03094 – September 3rd 2002 – penalty phase – David Westerfield trial – afternoon 1

1 SAN DIEGO, CALIFORNIA, TUESDAY, SEPTEMBER 3, 2002, 1:03 P.M. (afternoon 1)
Penalty phase September 3rd 2002 – 4


Misc. No testimony


2
–OCC–
3
4 THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE
5 RECORD WILL REFLECT THE APPEARANCE OF MR. WESTERFIELD, ALL
6 COUNSEL. MEMBERS OF THE PUBLIC AND MEDIA, IF SO INCLINED, ARE
7 PRESENT. JURORS AND ALTERNATES ARE NOT.
8 BEFORE WE GET STARTED, LET’S TALK EXHIBITS BECAUSE
9 THERE’S SOME GAPS IN MY NOTES.
10 WE START WITH THE PROFFERED EXHIBITS OF THE PEOPLE
11 STARTING AT 200 AND GOING THROUGH 212. THAT’S MY RECORD.
12 ANY OPPOSITION TO THOSE EXHIBITS?
13 MR. CLARKE: I THINK THEY’VE COME IN, YOUR HONOR, EXCEPT
14 208-A, THAT WAS THE TRANSCRIPT AND WE DECIDED IT SHOULD NOT COME
15 IN.
16 THE COURT: IT WILL BE AVAILABLE IF THEY REQUEST IT BUT
17 IT WILL NOT GO IN THE JURY ROOM INITIALLY. IT’S ALSO MY
18 UNDERSTANDING EXHIBIT 200 IS NOT GOING TO BE AVAILABLE TO THE
19 JURY IN LIGHT OF THE FACT THAT THE SOUNDLESS VERSION 212 IS.
20 MR. CLARKE: CORRECT.
21 THE COURT: YOUR RECORDS REFLECT THEY’RE ALREADY IN
22 EVIDENCE?
23 MR. CLARKE: YES.
24 THE COURT: OKAY. THEN STARTING AT 213, WE’VE GOT
25 DEFENSE EXHIBITS RUNNING THROUGH 223 AND THEN PEGGY TELLS ME
26 THERE IS A 224 BUT IT WAS NEVER REFERRED TO.
27 AM I CORRECT OR INCORRECT FROM THAT?
28 MR. FELDMAN: I’M SORRY, YOUR HONOR. I MISSED WHAT YOU

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1 SAID. I APOLOGIZE.
2 THE COURT: YOU HAD MARKED A 224 THAT WAS NEVER REFERRED
3 TO. THE SAME IS TRUE OF A 227 AND 231.
4 MR. FELDMAN: LET ME FIND OUT WHAT THEY ARE. DO YOU WANT
5 ME TO DO THAT NOW OR WAIT TILL RECESS, JUDGE?
6 THE COURT: I DON’T THINK THERE’S ANY REAL EMERGENCY IN
7 GETTING THE EXHIBITS DONE AT THIS POINT.
8 (RECEIVED EVID: ^ TRIAL EXHIBIT 200)
9 (RECEIVED EVID: ^ TRIAL EXHIBIT 208-A )
10 THE COURT: ALL RIGHT. BEFORE WE COMMENCE THE DISCUSSION
11 OF THE JURY INSTRUCTIONS, LET ME INDICATE FOR THE RECORD THAT I
12 HAVE RECEIVED, READ AND CONSIDERED ALL OF THE FOLLOWING
13 PLEADINGS.
14 FIRST OF ALL, THE PEOPLE HAVE FILED THREE SEPARATE
15 PLEADINGS. ONE IS A MOTION TO MODIFY CALJIC 8.88, THE OTHER IS
16 POINTS AND AUTHORITIES IN OPPOSITION TO PINPOINT JURY
17 INSTRUCTIONS REGARDING SYMPATHY AND MERCY. THE OTHER IS POINTS
18 AND AUTHORITIES IN OPPOSITION TO LINGERING DOUBT INSTRUCTION.
19 DEFENSE HAS FILED PLEADING ENTITLED DEFENDANT’S
20 PROPOSED PENALTY PHASE JURY INSTRUCTIONS, OBJECTIONS TO
21 INSTRUCTIONS AND MEMORANDUM OF LAW REGARDING INSTRUCTIONAL
22 ISSUES. IN ADDITION TO THAT, THEY FILED A MOTION IN LIMINE IN
23 OPPOSITION TO THE MODIFIED 8.88. THE PEOPLE HAVE PRESENTED THE
24 COURT WITH A PROPOSED JURY INSTRUCTION PACKAGE MINUS 8.88, AND
25 I’VE JUST BEEN HANDED SEVEN PROPOSED INSTRUCTIONS FROM THE
26 DEFENSE.
27 MS. JONES: I THINK IT’S ALL THE SAME, YOUR HONOR. I
28 THINK IT’S JUST RETYPED 16.14.0 AND 16.14.1.

