interests and motives. Moreover, in accomplice or informant testimony,or in confession or admission testimony, the witnesses are much more vulnerable to an actual cross-examination that can penetrate to the heart ofmotives at work. The dog is not; and the handler is unlikely to be impeached unless,as here, there is the serendipity of an email with tactless and revealing remarks. Thus, if an express cautionary instruction is appropriate for accomplice testimony andfor oral admissions and confessions, an express cautionary instruction is appropriate for dog-scent evidence. What ofMalgren’s claim that the foundational requirements alone are sufficient to assure reliability and convey a sense of caution to the jurors in evaluating the evidence? The foundational elements, as applied by the court, are not hard to satisfy. Indeed, this is the age of the credential and thecertification, and, as may be seen from Jim Frazee’s testimony, there are organizations set up to certify dogs and their handlers in search and rescue techniques, and one may 337 assumethat in California, the CARDAcertification will becomea virtually automatic satisfaction of the foundational requirements for dog-scent evidence.'** What of the admonition that dog-scent evidence aloneis insufficient to convict, and that there must be other evidence to support the accuracy ofthe identification? In the case of accomplice testimony, it is not deemed sufficient merely to instruct on the need for corroborating evidence; the duty to instruct includes both corroboration and an express cautionary admonition. (People v. Zapien (1993) 4 Cal.4" 929, 982.) The reasonis not difficult to discern. The corroboration requirement, especially whenit is conveyedto the jurors as not being onerous, takes on the appearance of a merelegal trigger or rule, whose easy satisfaction releases the jurors to consider the evidence without any care or caution if they see fit. Indeed, as one sees in the case of CALJIC No. 2.15, advising the jury ofthe lightness of the corroboration requirementis intended to conveyto the jurors the basic reliability of evidence of recently stolen property. Such implication is completely inappropriate for accomplice testimony, andit is no more appropriate for dog-scent evidence. The express admonition to view such evidence with care and caution takes the matter off the technically legal plane and places it on an experiential level, where one must be careful about drawing actual inferences and conclusions. Thus,in the instant case, with the corroboration requirementalone, the jurors might well deem that Cielo’s CARDAcertification is all that was needed. 134 Thus, the defense, in the foundational hearing on the dog-scent evidence in this case presented the testimony of Dr. Lawrence Myers, a professor of veterinary medicine at Auburn University, who had beencalled in to assist with the search and rescue dogs used in the OklahomaCity bombing and 9/11 (10A RT 3264- 3265), and who reviewed Frazee’s training records of Cielo and foundthat they had failed to establish that Cielo was properly trained to give a clear and unambiguousalert. (10A RT 3267-3269.) These were the records submitted to CARDAasoneofthe requirements for Cielo’s certification as a “cadaver dog.” (24 RT 6506-6507.) For foundational purposes, the certification by CARDA carried more weight than the deficiencies attested by Dr. Myers in Frazee’s records. (10A RT 3260-3261, 3302-3303.) 338 They might deem sufficient corroborationto lie in the fact that Cielo, as reported by Frazee, found remainsin tworeal-life searches, although Frazee did nottestify to the numberoffailures, if any. (See above, p. 42 and fn. 36.) Or they might deem Frazee’s remarkably illogical “control” in having Cielo first sniff the tires to see if the dog would be distracted by an animal scent (see above, pp. 42-43), and then concluding that he was not when he showednosign of being distracted by a scent that wasas likely to be there as not. Or they might deem the fingerprint and DNAevidence found in the motorhome as corroborative. But the issue here was whether this was deposited on or about the time that Danielle was killed, and if this was the corroborative evidence used by the jurors, it served only the circular function of corroborating the evidence that was supposed to corroborate it. Finally, one may note that in those jurisdictions that require a cautionary instruction in addition to the foundational requirements and corroboration rule, only one besides California seemsto think it sufficiently cautionary to admonish the jurors that dog-scent alone evidenceis insufficient to establish the crime. (State v. Taylor (N.H. 1978) 395 A.2™ 505, 507.) One requires that the jury be instructed to view the evidence with caution, and that the evidence has only slight probative value. (People v. Perryman (Mich. App. 1979) 280 N.W. 2™ 579, 582- 583.) One counsels that the jurors be admonished to exercise “the utmost caution.” (People v. Centolella, supra, 305 N.Y.S.2™ 279, 282.) And one counsels an admonition of simple caution. (Wilkie v. State (Alask. App. 1986) 715 P.2™ 1199, 1203, fn. 3.) Here, the argumentis that “care and caution,” the same formulation used for accomplice testimony or for oral admissions or confessions is appropriate. To the extent that the problemsinherent in dog-scent evidence approach or equal the problems inherent these types of evidence, the conclusion is unassailable. D. Asto prejudice, the instant case fits almost perfectly into Wigmore’s paradigm of dog-scent evidence used in a case that arises “[a]midst the popular 339 excitement attendant upon a murder andthe chase of the suspect... .” (See above, pp. 328-329.) Cielo did notliterally give hot pursuit, chase down Mr. Westerfield, and hold him at bay as Westerfield stood half-drenched in swamp water until authorities caught up to makethe arrest. But this scene was subject to easy metaphorfor the prosecution’s pursuit of conviction, and in this regard Cielo chased down,as it were, the case — a case that evoked in the community a good deal of the overwrought emotion concomitant with hot pursuit. Although there was considerable impeachmentofFrazee’s testimony, his statements of uncertainty as to whetherin fact Cielo alerted or not, the failure of Cieloto alert whensniffing the same places two daysearlier — none of this wassufficient to dispel the undueprestige of dog-scent evidence which would inducethe jurors, in a way that could not be addressed,to believe that the dog indeed found something incriminating. If a proper cautionary admonition had been given,it is reasonably probable that the case would have resulted more favorably for Mr. Westerfield. (People v. Watson (1956) 46 Cal.2"4 818, 836-837.) Finally, one should observe further that in a case in whichthe slightest corroboration to one side or the other was determinative of the guilt issue, dog- scent evidence, without a proper cautionary instruction to accompanyit, could not but have an undueinfluence on thetriers of fact in this case. Like Evidence Code section 352, the cautionary instruction serves as a federal constitutional prophylactic, without which, in a given case, there could be a violation of due process. (See People v. Falsetta (1999) 21 Cal.4" 903, 916-919; see also People v. Jennings (2000) 81 Cal.App.4™ 1301, 1314.) There wasjust sucha violation here, madeall the more pressing because of the heightened requirements of accuracy demanded by the Eighth Amendmentin a capital trial. (Beck v. Alabama (1980) 447 U.S. 625, 628; People v. Cudjo (1993) 6 Cal.4" 585, 623.) Since the standard of review for prejudicial state error is met in this case, the standard of review for federal constitutional error, requiring respondent to show the error harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 340 23-24), is met afortiori. 341 XI. REGARDLESS OF ITS PROPRIETY VEL NON AS A CAUTIONARYINSTRUCTION, CALJIC NO.2.16 IS DEFICIENT IN FAILING IN FAILING TO RELATE THE ISSUE OF DOG- SCENT EVIDENCE TO THE STANDARD OF PROOF BEYOND A REASONABLE DOUBT Whetheror not one deems CALJIC No.2.16 sufficient as a cautionary instruction, there is still another problem in the instruction’s failure to relate the question of dog-scent evidence to the reasonable doubt standard. The problem arises because, in accord with CALJIC No. 2.16, the jurors here were told that dog-scent evidence was sufficient “to permit an inference that the defendantis guilty of the crimes of kidnapping and murder”ifthere was “other evidence”that “support[ed] the accuracy of the dog tracking” evenifthat evidence did not “independently link[] defendant to the crime.” (See above, p. 322.) This implicates the reasonable-doubt standard, without which there can be no constitutionally sound criminal conviction, and the instruction requires further language muchalong the samelines as that used in the current CALCRIM instruction on recently stolen property, CALCRIM No. 376. CALCRIM No. 376 adds this closing admonition: “Rememberthat you maynot convict the defendant of any crime unless you are convincedthat each fact essential to the conclusion that the defendantis guilty of that crime has been proved beyonda reasonable doubt.”'®> One maytherefore baldly state that without such language, CALJIC '35 This is the last paragraphofthe instruction. The preceding balance ofthe instruction does not deviate substantially from CALJIC No. 2.15: “Ifyou concludethat the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of based on those facts alone. However,ifyou also find that supporting evidence tendsto prove (his/her) guilt, then you may concludethat the evidenceis sufficient to prove (he/she) committed [{]] The supporting evidence need only be slight and need not be enoughbyitself to prove guilt. You may consider how, where, and whenthe defendant possessed the property, along with any other 342 No. 2.16 is deficient, and, in creating the false impression that dog-scent evidence has some special status independent ofthe other types of evidence presented in the case, unconstitutionally lightens the prosecution’s overall burden ofproof beyond a reasonable doubt. (See Jn re Winship (1970) 397 U.S.358, 364.) Appellant recognizes that this argumentis written on a rather messyslate, however. In invoking the CALCRIMinstruction on recently stolen property as the warrant and modelfor the instant claim, one is faced with this Court’s equally bald assertion that CALJIC No. 2.15, which does not have the CALCRIM type modification on reasonable doubt, has nothingin it “that directly or indirectly addresses the burden of proof, and nothingin it relieves the prosecution ofits burden to establish guilt beyond a reasonable doubt. [Citations.]” (People v. Parsons (2008) 44 Cal.4™ 332, 355-356.) This would seem to be dispositive of CALJIC No. 2.16, and the first step in the following argumentis to present the reasons for this Court to reconsiderits position. But the second step is to suggest that in any event, for reasons already discussed in the previous argument, dog- scent evidenceis sufficiently different from stolen-property evidence to warrant a different result here as well as a the different result at issue in the previous argument on cautionary language.”6 The prima facie warrant for reconsidering the matter is the CALCRIM committee’s modification of the 2.15 instruction. Why add the language reminding the jury of the overall burden of proof beyond a reasonable doubtif “nothing” in the instruction implicated that burden or could be understood as tending to lighten the prosecution’s burden ofproof beyond a reasonable doubt? It relevant circumstancestending to prove (his/her) guilt of .” 136 The CALCRIMinstruction on dog-scent evidence, CALCRIM No.374, does not contain the “reasonable doubt” admonition that is added in CALCRIM No. 376. (See above, p. 330, fn. 132.) 343 is not easy to answerthis question, but much easier to answer the opposite one as to why the CALCRIM committee added the language. The instruction’s assertion that only “slight” corroboration triggered permission to fully accept the probative value of stolen-property evidencestrikes the ear and understandingas in fact inimical to a standard ofproof that requires the elimination ofall reasonable doubts as to the guilt of the accused.'?” It is true that CALJIC No. 2.16 does not talk about “slight” evidence. But whatit does do is posit or assumethe inherent strength of dog-scent evidence as such, conveysthe sensethat it, with only evidence “to support”its accuracy,is sufficient for conviction, even if the evidence of that accuracy has nothing to do with connecting the defendant to the commission of the crime. One simply cannot speak of evidence being sufficient for an “inference that the defendantis guilty” underthese conditions without implicating the burden ofproof required to find a defendant guilty. This would be especially true for a lay person not usedto the parsing rigors of legal language. Without a specification that dog-scent evidence is still to be assessed within the overall burden ofproof beyond a reasonable doubt,then there is clearly at least a substantial likelihood that the instruction will be applied in an unconstitutional mannerthat allows the jurors to confer undue ‘37 The federal courts have cometo this conclusion in regard to the “slight corroboration”rule for the crime of conspiracy. Under federal law, the jurors were instructed that once it was proved that there was a conspiracy, the Government need adduceonly “slight evidence” to connect the specific defendant to that conspiracy, and thereby to produce a conviction for that crime. (United States v. Toler (1 1" Cir. 1998) 144 F.3" 1423, 1427.) The rule is now in disrepute and disavowedas contrary to the due process requirement ofproof beyond a reasonable doubt. (United States v. Hall (5Cir. 1976) 525 F.2™ 1254, 1255- 1256; United States v. Gray 65" Cir. 1980) 626 F.2™ 494, 500; see also United States v. Marsh (1* Cir. 1984) 747 F2" 7, 13 andfn. 3; United States v. Burgos (4™ Cir. 1996) (en banc) 94 F.3849, 861-862; United States v. Malatesta (5" Cir. 1979) 590 F.2™ 1379 1382; United States v. Durrive (7™ Cir. 1990) 902 F.2™ 1221, 1228-1229; United States v. Lopez (8" Cir. 2006) 443 F.3™ 1026, 1030; United States v. Dunn co" Cir. 1977) 564 F.2™ 348, 356-357; and United States v. Toler, supra, 144 F.3 1423, 1427, fn. 5.) 344 probative weight on dog-scent evidence. (Estelle v. McGuire (1991) 502 US. 62, 74; Boyde v. California (1990) 494 U.S. 370, 381.) The problem presented by the language of CALJIC Nos. 2.15, and therefore of 2.16, in respect to the overall burden ofproof beyond a reasonable doubtis typically circumvented by adducing an argument based on permissive inferences: “,. CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecution’s burden ofroofto a lesser standard than beyond a reasonable doubt. Rather the instructions ‘relates a contrary position: a burglary may not be presumed from mere possession unless the commission ofthe offense is corroborated.’ [Citation.] The inference permitted by CALJIC No. 2.15 is permissive, not mandatory. Because a jury may accept or reject a permissive inference ‘based onits evaluation ofthe evidence, [i]t therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt.’ [Citation.] Requiring only ‘slight’ corroborative evidence in support of a permissive inference such as that created by possession of stolen property, does not change the prosecution’s burden ofproving every elementofthe offense, or otherwise violate the accuser’s right to due process unless the conclusion suggestedis not one that reason or commonsense could justify in light of the proven facts before the jury.” (People v. Snyder(2003) 112 Cal.App.4" 1200, 1226; see also People v. Moore (2011) 51 Cal.4" 1104, 1131-1132.) This sort of argument begs the question. At issue is not an irrebuttable presumption of guilt in violation of due process (see Ulster County Court v. Allen (1979) 442 U.S. 140, 167); but rather the issue is by what standard ofproof a “permissive inference” is to be measured in determining its evidentiary significance in the case. It will be recalled from the previous argument that CALJIC No.2.15, and CALJIC No. 2.16 without express cautionary language, are as muchinstructions ofpermission as they are instructions of constraint. Once the conditions for removal of the constraint are satisfied, then the evidence, as the jury 345 is impliedly told, “is so incriminating that to warrant conviction there need only be . slight corroboration... .” (People v. McFarland (1962) 58 Cal.2™ 748, 754; People v. Vann (1974) 12 Cal.3" 220, 224.) It is the very permissivenessof the permission that requires a reminderasto the overall burden of proof. To say that no irrebuttable presumption of guilt arises from stolen-property evidence or dog-scent evidence simply begs the question ofwhether or not the jury is allowed to draw the permissible inference of guilt on an improperly diminished and diluted standard ofproof. Finally, as noted above, if there is no constitutional impropriety in CALJIC No.2.15, 2.16 is distinguishable. Again, stolen-property evidenceis subject to a cautionary instruction not because such evidenceis typically unreliable. But, to the contrary, because such evidenceis typically reliable and highly probative of guilt (People v. McFarland, supra, 58 Cal.2at p. 754), there is the slight danger of over confidence that needs a slight pause to consider a non-incriminating possibility. (See People v. Najera (2008) 43 Cal.4™ 1132, 1138.) As demonstrated in the previous argument, dog-scent evidence, like accomplice evidence or evidence or verbal admissions, requires much more than a pause, because such evidenceis not typically reliable and is invidiously misleading. (People v. Bemis (1949) 33 Cal.2"° 395, 399; People v. Tewksbury (1976) 15 Cal.3"! 953, 967.) One could therefore, proffer a plausible rationale that in the case of stolen-property evidence, CALJIC No.2.15, even without express invocation of the reasonable doubt standard, states no less than the truth: the evidence with slight corroborationis sufficient to establish proof beyond a reasonable doubt for a theft crime. This cannot be said in the case of accomplice evidence andthelike, in which group is dog-scent evidence. CALJIC No. 2.16 is therefore an unconstitutional instruction. In the previous argument, the importance of the dog-scent evidence in tipping the balance of a close and difficult factual case based on the forensic evidence was discussed. There is no need to repeat the argument. Onthis record it cannot be 346 shown beyond a reasonable doubtthat the standard-of-proof deficiency in CALJIC No. 2.16 was harmless. (Chapman v. California (1967) 386 U.S. 18, 23-24.) 347 XII. THE TRIAL COURT’S REFUSAL TO ADD A LEGALLY CORRECT, NON- ARGUMENTATIVE CAUTIONARY ADMONITION TO CALJIC NO. 2.51, THE STANDARD INSTRUCTION ON MOTIVE, CONSTITUTED PREJUDICIAL ERROR IN THIS CASE Thejury in the instant case wasinstructed in accord with CALJIC No. 2.51 as follows: “Motive 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 tend to establish the defendantis guilty. Absence ofmotive may tend to show the defendantis not guilty.” (10 CT 2506; 42 RT 9351.) The defense, however, requested an augmentation to this instruction with the following cautionary addendum: “However, motive is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” (10 CT 2298.) Judge Mudd declined to appendthis modification (40 RT 9263), and this waserror underthe circumstancesofthis case. The admonition that motiveis notbyitself sufficient to prove guilt is of course a formulation used in CALJIC Nos. 2.15 and 2.16, discussed in the previous arguments, and onealso used standardly in other instructions where the evidenceis such that the jurors must be cautioned against a careless evaluation of its true evidentiary weight in the case. (See, e.g., CALJIC Nos. 2.03, 2.04, 2.05, 2.06, 2.15, 2.16, and 2.52.) It serves the purpose of assuring that the jurors discharge their function of weighing the evidence — a function thatis their exclusive province. (People v. McKinnon (2011) 52 Cal.4" 610, 676, fn. 40; People v. Sanders (1995) 11 Cal.4" 475, 531.) The requested modification also contained a reminderthat the subsidiary fact of motive had to be evaluated 348 ultimately against the overall burden ofproof beyond a reasonable doubt — a proposition that cannot be denied. Wn re Winship (1970) 397 US. 358, 364.) There is then nothing legally objectionable to the additional language, but the question is whetherit was necessary, and the answerto this is rooted in the specific circumstances ofthis case. In this case the evidentiary vehicle for the issue of motive was the emotionally potent images of child pornography — Ex 139 especially, the videos that portrayed brutal rape and sexual assault on young victims. These images,it will be recalled, drew tears from someofthe jurors. (See above, pp. 259, 284.) At the sametime, the connection between the pornography and a motive for the kidnapping and murderin this case bordered on the speculative,if, that is, that link was not purely speculative. (See above, pp. 236-242) Thus, there was indeed here an unduerisk that a careless and emotional evaluation of the evidence would receive undue weight from the jurors. This danger was compoundedbythe potentially misleading admonition in CALJIC No. 2.51 that the prosecution did not have to prove motiveatall. Although motive was not a necessary element of the crime charged, this did not mean that, in a given case, it was not a necessary fact in a chain of inferences required for proofbeyond a reasonable doubt. (See CALJIC No. 2.01.) The requested cautionary admonition forestalled this misinterpretation by reminding the jurors that the factual question of motive,like all the others in the case, had to be measured ultimately against the overall standard ofproof beyond a reasonable doubt. Thus,in the face of highly inflammatory imagesofchild pornography, presented to the jurors as rational evidence of motive, the feckless language of the unmodified CALJIC No. 2.51 -- that “absence of motive” was, you know,the other side of the coin — was grossly insufficient. The requested instruction was legally accurate, non-argumentative, and necessary, and Judge Mudd erred in rejectingit. 349 In regard to prejudice, the prosecution had adducedhighly provocative evidence of pornographyin orderto establish a motive in Mr. Westerfield for kidnapping and murdering Danielle Van Dam.It washighly likely that the jurors would usethis evidence, and find it easy to use this evidence, as a circumstance probative of guilt. It could only be salutary to inform them that they should cautiously determine how important that evidence actually wasto the case. Since this case could certainly be construed as depending on a single, sequential chain of inferences for proof beyond a reasonable doubt, a link in which would be the pornography evidence (see CALJIC No.2.01), the error in refusing the requested modification becomes a federal due process error Un re Winship, supra, 397 U.S. 358, 364), which cannot be deemed harmless beyond a reasonable doubtin this case. (Chapmanv. California (1967) 386 U.S. 18, 23-24.) In any event, there can belittle doubt of the importance of the motive evidencein resolving this case, and if the road to a finding of guilt did not follow a single path, the pornographic evidence, as corroborative, would still have to carry a good deal of weight, rendering the instructional error here prejudicial even under the standard ofreview for state error. (People v. Watson (1956) 46 Cal.2"4 818, 837-838.) In this regard one returns to the basic paradigm in this case in which this was a battle of corroborative evidence to break the effective tie between the forensic evidence. The motive evidence loomed very large indeed, and if the modified motive instruction had been given to cut this evidence down,as it were, to its proper size, then it is reasonably probable that the guilt phase would have resulted more favorably to Mr. Westerfield in this case. (Jbid.) 350 THERE WAS INSUFFICIENT EVIDENCE OF FORCIBLE ASPORTATION TO SUPPORT A FINDING AND CONVICTION FOR KIDNAPPING AS CHARGED AND SUBMITTED TO THE JURY The previousissuesare all congruent with the primary factual dispute in this case, which was whetheror not Mr. Westerfield was the perpetrator of the crimes against Danielle Van Dam. But from the evidence arose the subsidiary factual question as to precisely what those crimes were, andthe first issue in this regard is whether there was sufficient evidence to support a finding of forcible asportation, whichis a requisite elementofthe crime of kidnapping as charged and submitted to the jury in this case. The contention in this argumentis that if there was enough evidence to support a finding that the victim was asported and killed at the end of that asportation, the almost complete lacuna in evidence supporting a conclusion of force, and precluding the possibility that the asportation was effected by fraud or deception, renders it impossible that a rational trier of fact could have found beyonda reasonable doubt the crime of kidnapping in this case. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The facts will of course be discussed in more detail, but it is first important to emphasize what type of kidnapping wasat issue here, and, correlatively, what types were not. The crime of kidnappingis defined in Penal Code section 207. Subdivision (a), which was specifically charged in the instant case (1 CT 175), provides: “Every 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 anotherpart ofthe same county is guilty of kidnapping.” 351 Thus, the prosecution bears the burden ofproving beyond a reasonable doubt that the victim was movedbythe use of physical force or fear, that the movement was without the person’s consent, and that the movement wasfor a substantial distance. (People v. Arias (2011) 193 Cal.App.4™ 1428, 1434-1435; People v. Bell (2009) 179 Cal.App.4” 428, 435.) The requirements of physical force and fear, and the lack of the victim’s consent are intertwined to the extent that an asportation effected by fraud alone does not constitute the crime of kidnapping undersection 207(a). (People v. Majors (2004) 33 Cal.4" 321, 331; People v. Davis (1995) 10 Cal.4" 463, 517, fn. 13; People v. Green (1980) 27 Cal.3™ 1, 64.) But there are other forms of kidnappingthat do not require force or lack of consent. Subdivision (b) of Penal Code section 207 provides: “Every person, who for the purpose of committing any act defined in Section 288['**], hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child underthe age of 14 years to go out of this country, state, or county, or into another part of the same county,is guilty of kidnapping.” There is here no requirement of force or fear. But the crime defined in subdivision (b) was not charged in the information or submitted to the jurors. (1 CT 175.) The prosecution, forall its urgency and vehemencein seeking joinder of the misdemeanorcount and in introducing pornography evidence, was apparently not prepared to prove beyond a reasonable doubt that the asportation was for the purpose “of committing any act defined in Section 288”, and the jurors were 138 Penal Codesection 288, of course, proscribes “any lewdor lasciviousact .. . upon or with the body, or any part or memberthereof, of a child whois under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires ofthat person or the child... .” (Pen. Code, § 288(a).) 352 instructed only on the crime ofkidnapping as charged in Penal Code section 207(a).'°? The information in the instant case did specify Danielle Van Dam as “a child under the age of fourteen years” (1 CT 175), but this language was intended to trigger the provisions of Penal Code section 208(b), which was also expressly invoked in the pleadings for count 2 of the information. (1 CT 175.) Section 208(b), however, provides only for an enhanced sentence for whatever type of kidnappingis alleged under Section 207 (see People v. Martinez (1999) 20 Cal.4™ 225, 232), and here the type ofkidnapping alleged was that pursuant to subdivision (a) of Section 207.'"° Thereis also an alternative theory of forcible kidnapping that existed at the timeofthe instanttrial only in the form of a judicial gloss by this Court ofPenal Code section 207(a). First, in People v. Oliver (1961) 55 Cal.2"' 761, this Court, confronted with the situation in which a baby wastaken and asported, held that when the victim lacked the capacity to give actual consent, the prosecution needed only to establish that the taking and asportation were donefor an illegal purpose or ‘39 The jurors were instructed in accord with CALJIC No. 9.50 in pertinent part as follows: “Defendant is accused in Count Two of having committed the crime of Kidnapping in violation of section 207, subdivision (a) of the Penal Code. [§] Every person who unlawfully and with physical force or by any other means of instilling fear, steals, or takes hold, detains, or arrests another person andcarries that person without her consent for a distance that is substantial in character,is guilty of the crime of kidnapping in violation ofPenal Code section 207, subdivision (a). ... . [{] In order to prove this crime, each of the following elements must be proved: [§] 1. A person was unlawfully moved by the use of physical force, or by any other meansofinstilling fear; [§]] 2. The movementof the other person was without her consent; and [{] The movementofthe other person wasfor a substantial distance, that is, a distance more thanslightortrivial.” (10 CT 2530-2531; 42 RT 9361.) '4° Under Penal Code section 208(a), kidnapping is punishable by a term ofthree, five, or eight years. Ifthe victim is a child under 14, then, pursuant to subdivision (b) of Section 208, the punishments increaseto five, eight, or eleven years. 353 with an illegal intent. (/d., at p. 766.) In later case, this Court extended the principle to children and held that “the amount of force required to kidnap an infant or child incapable of resistance is simply the amount ofphysical force required to take and carry the child away a substantial distance for an illegal purpose or with anillegal intent.” (Jn re Michele D. (2002) 29 Cal.4™ 600, 610, emphasis added; People v. Jones (2003) 108 Cal.App.4™ 455, 462-463.)'"! Butlike 207(b) kidnapping, “Michele D. kidnapping” was not submitted to the jury in this case. There was nothing in CALJIC No. 9.50 as given (see fn. 139) to suggest a diminution in the standard of force required to satisfy the element of forcible asportation, and nothing regarding a special purpose or intent requirement. A conviction, of course, cannot be affirmed by a reviewing court on factual theories never tried before the jury. (McCormick v. United States (1991) 500 U.S. 257, 270, fn. 8; Chiarella v. United States (1980) 445 U.S. 222, 236-237.) Thus, whether or not sufficient evidence could have been mustered to save the kidnapping conviction underalternate formsof the crime of kidnapping,the integrity of that conviction depends here solely on the form of kidnapping requiring forcible asportation beyond the amountof force required merely to physically transport the victim. With the question properly focused, one may now to turn the issue of sufficiency of the evidenceitself. The standard of review for sufficiency of the evidence is well known. The question the reviewing court must answeris whether, after viewing the evidence in ‘4! Michele D. wasissued by this Court in December 2002,after both phases of the instant trial were completed, but before judgment was imposed. In 2003 (Stats. 2003, ch. 23, §§ 1-2), the Legislature ratified this Court’s interpretation by adding subdivision (e) to section 207, which subdivision provides: “For purposes ofthose types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount ofphysical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.” The Legislature stated expressly that this amendment “codifies the holding in Jn re Michelle [sic] D. (2002) 29 Cal.4™ 600 and does not constitute a changein existing law.” 354 the light most favorable to the judgment, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jacksonv. Virginia (1979) 443 U.S.307, 318-319; People v. Hatch (2000) 22 Cal.4™ 260, 272.) To this end, the reviewing court must discern if the evidenceis “substantial,” i.e., “reasonable, credible and of solid value.” (People v. Johnson (1980) 26 Cal.3™ 557, 578.) Thus, for purposes ofa sufficiency of the evidence claim, one must accept as given that Danielle was taken from her house sometime between 10:30 p.m. on February 1, when Damon Van Dam first went to bed, and 9 a.m. on February 2 when she wasdiscovered missing. One must further accept for purposesofthis argument that she was killed sometime between 10:30 p.m. on February | and the morning of February 4 when Westerfield returned home. But whatis the evidence as to how she was removed from the house? The facts surrounding the disappearance of Danielle Van Dam have beenrecited in detail in the statement of facts. There is a remarkable absence of evidence that any force was usedin the initial asportation out ofher house. Ifthe taking occurred between 10:30 p.m. and 2 a.m., before Brenda arrived home,there werestill three other people and a doginside the house,all upstairs on the samefloor as Danielle, none ofwhom was wakenedor disturbed by any commotion such as might attend a forcible taking. It is virtually impossible that the taking occurred between 2:00 a.m. and 2:30 a.m. when there were five other adults moving about the upstairs and the downstairs of the house, with the dog roaming freely. Then between 2:30 a.m. and 9 a.m. there was one additional family member — Brenda-- in the upstairs of the house, while the dog was in Derek’s room, the door of which wasslightly open. (See above,p. 11.) This absence of any apprehension ofa disturbance or commotion, when so many persons wereat close quarters while the crime was occurring, suggests a taking effected by fraud or deceit rather than by force or threats. The suggestion was further buttressed by the absence of any manifestation of a physical disturbance having occurred in Danielle’s room or anywhere in the house, and by 355 the complete absence of any trace evidence linking Westerfield to the interior of the Van Dam house. (See above, pp. 50-52.) Of course, the status of the evidence surroundingtheinitial taking is not absolutely determinative of the issue of kidnapping. The application of force or fear at any time in the course of an otherwise uncoerced asportation will establish the crime. (Parnell v. Superior Court (1981) 119 Cal.App.3™ 392, 408.) But what was the evidence for this? JfWesterfield killed Danielle, there is no way to determine precisely when this happened. But even on the assumption that she was alive until a short time before Mr. Westerfield returned with his motor hometo Sky Ridge Road on Monday morning,the absence of evidence showingthe use of force or the exploitation of fear was virtually complete. When Mr. Westerfield showed up on Sky Ridge Road on Saturday morning, Keith Sherman’s granddaughter Holly saw Westerfield as she went outside to fetch the paper. They wavedto each other, and Holly noticed nothing amiss. (16 RT 4558-4551.) Back in the Sabre Springs neighborhood, Martin Franklin, on the way to taking his kids to Tae Kwan Doepractice, saw the motor homeparked in front of Westerfield’s house. (16 RT 4620-4621.) Paul Hung, who lived on Mountain Pass, was up at 8 and out doing yard work by 8:30 a.m. The motor home wasthere. (26 RT 6985-6986.) This was a family neighborhood with lots of children around andlots ofpedestrians (17 RT 4726-4727), and there was every indication that this Saturday morning waslively with joggers and with people doing their weekend chores and errands. (See 16 RT 4592-4596, 4632- 4639.) No one reported anything amiss. At Silver Strand, Beverly Askey was there with her daughter and her family (17 RT 4779-4780); Teresa Hastings was there with her mother, her children, and somefriends (17 RT 4799-4800, 4805); Jimmy Rodgers wasthere with his wife Joyce, his daughter, son-in-law, and their three children. (17 RT 4811, 4814); and Nicole Arsenault was there on an outing with her husband’s unit from the Chula Vista Police Department, which had that day 20 to 30 people coming and goingat 356 Silver Strand. (17 RT 4811-4814.) These were the people within proximity of Westerfield’s motor home, who were brought in by the prosecution to attest to the oddity of Mr. Westerfield’s need for privacy (suggesting, as the prosecutor would have it, some incriminating motive), but who did not attest to anything suggesting the actual presence of another person, a commotion,or a disturbance. Further, Brian Neill, the park ranger who returned the overpayment, was close to the door ofthe motor home (17 RT 4894-4895), while Donald Raymond, the volunteer camp host, walked by the motor homeaspart of his duty to take downits license number. (17 RT 4920.) Neither onefilled in the gap in the evidence. Moreover, it should be noted that Raymond wasthe person whom Westerfield approached to complain about the refund. In order to do so, however, Westerfield had to walk some distance away from the motor home, and he did so alone. (17 RT 4916-4920.) Backin Sabre Springs, on his return from Silver Strand to find his wallet, Westerfield left the motor home a block away while he went back to his house in a neighborhood now crowded with police, media, and onlookers. He even stopped to talk to his neighbor, Mark Rohr. He left Sabre Springs and stoppedfor gas at the Mount Carmel Chevron. (18 RT 5181-5184.) At Glamis, on Sunday, he was the center of attention when his motorhome becamestuck in the sand. Sunday night he stopped again for gas at the Mount Carmelgasstation. (19 RT 5413- 5414.) And if he spent the night in the Coronado Cays, as confirmed by Heather Mack (28 RT 7521-7522), the residents in the area seemed reasonably attuned to problemsand disturbances. (See 18 RT 5105-5108, 5112.) No one at any of these venues where Westerfield wasin, or waslikely to be in, the proximity of other people, reported anything, or attested to anything, that provided an evidentiary basis for a conclusion that if Danielle was inside the motor homeandalive, she was being movedforcibly. This is not to say that the evidence here doesnotraise a suspicion that the asportation wasforcible in the sense required by the statute. However, evidence 357 “which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference offact.” (People v. Redmond (1969) 71 Cal.2"* 745, 755.) In order to justify a criminal conviction on a standard of proof beyond a reasonable doubt,the trier-of-fact must “have reasonably rejected all that undermines confidence”in the existence of guilt. (People v. Hall (1964) 62 Cal.2™4 104, 122; People v. Thompson (1980) 27 Cal.3" 303, 324.) Here,the inference that the asportation was effected by fraud or deception could not rationally be rejected beyond a reasonable doubt, which meansthatnorational trier of fact could have found guilt beyond a reasonable doubt for the crime of kidnapping. (Jackson v Virginia, supra, 443 U.S. 307, 318-319.) But the matter does not end with the reversal of the kidnapping conviction in count 2. For during the settlement ofjury instructions, Mr. Dusek claimed he had the prosecutorial authority insist that the case be submitted to the jurors solely on a theory offirst-degree felony-murder predicated on the commission of the crime of kidnapping. (9 CT 2217-2223; 37 RT 8819; 40 RT 9263-9265.) Although Mr. Dusek’s claim authority was doubtful (see below at p. 369), Judge Muddacceptedit (40 RT 9276-9277), and instructed the jurors only on felony- murder/kidnapping. (10 CT 2522-2523; 42 RT 9357-9358.)The upshotofthis unusual posture of the case is that insufficient evidence of kidnapping removes any basis for a conviction of murder. Both counts one and two must therefore be reversed for insufficiency of evidence. '? In accord with CALJIC No.8.10, the jurors were told that murder required only that “1. A human being was killed; and [f] 2. The killing occurred during the commission ofkidnapping.” (10 CT 2522.) In accord with CALJIC No.8.21, first-degree felony murder was defined them as “[t}he killing of a human being, whetherintentional, unintentional or accidental, which occurs during the commission of a kidnapping... .” (10 CT 2523.) 358 XIV. IN LIGHT OF PEOPLE V. CHUN, WHICH ESTABLISHES FELONY-MURDERAS A FORM OF MALICE MURDER, FIRST-DEGREE FELONY-MURDER MUST BE DEEMED TO HAVEA FULL RANGEOF LESSER-INCLUDED OFFENSES, FROM SECOND-DEGREE MURDER TO INVOLUNTARY MANSLAUGHTER, AND THE TRIAL COURT’S FAILURE IN THIS CASE TO INSTRUCT ON THESE CONSTITUTED PREJUDICIAL ERROR Asjust noted in the previous argument, Mr. Dusek limited the murder charge to first-degree felony murder. His claim ofthat this was within his prosecutorial authority was in response to a defense request for instructions on premeditated murder. This request was designed, of course, as an entrée for instruction on the lesser-included offenses of second-degree murder and involuntary manslaughter. Again, Judge Mudd accepted Mr. Dusek’s claim, and instructed the jurors only onfirst-degree felony murder. (37 RT 8819; 40 RT 9263-9265, 9276-9277; 42 RT 9357-9358; 9 CT 2217-2223; 10 CT 2283-2287, 2522-2523.) Of course, if second-degree murder andits lesser-included offenses are necessarily included in the elements of first-degreefe/ony-murder, then the defense had no need to request instruction onfirst-degree premeditated murderat all. For the trial court has a sua sponte duty to instruct on such lesser offenses “if there is substantial evidence the defendantis guilty of the lesser offense, but not the charged offense”. (People v. Moye (2009) 47 Cal.4™ 537, 556; Peoplev. Breverman (1998) 19 Cal.4"" 142, 162.) This indeed is the contention presented here: even if the evidence ofkidnapping wassufficient to sustain a verdict for first-degree felony murder, that conviction must nonetheless be reversed for failure to instruct on second-degree murder and on involuntary manslaughter. On the one hand, this claim seemsto be dispositively foreclosed by this Court’s unequivocal pronouncements that felony-murder and malice murder have 359 different elements, even thoughthere is “but a single statutory offense of murder.” (People v. Moore (2011) 51 Cal.4™ 386, 413; People v. Nakahara (2003) 30 Cal.4" 705, 712.) Onthe other hand, this Court has nonetheless stated expressly that the question of lesser-included offenses of first-degreefelony murderis still an open one. (People v. Valdez (2004) 32 Cal.4™ 73, 114, fn. 17; People v. Castaneda (2011) 51 Cal.4™ 1292, 1328-1329.) This reticence onthe part of the Court seems well taken, because the claim that felony murder has different elements than malice-murder can no longer be maintainedin light of this Court’s recentclarification of the law of murder in People v. Chun (2009) 45 Cal.4" 1172. In Chun, one of the questions was whether or not second-degree felony murder was a judicially created crime, and therefore in violation of the Separation- of-Powers Clause of the California Constitution, which vested the Legislature the sole power to determine and define criminal acts. Chun in fact held that there was a statutory basis for second-degree felony murder in Penal Code section 188’s definition of malice aforethought (id., at p. 1184) -- a finding whose implications bear on the question here.'*° In sum,if, per Chun, second-degree felony murderis a form of malice- murder, then, by implication, so is first-degree felony murder. Ifso, one can no longer maintain that felony murder and malice murder have different elements in respect to the definition ofmurder. Thus, malice aforethoughtis a definitional ‘3 The issue of the constitutional status of second-degree felony murder arose because, before Chun, the conventional view was that second-degree felony murder, unlikeits first-degree counterpart, had no statutory basis and was a judicially created crime. (People v. Howard (2005) 34 Cal.4" 1129, 1135; People v. Patterson (1989) 49 Cal.3™ 615, 621; People v. Burroughs (1984) 35 Cal.3™ 824, 829; People v. Dillon (1983) 34 Cal.3" 441, 472, fn. 19.) Second degree felony murder was understoodto be any killing committed in the commission or attempted commission of an inherently dangerous, but non-assaultive, felony not listed in Penal Code section 189 (People v. Robertson (2004) 34 Cal.4"™ 156, 166; People v. Ford (1964) 60 Cal.2"¢ 772, 795; People v. Ireland (1969) 70 Cal.2"4 522, 538-539.) First-degree felony murder, by contrast, is specifically defined in Penal Code section 189. (See below,p. 364, fn. 144.) 360 elementof first-degree felony murder, which element it shares with second-degree murder -- even non-felony second-degree murder. These summary assertions must of course be elaborated andjustified, but a claim that there should have been instruction on lesser-included offenses, ifin fact first-degree felony murderhas lesser-includedoffenses,first requires a factual foundation in order to establish that there was substantial evidence to warrant such an instruction. The factual question must itself begin with the legal definitions that confer onit its significance. The core definition of murder is co-extensive with murder in the second- degree. Penal Codesection 187 defines the crime as “the unlawful killing of a human being or a fetus with malice aforethought.” Section 188 defines “malice aforethought. Malice “may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take awaythelife of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” Implied malice has been glossed in more prosaic termsas a killing which “results from an intentionalact, the natural consequences ofwhich are dangerousto life, which act was deliberately performed by a person who knowsthat his conduct endangers the life of another and who acts with conscious disregard for life.” (People v. Dellinger (1989) 49 Cal.3" 1212, 1217; People v. Martinez (2003) 31 Cal.4" 673, 684.) The fact that an abducted seven-year-old girl’s dead body was foundin a decomposed condition three weeks after her disappearance, in an area whereit had been dumpedin a way to avoid discovery is clearly sufficient evidence on which to base an inference that she was dead at the hands of a perpetrator who intended to kill her, or who had assaulted her in conscious indifference to whether or not she died. Furthermore, as seen from the previous argument, there was a substantial basis on which the jurors could find that the abduction did not amount 361 to a kidnapping, which then removed the homicide from the realm of felony- murder. One can proceed further down the scale as well. Involuntary manslaughter is “the unlawful killing of a human being without malice” during “the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Pen. Code, § 192(b).) This offense is a lesser-included offense of second-degree murder (People v. Cook (2006) 39 Cal.4™ 566, 596), and here, given the absence of any clear evidence of the manner of death, a jury couldfind that there was a reasonable doubt as to the intent to kill or even as to a conscious disregard forlife in the death of Danielle. This evidentiary doubt would then establish the crime of involuntary manslaughter. (Jbid.) There was, in short, a factual basis for instruction on second-degree murder and on involuntary manslaughterin this case, which brings us back to the question of whether second- degree murderis a lesser-included offense offirst-degree felony murder. | In Chun, this Court began its analysis ofwhether or not there was a statutory basis for second-degree felony murder, by noting that the statutory definition of “implied malice”, as manifest in circumstances showing “an abandoned or malignant heart” (Pen. Code, § 188) was “quite vague” and has had to receive clarifying reinforcement from judicial interpretation requiring first “an act, the natural consequences ofwhich are dangerous to humanlife” and a mental component in which the defendant “knowsthat his conduct endangersthelife of another and . . . acts with a conscious disregard for life” (People v. Chun, supra, 45 Cal.4" at p. 1181, internal quotation marks omitted) — the very gloss of implied malice noted above. In Chun, this Court then began using the formulation “conscious-disregard-for-life malice” to replace the usual term “implied malice” (id. at p. 1181, fn. 2), and it did so to make room for a third form of malice aforethought. 362 For this Court now foundthat a killing in the commission of an inherently dangerous felony was a further differentiation embedded in the compact symbolof “an abandonedor malignant heart” even though this Court in the past had referred to second-degree felony murderas a “nonstatutory” crime. As this Court itself explained in Chun, this designation of the crime as “nonstatutory” was imprecise, “Even conscious-disregard-for-life malice is nonstatutory in the limited sense that no California statute specifically uses those words. But that form of implied malice is firmly based on statute;it is an interpretation of section 188’s abandoned and malignant heart language. Similarly, the second-degree felony murderruleis nonstatutory in the sense that no statute specifically spells it out, but it is also statutory as anotherinterpretation ofthe same ‘abandoned and malignant heart’ language. We havesaid that the ‘felony- murderrule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absenceof actual malice, both with regardto first degree felony murder and second degree murder.’ [Citation.] But analytically, this is not precisely correct. The felony-murderrule renders irrelevant conscious-disregard-for-life malice, but it does not render malice itself irrelevant. Instead, the felony-murderrule ‘acts as a substitute’ for conscious-disregard-for-life malice. [Citation.] It simply describes a different form of malice undersection 188. “The felony- murderrule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerousto life.’ [Citation.].” (Ud. at p. 1184.) Thus, it seems, there are three forms of malice-aforethought. Thefirst is express malice aforethought; the second is conscious-disregard-for-life malice; and the third is the malice concomitant with the commission of a felony inherently dangerous to human life. What does this imply asto first-degree felony murder? It implies that like its second-degree counterpart, it too is an unlawful killing ofa human being with malice-aforethought. It, like all other formsoffirst-degree 363 murder designated in Penal Codesection 189, is the crime ofmurderby virtue of Penal Code sections 187 and 188.'“ This conclusion derived from Chun seemsto resolve the paradoxesarising from the previous notion that first-degree felony murderhas different elements from malice murder. For this Court has madeit clear that specific allegations of malice murder in an accusatory pleading are sufficient to give the defendant notice of felony murder (People v. Letner and Tobin (2010) 50 Cal.4™ 99, 140-141; People v. Nakahara, supra, 30 Cal.4™ 705, 712); further, that for purposes ofjury unanimity, this Court has also madeit clear that first-degree felony murder, even with its different legal elements,is still only a theory of murder, a unanimousjury verdict can nonetheless be a compoundof felony murder and malice murder. (Ibid.; People v. Collins (2010) 49 Cal.4" 175, 214.) The paradox disappears if first-degree felony murder is another type of malice-murder along with all the others. But does this necessarily solve the further problem of lesser-included offenses? UnderCalifornia law, “a lesser offenseis necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser.” (People v. Sanchez (2001) 24 Cal.4" 983, 987.) Thelatter measure is denominated the “accusatory pleading test”, while the formeris called the “elements test.” (People \44 Penal Code section 189 provides in relevant part: “All murder which is perpetrated by meansofa destructive device or explosive, a weapon ofmass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder whichis perpetrated by meansof discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murderofthefirst degree. All other kinds of murdersare ofthe second degree.” 364 v. Lopez (1998) 19 Cal.4" 282, 288-289.) Here, the accusatory pleading alleged that Mr. Westerfield “did unlawfully murder Danielle Van Dam, a human being, in violation ofPENAL CODE SECTION 187(a)” (1 CT 174), which does not specify any facts that would differentiate one form of murder from another. Here, rather, the elements test mustbesatisfied. In the quote above, the “elements test” was cast in terms of “the statutory elements of the greater offense.” (Sanchez, supra, at p. 987, emphasis added.) Another way of stating the matter is that the elements test “is satisfied when all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” (People v. Lopez, supra, 19 Cal.4™ at p. 288, emphasis added, internal quotation marks omitted; People v. Anderson (1975) 15 Cal.3™ 806, 809-810.) Thus,if the elements test is to be determined by the “statutory” definition or by “the legal ingredients of the corpusdelicti,” then argumentfor the status of second-degree murderas a lesser-included offense of felony murderis straightforward: a killing in the course of a kidnapping or some other felony enumerated in Penal Code section 189 is first-degree malice aforethought murder by definition; if there is a doubt as to whether a kidnapping or some other enumerated felony was committed, then the first-degree elementis negated, but not the malice aforethought; thus, one cannot commitfirst-degree felony murder without necessarily committing either second-degree murderin the form of express-malice murder, conscious-disregard-for-life murder, or second- degree felony-murder. The conclusion from all this is inexorable: the failure to instruct the jury on second-degree murder and on involuntary manslaughter was error in this case. The failure to instruct on a lesser-included offense for a non-capital charge constitutes error under state law alone. (People v. Breverman, supra, 19 Cal.4" 142, 149, 176.) But for a capital charge, the Eighth Amendment requires that the jury be given the option of a legally available lesser-included offense. (Beck v. Alabama (1980) 447 U.S. 625, 638; Hopkins v. Reeves (1998) 524 U.S. 88, 94- 365 95.) Since, as demonstrated, second-degree murder and involuntary manslaughter are legally available lesser-included offenses, the instructional error here constitutes a federal constitutional violation, and it must therefore be shownthat the error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 US. 18, 23-24.) This cannot be done onthis record. Asnoted earlier in the argument, there was here substantial evidence that the crime committed wasnotfirst-degree felony murder but rather second-degree murderor even involuntary manslaughter. Under felony-murderinstructions, the jurors were called on only to find the specific intent to kidnap the victim. (See CALJIC No. 8.21; 10 CT 2523.) No other instruction given presented them with an opportunity to resolve the question ofwhether or not defendant acted with an intent to kill, with conscious disregard for humanlife, or with criminal negligence. Instead, the “jury here was left with an ‘unwarrantedall-or-nothing choice’” (People v. Ramkeesoon (1985) 39 Cal.3™ 346, 352) between convictionforfirst- degree murderor outright acquittal, which skewedthe fact-finding process and cannotin this case be deemed beyond a reasonable doubtnot to have contributed to the verdict in this case. (Chapmanv. California, 386 U.S. 18, 23-24; see People v. Ramkeesoon, supra, at p. 352.) 366 XV. EVEN IF SECOND-DEGREE MURDERIS NOT A LESSER-INCLUDED OFFENSE OFFIRST- DEGREE FELONY MURDER, THE TRIAL COURT WAS OBLIGATED TO INSTRUCT ON FIRST-DEGREE PREMEDITATED MURDER, OF WHICH SECOND-DEGREE MURDER AND INVOLUNTARY MANSLAUGHTER ARE LESSER -INCLUDED OFFENSES Asstated in the previous argument, the defense had requested instruction on first-degree premeditated murder, and it did so as a basis for instruction on the lesser-included offense of second-degree murder. For if second-degree murderis not a lesser-included offense of first-degree felony-murder, it most certainly is a lesser-included offense offirst-degree premeditated murder, which requires express malice aforethought. (People v. Anderson (2006) 141 Cal.App.4™ 430, 443.) Further, if the obligation to instruct on second-degree murderdid not arise directly from the specific obligation to submit to the jurors lesser-included offenses supported by the evidence, the defense request for instruction onfirst- degree premeditated murder nonetheless triggered the more comprehensive obligation of the Court to instruct the jurors on the general principles of law that are “closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3" 524, 531; People v. Wickersham (1982) 32 Cal.3™ 307, 323.) Once the right to an instruction on first-degree premeditated murder wasestablished, that instruction, in turn, would trigger in this case the subsidiary obligation to instruct on the lesser-included offenses of second-degree murder and manslaughter. (People v. Breverman (1998) 19 Cal.4™ 142, 162.) As in the previous argument, the instructional duty requires an evidentiary predicate, and there was a substantial basis for instruction in this case on premeditated murder. Premeditation and deliberation, which also raises the crime of murder to murderin the first degree, occurs “if the killer acted as a result of careful thought 367 and weighing of considerations; as a deliberate judgmentor plan; carried out coolly and steadily, especially according to a preconceived design.” (People v. Velasquez (1980) 26 Cal.3™ 425, 435, internal quotation and editorial marks omitted, ovrid. on 0.g. in People v. McKinnon (2011) 52 Cal.4th 610, 643.) This wasa possible, though by no meansnecessary, circumstantial inference in this case. The jury could have found that Danielle’s abductor had to have acted with a good deal of care, caution, and precision in orderto effect her abduction from her own house without causing somesort of disturbance or leaving some manifest trace other than the girl’s disappearanceitself. Once out of the house, stealth and care was required in order to transport her however far she was in fact transported while alive. Finally, thought and planning, not inconsistent with the deliberate nature ofall the preceding acts, were required for the disposal of the body, which wasplaced in an area where it would notbe casually discovered.’ There was then sufficient evidence for instructing on the alternative theory ofpremeditated murder. At the same time, these facts did not lead inexorably to the conclusion of premeditation and deliberation. The perpetrator’s undetected entry and exit with the girl may have merely been fortunate, or based on an impromptu deceit. Further, if there was any planning involved in the abduction, the perpetrator may notat this point have formed an intent to kill. Even further,if the perpetrator was Mr. Westerfield, he had just spent several hours of his evening in a bar drinking alcohol. As for the dumping of the body, while this might show planning after the commission of the homicide, it does not necessarily show premeditation and deliberation in regard to the homicide. Finally, because of the state of the body, there was no evidence from which one might infer one way or '® One might add to this the evidence of motive, if the pornography exhibits were in fact properly before the jurors in this case andif it had the probative value claimed for it by the prosecution. 368 the other that the mannerofkilling betokened premeditation and deliberation. In short, there was a basis for instructing on second-degree murderasa lesser- included offense of first-degree premeditated murder. These same evidentiary factors could also reduce the crime even further to involuntary manslaughter, a lesser-included offense of second-degree murder. Whatthen ofMr. Dusek’s claim, also noted above, that he had, pursuant to his lawful authority as the prosecutor, a veto power over what charges were submitted to the jury? (9 CT 2217-2223; 37 RT 8819; 40 RT 9263-9265.) His claim was misconceived. There is no doubtthat as a prosecutor he had “the sole discretion to determine whom to charge with public offenses and what charges to bring.” (People v. Birks (1998) 19 Cal.4™ 108, 134.) But as seen from the analysis in the previous argument, his discretion was fully exercised when he chose to charge the crime of murder. If he had exclusive tactical control over what theory ofthe crime of murder he wished to urge the jury to find, he had no powerto prevent the court from instructing on all applicable theories supported by the evidence. For, “[w]hen the decision to prosecute has been made,the process whichleads to acquittal or to sentencing is fundamentally judicial in nature.” (People v. Tenorio (1970) 3 Cal.3™ 89, 94; Manduley v. Superior Court (2002) 27 Cal.4" 537, 552.) The error here cannotbea direct violation of the Eighth Amendment insofar as premeditated first-degree murder is a co-equal crime with first-degree felony murder, and not a lesser-included offense. However, a state-law error, which this was, can nonetheless have federal constitutional consequences, which thereby render the error one of federal constitutional magnitude. (People v. Partida (2005) 37 Cal.4" 428, 438-439; People v. Boyer (2006) 38 Cal.4™ 412, 441; People v. Carasi (2008) 44 Cal.4™ 1263, 1289, fn. 15; People v. Gutierrez (2009) 45 Cal. 4" 789, 809.) Here, Judge Mudd’srefusalto instruct onfirst- degree premeditated murdereffectively cut off instruction on lesser-included offenses on a capital charge, which is a violation of the Eighth Amendment. (Beck 369 v. Alabama (1980) 447 U.S. 625, 638; Hopkins v. Reeves (1998) 524 U.S. 88, 94- 95.) In addition, the fact that the instructional error arose from a defense request transforms what would ordinarily be state-law error into federal constitutional error of a different sort as well. Although the factual focus of the guilt trial in this case wasthe identity of the perpetrator, the evidence itselfpresented the sub- theme of what crimes were committed. The defense made it clear during the settlement ofjury instructions that it wished to take advantage of these evidentiary equivocationsas a legally available alternative, which would at least provide the substantial benefit of preventing the death penalty. The Sixth and Fourteenth Amendments ofthe United States Constitution confer on a criminal defendant the right to a meaningful opportunity to present a defense (Crane v. Kentucky (1986) 476 U.S. 683, 690), and this necessarily includes the right to present a partial defense. (People v. Cash (2002) 28 Cal.4" 703, 727; Delaney v. Superior Court (1990) 50 Cal.3™ 785, 809.) This right was denied by Judge Mudd’s acceptance ofMr. Dusek’s claims of authority to limit the theories of murder submitted to the jury, and the error here resulted in a violation of the Sixth and Fourteenth Amendments of the United States Constitution. In regard to prejudice, the discussion would be identical to that in the previous argument, exceptto note that the prosecution would have had an expanded basis on whichto obtain a first-degree murder verdict in this case. But that does not change the possibility inherent in the evidence of a conviction for second-degree murderor less. On this record, respondent cannot show the instructional error to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24.) 370 B. PENALTY PHASE OF TRIAL PENALTY PHASE STATEMENT OF FACTS Prosecution Case In Aggravation 1. Victim Impact Evidence. In addition to the evidence presented in the guilt phase oftrial regarding the commission ofthe crimeitself, the prosecution, in the penalty phase presented “victim impact” evidence, beginning with Danielle’s teachers in elementary school, and ending with the testimony ofDamon and BrendaVan Dam. Ms. DeStefani, Danielle’s kindergarten andfirst-grade teacher, described Danielle as a “very sweet,” polite, hard working girl, who really enjoyed school and wasenthusiastic to learn new things. Danielle liked to read; she was becoming a strong math student by the timesheleft first grade; and she liked to write so much that when there was a writing project Danielle would stay inside and skip recess to continue working. (57 RT 9958, 9960, 9963.) Danielle sometimes wrote about, and often talked about, her family activities, about summer campingtrips, trips to Sea World, family celebrations, or about how her father helped her with her science project. (57 RT 9959-9960, 9962.) Brenda was a regular volunteer in the classroom, and Danielle loved it when her mother came in, and was able to show this without being distracted from her schoolwork. (57 RT 9961.) Often, Brenda had Dylan with her, and Danielle took pains to show Dylan what she, Danielle, was working on. (57 RT 9962.) In regard to others, Danielle was very considerate and helpful. She wanted to make sure no one’s feelings were hurt and that no one was excluded: everyone, according to Ms. De Stefani, was Danielle’s friend (57 RT 9959, 9963), and she was well liked by her teachers. (57 RT 9963.) According to Ms. De Stefani, Danielle’s “caring personality” stood out from “the fact that she never wanted anyoneto feel alone or sad.” (57 RT 9964.) 371 Ms. Putenney, Danielle’s second-grade teacher, echoed the description of Danielle by Ms. De Stefani as a good student who enjoyed school and was considerate of others. (57 RT 9967-9968, 9971-9972.) Ms. Putenney knew that Danielle was well liked because the kids wouldtell her that Danielle was the friend of both the “rookies” and the “pros,” which were the respective designations in Ms. Putenney’s consolidated class for the first-graders and for the second-graders. (57 RT 9968.) In the last week of January, the class assignment wasto write a “personal narrative” about a memory that they would never forget. About thirty minutes before the end of class on Friday, February 1, Ms. Putenney got a call from the office saying that Danielle was being checked out of school. Ms. Putenney asked to see Danielle’s assignmentfirst. Danielle had written about how her grandmother’s house had been broken into. Ms. Putenney remarked to Danielle that that was so sad, and asked if she didn’t have a happier memory to write about. Danielle answered, “But that’s true, Mrs. Putenney.” So the latter gave her approval, but asked Danielle next time to make it a happy memory, to which Danielle consented. Ms. Putenney said she would see Danielle on Monday,but she never saw Danielle again. (57 RT 9969-9970.) “Ever since Danielle disappeared,” Ms. Putenneystated, “there has not been a day that passedthat I have not thought of Danielle. Like I say, she was a young student, but a very delightful student. She cooperated. She wasfriend to the other kids. She wanted to learn. She listened to instructions. ... . She was a very very obedient child and very pleasant child.” (57 RT 9977-9978.) Danielle’s interests extended beyond schoolwork, as Brenda and Damon testified at the penalty phase. Even beyondher assignments in school, she loved writing. At night, she would open the dictionary, look up words, and write their definitions down on paper — something she was doing the night ofFebruary 1 before she went to bed. (57 RT 9986, 10070.) She wasactive in the “Daisies,” the pre-““Brownie” organization, and was about to enter the Brownies. (57 RT 372 9987, 10062.) She took ballet and tap dancing, and at the time of her abduction she had just begun to take piano lessons. (57 RT 9988, 10064.) Brenda recalled the rigor ofthe ballet recital at the Escondido Performing Arts Center when Danielle was five. It required three 3-to-4 hour rehearsals and two nights of shows in full costume. During rehearsals, Danielle was nervous and hesitant, but after the first night she came running off the stage yelling “Mommy,I love doing that and I want to do it again.” She was, Brenda remarked, “very cute.” (57 RT 10064.) The family was close-knit. Danielle “adored” her brothers, and had an especially close relationship with Dylan, the youngest. (57 RT 9990, 10067.) According to Damonand Brenda, after Danielle’s death, he had regressed for a while, beginning to wet his bed again and sometimestalking in baby talk. (57 RT 9991, 10069-10070.) Derek was more restrained, but would have bouts of anger overtrivial things. After Danielle was abducted, he asked his mother, “Mommy,I wokeupthat night but I didn’t get out of bed, and if I had goneto the bathroom do you think I could have stopped that bad man from taking her?” (57 RT 9991- 9992, 10068-10069.) Damonrecalled how Danielle loved to help him with yard work, or when he was working in the garage on his car, how she would hand him wrenches and listen to him explain what he was doing. Shealso loved the father/daughter dancesat school, dressing up, wearing a corsage, and dancing the slow dances with him, while the girls danced with each other to the “Brittney Spears music.” There was a father/daughter dance coming up the week after she was abducted. (57 RT 9985-9986.) Brenda recalled Danielle telling her how much she wanted to be a mommy like Brenda. She talked about how, when that happened, she would share recipes with Brenda like Brenda did with her mother. (57 RT 10068.) In addition to wanting to be a mother, Danielle also talked about being a teacher. (57 RT 10068.) Danielle loved her teachers and wanted to emulate them. After the family 373 obtained Lyla, Danielle became interested in becoming a veterinarian. (57 RT 9993-9994, 10068.) With Brendanarrating, the prosecution played a videotape showing various scenes ofDanielle throughout herlife. The latest were from the family’s Florida trip to Disneyworld, which had occurred the previous Christmas. (57 RT 10074- 10075.) The family had anothertrip planned for February 9. Damon wasgoing on a businesstrip to Italy, and the rest of them were going to accompany him. Brenda had taken Danielle out of school early on February 1 in orderto get the passport photos. (57 RT 10072.) 2. Factor (b) evidence. '”° When Westerfield wasstill living in Poway with his wife Jackie and their two children Lisa and Neal, the Westerfields would get together and socialize with Jackie’s brother’s family. There was one such get-together at Westerfield’s house about 12 to 14 years earlier. Jackie’s sister-in-law Jeanne, her husband, and her two daughters were there, as were other family and neighbors. When it was bedtime for the children, Jeanne put her daughters to bed in sleeping bags on the floor of Lisa’s room, while the adults remained downstairs to continue the party. Jeanne’s eldest daughter, Jenny, was at the time between five and seven years old. (57 RT 10008-10011, 10025, 10036-10038, 10040, 10044.) Nowa 19-year-old sophomore at San Diego State University, Jenny testified at the penalty phase oftrial. (57 RT 10008.) According to Jenny, at some point during the night she woke up. “Uncle Dave” wasthere and hadhis finger in her mouth and was rubbing her teeth. She pretended to be asleep androlled over. He wentto attend to Jenny’s sister, but then repositioned himself and started rubbing Jenny’s teeth again, so she bit him really hard for as long a she could. He stopped, stood up, then wentto the head of his daughter Lisa’s bed. Jennyrolled 46 Again, factor (b) ofPenal Codesection 190.3 consists of “[t]he presence or 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.” 374 over to see if he was doing anything over there. She noted that he was adjusting the sides of the dark colored running shorts he was wearing. (57 RT 10011- 10014.) Jenny waited awhile until he left. Then she went downstairs and told her mother that Uncle Dave had been in the room, that he was being weird, and that it had bothered her. Her mother took her back to bed and tucked her in. No one came back to bother her again that night. Her motherlater told her that she had talked to Dave aboutit. (57 RT 10016-10017.) Jeannetestified that indeed around 10 or 11 p.m., Jenny had come downstairs complaining that Dave had been in her room and wasbothering her. Jeanne did not remember Jenny’s exact language, but Jeanne’s impression was that Jenny was uncomfortable. (57 RT 10038.) In preschool and in elementary school, there was a program to teach the children that if anyone did anything to them that made them uncomfortable, the children were to tell an adult aboutit. (57 RT 10038-10039.) In any event, Jenny’s manner wasthat night was fussy. Jeanne calmed her down, took her back to bed, and told her she would talk to Dave. (57 RT 10039.) Jeanne then looked for him. She did not rememberif anyone waspresent, but she told him that Jenny wasupset that he had bothered her. She asked him what was going on. Westerfield answered that Jenny had been fussing in her sleep and that he was comforting her. (57 RT 10039-10040.) At trial she could not account for how he knew that Jenny wasfussing in the first place, but her general impression and memory wasthat his explanation was reasonable and she had seen no need to question it further. (57 RT 10040.) Jeanne had norecollection as to how Westerfield was dressed. (57 RT 10044-10045.) The incident came up on February 4, 2002 in the interview of Westerfield by Redden. This portion was not played at the guilt trial, but was played at the penalty trial. (57 RT 10051, 10054.) Redden asked Westerfield if the latter could think of any reason someone might think Westerfield was involvedin the kidnapping ofDanielle Van Dam. Westerfield’s first reaction was, “Well, I hope 375 that’s not the case.” Redden nonetheless pressed: “Okay, I’m just asking you to get your opinion. Is, is there something that you said, did or otherwise would arouse suspicion, in your mind?” (12 CT 2930.) Westerfield could think of something, but first he wanted an assurance from Reddenthat the latter would not tell his ex-wife Jackie, who knew nothing about this. When Redden assured Westerfield that this would be confidential, Westerfield continued. (12 CT 2930.) There wasa party at his house, sometime in 1993 or 1994. Jackie’s sister- in-law was there. Westerfield heard some sort of commotion in the bedroom upstairs where the kids were sleeping. He went in to check, and the little one was kicking hersister and getting her foot tangled in the othergirl’s pajamas. He reached down, extricated the foot, pulled up the older girl’s pants, and told her to go down and see her mom. Thelittle girl was upset. (12 RT 2930-2931.) Westerfield then went downstairs, “And that was the end of it. But that wasn’t the end ofit.” About a week later, Jeanne came to him with a story about how shefelt that he “had molested her children.” (12 CT 2931.) This portion of the February 4 interview ended with: “REDDEN: I don’t know where youget molesting out of that. [{] WESTERFIELD: Well but that’s whatshe was accusing meof. [{] REDDEN: Okay. Fine. [{] WESTERFIELD: So... and that’s always upset me and I’ve nevertold anybody. [§] REDDEN: But even at that... I mean... [{] WESTERFIELD: But I wanted to be honest with you.” (12 CT 2932.) Westerfield told Redden that he did not know whetheror not Jeanne had reported him, but no one had cometo talk to him about her charges. (12 CT 2931.) As Jeannetestified, she indeed never made any charges, and the two families continued to have contact and socialize throughout the years. (57 RT 10047-10048.) She never mentioned the incident again to Jenny (57 RT 10027), and Jenny herself never mentioned anything about fingers in her mouth, or anything else at all until after the disappearance ofDanielle Van Dam. (57 RT 10016-10017, 10042.) 