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1 MR. BOYCE: IT’S MODIFIED SLIGHTLY.
2 MS. JONES: JUDGE — JUDGE, CAN I HAVE ONE OF THOSE
3 COPIES BACK TO GIVE TO THE OTHER SIDE? I APOLOGIZE.
4 THE COURT: ARE THEY ALL IDENTICAL?
5 MS. JONES: THEY ARE.
6 THE COURT: ALL RIGHT. SO THERE ARE SEVEN COPIES OF THE
7 SAME THING?
8 MS. JONES: I THINK WE JUST WENT OVERBOARD AND MADE TOO
9 MANY COPIES.
10 THE COURT: ALL RIGHT. IT APPEARS THEY ARE IDENTICAL.
11 OKAY.
12 AS WE DID IN THE GUILT PHASE, IT WOULD APPEAR THAT
13 THE APPROPRIATE THING TO DO WOULD BE TO ACT ON THE INTACT GROUP
14 OF INSTRUCTIONS.
15 FIRST OF ALL, I NOTE THAT THE VERDICT FORMS APPEAR
16 TO BE IN PROPER FORM. THERE IS A CHOICE AMONG TWO
17 POSSIBILITIES. EACH IS REPRESENTED BY A VERDICT FORM, SO THEY
18 APPEAR TO BE IN PROPER ORDER.
19 NOW MS. SHAEFER, AS A RESULT —
20 MR. FELDMAN: SORRY, MS. JONES.
21 THE COURT: LIGHT HAIR, JONES. I’M TRYING TO REMEMBER.
22 DARK HAIR, SHAEFER.
23 MR. FELDMAN: FOR THE RECORD, IT’S REBECCA JONES AND
24 LAURA SHAEFER, AND THAT IS PITCH THAT AWAY.
25 THE COURT: ALL RIGHT. THANK YOU.
26 THE WAY IN WHICH THE DEFENSE ARGUMENTS ARE COUCHED
27 INCORPORATES BOTH THE INSTRUCTION AND THE LEGAL ARGUMENT AND THE
28 PLEADING.

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1 MS. JONES: THAT’S CORRECT.
2 THE COURT: SO AS WE GO THROUGH THIS, MY PREFERENCE IS
3 GOING TO BE THAT YOU REFER THE COURT, HAVING READ ALL OF THIS,
4 TO WHAT SPECIFIC ARGUMENTS YOU WANT TO MAKE, BECAUSE THEY APPEAR
5 TO COVER WIDE EXPANSES. AND IF WHAT YOU’RE ATTEMPTING TO DO IS
6 PRESERVE THE INTEGRITY OF AN ISSUE FOR APPELLATE REVIEW IN SOME
7 FUTURE DATE, THAT’S ONE THING. IF YOU INTEND TO HAVE THE COURT
8 ACTUALLY MODIFY THE INSTRUCTION, THAT’S ANOTHER. SO I JUST WANT
9 TO GIVE YOU THE HEADS UP TO THAT.
10 ALL RIGHT. THE INTRODUCTION TO THE ENTIRE SERIES
11 OF INSTRUCTIONS IS FOUND AT 8.84. THE PEOPLE HAVE PROFFERED
12 THAT INSTRUCTION. IT IS IN PROPER FORM AND IT DOESN’T APPEAR TO
13 HAVE BEEN MODIFIED.
14 ANY OBJECTION?
15 MR. FELDMAN: NO.
16 MS. JONES: YOUR HONOR, THE ONLY OBJECTION — EXCUSE
17 ME — WE HAVE NUMEROUS MODIFICATIONS THAT ARE LISTED AT PAGES
18 TWO THROUGH SIX OF OUR PLEADINGS. THE FIRST MODIFICATION IS
19 LISTED ON PAGE TWO, WHICH IS A PARAGRAPH THAT STARTS AT LINE 20 20 THROUGH 22, INFORMING THE JURORS THAT LIFE WITHOUT POSSIBILITY
21 OF PAROLE AND DEATH MEAN EXACTLY WHAT THEY SAY, AND THE JURORS
22 ARE NOT TO SPECULATE THAT THERE’S SOME POSSIBILITY OF RELEASE OR
23 THAT THE DEATH PENALTY WOULD NOT ACTUALLY BE IMPOSED.
24 I THINK THAT’S APPROPRIATE GIVEN THE INFORMATION
25 WE’VE BOTH PUT IN THIS PLEADING, AND I BELIEVE IN A PREVIOUS
26 PLEADING, SHOWING THAT THERE ARE STUDIES SHOWING THAT JURORS
27 HAVE WIDESPREAD MISUNDERSTANDING ABOUT WHAT ACTUALLY HAPPENS TO
28 PERSONS IN MR. WESTERFIELD’S POSITION.

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1 THE COURT: WELL, I’M ASSUMING THAT THE PEOPLE’S
2 INSTRUCTION COMPARISON OF PENALTIES IS YOUR VERSION OF HOW YOU’D
3 LIKE TO ADDRESS THAT; IS THAT CORRECT?
4 MR. DUSEK: IT IS, YOUR HONOR.
5 THE COURT: ALL RIGHT.
6 AND YOUR RESPONSE TO THAT, MS. JONES? IT’S THE
7 SECOND IN THE PACKAGE.
8 MS. JONES: IT DOESN’T ACTUALLY ADDRESS THE SAME
9 QUESTION. IT’S ONE THAT WE HAD CONSIDERED SUBMITTING ACTUALLY,
10 YOUR HONOR, AND WHAT THIS TALKS ABOUT IS WHETHER THE JURORS
11 UNDERSTAND HOW SERIOUS — AND WHEN I’M SAYING THIS I MEAN THE
12 PROPOSED PROSECUTION INSTRUCTION COMPARISON OF PENALTIES, WHAT’S
13 WORSE, LIFE OR DEATH, BECAUSE THERE’S GUT FEELINGS THAT PEOPLE
14 HAVE ABOUT WHAT’S WORSE, LIFE OR DEATH.
15 WHAT WE WANT THE JURORS TO BE SURE TO UNDERSTAND IS
16 WHATEVER SENTENCE THEY AGREE ON AND RECOMMEND TO THE COURT WILL
17 BE IMPOSED, AND THAT IF THEY SAY DEATH IT MEANS DEATH, AND IF IT
18 MEANS LIFE WITHOUT PAROLE IT MEANS LIFE WITHOUT PAROLE. AND
19 WHAT THE LIFE WITHOUT PAROLE PARTICULARLY ADDRESSES IS ANY SORT
20 OF MISCONCEPTION THAT MAY BE OUT THERE REGARDING ACTUAL GRANT OF
21 PAROLE IN THE FUTURE, BECAUSE THERE’S A LOT OF NEWS STORIES OUT
22 THERE ABOUT PEOPLE WHO HAVE MURDERED SOMEBODY IN THE PAST AND,
23 AFTER DOING ONLY A SHORT TIME IN PRISON, A GRANT OF PAROLE.
24 THE COURT: ALL RIGHT.
25 MS. JONES: SO I THINK OUR MODIFICATION DOESN’T ADDRESS
26 EXACTLY THE SAME THING AS THE COMPARISON OF PENALTIES
27 INSTRUCTION.
28 THE COURT: PEOPLE’S POSITION.

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1 MR. DUSEK: I THINK IT’S UNNECESSARY. THE COURT I THINK
2 PREVIOUSLY HAS INDICATED TO THE JURY THAT THEY ARE TO PRESUME
3 THAT EACH SENTENCE WOULD BE CARRIED OUT. THIS IS A MISSTATEMENT
4 OF FACT AND LAW. THE DEFENDANT CAN GET OUT OF PRISON, CAN GET
5 OUT OF THE DEATH PENALTY MANY WAYS. THE COURT HAS AN OPTION TO
6 FOLLOW THROUGH WITH THE VERDICT THE JURY COMES IN WITH. IT CAN
7 HAPPEN ON APPEAL. IT CAN HAPPEN IN THE GOVERNOR’S OFFICE. THIS
8 IS A MISSTATEMENT. THERE IS NO INDICATION THAT THERE’S ANY
9 MISUNDERSTANDING ON THE PART OF THE JURY THAT THE WORDS MEAN
10 WHAT THEY SAY THEY MEAN.
11 THE COURT: ALL RIGHT.
12 AS TO THE PROFFERED — AND THE WAY I’LL HANDLE IT
13 FOR THE RECORD IS THE PROFFERED MODIFICATION OF 8.84 IS FOUND AT
14 PAGE TWO LINES 20 THROUGH 22 OF THE PLEADING ENTITLED PROPOSED
15 PENALTY PHASE JURY INSTRUCTIONS FILED BY THE DEFENSE. IT
16 APPEARS THAT THE MATERIAL IS ADEQUATELY COVERED IN THE CURRENT
17 8.84. THE REQUEST TO MODIFY 8.84 BY ADDING THAT PARAGRAPH WILL
18 BE DENIED.
19 NOW, MS. JONES, YOU’VE INDICATED THERE WERE SOME
20 OTHER MODIFICATIONS FURTHER IN. IT APPEARS THAT THE NEXT WOULD
21 BE AT PAGE FIVE LINES TWO AND THREE; IS THAT CORRECT?
22 MS. JONES: THAT’S CORRECT, YOUR HONOR.
23 WHILE MAKING OUR RECORD NOW THAT WE WANT TO HAVE
24 THAT PARAGRAPH STRICKEN FROM 8.84, I THINK THAT ADDRESSES THE
25 ISSUE THAT MR. BOYCE BRIEFED IN THE MOTION IN LIMINE WE FILED
26 LAST WEEK, AND I BELIEVE THAT THE PROSECUTION FILED IN A BRIEF
27 ALSO ASKING FOR SCHAD LANGUAGE. IT’S THE SAME CONCEPT, WHETHER
28 THE JURORS MUST REACH A VERDICT, AND THAT’S ONE CONCEPT AND THEN