376 Sometime in February 2002, Detective Donna Williams telephoned Jenny and asked if she remembered Westerfield doing something to her. Jenny remembered that there was a time when Westerfield came into the room and was bothering her. She told Williams that she did not rememberthe details because she was half asleep. This was, as Jennytestified at trial, true, but she was also afraid that it would upset her family. (57 RT 10017-10018.) After theinitial call from Williams, the details started coming back to her. She talked about the matter to her boyfriend, and then her mother. After that, she talked to Marion Pasas the defense investigator and told her that Westerfield had put his fingers in her, Jenny’s, mouth. (57 RT 10019.) After that, she talked to her father, who urged hertotell the truth. (57 RT 10020-10021.) So a tape recorded interview was arranged with the District Attorney’s Office. When speaking to Pasas and to the DA, Jenny made no mention of Westerfield adjusting his shorts. According to Jenny, she did not because she was not sure whetheror not it meant anything, but “it freaked [her] out a lot.” (57 RT 10021.) In the second interview with Pasas and later with the DA,she did reveal the added detail. (57 RT 10021.) Defense Case In Mitigation The defense presented business associates, friends, and family membersto attest to the good aspects of Westerfield’s character and to show that these qualities commanded respect and admiration for his professionalabilities, that they elicited strong loyalty from his friends, and that they prompted support and love from both friends and family. 1. Professional Achievements. Westerfield was a design engineer and worked at various companies over the course of the years before he became an independent contractor. At Hydro Products, in the late 1970’s, he helped develop the design for an underwater surveillance device, designed for work around oil platforms, and to reduce the 377 need for, and danger to, human divers. (58 RT 10104-10106.) When he worked at Technovision in the late 80’s, he provided a design that overcame technical hurdles in the manufacture of the molds that allowed optometrists and ophthalmologists to cast eyeglass lenses in their offices. (58 RT 10139-10141.) At Primary Accessin the early nineties, Westerfield was on an engineering team that produced a device that connected dial-up users to the Internet. He designed the next generation product, which wasoneofthe products that made AOLfamous. (58 RT 1041.) As an independent contractor for Single Chip, Westerfield produced a numberofdesigns, one ofwhich wasa security device that electronically diverted luggage of suspect air travelers. The device was used at San Francisco International Airport. (58 RT 10142-10143.) Also as an independentcontractor with Prepack Products, which manufactured medical devices for physical therapy, he designed the pulley used in their “Home Ranger Shoulder Pulley” --- a home device to aid recovery from shoulder injuries or surgery. He waslisted on the patent as the inventor, and Prepack Products sold 600,000 of these pulleys in 2001 in United States and abroad. (58 RT 1085-1088, 10190.) Carmen Genovese,an electrical engineer, who had been Westerfield’s supervisor at various companies, and kept hiring him whenever Genovese moved to anew company,testified that Westerfield, who did not have an advanced engineering degree, was a very talented and creative designer. (58 RT 10141- 10142.) Genovesehad first met Westerfield at Sutter Biomedical in 1983, where some of Westerfield’s most important designs were conceived. Sometime in 1980, Dr. Richard Coutts, an orthopedic surgeon in San Diego, approached Sutter to see if a device could be developed for “continuous passive motion” (CPM) to aid in the recovery from joint injury and from joint surgery. (58 RT 1033-1035, 10165-10166.) Sutter began the project before Westerfield arrived, but when he did, Westerfield developed the design that made it work. It was found that motion helped in the healing ofjoint injury, and Westerfield designed a device that 378 provided mechanically for continuous motion of the extremity — a leg or arm or hip — without placing pressure on the site of the injury or surgery. (58 RT 10135- 10137.) The device, now in wide use, reduced recovery time from months to a few weeks (58 RT 1037, 10167-10168, 10178) and, according to Dr. Coutts, benefited millions of people. (58 RT 10168.) According to Genovese, the devise was “revolutionary.” (58 RT 10144.) On the patent for the CPM devise, which was issued in May 1989, Westerfield was listed as the inventor. (58 RT 10144.) At Sutter, Westerfield also designed surgically implanted prostheses for fingers. What was new in Westerfield’s design was the anatomic contours of the implants. On the patent issued in October 1989, he waslisted as the inventor. (58 RT 10138, 10145- 10148.) 2. Friends. Genovese also considered himself to be Westerfield’s friend. Overtheir twenty-year association, their families often socialized, and Westerfield had been to Genovese’s vacation home in Mexico. (58 RT 10135-10136.) Westerfield also socialized with Ron Lawrence, whofirst met Westerfield when they both worked at Hydro Products. (58 RT 10104-10107.) After Westerfield got a job at Sutter, he got Lawrence an offer there as well. (58 RT 10108.) Genovese and Lawrence did not disavow Westerfield after the disappearance of Danielle Van Dam, but rather they went to visit him at home shortly before he was arrested in order to show their support. (58 RT 10110.) Genovese, who,at the time oftrial, was a vice president for engineering and operations for a local San Diego company, was approachedby the media six or seven times and spoke publicly on behalf of Westerfield. (58 RT 10133-10134, 10150-10151.) Spectrum Design wasstarted in 1980 by Westerfield along with Ron Lawrence and Wesley Hill, another co-worker and friend from Hydro Products,as a moonlighting venture for the three men. They all worked together for about a year and a half, and then went their separate business ways. Westerfield kept the 379 name Spectrum. (58 RT 10108-10109, 10125, 10127.) Hill, and his wife Diane, like Lawrence, remained good friends with Westerfield. The couple came in from Salt Lake City to testify for him. (58 RT 10295, 10303.) The Hills becameclose friends with Westerfield and his wife Jackie at Hydro Products in 1978. Hill in fact was the best man at Westerfield’s wedding. (58 RT 10295-10298, 10304-10305.) Even after the Hills moved to Spokane, they kept in touch with Westerfield and saw him almost every Christmas when they came downto visit Diane’s father in Carlsbad. (58 RT 10298.) Diane related how Westerfield, who raised birds, gave their daughter a bird named “Squeakers” (58 RT 10305), and how Westerfield once helped Diane buy a car when she had flown to San Diego to do this. (58 RT 10306.) The Hills had been friends with Westerfield for twenty-five years, and both ofthem testified that they cared about whathappenedto him in these proceedings. (58 RT 10298, 10306.) The Millers were also close friends. They were neighborsofthe Westerfield in Poway and had known him for fifteen years. The entire family, the parents and the two sons, considered him a part of their own family. (58 RT 10320-10321, 10332, 10355.) They observed each other’s milestones, such as birthdays and weddings. Westerfield was always a helpful neighbor going beyond the dictates of neighborliness. (58 RT 10322, 10333-10335, 10354.) The older Miller son, A.J., shared a bond with Westerfield from their shared interest in birds. Westerfield had built an aviary, which wasintricate in design, and which had several species. A.J. himselfwas now a wildlife biologist with a special interest in birds. (58 RT 10341-10342.) A.J. also noted how, when he was a “rebellious” teenager, he would often seek Westerfield’s advice and use him as a “sounding board” because he waseasyto talk to. (58 RT 10342.) The younger son, Michael, now a lawyer, looked on Westerfield as a brother or an uncle, who had goneoutofhis way to help him. (58 RT 10355-10361.) Alden and Kathleen, the Miller parents, had been living in Florida for two years, and flew in to testify for Westerfield at the penalty trial. They also wentto 380 visit him in jail, having to negotiate the restrictive conditions and havingto fill out voluminous paperwork. (58 RT 10325-10326, 10328.) They bothtestified to their concern for him, with Kathleen adding that he wasa special part of herlife. (58 RT 10325, 10336.) A.J., who nowlived in Portland with his wife, and had just returned from doing wildlife surveys in Eastern Washington,arrived only the day before his appearanceto testify for a man whom hestill cared about. (58 RT 10340-10341.) Michael attested to the same concern, adding, “I love David. David is a family memberin my mind.” (58 RT 10361.) Margaret Hennon was Westerfield’s high school “sweetheart.” She came in from Wyomingto testify for him at the penalty phase of trial. They dated around 1970. He spent a lot of time at her house. Her parents knew him well, and they also becamehis friends. Margaret rememberedthe time they spent together, how he wanted to be an architect and would drive her around Del Mar and LaJolla to point out the beautiful buildings; and how he took her to museumsandplays. (58 RT 10288-10290, 10292.) Although she had last seen him in 1974, she sent him a card around Easter of this year saying, “Dear David. You once told me if I ever needed anything I should call you. I carried that gift of love and care with meto various points on the globe. And it’s a wonderful thing to feel loved. Now if there’s anything that I can do for you, please let me know. Peg Hennon. My mother also sends her love.” (58 RT 10290-10291, 10292.) Westerfield’s most recent girlfriend, Susan,testified how shestill cared for him (58 RT 10251); how he had helped her when her father was dying from liver disease; how he helped with the funeral arrangements; how he helped her financially when she was on disability for a year; and how he helped her daughter Christina pack her belongings and escape from an abusiverelationship. (58 RT 10249A-10251.) Christina Gonzales, Susan’s daughter, confirmedthis, describing how Westerfield let Christina and her youngsonstay at his house for three or four months, providing them with food and not charging any rent. Westerfield even threw first birthday party for Christina’s son, supplying the food and the cake 381 and helping generally with the party. (58 RT 10255-10256.) She too attested that she cared what happened to Westerfield. (58 RT 10256.) 3. Family. The Westerfields were from Maine, where the father, David Horatio Westerfield served a term in the Maine Legislature. (58 RT 10203-10204, 10228- 10229.) After the father’s term wasup, he brought his family — his wife Nan, Alan (the namethe family used for Westerfield himself ), Alan’s younger brother Earl, and a youngersister, Tania, to San Diego wherethe father attended someart classes at San Diego State. He wasable to support his family at that time from incomeproperty in Maine. (58 RT 10203-10204, 10218-10219.) The family returned to Maine, but moved back to San Diego in 1967, where Alan entered Madison High School, from which he graduated in 1970. (58 RT 10204, 10207.) Alan left the house at 18, and moved to Mesa where he entered junior college. (58 RT 10207, 10209.) Alan workedin high school as a dishwasherat a restaurant named Saska’s in Mission Beach. He also worked at the Ramada Inn. Healso had to support himself by the time he entered junior college, because his father’s income property was no longer producing. (58 RT 10207, 10220.) The parents themselves had openeda typesetting business called Composgraphics. (58 RT 10207.) Alan married Debbie in 1973, but they separated and divorced in 1978. In 1979, Alan married Jackie, with whom hehad children, Lisa and Neal (58 RT 10222-10223); in 1990, Alan’s brother Earl died of a terminal disease diagnosed two yearsearlier (58 RT 10215); and in 1996, Jackie and Alan divorced. (58 RT 10215.) Tania, Westerfield’s sister, remembered their childhood in Maine, where they grew up on their grandmother’s farm, to be a happy one. (58 RT 10204- 10205.) Seven years after the family moved to San Diego, her parents separated in 1974. This surprised everyone since there were never any fights between them or any hint that they did not get along. The separation particularly upset Alan, who was looking forward to having children and bringing them overto their 382 grandparents’ housefor holidays. (58 RT 10208-10209.) Aroundthis time, Alan becamea kind of substitute parent for Tania. He and his wife Debbie would come out to watch her practice with the drill team and give her moral support; or when she had schoolactivities, he would give her rides. (58 RT 10209.) After Alan married Jackie, Tania socialized with the couple over the years. Alan liked to host parties at his house and get together with the family. Tania was there often with her children. Alan, like his father, took an interest in the desert, and the two families often went camping there together. At that time, Alan did not have any “toys,” but would simply “truck” around the desert. At night, the children would sleep in camper shells while the adults pitched tents outside. (58 RT 10206, 10212.) According to Tania, on these desert excursions, they sometimes got stuck in the sand. (58 RT 10212.) In about 1986, Alan bought a new house in Poway on Treeridge. He designed the landscaping and the pool in the backyard. He also designed an aviary for the side ofthe yard. According to Tania, Alan always involvedthe children in his projects, especially the aviary. He asked them their opinions and how they wanted it constituted. Whenit was built, he taught them how to care for the birds, how to replace the sawdust, and how to feed them. The children promised to take care of the birds, but Alan ended up doing it. (58 RT 10212-10214.) Tania related how their father died in 1993. It was fairly sudden. She had taken him to the hospital Saturday morning and he died Sunday night while Alan was out in the desert camping. He was depressedbyhis father’s death, but he handledall the arrangements andsettled his father’s affairs. (S58 RT 2015.) The divorce from Jackie hit Alan hard. He still loved her and was concerned about the children. The couple agreed that both ofthem would stay in Poway so the children could attend the same schools and maintain as normallife as possible. The children would stay with Alan for two weeksandthen alternate to Jackie’s for two weeks. (58 RT 10215-10216.) Tania related that Alan was 383 involved with his children’s activities. He boasted about Lisa’s swim meets and her soccer, and about Neal’s playing saxophonein the band. (58 RT 10216.)\"” Tania wasnot the only person there from Westerfield’s immediate family to show support. His mother, Nan, whodid nottestify, was in the audience (58 RT 10218, 10282); his children, Neal and Lisa, testified. They remembered how their father was their mentor and friend, involvedin their school activities, and took them ontrips to places like the Grand Canyon. They attested to their love for him, and how his absence from their future graduations and family holidays with their own children would weigh on them. (60 RT 10469-10472, 10476-10479.) People from Westerfield’s more extended family also came forward. Jean Westerfield, his aunt, married to his father’s brother Wiley, who died in 1997, testified how she and Wiley were often guests at Jackie and Alan’s house for barbeques, birthdays, Christmases and Thanksgivings. (58 RT 10228-10230.) Jean and Wiley lived with Alan’s grandmother in Point Loma,taking care of her because she had dementia. Jean remainedher caretaker even after Wiley’s death, until the grandmother died in 1999. When the grandmother wasalive, Alan would visit her. On these visits, he always did something to help, such as painting the house. (58 RT 10206, 10230-10233.) Finally, Ina Bouselot and Andrea Witwer, maternal aunts testified. They were more like cousins, since Ina was only 8 years older than Alan, while Andrea was even a few months youngerthan he was. As children, Ina and Andrea came each summer to Maine from their home in Wisconsin to spend a month or two with their sister’s family. They spent lots of time with Alan andhis siblings, picking blueberries, fishing, riding bikes, and swimming. (58 RT 10268-10271, 10277-10279, 10284.) For a short time, Ina and Andrea’s father moved the family ‘47 Marie Gunther had known Westerfield since 1985 through their encounters at school events attended by Westerfield for his son Neal, who wasa friend of Gunther’s daughter since Poway Country Preschool. (58 RT 10235-10236.) Gunther thought that Neal was an “excellent” child. (58 RT 10236.) 384 to San Diego. Andrea attended the same high school as Alan, who took a lot of teasing about having an aunt in the sameclass. (58 RT 10271-10272, 10280- 10281.) After the family moved away, they kept in touch. When Alan was 21, he drove out to Illinois to work for Ina’s husbandas a landscaper. He stayed about three months working and helping them around the house. Since that time, Ina kept in touch with him overthe years, as did Andrea, who came to San Diego periodically to visit, once on her honeymoon, and thereafter on successive occasions to show off each newborn child. On these trips she and her family went out to the desert with Alan. (58 RT 10272-10273, 10281-10282.) Ina came in from Florida to testify; Andrea from Wisconsin. (58 RT 10268, 10277.) 385 PENALTY PHASEISSUES THE JENNYN. INCIDENT WAS ERRONEOUSLY SUBMITTED TO THE JURORS AS A FACTOR(B) CRIME Manyofthe guilt phase issues carry over into the penalty phase. Some do so as independenterror, such as the denial of a challenge for cause to Juror2, based on his death penalty voir dire. (See above, p. 159, fn. 96.) Some are semi- independent, such as the sequestration issue, which stems from the guilt phase but whichrevivesitselfwith fresh incidents in the penalty phase, as will be seen below. Someare difficult to characterize, such as the joinder-and-severanceissue, in which a primary consideration is the conjoining of a non-capital misdemeanor with a capital charge, and which required a pre-guilt-phase assessmentofpossible prejudice to a penalty trial. (See above, pp. 249-253.) In some, the prejudice from the guilt phase error simply carries over to the penalty phase, such the admission ofpornographic evidence as an issue separate and independent from joinder and severance. (See above, pp. 263 et seq.) All these will be addressed in due course, but the claimsrelated to the admission of the Jenny N. incidentat the penalty phase arise only in the penalty phaseandthis gives the Jenny N.incident pride of place in the presentation of penalty phase issues. But not only this. It is the urgency ofthese claims as well. The experienced reader of the penalty phase statement of facts might by now have wondered whether the representation of the Jenny N.incident in the previous summation of evidence is tendentiously slanted to raise the question ofwhether or not that incident constituted a crimethat “involved the use or attempted use of force or violence or the express or implied threat to use force or violence” as required by Penal Code section 190.3, factor (b). As will be seen in the following, where Jenny N.’s verbatim testimony is presented, the summary is indeed a fair 386 one. Rather, the Jenny N. incident was not a factor (b) crime and its submission to the jury was error, whose prejudice to the penalty judgmentin this case is palpable. The Jenny N.incident wasfirst proffered in a supplemental notice of aggravation filed on June 28, 2002, as an assault and battery. (9 CT 2054-2055.) In an opposition to this notice, the defense objected that the Jenny N. incidentat most constituted a “technical battery” and was not a crimeof“force or violence.” (10 CT 2447, 2448.) In its reply the prosecution insisted that “[b]y forcing his fingers in Jenny’s mouth, the defendant committed an assault and battery in violation of Penal Code sections 240 and 242, respectively. Also, in light of what is already know about the defendant, this conduct would constitute a violation of Penal Code section 288.” (11 CT 2586.)'® The prosecution’s summary of the evidence of the Jenny N. incident was not substantially different than the evidence actually presented at the penalty trial: she was wakened whenshe felt Westerfield’s fingers in her mouth playing with her teeth; there was a short interlude in which he moved toward Jenny’s sister, after which he returned and did the same thing as Jenny feigned to be asleep; he withdrew his fingers when she bit him; he then stood up, checkedhis sleeping daughter, and left the room. (11 CT 2592-2593.) Judge Mudd hadnodifficulty finding the Jenny N. incident admissible. Indeed, he thoughtit obviously admissible, stating that “it goes without saying” that if the jury believed the Jenny N.incident beyond a reasonable doubt, it '48 Tt will be helpful to re-quote here the provisions of Penal Code section 288(a), which providesin relevant part that “any person who willfully and lewdly commits any lewdor lascivious act, including any ofthe acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child whois underthe age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty ofa felony... .” Penal Code section 288(b) provides for a more serious crime whenthe act defined in subdivision (a) is committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person... .” 387 “constitute[d] a crime[] of force or violence.” (54A RT 9861.) The evidence was thus not only presented to the jury as summarized in the penalty phase statement of facts (see above, pp. 374-377), but it was submitted to the jurors through CALJIC No.8.87 as the crimes of “battery and/or lewd act with a child under fourteen years... .” (12 CT 2964; 60 RT 10492.)'” Normally, the admissibility vel non of a proffered factor (b) crimeis measured by the abuse-of-discretion standard (People v. Bacon (2010) 50 Cal.4™ 1082, 1126-1127), which, in this context, is comprised in the question ofwhether or not there was sufficient evidence that the conduct qualifies under factor(b). (People v. Whisenhunt(2008) 44 Cal.4" 174, 225.) By this measure, the admission of the Jenny N. incident was indeed an abuse ofdiscretion. But, here, Judge Mudd’sswift, adamant, and unreflecting conclusion that the Jenny N. incident clearly and obviously qualified as a crime of force or violence suggests a prior mistake of law on his part. Such certitude in the face ofwhat was obviously at least debatable suggests some problem in the understanding ofthe statutory use of the phrase “force or violence.” The argument therefore begins with an examination of the proper, legal understanding of this phrase. As will be seen, the statutory language of factor (b) does not embrace what the defense correctly denominated as a “technical battery”. After that, it will be established that no ‘9 The full instruction given in accord with CALJIC No. 8.87 was as follows: “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 such criminalacts as an aggravating circumstance in this case, a juror mustfirst be satisfied beyond a reasonable doubtthat 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 forall the jurors to agree. If any juror is convinced beyond a reasonable doubt that the criminal activity occurred, that juror may considerthat activity as a fact in aggravation. Ifa juror is not so convinced that juror must not consider that evidence for any purpose.” (12 CT 2964.) 