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1 WHETHER THEY MUST IMPOSE THE DEATH PENALTY SHOULD THEY MAKE A
2 DETERMINATION THAT THE AGGRAVATORS OUTWEIGH THE MITIGATORS.
3 SO I THINK JUST IN TERMS OF THIS PARAGRAPH, RIGHT
4 NOW I’M GOING TO SAY WE OBJECT TO IT BECAUSE IT TELLS THEM THAT
5 THEY MUST REACH A VERDICT, WHICH IS NOT TRUE. THEY MUST
6 ENDEAVOR TO REACH A VERDICT, BUT IF THEY CANNOT THEY WILL RESULT
7 IN A HUNG JURY. WE WOULD ASK THAT THAT BE STRICKEN.
8 THE COURT: ALL RIGHT.
9 PEOPLE’S RESPONSE.
10 MR. DUSEK: WE’RE OPPOSED, YOUR HONOR. THIS IS BASICALLY
11 ASKING THE JURY FOR A HUNG JURY. THE CURRENT CALJIC 8.84 IS
12 CORRECT AND ADEQUATE AND COVERS IT.
17.40 DESCRIBES HOW ALL THE
13 JURORS MUST AGREE, AND 8.88 INDICATES THAT ALL JURORS MUST AGREE
14 BEFORE A VERDICT IS RENDERED. SO THIS POINT IS COVERED.
15 THE COURT: ALL RIGHT.
16 IT APPEARS THAT THE INSTRUCTIONS IN MULTIPLE
17 LOCATIONS COVER THIS GROUND ADEQUATELY AND, AS A RESULT, THE
18 CALLED FOR REQUEST AT PAGE FIVE OF THE DEFENSE MOVING PAPERS
19 REQUESTING THE DELETION OF THE LAST SENTENCE OF 8.84 WILL BE
20 DENIED.
21 MR. FELDMAN: YOUR HONOR, MAY I ASK A QUESTION ON THAT,
22 PLEASE?
23 THE COURT: SURE.
24 MR. FELDMAN: FOR PURPOSES OF ARGUMENT, IT WAS MY INTENT
25 TO ARGUE DEATH MEANS DEATH, AND I AM ASSUMING NOW, BASED ON THE
26 COURT’S RULING, THAT THAT WOULD NOT BE A CORRECT STATEMENT?
27 THE COURT: NO, NO. YOU CAN STILL ARGUE IT. IT IS NOT
28 NECESSARY THAT THE COURT DRAW ATTENTION TO IT IN THE

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1 INSTRUCTIONS IS WHAT I’M SAYING. THERE’S A WHOLE LOT OF RULINGS
2 THE COURT’S GOING TO MAKE ON INSTRUCTIONS THAT ARE NOT GOING TO
3 RESTRICT BOTH SIDES FROM ARGUING THE CASE BUT WILL NOT BE GIVEN
4 TO THE JURY. SO THAT’S THE BASIS FOR THAT.
5 MR. FELDMAN: THANK YOU.
6 THE COURT: ALL RIGHT.
7 SO 8.84 IS THE FIRST INSTRUCTION. NEXT IS THE
8 PEOPLE’S PROFFERED INSTRUCTION COMPARISON OF PENALTIES. MS. —
9 MS. JONES: JUST A MOMENT, YOUR HONOR.
10 THE COURT: SURE.
11 MR. FELDMAN: YOUR HONOR, WITH REGARD TO THE LAST
12 PARAGRAPH OF THE PEOPLE’S PROFFERED, BASICALLY IT’S
13 ARGUMENTATIVE BECAUSE A JURY COULD REASONABLY CONCLUDE THAT FOR
14 PURPOSES OF ARGUMENT THEY WANTED TO MURDER MR. WESTERFIELD
15 BECAUSE HE IS SO BAD. WHY KILL HIM WHEN THEY CAN TORTURE HIM IN
16 PRISON? THIS INSTRUCTION SAYS NO, YOU CAN’T THINK THAT WAY.
17 YOU CAN’T INDEPENDENTLY EXERCISE YOUR JUDGMENT IF IT’S YOUR VIEW
18 THAT HE’S SO BAD YOU HAVE TO KILL HIM.
19 AND OUR POSITION IS THE LAST PARAGRAPH OF THE
20 COMPARISON OF PENALTIES INSTRUCTION IS ARGUMENTATIVE, AND I
21 THINK THAT IT MISDIRECTS THE JURY AND BASICALLY INVITES THE JURY
22 TO MOVE IN A DIRECTION WHICH IT’S THEIR PRIVILEGE OR REQUIREMENT
23 OR OBLIGATION TO MOVE AND NOT FOR COUNSEL TO TELL THEM.
24 THE COURT: ALL RIGHT.
25 PEOPLE’S RESPONSE.
26 MR. DUSEK: YOUR HONOR, THIS IS IN LIGHT OF WHAT HAS BEEN
27 COMMON EXPERIENCE AND WHAT WE SAW IN THE JURY QUESTIONNAIRES
28 THAT SOME PEOPLE THINK LIFE IN PRISON WOULD BE THE MORE SEVERE