388 rational trier of fact could have concluded beyond a reasonable doubtthat the touching of a sleeping child’s teeth was anything other than a technical battery outside the scope ofsection 190.3, factor (b).'*° A. To begin the analysis of the factor (b) language, which has been adjudicated and applied since even before 1978, and which has presented few legally complex questions, one must begin with a careful statement of the fundamentals. We know that Penal Code section 190.3, factor (b) is a statute of exclusion: it excludes evidence of criminal activity that does not involve the use of force or violence or the express or implied threat of force or violence. (People v. Boyd (1985) 38 Cal.3™ 762, 776.) And although factor (b) does not require an actual criminal conviction, the “activity” must violate a specific provision of the Penal Code, whether that provision defines a felony or misdemeanor. (People v. Phillips (1985) 41 Cal.3" 29, 71-72; People v. Bunyard (2009) 45 Cal.4" 836, 857.) The “force or violence” required for factor (b), however, does not depend on the definitional elements of the crime committed, but on the factual circumstances of its commission. (People v. Dunkle (2005) 36 Cal.4" 861, 922.) This last principle emanates from several concomitant principles informing the purpose offactor (b). Factor (b) evidence is admissible becauseit “shows propensity for violence, and helps jurors decide whether [the defendant] deserves to die.” (People v. Stiteley (2005) 35 Cal.4" 514, 564; see also People v. Avena (1996) 13 Cal.4™ 394, 426; and People v. Bunyard, supra, 45 Cal.4™ 836, 857.) Consequently, “[t]he proper focus for consideration of prior violent crimes in the penalty phaseis on the facts of the defendant’s past actions as they reflect on his ‘90 There is no separate contention ofinsufficiency regarding the characterization of the crime as a violation ofPenal Code section 288. The “force or violence” attending that crime, if it occurred, consisted in the same act as constituted the battery. 389 character, rather than on the labels to be assignedthe past crimes.” (Peoplev. Cain (1995) 10 Cal.4" 1, 73.) It follows from all this that a special definition of “force or violence” that does not help the jurors make the penalty decision within the limits set by the Legislature in section 190.3, factor (b), is not the definition required by that section. The qualification of battery as a factor (b) crime raises an apparent paradox. Penal Code section 242 defines battery as “any willful use of.force or violence upon the person of another.” (Emphasis added.) The definition of “force or violence” as used in section 242, however, takes on a somewhat technical meaning. Asthe phrase, for purposes of battery, is conveniently formulated in CALJIC No. 16.141: “T]he words ‘force’ and ‘violence’ are synonymous and mean any application of physical force again the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by theact. The slightest touching, if done in an insolent, rude or an angry manner, is sufficient.” Indeed, the synonymyof“force” and “violence”in the definition of battery renders one or the other superfluous and unnecessary: “ ‘It has long been established, both in tort and in criminal law,that ‘the least touching’ may constitute battery. In other words, force against the person is enough. It need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark. [Citation.]” (People v. Rocha (1971) 3 Cal.3™ 893, 899, fn. 3, emphasis added; see also People v. Myers (1998) 61 Cal.App.4™ 328, 325.) CALCRIM No.960, the current instruction on battery, eschewsthe use of either term, and states simply that battery has occurred when “[t]he defendant willfully touched [the victim] in a harmful or offensive manner.” Thisis later 390 glossed in the instruction to meanthat “[t]he slightest touching can be enoughto commit a battery if it is done in a rude or angry way.” In short, CALCRIMfinds both “force” and “violence” unnecessary. Bycontrast, the phrase “force or violence” in section 190.3, factor (b), is “self-explanatory” (People v. Dunkle, supra, 36 Cal.4" 861, 922) —a characterization that clearly does not apply to “force or violence”in the battery statute. Thus, in the factor (b) statute, a non-legal, or rather non-technical, definition is at issue, and the United States Supreme Court has specifically found that California’s factor (b) survives due process scrutiny becauseit is phrased in “conventional and understandable terms” that have a “ ‘common-sense core of meaning... that criminal juries should be capable of understanding.” (Tuilaepa v. California (1994) 512 U.S. 967, 975, 976, 977.) If the terms “force or violence” are to retain a “common-sense core of meaning” they must connote a force that tends towardsviolence or a violence that is forcible — an act that exceeds the battery standard ofthe slightest touching that is offensive, which can only be deemedto be a technical legal definition. Before proceeding to the question of sufficiency of the evidence, it may be appropriate to elaborate further on the issue of the proper definition of “force or violence”in light of the anticipated objection that it is fallacious and improperto construe the phrase “force or violence”as “forcible violence” or “violent force”, as was done in the previous paragraph. It will be argued, perhaps, that the factor (b) statute is in the disjunctive, and that “[florce is a general term” while “force [that] causes physical harm ...is commonly called violence.” (People v. Soto (2011) 51 Cal.4" 299, 255 (Wedergar, cone.anddiss., internal quotation marks omitted.) Thus, the touching ofa person involves the use of physical force in the general sense that any physical movementis an exercise of the vital force that enables one simply to move autonomously. And when such a movementresults in an uninvited and unwanted touching of another person,it is an exercise of such force, albeit without violence. 39] There are two answersto this objection. Thefirst is that this understanding of the factor (b) statute reduces “force or violence” effectively to the same definition used for battery. For this generalized sense of “force” is nothing other than the “slight touching” required for battery. If one needs only the “slightest” unwanted“touching”of another person to qualify a factor (b) crime, then there is no real function for the word “violence”, whichis, as in the battery standard, rendered superfluous. This big, friendly, anodyne “force” simply crowds out — forces out, if you will -- its more grasping and malevolent cousin “violence.” The second answeris lexical. Not every use of “or”is disjunctive. Sometimes“or” conjoins two wordsthat are “interpretative or expository of one another.” (State v. Dunn (Kan. 1903) 71 P. 811, 812.) Hamlet may pose the question of his existence in that famously stark disjunction, “[t]o be or not to be” (Shakes., Hamlet, Act. Ill, sc.1, 1. 55); but languagestill abounds in exegetical pairings like “chronic or persistent” (Hargraves v. Contintental Assurance Co. (Ark. 1970) 448 S.W.2" 942, 947-948), “manipulate or control” (Schumacherv. Cargill Meat Solutions Corp. (8th Cir. 2008) 515 F.3"867, 872), “error or defect” (United States v. Olano (1993) 507 U.S. 725, 732); and a more prosaic Hamlet might have formulated his question as “to be or endure, or not to be or die”, in whichthe disjunctive “or” is flanked by two expository ones. “Force or violence” is an expository pairing. Each term has a range ofmeaningthat at some point merges into the range of the other term’s meaning,andit is natural in context to understand the “or” as creating a single unit of meaning. If not all force tends toward violence, and notall violence is forcible, Penal Code section 190.3, factor (b) nonetheless requires in its plain language somesort of conjoined tension between the two. Butthere is a third answeralso that substantively informs the other two. “Force or violence” must be understood in the context of a capital penalty trial. Asnoted above, the purpose of factor (b) is to limit the scope of a defendant’s criminal history to matters of force or violence proportional in some degree to the 392 question of whetheror not to impose the death penalty. Criminal acts involving the actual use or threatened use of forcible violence or violent force certainly fall within the ambit of this purpose, while “force or violence” understoodin the special sense required for battery simply doesnot. In People v. Collins (1992) 10 Cal.App.4™ 690, the Court addressed the question of whether the battery definition of “force or violence” applied to a Mental Disordered Offender (MDO)trial. Under the then statute, a mentally disordered offender could be forcibly hospitalized indefinitely from the beginning of his parole term if his initial incarceration had been for a crime involving “force or violence.” The Court in Collins reversed the MDOextension at issue because the trial court had instructed on “force or violence” in accord with CALJIC No. 16.141. “It is unlikely,” stated the Collins Court, “that the Legislature intended CALJIC No. 16.141 to be the standard for ‘force’ and ‘violence’ at a MDOtrial. Otherwisea ‘slight touching’ done in an insolent, rude, or angry manner could lead to potential lifetime confinement.” If the definition of “force or violence”in CALJIC No. 16.141 is not appropriate for a potential life term, howisit appropriate for a potential death sentence? Thus,a strict equation between “force or violence”in the factor (b) statute and “force or violence”in the battery statute will lead to an erroneous submission of a factor (b) crime that consists in an incidentthat falls within the non-factor (b) margin ofthe battery definition. This is the first step in establishing Judge Mudd’s legal error in misinterpreting the statute. The secondstep is to show the factual error in allowing the submission of an incident that could not be found beyond a reasonable doubt to have constituted anything other than a non-factor(b) battery. This requires a close examination ofthe facts surrounding the Jenny N.incident, both those proffered in advancein the offer of proof, and thoseattestedat trial. 393 B. The entire contour and character of the incident as a crimeof force or violence came from Jenny N.’s description of it. Judge Mudd, who had refused the defense request for a Phillips hearing, wherein Jenny N. would havetestified in advance to determine whetherthe incident was admissible (see Peoplev. Phillips, supra, 41 Cal.3™ 29, 72,fn. 25), madehis decision to admit the evidence based on the D.A.investigator’s report attached to the prosecution’s pleading on this matter. As the report related: ce ... . She said she and hersister were sleeping in her cousin Lisa’s room onthe floor at the foot of the bed. She said sometime during the night whenall ofthe adults were downstairs ‘partying’ her Uncle David came in the room andputhis fingers in her mouth. She describedthis as ‘he was kind ofplaying with my teeth or something.’ He then stopped and went aroundto hersister. She did not know if he did anything to her sister. She said her sister was four at the time and probably does not rememberanything. She continued, He then came back to meanddid it again. She said she bit him real hard. She said he then went to where his daughter Lisa wassleeping. He stood there a minute and then left the room. Ms. N[] said that when she was sure he was gone she went downstairs and told her mother about what had happened.” (11 CT 2592.) Later in the report, it was stated: “She said she was asleep and was awakened with his fingers in her mouth.” (11 RT 2593.) And again: “She said Mr. Westerfield had his fingers in her mouth and was ‘playing with her teeth.’ She said this lasted for a minute or two. He then wentto her sister. She said she pretended she was asleep. She said he came back anddid it again, and she bit him. She said he did not make any sounds anddid not say anything. I asked her if he was doing anything else in conjunction with his fingers in her mouth, and shesaid, I don’t think so. I asked her if she could 394 estimate the time it took from when he wokeherup, until he left the room. She estimated four to five minutes. She said he did not touch her anywhere else. She said she did not think that he had touched her sister. She said she did not see him touch his daughter.” (11 CT 2593.) Jenny N.’s actual testimony addedlittle or nothing to this account: “Q. What’s the next thing you remember? “A. Waking up and my Uncle Davehadhis fingers in my mouth, and he was kind ofplaying with my teeth. And then I was still pretending I was asleep. And he went around to where mysister was sleeping. She wasto the right ofme. And I kind of rolled over to see what he was doing over there. But I don’t remember seeing him doing anything. “And then he came back over to where I was anddidit again. So I bit him really hard for as long as I could. And then he wentto the head of Lisa’s bed. And I rolled over to see if he was doing anything over there. And he kind of adjusted the sides of his shorts and then left the room. “Q. All right. “Were you aware ofhim cominginto the room? “A. Not until I had been woken up. “Q. Did youact like you were awakethefirst time? “THE WITNESS: NoI didn’t. “BY MR. DUSEK: “Q: Whynot? 395 “A. ’Cause I was too freaked out aboutit. I didn’t understand what wasgoing on. “Q. And describe for us as best you can what he was doing. “A. He just had a couple of fingers in my mouth,like rubbing my teeth or massaging them. Andthat’s it. “Q. Are you able to — did you say anything to him? “A. No. “Q. Did you acknowledgeat all that you were awakeat that point? “A. Only whenI bit him. “Q. And that was the second time? “A. Yes. “Q. I’m just talking aboutthe first time first. Did he say anything while he was doing that? “A. No. “Q. Hadhe ever done that before to you? “A. No. “Q. How long would say it lasted? “A. Maybe a minute or two. “Q. If one hand he wasusingto put fingers in your mouth, do you know whathe was doing with his other hand? “A. No. “Q. What was he wearing? “A. He was wearing dark-coloredlittle running shorts. 396 “Q. How do you know? “A. ’Cause when I rolled over and looked at him when he wasat Lisa’s bedside, I just rememberthe shorts he was wearing. “Q. Whenheleft you the first time, you went where? “A. Over to where my sister was sleeping. “Q. How far away was she? “A. Right next tome. But he went on the other side of her from where I was. “Q. What did he do over there? “A. I have no idea. “Q. Why not? “A. Either I don’t rememberor he didn’t do anything. I don’t know why. “Q. Okay. “From there where did he go? “A. He came back to where I was sleeping and did the same thing. That’s when I bit him. “Q. How did he get his hand in your mouth? “A. I don’t know. “Q. Were youstill — well, were you acting like you were awake of asleep at that point? “A. Still sleeping. “Q. Did you say anything to him when hedid it the second time? “A. No. 397 ee “Q. When his fingers were inside your mouth the second time, what was he doing with them? “A. Oh, the same thing as before. Just rubbing my teeth and massaging myteeth. “Q. Do you know how he waspositioned while he was doing that? By that I mean standing,sitting, kneeling, that type of thing. “A. I think he was kneeling. I’m not sure, though. “Q. Did you say anything to him on the second occasion? “A. No. “Q. What did you do? “T bit him. “Q. Why? “A. Because I was scared. “Q. How hard? “A. As hard as I could. “Q. Then whatdid he do? “A. He stopped. “Q. Did you say anything to him? “A. No. “Q. Did he say anything to you? “A. No. “Q. From there he went where? 398 “A. To Lisa’s bedside. “Q. She wasactually in the bed? “A. Yeah. “Q. And you and yoursister were sleeping on the floor. “A. Yes.” (57 RT 10011-10015.) There is nothing either in the report reviewed by Judge Muddorin the testimony presented to the jury that betokens the use of “force or violence” within the meaning required by Penal Code section 190.3, factor (b). If in inserting his fingers into Jenny N.’s mouth thefirst time, Westerfield met with any resistance to overcome, it was the resistance simply of a sleeping child’s inanimation and inertia. In the second instance, it was, according to Jenny N., feigned inanimation and inertia, unknown to Westerfield. In any event, what impresseditself on Jenny’s memory wasnotthe “force”of insertion, but the rubbing of herteeth. Indeed, this “rubbing” and “massaging” ofher teeth suggested that the penetration into her mouth was no deeper than passingherlips to the surface ofherteeth, rather than past the teeth and deeper into her mouth. This required even less “force” to overcome even from the dead weight of a sleeping body — a weightthat was not likely to be concentrated in the lips in any event. Finally, the manner in which the incident stopped in Jenny’s accountis also significant for purposes of assessing whether there was any “force or violence.” Although Jenny said she bit him as hard as she could and as long as she could, she did not describe him pulling back his hand swiftly and violently as one whose fingers had been so mordantly assailed would naturally do. She did not describe him crying out in pain, as one might expect. And there was no evidencethat anyone woke up from an ensuing commotion. In short, she did not bite hard, and 399 at the first sign of her being awake, he retreated with no show offorce, violence, or menace. There was, then, insufficient evidence to support a finding that the battery, as described by Jenny N. constituted a factor (b) crime in which “force or violence” was used or threatened. Thus, if Judge Mudd’s error did not arise from his misinterpretation of the statute, his ruling wasstill an abuse of discretion under even the correct definition of “force or violence”, which no rationaltrier of fact could have found on this record Moreover, to the extent that this state law error brought before the jury factor (b) aggravation that had no “common-sense core of meaning”, Judge Mudd’serror in submitting the Jenny N.incident to the jury constituted a violation of due process. (Tuilaepa v. California, supra, 512 U.S. 967, 975-977.) The question is prejudice. C. Ifthe Jenny N. incident could be rationally assessed only as a crime of “force or violence”pertinent to the question of death vel non, then there would be little prejudice since it would be unlikely that a jury with commonsense would find much that wassignificant in it. But in this case, the significance of the incident wasreally intendedto lie in the claim that the incident represented a lewd act on a child under fourteen. Even the most analytical attitude mightfindit difficult to maintain its discipline against the logical and experiential fallacy of drawing a direct line of development from rubbing a seven-year-old child’s teeth in 1992 to murdering a seven-year-old child in 2002. It is the element of molestation that weighed heavily in the balance, which molestation was intended by the prosecution to weigh heavily in the balance, and which molestation would have contributed heavily to the jury’s verdict for death. This would be so even though molestation alone, without “force or violence’, is not relevant as a factor in aggravation militating toward a death verdict. Indeed, once the jurors were told, as they were in the question-begging 400 formulation of CALJIC No. 8.87, was that Jenny N.incident, if it occurred, constituted both a battery and a lewdact with a child under fourteen involving “the express or implied use of force or violence” (12 CT 2964), then they had their warrant to give all the weight that unreflective prejudice could give to the Jenny N. incident as a capital aggravator. Of course the factor (a) evidence, i.e., the evidence surrounding the kidnap and the murderitself, with the addition of the victim-impact evidence was undoubtedly a strong and moving case in aggravation. But this was balanced nonetheless by a substantial case in mitigation. Mr. Westerfield’s productive professional life as an engineer and inventor was well established by the evidence. He not only hadthe professional esteem ofhis colleagues, but also their friendship. The circle of his friendships also extended beyondhis professional life, and he maintained very close ties with former friends and neighbors, such as the Millers, the Hills, and others, who attested to their love, respect, gratitude, and esteem for him. Then there werehis relatives, with whom hehad keptcloseties over the years, and whoattested to his help and his kindnesses toward them. This is not, of course, to depreciate the horrendousfacts of a crime in which a seven-year-old girl was taken from the security her house and murdered. This is not to discount the poignancy of the loss of so younga life and of the pain and grief to the family. But one must consideralso that a significant element in mitigation in this case wasthat of lingering doubtas to guilt: oe ... . Judges and juries must time and again reach decisions that are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts ofjurors in the guilt phase may well cast their shadowsinto the penalty phase and in some measure affect the nature of the punishment.” (People v. Terry (1964) 61 Cal.2™ 137, 146.) 401 The entomological evidence on which the defense of alibi was firmly rooted, and which wasnot inherently impeached,wasstill strong enoughat this margin of residual doubt to cast a shadow on the penalty determination in this case, and at least make a juror pause over whether the aggravation surrounding the commission ofthe crimepertained to Mr. Westerfield or not.'”’ One mustalso consider that the case in mitigation is not required to balance out, as it were, the case in aggravation in order to forestall a death penalty. What is required of mitigation in that regard is to approach a ratio wherein, in the language of CALJIC No. 8.88, a death verdict is warranted only if each of the jurors are “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death insteadoflife without parole.” (12 CT 2975, emphasis added.) For if aggravation had merely to outweigh mitigation on a scale initially in equipoise, then, as this Court has noted, it would be virtually impossible for mitigation to achieve a sufficient mass to offset the defendant’s having committed a murder, which the jury has already found beyond a reasonable doubt to be the case. (People v. Brown (1985) 40 Cal.3"4 512, 541, fn. 13, rev. on 0.g., sub nomine California v. Brown (1987) 479 U.S. 538.) Consideredin this light, the case in mitigation here, which included strong elements oflingering doubt, was sufficient to create that ratio by which one can reasonably deem the penalty question to have been a close one. There is someindication in the record that one or more jurors indeed had difficulty with the penalty decision even with Jenny N.’s evidence before them. Just before lunch on September 16, the jurors returned a note stating: “Weare unable to reach a unanimousverdict at this time and would like further guidance.” (67 RT 10604.) They were released for lunch, but on their return, before the 'S! Tn this regard, one cannotrealistically ignore the effect of months ofpounding publicity and intense public interest in this case that would have,after the guilt verdict, suffused the atmosphere with a pro-death sentiment that hadto be felt even if one werereligiously devoted to Padres’ baseball. (See below, pp. 426- 427.) 402 matter ofthe original note could be addressed, a second note came: “Subsequent to writing and sending our note this morning, we have decided we want moretime to deliberate.” (67 RT 10604) Ten minutesafter this, the jurors announcedthat they had a verdict. (67 RT 10604.) Whatever the problem was,the first note madeit clear at that point there was not, after a substantial amount of deliberation, a unanimousverdict for death. Somethingin this case hadto tip the scale in favor of death, — again, not a scale in equipoise, but one in which mitigation and aggravation were within the bounds of a certain ratio. The Jenny N.incident stood outas a discretely identifiable nexus of evidence and consideration — a separate counter, as it were, and the only factor (b) counter addedto the scale for the prosecution. Indeed, the record showsthat the Jenny N.incident was closely scrutinized by the jurors, who specifically asked thatall the testimony of the witnesses broughtin to prove the Jenny N.incident be re-read. (61 RT 10566; 40 CT 9918.) It cannot be shown beyond a reasonable doubton this record that the erroneous admission of the Jenny N. incident was harmless. (Chapman v. California (1967) 386 US. 18, 23- 24; People v. Ashmus (1991) 54 Cal.3™ 932, 965; People v. Brown (1988) 46 Cal.3™! 