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1 PUNISHMENT. AND THAT IF, IN FACT, THE AGGRAVANTS SUBSTANTIALLY
2 OUTWEIGH THE MITIGANTS, THEY MIGHT AT LEAST, WITHOUT ANY
3 GUIDANCE FROM THE COURT, IMPOSE THE L. W. O. P. SENTENCE
4 INAPPROPRIATELY. THAT’S WHAT WE’RE TRYING TO AVOID HERE WITH A
5 NEUTRAL, EVEN STATEMENT THAT DEATH IS THE GREATEST. IF THE
6 GREATEST IS WARRANTED BY YOUR ASSESSMENT OF THE FACTS, THAT’S
7 WHAT IT SHOULD BE.
8 THE COURT: THAT’S COVERED ADEQUATELY IN OTHER
9 INSTRUCTIONS.
10 THE COURT FINDS THIS INSTRUCTION TO BE, FIRST OF
11 ALL, ARGUMENTATIVE AND, NUMBER TWO, SOME OF THE JURORS MAY HAVE
12 TAKEN THAT POSITION BUT NOT ALL OF THEM DID. IT DOESN’T APPEAR
13 TO THE COURT THAT THERE IS ANY CONFUSION ON THE PART OF THE
14 JURY. SO THIS INSTRUCTION WILL BE NOTED AS PROFFERED BY THE
15 PEOPLE AND IT WILL NOT BE GIVEN BY THE COURT.
16 NEXT UP IS 8.84.1. I NOTE THAT THE INSTRUCTION
17 THAT HAS BEEN PROFFERED BY THE PEOPLE IS A DIRECT QUOTE OF THE
18 INSTRUCTION FROM CALJIC WITHOUT MODIFICATION. IT APPEARS THAT
19 THE DEFENSE HAS OUTLINED A NUMBER OF ARGUMENTS STARTING AT PAGE
20 FIVE OF THEIR PLEADING LINE SEVEN GOING THROUGH PAGE SIX LINE
21 20.
22 MS. JONES.
23 MS. JONES: YOUR HONOR, THE FIRST ARGUMENT THAT WE MAKE
24 DIRECT — ACTUALLY SORT OF DIRECTS US TO QUERY THE COURT WHICH,
25 IF ANY, OF THE GUILT PHASE INSTRUCTIONS THE COURT’S GOING TO
26 GIVE, BECAUSE IT RAISES THE OBJECTION TO THE CONSCIOUSNESS OF
27 GUILT INSTRUCTIONS AND THERE WERE SEVERAL OF THOSE GIVEN.
28 THE COURT: I HAVE LOOKED AT THE ONES THAT HAVE BEEN

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1 PROFFERED BY THE PEOPLE AND FOUND THEM TO BE, QUITE FRANKLY, A
2 GOOD SKELETON FROM WHICH TO WORK, AND I DON’T ANTICIPATE USING
3 INSTRUCTIONS THAT ARE NOT CONTAINED THEREIN. WE MAY HAVE TO ADD
4 TO ‘EM BECAUSE THERE’S BEEN AN ARGUMENT RELATIVE TO MR.
5 WESTERFIELD NOT TESTIFYING AND A COUPLE OTHERS, BUT I DON’T
6 INTEND TO BRING IN ANY OTHERS AT THIS POINT AT LEAST.
7 MS. JONES: THAT’S FINE, YOUR HONOR.
8 THEN AS TO THE NEXT ISSUE, STARTING AT LINE 23 ON
9 PAGE FIVE, WE ASK THAT THE JURORS BE DIRECTED THAT THEY NEED TO
10 MAKE AN INDIVIDUALIZED DETERMINATION OF WHAT PENALTY IS
11 APPROPRIATE FOR MR. WESTERFIELD. AND THIS DOES NOT CONTRADICT
12 OR UNDERCUT OUR ARGUMENT MADE LATER IN THE PAPERS THAT, UNDER
13 RING AND APPRENDI, THERE MUST BE UNANIMITY AS TO ANY ISSUE IN
14 AGGRAVATION AND AS TO THE ULTIMATE DECISION. BUT IF THEY’VE GOT
15 AN INDIVIDUALIZED DUTY TO ASSESS THE EVIDENCE AND DRAW THEIR OWN
16 OPINIONS REGARDING THE WEIGHT OF THE EVIDENCE THAT’S BEEN GIVEN
17 TO THEM.
18 THE COURT: ALL RIGHT. DO YOU WANT TO COVER — BEFORE I
19 HEAR FROM THE PEOPLE, DO YOU WANT TO COVER THE OTHER REQUESTS
20 CONTAINED ON PAGE SIX?
21 MS. JONES: YES, YOUR HONOR.
22 FRANKLY, THE OTHER REQUEST ON PAGE SIX REGARDING
23 THE INFLUENCE OF BIAS AT PENALTY TRIAL IS A DIFFERENT KIND THAN
24 ALMOST ANY OTHER SORT OF TRIAL, BECAUSE YOU’VE GOT A JURY THAT’S
25 ALREADY MADE ONE JUDGMENT OF THE DEFENDANT, OF MR. WESTERFIELD,
26 ALREADY AND THEY NEED TO BE REMINDED THAT, EVEN THOUGH THEY’VE
27 MADE THAT JUDGMENT AND THEY SAT DOWN AND DELIBERATED ONCE
28 BEFORE, THAT THEY ARE NOT TO BE BIASED BY THAT JUDGMENT. THAT

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1 THE FACT THAT THERE’S BEEN A GUILTY VERDICT IS SIMPLY AT THIS
2 POINT IN TIME A PROCEDURAL FACT THAT BRINGS US INTO THIS PENALTY
3 TRIAL, AND IT’S NOT SOMETHING THAT’S ADDITIONAL THAT’S SUPPOSED
4 TO BE HELD AGAINST MR. WESTERFIELD OR TO PROVIDE ANY BASIS FOR
5 BIAS OR PREJUDICE.
6 THE COURT: ALL RIGHT.
7 PEOPLE’S RESPONSE.
8 MR. DUSEK: REGARDING THE BASICALLY REINSTRUCTING ON THE
9 EARLIER INSTRUCTIONS, I THINK THERE WAS ONE THAT I HAD OMITTED
10 AND THAT WAS 2.03, CONSCIOUSNESS OF GUILT, FALSEHOOD. IT
11 APPLIED TO THE EARLIER CASE AND IT SHOULD APPLY TO THIS CASE
12 BECAUSE OF THE STATEMENTS THE DEFENDANT MADE REGARDING THE
13 JENNIE N. INCIDENT, THE STATEMENTS HE MADE TO JENNIE’S MOTHER
14 AND THE STATEMENTS HE MADE TO PAUL REDDEN. SO, I THINK I
15 OMITTED THAT AND THAT SHOULD BE INCLUDED IN THIS PACKAGE.
16 MR. FELDMAN: WE WANT TO OPPOSE THOSE INSTRUCTIONS.
17 THE COURT: I WAS GOING TO GIVE YOU THE OPPORTUNITY TO
18 RESPOND. I BELIEVE — I’M LOOKING AT THE PACKAGE THAT WAS
19 UTILIZED — 2.03 WAS MODIFIED, CORRECT?
20 MR. DUSEK: I DON’T THINK SO.
21 THE COURT: WAS IT GIVEN STRAIGHT OUT?
22 MR. DUSEK: IT WAS GIVEN AS WRITTEN.
23 THE COURT: IT WAS GIVEN AS WRITTEN, THAT’S CORRECT.
24 ALL RIGHT. MR. FELDMAN, OR WHOEVER’S GOING TO
25 RESPOND.
26 MR. FELDMAN: GUILT PHASE WE DIDN’T HAVE THE OBJECTION
27 BECAUSE OF THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION, WHICH WAS
28 ALSO BEING GIVEN. IF YOU GIVE 2.03, THAT BASICALLY DIRECTS THE

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1 JURY THAT THERE WAS A FALSE STATEMENT GIVEN, AND WE DON’T
2 CONCEDE ANYTHING THAT MR. WESTERFIELD SAID WAS FALSE. I THINK
3 IT’S ARGUMENTATIVE IN CONTEXT. I DON’T THINK IT FITS THE FACTS
4 OF THE PENALTY PHASE.
5 THE COURT: ALL RIGHT.
6 PEOPLE.
7 MR. DUSEK: IT SIMPLY GIVES THE JURY THE OPTION OF
8 CONSIDERING IT WHEN IT SAYS "IF YOU FIND THAT BEFORE THIS TRIAL
9 HE MADE A FALSE STATEMENT," THEN YOU CAN APPLY IT AS INDICATED
10 THERE. SO I THINK IT DOES HAVE APPLICATION TO THE JENNIE N.
11 INCIDENT, SPECIFICALLY BECAUSE WE HAVE TO PROVE THAT BEYOND A
12 REASONABLE DOUBT. WE HAVE TO ASSESS HER TESTIMONY AND THE
13 DEFENDANT’S BEHAVIOR AND STATEMENTS HE MADE REGARDING THAT.
14 THE COURT: AND —
15 I’LL DEFER RULING ON THAT UNTIL I HAVE A CLERK
16 SITTING IN COURT. I WILL TELL YOU WHAT I’M GOING TO RULE,
17 THOUGH, AS SOON AS SHE GRACES US WITH HER PRESENCE, AND THAT IS
18 AS FOLLOWS: THE PEOPLE ARE REQUIRED TO PROVE BEYOND A
19 REASONABLE DOUBT THE UNCHARGED INCIDENT, AND THIS DRAWS UNDUE
20 ATTENTION TO ONE PERSPECTIVE OR ONE ASPECT OF THAT, AND IT
21 DOESN’T APPEAR TO BE AN APPROPRIATE INSTRUCTION, GIVEN THE FACT
22 THAT, AT THIS POINT IN TIME AT LEAST, THAT THE BURDEN IS ON THE
23 PEOPLE TO SHOW THAT INCIDENT. SO IT WILL NOT BE GIVEN.
24 SINCE I DON’T HAVE THE COPY OF IT AT HAND, I WANT
25 TO MAKE SURE MY CLERK NOTES FOR THE DOCKET THAT THE PEOPLE HAVE
26 REQUESTED 2.03 — AND I HEAR THE PITTER PATTER OF LITTLE FEET AS
27 WE SPEAK.
28 THE CLERK: YES.