432, 446-448.) 403 XVII. IF THE JENNY N. INCIDENT WAS ADMISSIBLE AS A FACTOR(B) CRIME, LABELINGIT AS A “LEWD ACT WITH A CHILD UNDER FOURTEEN YEARS” WAS UNDULY PREJUDICIAL WITHOUT SERVING ANY PERTINENT, RELEVANT, OR MATERIAL FACTOR(B) PURPOSE If this Court finds the evidence sufficient to have established the Jenny N. incident as a factor (b) crime,there is still the issue of labeling the crime not only as a “battery” but as “a lewd act with a child under fourteen years”, as Judge Mudddid in his instruction to the jury in accord with CALJIC No. 8.87. (See above,p. 388, fn. 149.) For purposesofthe factor (b) crime, the defense had requested instruction on the elements of battery, while the prosecution requested instruction on the elements ofPenal Code section 288 as well. (59 RT 10386.) The defense not only opposed any instruction on 288, but argued that it should not even be mentionedas a factor (b) crime. Judge Muddrejected this and announced that he would denominate the factor (b) crime in CALJIC No.8.87 as both battery and as a lewd act on a child, and in light of that ruling, the defense requested that no instruction be given on the elementsofeither of the designated crimes. (59 RT 10411-10412; 60A RT 10446-10447.) In this case, the defense objection was well taken, and Judge Muddabusedhis discretion in submitting the factor (b) crime to the jury as a lewd act with a child under fourteen years of age. 182 ‘82 The prosecution made nopretense of submitting the Jenny N.incidentas a violation of subdivision (b) of section 288, which requires the use of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another... .” (See above, p. 387, fn. 148.) Section 288(b) requires that the force or violence used be “substantially different from or substantially greater than that necessary to accomplish the lewdactitself.” (People v. Soto (2011) 51 Cal.4" 229, 242, internal quotation marks omitted.) Here, it was plain that the rubbing of Jenny N.’s teeth was both the supposedly lewd act and the supposedly forcible act. Nonetheless, a violation of Section 288(a) can qualify as a factor (b) crimeif it is attended by “force or violence” as properly understood in section 404 As noted above,the only relevant issue for factor (b) aggravation is the defendant’s character or propensity for force and violence. (People v. Stiteley (2005) 35 Cal.4" 514, 564; see also People v. Avena (1996) 13 Cal.4" 394, 426; and People v. Bunyard, supra, 45 Cal.4" 836, 857.) The nameofthe crimeis not the focus of this evidence; rather, “[t]he proper focus for consideration of prior violent crimes in the penalty phaseis on the facts of the defendant’s past actions as ‘they reflect on his character, rather than on the labels to be assigned the past crimes... .” (People v. Cain (1995) 10 Cal.4" 1, 73; People v. Bacon (2010) 50 Cal.4" 1082, 1126.) Thusifthe label conferred on the factor (b) crime does not distract the jury from the true focus of the factor (b) evidence, then the denomination of the crime will be a matter of indifference. (See People v. Collins (2010) 49 Cal.4" 175, 219.) But in the instant case, where the issue of child pornography and sexual perversion was an explosive and inflammatory one, labeling the factor (b) crime as a lewd act on a child under fourteen could not be a matter of indifferenceatall, especially where the Jenny N. incident was not self-evidently a lewd act on a child under 14, even when herdescription ofit is credited at face value. The question of the nature of the act became even more acutein light of the evidence showingthat Jenny and her family continued to have social contact and relations with Westerfield — a state of affairs inconsistent with the claim of sexual victimization. In addition, and crucially, any force or violence attending the alleged molestation inhered in, and only in, the “rubbing” or “massaging” of Jenny’s teeth, whichis to say, in the battery. The molestation, in and ofitself, had no factor (b) relevance apart from the battery. The overwhelmingrisk wasthat the jurors would thereby be misled, inflamed, and provokedto use the alleged molestation as character evidence beyondthat allowed by factor (b), and Judge Mudd notonly retained the discretion to prevent this (see People v. Box (2000) 23 Cal.4 1153, 1201; see also 190.3, factor (b). (See People v. Raley (1992) 2 Cal.4" 870, 908.) 405 People v. Griffin (2004) 33 Cal.4™ 535, 587-588), it was an abuseofdiscretion not to do so. Judge Mudd’s abuseofdiscretion in denominating the factor (b) crime as “a lewd act with child under fourteen years” also violated the mandate of the Eighth and Fourteenth Amendments of the United States Constitution requiring that capital proceedings be attended by a heightened degreeofreliability. (Lankford v. Idaho (1991) 500 U.S. 110, 125, fn. 21; Zant v. Stephens (1983) 462 U.S. 826, 874-879; Beck v. Alabama (1980) 447 U.S. 625, 637-638.) There can be little doubt in general that factor (b) evidence is deemedbyjurors to be an important elementofthe capital penalty determination (People v. Cowan (2010) 50 Cal.4™ 40 1, 489), and there could be no doubtthat in this case in particular, a jury would give decisive weight to a factor (b) crime consisting in what thejudge had determined to be “a lewd act with a child under fourteen years.” Yet, as already stated, it was far from clear that there had been a violation ofPenal Code section 288(a) even if Jenny’s description of the event wascredited. Moreover, there were considerable grounds for doubting that the event was as she described. The failure of her adamantine bite to produce so much as a whimper from Westerfield was odd. The continued cordiality over the years between the two families (57 RT 10047-10048) was not a reaction consistent the event as characterized at the penalty trial. And Jenny’s ten-year silence, abetted by her mother’s co-silence, broken only whenthe police approached Jenny, who could only remember vaguely that Westerfield had once “bothered” her, and whose memory had be coaxed and wheedled into something more substantial (57 RT 10017-10021), could hardly be explained by an accommodation syndrome involving only a single incident. (See People v. Wells (2004) 118 Cal.App.4™ 179, 186 [describing testimony about Child Sexual Abuse Accommodation Syndrome].) A reasonable and rational assessment of Jenny N.’s testimony might well take into account whetherthe clarity of her memory had something more to do with the glare of frantic and frightening publicity than with a struggle to 406 articulate accurately a subliminal trauma, and even if this were taken into consideration, the evidence wasstill only at best marginally relevant as a factor (b) crime, if admissibleat all. But a reasonable andrational assessment of the event was severely and seriously forestalled by what amounted to the improperintervention of Judge Mudd, whoeffectively told the jurors that ifanything happened,it was “a lewd act with a child under fourteen years.” (12 CT 2964.) In this case, in regard to sexual perversion with children, after the presentation of shocking and inflammatory evidence of child pornography in the guilt phase oftrial, the jurors would not long linger on the “if” when the instruction directed them to thejudge’s characterization of the evidence. Such apparently legal warrant could only give impetus to emotionsstraining for release. (See People v. James (2000) 81 Cal.App.4™ 1343, 1353 [Even when evidenceis properly screened, “thereis still a dangerthat the presumption of innocence will melt under the heat of emotions aroused by the defendant's prior offenses.”.]) There is little doubt in general that factor (b) evidenceis likely to be given considerable weight by jurors making a capital penalty decision (People v. Cowan, supra, 50 Cal.4" 401, 489), and there is no doubt that a jury would give even decisive weightin this case to a factor(b) crime consisting in what the judge had determined to be a child molestation. In violation of the federal constitution, the reliability of the penalty phase proceedings was considerably undermined by the court’s abuse ofdiscretion. The discussion of prejudice in the previous argument applies also to this argument. The defense case in mitigation was substantial enough to offset what one mightcall the death ratio, wherein the evidence of aggravation is so substantial as to warrant death despite the mitigating evidence. (See above, pp. 400-403.) One might addin this argument that the undue and unfair boost the Jenny N. evidence, already problematic for the reasons set out above, received by the erroneous instruction, which characterized that evidenceas a lewdact witha child under fourteen years, when indeed it was far from clear whether that was in 407 fact so, seriously undermined the defense case for residual doubt,or at least, had the appearance of seriously undermining that case. On this record, respondent cannot demonstrate beyond a reasonable doubt, that Judge Mudd’s erroneous instruction to the jury did not contribute to the death verdict in this case. (Chapmanv. California (1967) 386 U.S. 18, 23-24; People v. Ashmus (1991) 54 Cal.3"! 932, 965; People v. Brown (1988) 46 Cal.3™ 432, 446-448.) 408 XVIII. IN LIGHT OF THE STATUTORY MANDATE OF EVIDENCE CODESECTION403, THIS COURT SHOULD RECONSIDERITS RULE TO THE EFFECT THAT THE “FORCE OR VIOLENCE” ELEMENT OF A FACTOR(B) CRIMEIS SOLELY A QUESTION OF LAW FOR THE COURT, AND NOT AT ALL A QUESTION OF FOUNDATIONAL FACT FOR THE JURY CALJIC No.8.87 is designed to satisfy the sua sponte obligation to instruct the jurors that, as a foundational or preliminary fact predicating consideration of factor (b) evidence, the criminal activity in question must be proved beyond a reasonable doubt. (People v. Yeoman (2003) 31 Cal.4"93, 132; People v. Robertson (1982) 33 Cal.3™ 21, 54 see also People v. Stanworth (1969) 71 Cal.2™4 820, 840; People v. Polk (1965) 63 Cal.2d 443, 450-451.) The instruction submits to the jury the question ofwhetheror not the act proffered as a factor (b) crime occurred; the instruction does not submit, as a preliminary or foundational fact, whether the crime involvedthe use or threatened use of force or violence. (See above, p. 388, fn. 149.) Thus, here the jurors were told that “[e]vidence has been introducedfor the purpose of showing that the defendant has committed the following criminalacts: battery and/or lewd act with a child under fourteen years, which involved the express or implied use of force or violence.” (12 CT 2964.) This Court has repeatedly upheld the instruction in this regard on the groundthat the character of the factor (b) crime as involving force or violence is a question of law to be determined by thetrial judge and not a question of fact to be determined by the jury. (People v. Loker (2008) 44 Cal.4" 691, 745; People v. Gray (2005) 37 Cal.4" 168, 235-236; People v. Nakahara (2003) 30 Cal.4™ 705, 720.) One would suggest here, however, that this characterization of the question is inaccurate, and that the instruction’s question-begging quality in relation to the issue of “force or violence” cannot be maintained in light of Evidence Code section 403. 409 Evidence Code section 403 provides in relevant part as follows: “(a) The proponentofthe proffered evidence has the burden ofproducing evidenceas to the existence ofthe preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the preliminary fact, when: “(1) The relevance of the proffered evidence depends on the existence of the preliminary fact; “ce “(4) The proffered evidence is a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself. “(c) Ifthe court admits the proffered evidence underthis section, the court: “(1) May,and on requestshall, instruct the jury to determine whetherthe preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist. “(2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determinesthat a jury could not reasonably find that the preliminary fact exists.” CALJIC No. 8.87 clearly reflects Section 403(a)(4). But (a)(4), in the “so conducted”language would seem also to include whetherthe factor (b) crime was committed with the express or implied use of force or violence. In any event, because the relevance of factor (b) evidence lies in not simply whetheror not the act is criminal, but whether it also involves the use or implied use of force or violence (People v. Boyd (1985) 38 Cal.3™ 762, 773-774), the factor (b) “force or violence”issue falls clearly within the terms ofEvidence Code section 403(a)(1). It follows from this that the question of “force or violence” should have been 410 submitted to the jurors pursuant to Evidence Code section 403(c)(1). Although the sua sponte requirementis not part of the statute, but a supervisory rule issued by this Court, once instruction on preliminary facts is given, such instruction should conform to the rules of evidence, which in general apply to the conductof a capital penalty trial. (People v. Richardson (2008) 43 Cal.4™ 959, 1033.) One cannot meetthis argument by merely repeating that the character of a factor (b) crimeis a “legal question”. Undoubtedly, in some sense, a sufficiency of evidence assessmentis a legal question, but it is a legal question that depends strongly, primarily, and substantially on a resolution of historical fact, which is why the abuse-of-discretion standard for ajudge’s preliminary review offactor (b) evidenceinheres in a sufficiency-of-evidence standard. (People v. Whisenhunt (2008) 44 Cal.4™ 174, 225.) Moreover, the “legal” element in this legal question resides not in some highly elaborated or abstract concept of law, but in the common, everyday English meaning of the terms “force” and “violence,” which terms are supposedto be self-evident to a jury and accessible to their understanding. (People v. Dunkle (2005) 36 Cal.4"™ 861, 922.) That one may denominate the question atall as “legal” depends from the common equivocation that arises when trier-of-fact draws a kind of legal conclusion by applying a legally significant definition to a set of relevant historical facts. (See People v. Figueroa (1986) 41 Cal.3™ 714, 730 [There is no categorical distinction between ‘legal’ and ‘factual’ questions, for in every case application of a legal principle turns on the presence ofparticular facts.”].) Indeed, in the case of other-crimes evidence used pursuant to Evidence Code section 1101(b) at a guilt trial, Section 403 applies to the determination not only of the historical occurrence of the other crime, but also to the determination ofwhether its manner of commission establishes relevance under 1101(b). (People v. Simon (1986) 184 Cal.App.3" 125, 129-132.) There is no principled reason for treating factor (b) evidence differently. 411 CALJIC No. 8.87 is, then, in fact misconceived and contrary to the mandate of the Evidence Code. Here, therefore, even if the Jenny N. incident was admissible after a preliminary review of the evidence by Judge Mudd, and regardless whether the evidence was characterized as a battery, or a lewd act with a child under fourteen years, or as both, the instruction was erroneousfor not submitting to the jurors the issue of “force or violence” as a foundational fact. If that had been properly done, there was indeed a reasonable possibility that with the jurors’ attention having been properly focused on the central factual issue of Jenny N.’s testimony, the evidence would have been rendered completely null for the failure of that foundational fact. The possibility cannot be dispelled, and the verdict of death must there be reversed for instructional error. (People v. Ashmus (1991) 54 Cal.3™? 932, 965; People v. Brown (1988) 46 Cal.3™ 432, 446-448.) 412 THE PORNOGRAPHYEVIDENCE ADMITTED AT THE GUILT PHASE, COMBINED WITH THE PROSECUTOR’S MISSTATEMENT OF THE LAW REGARDINGTHIS EVIDENCE AT THE PENALTY PHASE, CONSTITUTED PREJUDICIAL PENALTY PHASE ERROR If one needs even to proceed beyond the Jenny N.issues in this case, the next logical step is to address the evidence that had disposed the jurors to construe the Jenny N.incident in the most prejudicial light: the pornography evidence adducedin the guilt phase of trial. This evidencere-raises the joinder issue, by which some ofthe child pornography was admitted — the cartoons and especially the videos that showedrealistic sexual assaults on supposedly minorgirls. (See above, pp. 226-227, 257-258.) This also implicates the vast amount of pornographythat entered through the “door” that Mr. Feldman had allegedly “opened” in his cross-examination of James Watkins. (See above, pp. 262 et seq.) This includes the vast amount of adult pornography,the additional child, or purported child pornography, the photograph of Danielle L., and the testimony that bestiality photographs were recovered from the computers in the house. It is the contention here that the guilt phase errors in admitting all of this evidence, compoundedin the penalty phase by the additional error of Mr. Dusek’s misstatementofthe law in his closing argument, were prejudicial and require at least the reversal of the penalty judgmentin this case. It will be recalled that in discussing the issue of discretionary severance, specifically, in addressing the problem of conjoining non-capital and capital charges, the scope of Penal Codesection 190.3, factor (a) was discussed and analyzed. (See above, pp. 250-251.) There it was demonstrated that even if the pornographic evidence admitted due to the joinder of count 3 was also admissible underthe looser joinder standards for Evidence Code section 1101(b) as other- crimes evidence relevant to the murder and kidnapping charges, this relevance did 413 not render the pornography part of “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding... .” (Pen. Code, § 190.3, factor (a).) For evidence of other crimes or bad acts often comeinto the case as incident separate and discrete from the charged crime, relevant only in that they provide the basis for a logical inference of such factors as motive, intent, modus operandi, etc. They do not, as here, usually comein as an inextricable part of the historical facts or res gestae of the charged crime or crimes. (See People v. Sanders (1896) 114 Cal. 216, 230; and People v. Ellis (1922) 188 Cal. 682, 690.) This generality is true of the pornographic evidenceat issue in this case. Thus, even ifthe pornographic evidence was admissible under Evidence Codesection 1101(b), or ifjoinder was properand a rejection of severance was within the trial court’s discretion, or ifdoors to such evidence had been opened by some incautious cross-examination by defense counsel, the pornographic evidence was still not properly before the penalty phase jurors as a factor (a) aggravator. It was also established in the discussion ofjoinder and severance that the pornographydid notfall within the terms of factor (b). (See above, pp. 251-252.) The adult pornography and cartoons were simply not “criminal activity.” (People v. Phillips (1985) 41 Cal.3" 29, 71-72; People v. Bunyard (2009) 45 Cal.4" 836, 857.) But even where the jury found the imagesto constitute child pornography, the possession of such, even whenthe portrayals imitate violent acts, is not, and wasnothere, a crime that “involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (Pen. Code, § 190.3, factor (b).) This backgroundofpotential for jury confusion, which should have been considered more carefully pretrial in Judge Mudd’s analysis ofjoinder and severance, camecloser to actuality at the penalty phase through Mr. Dusek’s closing argument where he claimed expressly that the pornography evidence was indeed relevant underfactor (a), and impliedly claimedthat it was also relevant 414 underfactor (b). First, in regard, to factor (a), he made the following misstatement of law: “The factors. I think there are eleven up there. They are labeled ‘a’ through ‘k’. [(See above, p. 250, fn. 115).] Those are the factors the court just got through reading to you andthe factors that are available to you to consider, aggravating and mitigating factors. Goodthings and bad things about him, his behavior, his crime, his background. “The first one is fairly simple. It’s basically the crime that we were here before talking about. The circumstances of the crime for which the defendant was convicted and the existence of any special circumstances. The pornographic charge, the kidnapping charge and the murder charge, the crimes that we are here that you folks returned the guilty verdicts on. “MR. FELDMAN: Objection, misstates the law, 311. “THE COURT: Overruled. “You may proceed. “MR. DUSEK: That is what we’re talking about here today underfactor ‘a’.” (60 RT 10500-10501, emphasis added.) Theitalicized portion of the argument clearly misrepresents the scope of factor (a) in this case, and represents a form of prosecutorial misconduct for which Mr. Feldman’s timely objection should have been sustained. (People v. Cash (2002) 28 Cal.4" 703, 734-735.) In regard to factor (b), Mr. Dusek began by stating that this factor applied to the Jenny N.incident (60 RT 10501), which was true, assuming that the Jenny N.incident was in fact admissible as factor (b) evidenceat all. Later, however, after a disquisition on each of the 190.3 factors, Mr. Dusek returned to factor (b) to analyze it more closely. He recounted the evidence of the Jenny N.incident, urged that Jenny’s testimony wascredible, and asserted that the evidence showed 415 “factor ‘b’ beyond a reasonable doubt.” (60 RT 10515-10516.) Then he discoursed on the significance of the incident for the penalty determination: “And here is what that act means, how you workthatin. This was the beginning stages of his fantasies, at least the beginning stages that we know about. We have young Jennie [sic] either at seven or five, the defense raised the question it could have been two years earlier. That’s who she was. That’s who he did thisto. “His fantasies then continued, that we know about, with these books and these pictures and these images and the videos and the screens. And it concludes with Danielle. We havea history, a progression. That tells us what this means. That tells us what he likes, what he wants, what he gets, every single one. Alsotells us something else. It also tells us that he did this crime. Whathe did to that child gives us that added confidence. The deedthat he did,this crime, the lingering doubt that I suppose you’ll hear about, he did that crime. He did this crime. Heis not the saint he has been portrayed.” (60 RT 10516.) In this scheme, Mr. Dusek portrays the route from factor (b) with Jenny N. to factor (a) with Danielle Van Dam aspassing over the bridge formed by the pornography, which wasitself a hybrid of (a) and (b) and could therefore conjoin the two. But, again, the pornography wasneither factor (a) nor(b), let alone a hybrid of the two. Mr. Dusek’s second argument too was susceptible to a valid objection of misstatement of the law and misuse of the pornography evidence. That no objection was lodged for the second misstatement does not forfeit the claim here insofar as Judge Mudd’s ruling on virtually the same objection to the first misstatementestablished the futility of any further objection. (People v. Abaszadeh (2003) 106 Cal.App.4” 642, 648; In re Antonio C. (2000) 83 Cal.App.4" 1029, 1033.) Thus,the guilt phase errors in relation to the pornography evidenceare here compoundedand magnified by Mr. Dusek’s exploiting the prejudicial potential of 416 the evidence with a misstatementofits legal relevance to the penalty decision. Butif the route to the instant claim is through a finding that there was noerror in the joinder of counts, nor any independent evidentiary error in the admission of any or all of the pornography evidence, the destinationis still the same. The question of the prejudicial impact of this evidence on the penalty phaseisstill in play as the consequence of a new penalty phase error in Mr. Dusek’s misstatement of the law and in Judge Mudd’s refusal to sustain an objection to this misstatement. In regard to prejudice, one cannot seriously maintain that the record here establishes beyond a reasonable doubt that the error, whether in the joinder, the admission of evidence,or in the prosecutor’s misstatement of the law, was harmless beyond a reasonable doubt. As stated above, the defense case in mitigation was a substantial one. Yet how could any mitigation presented make the relatively short distance to a life imprisonment verdict against a headwind fed by videos of showing the brutal sexual assault on young girls; or against images that portrayed the samething in cartoon form, which allowedfor a crude and inflammatory exaggeration of the prurience, in some instances through captions cast in the most explicit terms; or, against the testimony that the pornography collection taken from the computers contained imagesofbestiality? How could the photograph showing Danielle L. not be taken as another factor (b) incident in effect? For even if the jury was not so absurd as to understandthe clicking of a cameraas the type of“force” the instruction wastalking about, the emotional restraint required notto project this evidenceas at least on the verge of a factor(b) crime would be rare in anyone of normalsensibilities? Finally, as Mr. Dusek himself brought hometo the jurors in his argument, how could lingering or residual doubt not smothered and consumedby the sheer massofthis inflammatory and provocative evidence? Whetherthe errors in their penalty phase aspect are conceivedonly as state law error, or as a violation of the Eighth Amendmentright to heightened reliability in a capital determinations (Beck v. 417 Alabama(1980) 447 U.S. 65, 637-638; see also Woodson v. North Carolina (1976) 428 U.S. 280, 305), there is more than a reasonable possibility that the errors that placed the pornographic evidence before the jury as penalty phase aggravation contributed to the death verdict in this case. (People v. Ashmus (1991) 54 Cal.3™ 932, 965; Chapmanv.California (1967) 386 U.S. 18, 23-24.) 