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1 THE COURT: PLEASE DON’T LEAVE WHILE THIS IS GOING ON. I
2 NEED YOU HERE.
3 NOTE IN THE DOCKET THAT THE PEOPLE HAVE REQUESTED
4 2.03. IT WILL BE DENIED BY THE COURT FOR REASONS STATED ON THE
5 RECORD.
6 ALL RIGHT. SO WE’VE GOT 8.84.1. THAT WILL BE
7 GIVEN WITH THE OBJECTIONS DULY NOTED.
8 WE HAVE NEXT IN THE PEOPLE’S PACKAGE ONE THAT
9 DOESN’T APPEAR TO BE OBJECTED TO BY THE DEFENSE, WHICH IS 1.01,
10 WHICH WOULD BE GIVEN IN THE PRESENT TENSE.
11 MR. CLARKE, ARE YOU GOING TO BE THE OFFICIAL SOURCE
12 OF CLEAN COPIES OR WOULD YOU —
13 MR. CLARKE: IT WOULD BE MY PLEASURE.
14 THE COURT: ALL RIGHT.
15 YOU DID SUCH A FINE JOB THE LAST TIME, I FIGURED
16 YOU PROBABLY GOT IT ALL ON COMPUTER.
17 MR. CLARKE: I WILL.
18 THE COURT: ALL RIGHT.
19
1.01 WILL BE GIVEN IN THE PRESENT TENSE.
20
1.02 WILL BE GIVEN. INCIDENTALLY, IF THERE ARE
21 OBJECTIONS, PLEASE RAISE THEM. THESE APPEAR TO BE SO PRO FORMA
22 THAT I’M JUST GOING TO ASSUME THERE IS NO OBJECTION. THERE’S NO
23 STIPULATION, HOWEVER, IN THIS PHASE TO THIS POINT.
24 DO EITHER SIDE ANTICIPATE A STIPULATION?
25 MR. DUSEK: NO.
26 MR. FELDMAN: DON’T THINK SO.
27 THE COURT: ALL RIGHT.
28 THEN THE BRACKETED PORTION IN 1.02 FIRST PARAGRAPH

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1 WILL NEED TO COME OUT.
2 1.03 WILL NEED TO BE GIVEN.
3 MR. FELDMAN: THERE’S THAT BRACKETED PART WITH THE —
4 THE COURT: I WILL NEED, BECAUSE OF THE FACT THAT THE
5 JURY IS ENTITLED TO CONSIDER ALL OF THE EVIDENCE, INCLUDING THE
6 TESTIMONY OF THE SIGN — OR THE WITNESS THAT TESTIFIED THROUGH
7 SIGN, SO THAT WILL NEED TO BE MODIFIED AS IT WAS TO THE TRIAL IN
8 THE BRACKETED PORTION.
9 2.00 WILL BE GIVEN IN ITS CURRENT FORM.
10 MS. JONES: YOUR HONOR, WE’D REQUEST 2.02 AFTER THAT.
11 THAT WOULD BE THE NEXT ONE IN ORDER REGARDING THE PROOF OF THE
12 JENNIE N. INCIDENT — OR 2.01.
13 THE COURT: WELL, I NOTE THAT YOU HAVE PROFFERED AN
14 INSTRUCTION REGARDING BATTERY ONLY.
15 MR. DUSEK: WE HAVE AN INSTRUCTION HERE FOR 288 ALSO.
16 MR. FELDMAN: WE HAVEN’T BEEN NOTICED ON THAT. WE
17 ASSUMED YOU WERE GOING TO DEFER. I DON’T KNOW WHEN YOU WANT TO
18 DEAL WITH THAT.
19 THE COURT: OBVIOUSLY, THAT’S ONE OF THE THINGS WE’RE
20 GOING TO HAVE TO DEAL WITH.
21 HAVE YOU PREPARED A COPY OF IT OR YOU’RE JUST
22 ASKING TO INTERJECT IT? BECAUSE MY THOUGHT IS THAT, SINCE THAT
23 RELATES DIRECTLY TO THE UNCHARGED CRIMINAL CONDUCT, IT SHOULD BE
24 IN THE SAME LOCATION IN THE JURY PACKET.
25 MS. JONES: THAT WOULD BE FINE, YOUR HONOR, AND I DO NOT
26 HAVE A COPY. I APOLOGIZE.
27 THE COURT: I’LL JUST MAKE A NOTE OF THAT.
28 WE’LL DISCUSS ALL OF THAT WHEN WE GET TO THAT

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1 ISSUE.
2 OKAY. 2.13 APPEARS APPROPRIATE. IT WILL BE GIVEN
3 IN ITS ENTIRETY.
4 2.20 WILL BE GIVEN. IT APPEARS, ONCE AGAIN, THAT
5 THE FIRST PAGE IS APPROPRIATE. IT APPEARS ON THE SECOND PAGE
6 WE’VE HAD ADMISSION OF UNTRUTHFULNESS. SO THAT BRACKETED
7 PORTION APPEARS APPROPRIATE. ALL THE REST APPEAR TO BE NOT
8 APPROPRIATE. SO OTHER THAN ADMISSION OF AN UNTRUTHFULNESS THE
9 REST WILL BE STRUCK.
10 THAT BRINGS US TO 8.85, WHICH IS BASICALLY, FOR
11 LACK OF A BETTER WORD, THE REAL INTRODUCTION INTO THE PENALTY
12 PHASE FOR THE JURORS’ CONSIDERATION. I WILL NOTE THAT THE
13 DEFENSE ARGUMENT ADDS TO THAT ISSUE, COMMENCING AT PAGE SIX, NOW
14 PARAGRAPH FIVE, WHICH IS AT LINE 21 AND PROCEED THROUGH —
15 MS. JONES: I THINK PAGE 16, YOUR HONOR.
16 THE COURT: PAGE 16 LINE ONE. ALL RIGHT.
17 FIRST OF ALL, I’LL NOTE THAT THE INSTRUCTION
18 PROFFERED BY THE PEOPLE CONTAINS SOME MODIFICATIONS THAT APPEAR
19 TO COME VERY CLOSE TO SOME REQUESTS BEING MADE BY THE DEFENSE.
20 FIRST OF ALL, THE FIRST PAGE OF 8.85 IS A DIRECT
21 QUOTE OF THE INSTRUCTION FROM CALJIC WITHOUT MODIFICATION. PAGE
22 TWO UNDER FACTOR "K" CONTAINS SOME BRACKETED PORTIONS THAT
23 RELATE TO A MODIFICATION OF THE INSTRUCTION CONTAINED IN AN
24 UPDATE DATED JULY 2002 THAT DEAL WITH THE ISSUES OF THE IMPACT
25 OF THE EXECUTION ON THE FAMILY OR MEMBERS OF THE FAMILY, AS WELL
26 AS THE JURY NOT TO CONSIDER SYMPATHY FOR THE FAMILY OF THE
27 DEFENDANT. AND IT ALSO COVERS THE SYMPATHETIC OR OTHER ASPECTS
28 OF THE DEFENDANT’S CHARACTER.