418 ERRONEOUSLY ADMITTED EVIDENCE OF THE STALKING INCIDENT AND OF SUSAN L.’S OPINION OF WESTERFIELD’S PROPENSITY TO BE “FORCEFUL” WHEN UNDER THE INFLUENCE OF ALCOHOL In the seventh claim ofthis brief, it was demonstrated that the alleged stalking incident attested by Susan L., and her opinion as to Mr. Westerfield’s propensity to be “forceful” when he was drinking, were erroneously admitted into evidence in violation ofEvidence Code section 1101(a). (See above, pp. 293 et seq.) If this Courts rejects this as prejudicial guilt phase error, there was nonetheless no penalty phase relevance that would havejustified the use of this evidence at the penalty phase, since the evidence was responsive to none ofthe factors listed in Penal Code section 190.3. In addition, whatever non-statutory relevance for this evidence might be tolerated under the federal constitution (see People v. Musselwhite (1998) 17 Cal.4" 1216, 1267-1268), its probative value was so low in this regard that its presence as a factor to consider at the penalty phase wasviolation of the Eighth Amendment’s heightenedreliability requirementfor capital cases. (Beck v. Alabama (1980) 447 U.S. 65, 637-638; see also Woodson v. North Carolina (1976) 428 U.S. 280, 305.) But Mr. Dusekat the penalty phase attempted to reform the evidence. Having claimedat the guilt phase that it was adduced only for the narrow purpose of impeaching the credibility of Susan L. (see above, at pp. 294-299), at the penalty phase, it was now rebuttal evidence to the defense evidence of mitigation: “Other family and friends. Susan L. and her daughter, Christina Gonzales. We heard from them I think yesterday. Obviously still had feelings for the defendant. And He had opened up their home — his hometo Christina Gonzales and let her move in there for a few months. But again, how muchis that worth? He’s describing events, things that he did for them. And we have heard the opposite side back in the otherpart ofthe trial from Susan. We 419 heard about how the defendant behaves when he has too muchto drink, that he’s forceful. We heard her describe the event after she broke up with him and had been out with some fellow and had come homeand hegavehera little kiss and her encounter with the defendant.” (60 RT 10509-10510.) “We have heard the opposite” from Susan L.? What precisely is opposite in what we’ve heard from Susan L.? That if he had had a few drinks before Christina Gonzales appeared, he would have forcefully barred the door against her supplication for help? Orthat his hospitality to her was somehow marred by a vaguely prurient interest in secretly monitoring Christina’s activities? Whatit does meanis that the stalking incident and Westerfield’s supposed character for force and violence were to be deemedfactors in aggravation militating toward the imposition of a death penalty. The “rebuttal” value of this evidence wasnil, does not reform its admissibility for penalty purposes, andits re-exploitation was penalty phaseerror. In regard to prejudice, the jurors would naturally understand the evidence as purveying an affirmative factor in aggravation. Although the stalking incident, as described, did not rise to the level of a crime, it undoubtedly has the feel of one to lay sensibilities, and there is indeed a crimethat is called “stalking”? Althoughthe act as presented in the guilt phase cross-examination of SusanL., exhibited not a hint of force or violence, nonetheless in a case in whicha salient feature of the kidnapping of Danielle Van Dam wasthe extraordinary surreptitiousness by which it was accomplished, and where the murder wasclearly a crime of force and violence, a juror would undoubtedly see the stalking of Susan L. as at least containing an implied threat of force and violence. ‘3 Penal Codesection 646.9(a) provides in relevant part: “Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makesa credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking... .” 420 In regard to Susan L.’s opinion of Westerfield’s character for force when he was drinking, the undueprejudice from this evidence in a case where the events leading up to the crime began in a bar is obvious. If the error in allowing this evidence wasinsufficiently prejudicial for reversal of the guilt judgment, it cannot be shown harmless beyond a reasonable doubtin regard to the penalty judgment. (People v. Ashmus (1991) 54 Cal.3"? 932, 965; Chapmanv.California (1967) 386 US. 18, 23-24.) 421 THE COMBINED PREJUDICE OF ANY ONE OF THE ERRORSSET FORTH IN ARGUMENTS XVITI THROUGH XXII REQUIRE REVERSAL OF THE PENALTY JUDGMENT Arguments XVIII, XIX, and XX related to the Jenny N. incident, claiming first that there was insufficient evidence that it qualified as a factor (b) crime (XVIID); secondly, that it was improper and unfair for the court to characterize the incident as a violation of Penal Codesection 288; and thirdly, that CALJIC No. 8.87, in failing to submit the foundational requirement of “force or violence” to the jurors was inadequate. Arguments XXI re-raised as a penalty phase issue the improperjoinder and the improper admission ofpornography evidence as penalty phase errors, while XXII did the same for Susan L.’s guilt phase testimony regarding the stalking incident and her opinion as to Westerfield’s character for force and violence whenhe wasdrinking. Anyone ofthese errors alone wasprejudicial in a penalty trial in which there was a strong case for mitigation. The defense evidence, presented through numerous witnesses, showed that Westerfield had had a long and productive career as an engineer and inventor whohad contributed to the welfare of others by developing medical devicesto aid in rehabilitation from injuries; that he was esteemed for his professional qualities by business associates, who also had becomeclose personal friends; and that he was further esteemed for his kindness and generosity as a friend and that he was loved and supported by his family. This was a case substantial enough to warrantthestill serious term of life-imprisonment and forestall a death penalty, even in the face of the horrendousfacts ofthe crime itself. The strength of the mitigation was augmentedin this regard by a compelling case of residual doubt. For the entomological evidence presented by the defense had not been so conclusively rebutted in this case as to foreclose the effect of residual doubts as to whether Mr. Westerfield had even committed the crime for which the jury was askedto put him to death. 422 Onthis record, any combination of the errors set forth in the specified arguments were, afortiori, prejudicial. In sheer quantity, that evidence overwhelmed;in its provocative and inflammatory quality, it consumed in the conflagration of feelings the strong mitigating force of the defense case. If this Court finds that the individual errors specified do not warrant reversal of the penalty judgment, then the combination of any one or more ofthem do, whether they combineasstate-law error or as federal constitutional error. (People v. Ashmus (1991) 54 Cal.3"? 932, 965; Chapmanv. California (1967) 386 U.S.18, 23-24.) 423 ALLOWING VICTIM IMPACT EVIDENCE FROM DANIELLE’S TEACHERS EXCEEDED THE DUE PROCESS LIMITS ON SUCH EVIDENCE UNDER THE FACTSOF THIS CASE Asrecounted in the penalty phase statement of facts, Ms. DeStefani and Ms.Putenney, Danielle’s kindergarten and second-grade teacher, respectively, testified to Danielle’s character and contributions, and to the effect of her murder on themselves and on Danielle’s classmates. The defense, in limine, of the penalty phase oftrial, had movedto limit the victim impact testimony only to immediate family members and to exclude the testimony of the teachers. (10 CT 2422-2433; 54A RT 9840, 9842.) Judge Mudd denied the motion. (54A RT 9843.) On this record, the motion was well taken. So-called victim-impact evidence is deemed to be relevant and constitutional so long as it does not invite a “purely irrational response form the jury” (People v. Garcia (2011) 52 Cal.4™ 706, 751, internal quotation marks omitted), and is not so unduly prejudicial as to amountto a denial of due process, and render the penalty trial fundamentally unfair. (/bid.; see also Paynev. Tennessee (1991) 501 U.S. 808, 825.) This Court has certainly in the past rejected contentions that the victim impact evidence must be confinedto a single witness, or only to witnesses who had witnessed the crime, or only to immediate family members. (People v. Carrington (2009) 47 Cal.4" 145, 196-197; People v. McKinnon (2011) 52 Cal.4" 610, 690.) This would bedispositive except for special considerations emanating from the specific circumstances ofthis case. A capital trial involving the murder of a seven-year-old girl, even without any further specifying circumstance, carries victim-impact evidence within itself the very exemplar ofhow murdershuts off the promise of life. Each and every juror intuits immediately, without the need for further evidence, the compelling aggravation in this alone, and in this case one is hardly speculating to assert that 424 the attention of an entire community wasfixed by this fact. When one adds the further circumstancethat the victim was a middle-class younggirl, living happily with her brothers and parents in a nice, safe neighborhood in San Diego,it is clear that the impact of victim impact evidence did not require much boostingin this case to be effective. Under the circumstances, the testimony of the teachers, who testified to their own traumaandthat of the students, could only irrationally exploit feelings that would be extremely close to the surface in any event. The evidence in this case exceededthe due process limits on victim-impact testimony and should have been excluded. (See State v. Muhammad(N.J. 1996) 678 A. 2" 164, 180 [“[A]bsent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim’s uniqueness as a humanbeing andto help the jurors make an informed assessment of the defendant’s moral culpability and blameworthiness.”’].) The victim impact evidence was a major portion of the prosecution’s case in aggravation, and the testimony of Ms. DeStefani and Ms.Putteney was half of the victim-impact case. As stated in previous arguments, the defense case in mitigation was substantial and sufficient to bring the weighing process within that ratio that would warranta life verdict. If the trial court had properly excluded the testimony ofDanielle’s teachers, there was a reasonable possibility that there would have beena life verdict, and the judgment of death must be reversed. (Chapmanv. California (1967) 386 U.S. 18, 23-24.) 425 THE FAILURE TO SEQUESTER THE JURY REQUIRES AT LEAST A REVERSAL OF THE PENALTY JUDGMENT In the fourth argumentofthis brief, it was contended that jury sequestration should have been ordered toward the end of the evidentiary portion of the guilt phaseoftrial, and certainly no later than the jury deliberations for that phase. A detailed review of the publicity contemporaneous with thetrial, and the various events and intrusions of external factors into the courtroom process and into the courtroom itself were traced in detail. (See above, pp. 192-222.) Against a standard of review requiring only a showingthat the possibility of a fundamentally unfair trial was substantially likely (Sheppard v. Maxwell (1966) 384 U.S. 333, 362), error was, in appellant’s view, established. But, as the argument went, even under an abuse-of-discretion standard, Judge Mudd improperly abdicated his obligation by submitting the issues of sequestration to the jurors to choose. (See People v. Sandoval (2007) 41 Cal.4" 825, 847-848; see also In re James R. (2007) 153 Cal.app.4" 413, 434-435.) The intruding events did not, however, stop with the guilt phase oftrial, and ifit is necessary to continue the narrative into the penalty phase, then onefindsat least either that the failure to sequester at the guilt phase had prejudice reaching into the penalty phase, or that the failure to sequester at the penalty phase was an independenterror. The guilt phase verdicts were announcedin open court at 11:15 a.m. on August 21, 2002. (53 RT 9816-9817.) The streets around the courthouse were crowded with expectant onlookers wholet out a cheer that was televised along with the newsofthe verdicts. (54A RT 9836-9837.)'* The Police Chief gave a '°4 Mr.Clarke, a participant both in the O.J. Simpson case and in the Westerfield case, assured everyone that the public demonstration was worse whenthe verdict in Simpson was announced. (53 RT 9838.) One may take Mr. Clarke’s word for it, but also point out that Mr. Simpson wasacquitted and not on his way to a penalty trial. 426 newsconference in violation of the gag order. (54A RT 9837.) Finally, in knowingviolation of the rules of court forbidding photographsofany spectator, the pool photographer snapped a photograph of the Van Damsin the courtroom just as the verdict was announced, capturing in the frame other spectators who were most definitely not public figures connected at all with the case. That photograph was on the front page of the newspaper by noon. The photographer wasbarred from the courtroom for balance ofthe trial. (54A RT 9837; 56 RT 9916-9927.) After the verdicts, the jurors were released for a week, to return on Wednesday, August 28 for the beginning of the penalty phase. (53 RT 9823.) On that day, the jurors heard the victim impact evidence andthe testimony of Jenny N. (See 57 RT 1007.) In the releasing admonition that day, Judge Muddnoted that this evening would be “a couch potato’s dream.” The Padres were playing at 5 and the Charger gamestarted at 6. (57 RT 10079-10080.) This was of course not idle sports camaraderie with the jurors, but part of Judge Mudd’s self-policing regimen designed to have the jurors insulate themselves from trial publicity by anodynesports events on TV. Asit turns out, however, during half-time ofthe Chargers’ game, the station cut to news about the Westerfield case, reporting on the allegations of “child molestation”at the penalty phase that day (58 RT 10102) — particularly noxious public intrusion on the trial process since whether one could characterize the Jenny N. incident as a child molestation was not clear cut, and the characterization of that event was crucial to the penalty determination in this case. Nonetheless, despite this gaping breach in the self-policing rampart, Judge Mudd denied the next morning Mr. Feldman’s renewed request to sequester the jurors. Judge Mudd reasoned that the jurors in any event had heard Jenny N.’s testimony in the courtroom and therefore knew the actual evidence. (58 RT 10102.) But, Judge Mudd did give the returning jurors a rather mild admonition, minimizing the problem andprescribing even more sports: 427 “Just because it was a good night for couch potatoes didn’t mean it was a good night for San Diego sport franchises unfortunately. Those ofyou that watched the football game during halftime were exposed to sometelevision coveragerelative to the trial. I’m assuming you just looked another wayortried to see how the Padres were doing. Tonight the Aztecs start the season, so maybe webetter hope at the collegiate level.” (58 RT 10102.) The next event reached back to an incident that arose in the guilt phase and that was mentioned only briefly in the previous argument on sequestration. This refers to a telephone message to Mr. Feldman’s office from a Timothy Baker, who had also left a message with Judge Mudd. This was during guilt phase deliberations. It was a second-handreport that Juror 12, at work, had announced that he would not believe anything Mr. Feldmansaid because 12 did not like Feldman. Baker had left the phone numberof a co-workerof 12 as a direct source for this information. (47A RT 9731-9733.) Judge Mudd wasnot going to pull Number12 aside based on hearsay, but declared that the parties were free to investigate. Judge Mudd himself had his hands full with his own internal investigations in this case. (47A RT 9736-9737.) On Tuesday September3, the guilt trial, Mr. Feldman announcedthat the week before they had in fact called Timothy Baker’s reference, and found out from him that Juror Number 12 had been essentially “tight-lipped” and had said nothing, although 12 was being harassed by other employees on the job. Mr. Feldman’s information should then have solved the problem, except that Juror 12 in fact found out that inquiries were being made and,later in the day on September 3, sent in a note to ask why. (59 RT 10265-10267, 10435-10436; 40 CT 9916.) The next day, Juror 12 was called in and Judge Muddassured him that reports had to be substantiated whether or not they were true. Judge Muddhad authorized each side to look into a rumor regarding Number 12, and someonefrom Mr. 428 Feldman’s office pursued it. At this point, Judge Mudd told Juror 12, there was nothing in Juror 12’s conduct that concerned the court. Juror 12 in turn assured the judge that there was nothing in Mr. Feldman’s conduct that concerned Juror 12 and that he would not be affected in his impartiality between the parties. (60A RT 10445-104459.) When Number 12 left, Mr. Feldman, based partly on this incident, made another motion to sequester the jurors, which Judge Mudddenied. (60A RT 10463.)!°° One might commenthere that although it was established that Juror 12 had not committed misconduct, it was also established that he wasstill feeling harassed at work, as 12 had indicated during the guilt phase whenhein fact requested that he and his fellow jurors be sequestered. Further, the attempt to give the Juror 12 a plausible pretext for not going to work on Fridays when there was no court, did not work for the entire week offbetween the guilt and penalty phase of trials. In addition, it should be noted that while there was no reason to believe that Mr. Baker, who had actually given his name to both Mr. Feldman and Judge Mudd, was a maliciouscaller, there were boundto be incidents in a caselike this of such mistaken and malicious reports regarding jurors, and this one resulted in the uncomfortable possibility that investigating an alleged animus against Mr. Feldman, a real animus wascreated. Sequestration would have reduced,ifnot completely prevented this sort of occurrence. The penalty phase occurrencesare indeed fewer, and if in the court below a sort of fatigue set in about making a recordofall ofthem, the penalty phase was in any event significantly shorter than the guilt phase. But the events and occurrences warranting sequestration were, as seen in the previous argument on the subject, cumulative. The force ofall the guilt phase events, from the '°> The motion was also based on a problem reported by Juror Number 6, who had an altercation with someoneharassing him. (60A RT 10460-10462.) However, this seemed to be a purely personal matter, having nothing to do with the Westerfield case or with Juror 6’s service on that case. 429 spectators wearing their buttons in the courtroom, to Damon Van Dam’s threats to pressure the court with publicity, to the stalking incidents, to Juror 12’s own request to be sequestered, -- all enveloped in a steady stream ofpublicity, whose intensity would spike as the case emitted another one ofits abundant pieces of sensational news — all of this flowed into the latest occurrence, feeding an extrajudicial atmosphere whose intensity never abated. This was the atmosphere the jurors were breathing from even before the beginning oftrial and for the substantial amountoftime during trial when free from court supervision. In the remaining twenty-seven days from August 21, whenthe guilt verdict was announced, through September 16, when the death verdict was entered, there were only seven actual court days. The penalty trial began on August 28. (14 CT 3506.) There was a full court day on Thursday, August 29 (14 CT 3508), but no court for the jurors again until Tuesday, September 3. (14 CT 3510.) The case was submitted to the jury at the end of the day on Wednesday September 4. (14 CT 3513.) There wasa full day of deliberations on Thursday, September 5 (14 CT 3514) and again on Monday, September 9. Because of the illness of Juror Number8, as well as the usual three- day weekend, the jurors were at large in the community from Tuesday, September 10 and did not return until Monday, September 16 (14 CT 3517-3519), and it was on noon ofthat day that a death verdict was returned. (14 CT 3519.) This was a large extent oftime to be immersed in the community intensity surrounding this case, especially during deliberations. (See People v. Santamaria (1991) 229 Cal.App.3™ 269, 278-273.) There washereat least a substantial likelihood that the jurors could not maintain their impartiality in regard to penalty (Sheppard v. Maxwell, supra, 384 U.S. 333, 362),if it is at all possible to conclude that they could in regard to guilt. The penalty judgmentin the instant case must be reversed. 430 THE ERRONEOUS DENIAL OF A CHALLENGE FOR CAUSE TO VENIREMAN 19 REQUIRES REVERSAL OF THE PENALTY JUDGMENT In the third issue raised in this brief, it was contended that the denial of the challenge for cause to Venireman Number19 resulted in prejudicein that the defense had no remedy for the improperretention of Juror Number4. (See above, pp. 158 et seq.) But another juror with whom Mr. Boyce expressed dissatisfaction after the exhaustion ofperemptory challenges, was Juror Number 2. (9 RT 3106.) Insofar as the record establishes Juror Number 2 as having been incompetenttosit for the penalty trial, the error in denying the challenge for cause to Juror Number 19 requires at least reversal of the penalty judgment. (See People v. Tate (2010) 49 Cal.4" 63 5, 666-667; see above, p. 159, fn. 96.) Under both state and federal law, a juror must be removed for cause when his views on the death penalty would prevent or substantially impair the performanceofhis duty as a juror. (People v. Booker (2011) 51 Cal.4" 141, 158; Wainwright v. Witt (1985) 469 U.S. 412, 424; Witherspoonv.Illinois (1968) 391 U.S. 510, 522, fn. 21.) This indeed was 2’s state of mind in favor of the death penalty as was apparent from the record. Juror 2 was a strong supporter of the death penalty, and when asked on the questionnaire whathis feelings about it were, he wrote, “A life for a life.” (15 CT 3639.) He was of course questioned aboutthis in voir dire by Mr. Boyce: “Q. On the death penalty, you stated that you favor the death penalty; is that correct? “A. Yes, Ido. “Q. And you stated that you believe in a life for a life? 431 “A. Yes, 1 do. Well, yes ifyou — in a way that if there’s absolutely no doubt that that person tookthatlife, yes, I do believe a life for a life. “Q. Well, sir, if we reach a penalty phase in this case, that means that Mr. Westerfield will have been found guilty of murder, of taking a life, in other words? “A. Right. “Q. So based on yourbeliefs, then would you automatically impose the death penalty at a penalty phase? “A. No. “Q. Can you explain? “A. It has to be — to me,I have to hear all the evidence, and it has to be proven beyond a reasonable doubt that the defendant actually did it. Ifnot, you know,if— circumstantial evidence is kind oftough for me to have somebodyget the death penalty. “Q. But we’re already going to be past that stage ifwe get to a penalty phase. “A. Right. I have to hear everythingfirst. I just can’t say right now which way I would go. “Q. And I knowit’s a difficult question. “A. Right. “Q. Because,like the judge said, we’re putting the cart before the horse. But what we’re asking youis that, assumethat you’ve already found Mr. Westerfield guilty, you’ve already considered all the evidence and you have found him guilty beyond a reasonable doubt, and now weare in a penalty phase. “A. Oh, okay. “Q. Okay? Based upon your beliefthat a life for a life, you would automatically impose the death penalty then, would you? 432 “A. Yes. “Q. And you’re pretty strong aboutthat belief, too, aren’t you? “A. Well, I do believe —I think a life is precious, you know. “Q. How long have you held that belief, do you think? “A. It’s hard to say. Actually all my adultlife. “Q. And so — and you’ve thought aboutit quite a bit, I assume? “A. Well, I don’t think about it every day, no, but I mean — yeah, I’ve thought a lot and I probablystill think aboutit now. It would be a hard decision to make and — “Q. But if Mr. Dusek stood up here in five minutes, he’s not going to change your opinion,is he? “A. He might. I can’t tell. “Q. But as yousit here your opinionis a life for a life, is that right? “A. Oh, yes, yes. The bottom line is yes.” (7 RT 2561- 2563.) Mr. Dusek did change 2’s mind about the adequacy of circumstantial evidence. (7 RT 2564-2565.) 2 stated that he would listen to mitigating evidence at the penalty phase “if it’s evidence.” Mr. Dusek assured him: “Q. Well, if it comes from hereit will be evidence. It will be your job to decide, is it worthwhile, do I believe it, how much weight do I give it. “A. Right. 433 “Q. Is that something you can do? “A. Sure. “Q. Is that something you’re willing to do before you make up your mind or are you going to make up your mindfirst and then listen tot he evidence. “A. V’ll listen to it first.” (7 RT 2566.) Mr.Boyceissued the challenge for cause based on Juror 2’s views on the death penalty. The Court denied the challenge, noting that on the questionnaire Juror 2 checked off “No” to the questions about automatic imposition of the death penalty, and that the “life for life” answer came in response to only one question. (8 RT 2567; see 15 CT 3639, 3642-3644.) It did not comein response to only one question. Mr. Boyce asked several clear, untendentious questions and the answers wereall the same: if Juror 2 was satisfied beyond a reasonable doubt that the defendant was guilty of the crime, he would vote “automatically” for the death penalty. Mr. Dusek’s rehabilitation established that Juror 2 would “listen” to mitigating evidence before making a decision, but never elicited a clear avowal that Juror 2 would vote to imposelife without parole if warranted by the evidence. In short, the record does not show that Juror 2 was not “substantially impaired” by his views in favor of the death penalty in his ability to discharge his functionsas a juror. Again, Juror 2 was one of the jurors Mr. Boyce indicated he would have removedif given additional peremptory challenges. Thus, if prejudice for the denial of the challenge for cause to Venireman 19 can only be shownbythe retention of an incompetent juror (People v. Yeoman (2003) 31 Cal.4™ 93, 114), and if Juror Number4 did not establish this in the previous argument, then Juror Number 2 does for the instant argument. Since Number 2’s incompetence went only to the penalty trial, the penalty judgment must be reversed. 434 XXIV. THE FAILURE TO GRANT ADDITIONAL PEREMPTORY CHALLENGES WASAT LEAST PREJUDICIAL FOR THE PENALTY PHASE,IN THAT THERE WASAT LEAST HERE A SUBSTANTIAL LIKELIHOOD THAT THE JURY WAS NOT IMPARTIAL ON THE QUESTION OF PENALTY In the second argumentofthis brief, it was contendedthat the extraordinary play ofmedia and public attention on this case warranted a grant of additional peremptory challenges, as requested by the defense both at the outset and toward the close ofjury selection. (See above, pp. 117 et seq.) It was further argued that although issues surrounding the grant or denial ofperemptory challenges usually did not implicate federal constitutional rights, in this specific case circumstances rendered the issue one of due process and fundamental fairness. ([bid.) The course of pretrial publicity, and an exhaustive analysis of the actual jury selection, including a detailed examination of the questionnaires, was related with an eye to the establishment of the error under the appropriate standard of review: was Mr. Westerfield “reasonably likely to receive an unfair trial before a partial jury”in the absenceof additional peremptory challenges. (People v. Bonin (1988) 46 Cal.3™ 659, 679.) But the analysis above focused primarily on jury impartiality in relation to the guilt phase concerns. Jfthis Court feels that that the showing wasdeficient, there still remains the question whetherthe likelihood ofa partial jury increases when measured against the narrower question ofpenalty for a murder already determined to be the responsibility ofMr. Westerfield. The contention thenis that the additional peremptory challenges were warranted on this record to assure a fair and impartial penalty jury. The legal framework for whetheror not this is a federal constitutional error requires only a slight adjustment. When the capital penalty determinationis, as it is in California, left to a jury, the Sixth and Fourteenth Amendments also 435 guarantee the right to have that jury fair and impartial (Morganv.Illinois (1992) 504 U.S. 719, 726; Gray v. Mississippi (1987) 481 U.S. 648, 658), and in this regard a juror’s attitude toward the death penalty itself, independent ofthe juror’s competenceto determine guilt is a significant consideration. (See Witherspoonv. Illinois (1968) 391 U.S. 510, 518.) As with a guilt jury, a defendant has a constitutional right to a for-cause challenge to a juror unable to maintain his impartiality toward the imposition of the penalty; and also as with a guilt jury, the ordinary status of the peremptory challenge is not that of a federal constitutional right. (Ross v. Oklahoma (1988) 487 U.S. 81, 85.) But, as established in the guilt phase argument, extraordinary circumstances affecting the specific case can, and did in this case, transform the peremptory challenge into a federal constitutional issue. (See Riverav. Illinois (2009) 129 S.Ct. 1446, 1454 (“[T]he mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.”].) Under these principles, one may re-examine the record ofjury selection with a primary focus on penalty phase issues. Asnoted in the first penalty phase claim raised in this brief (see above,p. 402), the standard for finding death vel non is that formulated in CALJIC No. 8.88’s admonishment that a death verdict is warranted only if each of the jurors are “persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole.” (12 CT 2975, emphasis added.) Thus, the penalty phase required jurors able to maintain the rational standard of CALJIC No. 8.88 against the strong and inherent tendency ofan actual guilty verdict to close the jurors’ ears and mindsto evidence in mitigation of penalty. (See People v. Brown (1985) 40 Cal.3™ 512, 541, fn. 13, rev. on 0.g., sub nomine California v. Brown (1987) 479 U.S. 538.) This problem wasacute in the instant case because the murder wasthat of a child who had been kidnappedbya fifty-year-old man who had possessed not merely child pornography, but child pornography depicting rape and sexualassault. 436 Thus, Venireman 19, who spent 36-year career with the San Diego Unified School District, and who could not “abide” crimes against children (18 CT 4383), had expressed nospecial bias regarding murder (18 CT 4387), and when asked to identify what type of crimes were appropriate for consideration of the death penalty, she simply listed “murder.” But it defies belief that there was not indeed a special consideration in her mind for the murderof a child or that herability to fend off at least the more irrational tendencies of her bias after hearing all the evidence in the case was impaired. There were of course those veniremen like Number 43, who declared her imagined delight “to see his face when heis proven guilty.” (20 CT 4888.) Her obvious prejudices flowed naturally into her penalty declaration that “murderers” should die “slow and painfully” (20 CT 4891), and probably into her more restrained expression that “murder, especially when the victim is a child” was the type of crime appropriate for a death penalty.” (20 CT 4892.) Similarly number 24, who had many qualifications as to her ability to be impartial in determining guilt or innocence, declared when asked aboutherattitude toward life without parole: “Why? So they can live & write book, get law degree & anothertrial on a technical issue? If he’s dead, he can never hurt another child.” (18 CT 4507.) If one may recall Number 98, who considered herself eminently fair, though she detested child pornography, and who wondered whether she could return a not-guilty verdict in the face ofwhat she perceived to be public pressure against it in this case , nonetheless declared herself fair and impartial in regard to the death penalty, and identified “horrible, beyond human comprehension crimes” as the types appropriate for death consideration. (24 CT 6002.) Wasthere any mystery as to what specific crime she had in mind when she wrote this? (See 24 CT 5998 [“I think it [child pornography] is disgusting and sick.”’]) Ofthe 261 veniremen whofilled out the questionnaire, thirty-four, or about 13 percent, singled out either crimes against children or sexual assault in general as the types of crimes appropriate for the death penalty, and it was not always 437 clear that the declarant meantthis in conjunction with murder. '56 One ofthese madeit to the petit jury as Juror Number 8. (15 CT 3602, 3616; 40 CT 9855.) Again, it must be emphasizedthat, as before, one is attempting to assess the likelihood of latent biases. These are not easily extirpated by challenges for cause, andthereal existence of the problem of latent bias is certainly a substantial reason for the persistence and endurance of the system ofperemptory challenges, which, though not constitutionally compelled, are nonetheless universal in the jurisdictions of the United States. (See Hollandv.Illinois (1990) 493 U.S. 474, 482.) The likelihood of obtaining a fair and impartial penalty jury under the surrounding public circumstances of this case was beset by serious difficulties. By the time jury selection occurred, not only had the case captured public attention in a highly emotional manner, but also the child pornography count had beenruled to be properly joined. The case would be not only about the murder of a seven-year- old girl, but also about her molestation and rape at the hands of her murderer, although the question by itself was at least verging on the speculativeif it was not completely over the line. In this atmosphere,if it came to a penalty determination, could the jurors rationally distinguish between the possession of child pornography that depicted rape andthe actual crime of rape? Could they critically evaluate the testimony of Jenny N., so as to give effect to a reasonable doubt that she accurately remembered an incident she reported once vaguely to her mother when she was seven-years-old, but about which she never said anything again for overten years, all the while associating with Mr. Westerfield and his family? Could they '86 15 CT 3616; 17 CT 4097, 4292; 18 CT 4507, 4532, 4556; 20 CT 4892, 4940; 21 CT 5084, 5181; 22 CT 5398, 5518; 23 CT 5590, 5712; 24 CT 5930, 5954; 25 CT 6194; 26 CT 6362; 27 CT 6794; 28 CT 6890; 29 CT 7153, 7178, 7202, 7298; 30 CT 7440; 32 CT 7897, 7945; 34 CT 8378, 8450; 35 CT 8642, 8786; 36 CT 8930, 9098; 39 CT 9772. 438 critically evaluate whetherin fact tt was a crime involving violence or threat of violence (Pen. Code, § 190.3(b)) — a matter that is at the very least highly debatable, if not dispositively clear in the negative? Could they entertain questions of lingering doubt as to Mr. Westerfield’s guilt in light of the substantial and largely unimpeacheddefense of alibi? Could they doall this and keep an open mindto entertain the substantial and significant evidence in mitigation, which, if it could not balance out the murder of Danielle Van Dam, could prevent it from so heavily weighing down the metaphorical scale ofpunishmentas to foreclose a verdict for life imprisonment? The answeris no, andifthe entire judgmentis not reversible for failure to grant additional peremptory challenges, the penalty judgmentis. 439 THE DEATH PENALTYIN CALIFORNIAIS UNCONSTITUTIONALIN THATIT CAN BE SHOWNBYSTATISTICAL ANALYSIS TO HAVEFAILED IN NARROWING THE CLASS OF DEATH-ELIGIBLE OFFENDERS A death penalty schemethatfails to adequately narrow the class of persons eligible for the death penalty and creates a substantial and constitutionally unacceptable likelihood that the death penalty will be imposedin a capricious and arbitrary fashion. (Furman v._Georgia (1972) 408 U.S. 238, 313, White, J., concurring [death penalty statute must provide a “meaningfulbasis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not”].)'°’ A capital murderstatute must take into account the Eighth Amendmentprinciples that death is different (California v. Ramos (1983) 463 U.S. 992, 998-99), and that the death penalty must be reserved for those killings which society views as the most grievousaffronts to humanity. (Zant v. Stephens (1983) 462 U.S. 862, 877 n.15; see also Adamson Vv. Ricketts (9th Cir. 1988) 856 F.2d 1011, 1025 [blanket eligibility for death sentence may violate the Fifth and Fourteenth Amendment due process guarantees as well as Eighth Amendment].) '°7 Tn Furman v. Georgia the Supreme Court, for the first time, invalidated a state's entire death penalty scheme becauseit violated the Eighth Amendment. Because each ofthe justices in the majority wrote his own opinion, the scopeof, andrationale for, the decision was not determinedbythe case itself. Justices Stewart and White concurred on the narrowest ground, arguing that the death penalty was unconstitutional because a handful of murderers werearbitrarily singled out for death from the muchlarger class of murderers who were death- eligible. (/d. at 309-310 (Stewart, J., concurring) and at 311-13, White, J., concurring.) In Gregg v. Georgia (1976) 428 U.S. 153, the plurality understood the Stewart and White view to be the "holding" ofFurman (id. at 188-189), and in Maynard v. Cartwright (1988) 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372, a unanimous Court cited to the opinions of Stewart and White as embodying the Furmanholding.(/d. at 362) 440 In the instant case, the defense filed a motion claiming that the California scheme for death penalty was unconstitutional for having failed to meet these Eighth Amendment requirements (11 CT 2566) -- a motion that Judge Mudd denied. (66 RT 10595.) Indeed, this Court has rejected these contentions multiple times. (People v. Kipp (2001) 26 Cal.4" 1100, 1137; People v. Coddington (2000) 23 Cal.4" 529, 656.) However, this Court has never addressed the issue in a direct appealin light of an actual statistical analysis of whether the California scheme had in actual fact adequately narrowed the category of death-eligible murderers and has prevented the arbitrary and capricious imposition of the death penalty. Here, just such an analysis to the court, and this was before Judge Muddin the form of a declaration from Steven Schatz, a law professor from the University of San Francisco, who had undertaken this study. (66 RT 10595; 12 CT 2885-2886.) According to Professor Schatz, in California during the 5-year period from 1988-92 approximately 9.6% of convicted first degree murderers were sentenced to death. Since the percentage from an earlier five year periods from 1980 to 1984, was almost identical (9.5%), Schatz assumed that the percentage has been stable since the enactmentofthe 1978 death penalty law. (12 CT 2887-2889.) At the time of the murderin the instant case, there thirty-two special circumstances. (12 CT 2887.) Based on a survey of both capital and non-capital murder convictions, Professor Schatz found that 87.4% offirst-degree murderers were death-eligible under the California scheme and could have been prosecuted capitally if other decisions extraneousto the existence of a special circumstance vel non had notinjecteditself. (12 CT 2903.) Further, using the 9.6% figure for the actual imposition of death sentences, “California’s death sentenceratio is approximately 11.0%” (12 CT 2903), which is to say that of those who were factually or factually and legally eligible for death, only 11% received a death sentence. As a general matter, one would not claim that 87.4 % represents much of a narrowing ofeligibility for anything, and one can only concludethat the special 44] circumstance regimen of the California system does not “genuinely narrow”. (See Wade v. Calderon (9" Cir. 1994) 29 F.3™ 1312, 1319.) When one considers further that of those that were death-eligible, only 11% were sentencedto death, then the evidenceat least tends in the direction of a conclusion that the entire capital penalty schemeis arbitrary. This conclusion becomes inescapable when one considers that in Furman v. Georgia (1972) 408 U.S. 238, the Supreme Court found inadequate under the Eighth Amendmentsentencing schemesin which 15- 20% ofthose convicted of capital murder actually received the death penalty. (See id., at p. 309, fn. 10, Stewart, J. conc.; id., at p. 386, fn. 11, Burger, C.J., dissenting; and id., at 435-436, fn. 19, Powell, J. dissenting.) Therefore a scheme in which the discrepancy suggests an even greaterrisk of arbitrariness than those at issue in Furman cannot be upheld. The California death penalty law is unconstitutional under the Eighth Amendment. 442 XXVI. CALIFORNIA’S DEATH PENALTY LAW IS UNCONSTITUTIONALIN FAILING TO REQUIRE A FINDING THAT DEATHIS APPROPRIATE BEYOND A REASONABLE DOUBT As repeated throughoutthis brief, the Eighth Amendmentrequires a heightened standard of reliability at both guilt and penalty phases. (Beck v. Alabama(1980) 447 U.S. 625, 638.) Proof beyond a reasonable doubt is of course required for the guilt determination (Jn re Winship (1970) 397 U.S. 358); proof beyond a reasonable doubtis constitutionally required to establish a special circumstance(see Ring v. Arizona (2002) 536 U.S. 584, 588-589; see also Apprendi v. New Jersey (2000) 530 U.S. 466, 489); and proof beyond a reasonable doubt should be required for the determination of death as the penalty under California law for special circumstance murder. Without this standard of certainty, it cannot be said that the law has minimizedtherisk of a “wholly arbitrary and capricious” imposition of the death penalty. (Gregg v. Georgia (1976) 428 U.S. 153, 189.) The argumentagainst this is, of course, that the penalty decisionis inherently normative and moral, and thus not susceptible to the test ofproof beyond a reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3™ 730, 779; People v. Sanchez (1995) 12 Cal.4® 1, 81.) However, guilt determinations,too, sometimesrest on the jury’s applying normative and moral categories, such as whenit must be determined whether murder may be mitigated to voluntary manslaughter. (See People v. Czahara (1988) 203 Cal.App.3 1468, 1478 [Whether provocation is sufficient to reduce murder to manslaughteris a determination dependent on “community norms.”].) “Beyond a reasonable doubt” represents not only a level ofproof but also a level of certainty, which applies to decisions of various natures. Requiring the jurors to be certain, beyond a reasonable doubt that death is appropriate is necessary to ensure the reliability 443 mandated by the Eighth Amendment. Failure to provide such an instruction invalidates the current death penalty statute and requires reversal of the death judgmentin this case. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282;.) 444 XXVII. THE FEDERAL CONSTITUTION REQUIRES JURY UNANIMITY AS TO AGGRAVATING FACTORS It has been held that the verdict of a six-person jury must be unanimousin order to “assure . . . [its] reliability.” (Brown v. Louisiana (1980) 447 U:S.323, 334.) Given the “acute need for reliability in capital sentencing proceedings” (Mongev. California (1998) 524 U.S. 721, 732; see also Johnson v. Mississippi (1988) 486 U.S. 578, 584), the Sixth, Eighth, and Fourteenth Amendments require, afortiori, jury unanimity on those factors warranting the death penalty. (But see People v. Taylor (1990) 52 Cal.3" 719, 749; People v. Bolin (1998) 18 Cal. 4th 297, 335-336.) In the instant case, the jurors were specifically instructed that “[iJt is not required thatall jurors agree on any matter offered in mitigation or aggravation.” (12 CT 2954.) This instruction requires reversal of the death verdict. (Sullivan v. Louisiana (1993) 508 U.S. at 278-281.) In any event, given the substantial case in mitigation here, it cannot be shown beyond a reasonable doubt that the error in admonishing against unanimity was harmless. (Chapman v. California (1967) 386 U.S. 18, 23-24.) 445 XXVIII. THE LACK OF INTERCASE PROPORTIONALITY REVIEW RENDERS THE CALIFORNIA DEATH PENALTY LAW UNCONSTITUTIONAL The lack of proportionality review in California's death penalty scheme violates the Eighth Amendmentin allowing the imposition of the death penalty in an arbitrary and capricious manner. (Gregg v. Georgia, (1976) 428 U.S. 153.) In civil cases, uniformity and reliability of monetary awardsby juries are subject to modification by the judge in light of experience with compensatory awardsin general. (Consorti v. ArmstrongWorld Industries, Inc. (2" Cir. 1995) 72 F.3™ 1003, 1009, vacated o.g. (1996) 518 U.S. 1031.) The same considerations of uniformity and fairness should apply even morestrongly in his context where much more than monetary compensationis at stake, and where the Sixth, Eighth and Fourteenth Amendments bar any arbitrariness or unreliability in the determination. (But see People v. Clark (1993) 5 Cal.4th 950, 1039.) The failure of the California law to require such a review vitiates the death judgmentin this case. 446 CONCLUSION This case presents the extraordinary spectacle of a capital trial proceeding on a no-time-waiverbasis in a highly charged atmosphere ofpublic passion and media frenzy. Nonetheless, the orderly and systematic determination ofthe truth underthe rules of evidence, in a calm courtroom, removed from the pressure of external passions,all in the fulfillment of the constitutional mandate of a fundamentally fair trial, would have been possible here, but still did not occur due to significant legal missteps and errors. For any orall ofthe reasons adducedas legal error in the guilt phase, Mr. Westerfield’s convictions for kidnapping and capital murder must be reversed; for any or all of the reasons adduced as penalty phaseerror, at least the death judgment imposed on Mr. Westerfield must be reversed. Dated: December 27, 2011 Respectfully submitted, Mark D. Greenberg Attorney for David Alan terfield 447 CERTIFICATION OF WORD-COUNT I am attorney for appellant in the above-titled action. This documenthas been produced by computer, and in reliance on the word-count function of the computer program used to produce this document, I hereby certify that, exclusive of the table of contents, the proof of service, and this certificate, this document contains 147,741 words, which exceed the limit of 102,000 wordsas set by California Rules of Court, Rule 8.630. However,this brief is proffered for filing pursuant to the permission of this Court, granted on October 26, 2011, to file a brief in excess of the limits set by the Rules of Court. Mark D. Greenberg Attorney for Appellant Dated: December 27, 2011 448 [CCP Sec. 1013A(2)] The undersigned certifies that he is an active memberofthe State Bar of California, not a party to the within action, and his business address is 484 Lake Park Avenue, No. 429, Oakland, California; that he served a copy of the following documents: APPELLANT’S OPENING BRIEF by placing samein a sealed envelope, fully prepaying the postage thereon, and depositing said envelope in the United States mail at Oakland, California on December 28, 2011, addressed as follows: Attorney General P.O. Box 85266 . San Diego, CA 92186-5266 California Appellate Project 101 Second St., Ste. 600 San Francisco, CA 94105 Attn: Linda Robertson Superior Court, San Diego County 220 W. Broadway, Rm. 3005 San Diego, CA 92101-3877 District Attorney of San Diego County 330 W. Broadway San Diego, CA 92101 David Westerfield, T-77622 San Quentin State Prison San Quentin, CA 94974 Steven Feldman, Esq. 934 23™ Street San Diego, CA 92102 Robert Boyce, Esq. 934 23" Street San Diego, CA 92102-1911 I declare under penalty ofperjury that the foregoing is true and correct and that this declaration was executed on December 28, 2011 at Oakland, California. Mark D. Greenberg Attorney at Law