10375
1 NOW THAT IS A — I WOULD SUSPECT A LITTLE BROADER
2 OR A MORE BROAD DEFINITION THAN WHAT THE DEFENSE HAS ASKED FOR.
3 BUT WOULD THE PEOPLE, FIRST OF ALL, FOR PURPOSES OF DISCUSSION,
4 CONCEDE THOSE BRACKETED PORTIONS OR NO?
5 MR. DUSEK: CONCEDE WHAT?
6 THE COURT: THAT THEY SHOULD BE READ?
7 MR. DUSEK: YES. WE THINK THEY SHOULD ALL BE READ, YOUR
8 HONOR.
9 THE COURT: ALL RIGHT. THAT’S THE FEELING OF THE COURT
10 AS WELL.
11 NOW, TAKE ME THROUGH YOUR BRIEF, MS. JONES.
12 MS. JONES: THIS BE COULD BE A WHILE.
13 ALL RIGHT. YOUR HONOR, FIRST OF ALL, AS TO — ON
14 PAGE SIX PARAGRAPH NUMBER FIVE, WE’D LIKE THE COURT TO INDICATE
15 TO THE JURORS, JUST AS YOU DID DURING THE GUILT PHASE, THAT THE
16 ORDER OF THE INSTRUCTIONS IS NOT DISPOSITIVE OF ANY SORT OF
17 INDICATION OF HOW THEY SHOULD TAKE THE IMPORTANCE OF THE
18 INSTRUCTIONS. THEY SHOULD TAKE THEM ALL EQUALLY.
19 THE COURT: DO THE PEOPLE HAVE ANY PROBLEM WITH THAT?
20 MR. DUSEK: IT MIGHT ALREADY BE GIVEN AS 1.01.
21 THE COURT: I BELIEVE YOU’RE ABSOLUTELY CORRECT. LET ME
22 JUST VERIFY THAT.
23 YOU’RE ABSOLUTELY CORRECT.
24 MS. JONES: THAT’S FINE, YOUR HONOR.
25 THE COURT: YES. YOU’RE CORRECT. ALL RIGHT.
26 MS. JONES: YOUR HONOR, THE NEXT ARGUMENT, WHICH IS
27 ARGUMENT NUMBER SIX STARTING ON PAGE SIX AND GOES FOR SEVERAL
28 PAGES, AND IS ALSO SUBSUMED IN SOME OF THE OTHER MINI-ARGUMENTS,

10376

1 IS OUR REQUEST THAT ANY OF THE MITIGATING OR AGGRAVATING FACTORS
2 THAT ARE NOT APPLICABLE IN THIS CASE APART FROM — WELL, THAT
3 ARE NOT APPLICABLE IN THIS CASE NOT BE TOLD TO THE JURY SO THAT
4 IT’S NOT CONFUSING.
5 THERE IS NO ALLEGATION IN THIS CASE, FOR EXAMPLE,
6 OF ANY SORT OF DURESS OR EMOTIONAL DISTURBANCE ON MR.
7 WESTERFIELD’S PART. THERE IS NO ALLEGATION THAT DANIELLE IN ANY
8 WAY INVITED WHAT HAPPENED TO HER TO HAPPEN TO HER. THERE IS NO
9 INDICATION THAT THERE WAS AN ACCOMPLICE AND THAT, YOU KNOW, THAT
10 THERE WAS — MR. WESTERFIELD’S CULPABILITY MAY BE LESS BECAUSE
11 OF THAT. SO THE FACTORS THAT WE ASK THAT THE COURT JUST NOT
12 EVEN ADDRESS THE JURY ABOUT ARE "D", "E", "F", "G", "H" AND "J",
13 BECAUSE THEY’RE NOT APPLICABLE TO THE DETERMINATION THAT THE
14 JURORS ARE GOING TO MAKE IN THIS CASE, AND READING THOSE FACTORS
15 TO THE JURORS ARE JUST GOING TO CONFUSE THEM.
16 THE COURT: ALL RIGHT.
17 THE PEOPLE.
18 MR. DUSEK: THE JURY IS NOT GOING TO BE CONFUSED. THE
19 SUPREME COURT HAS SAID OVER AND OVER AND OVER AGAIN THAT THESE
20 FACTORS SHOULD NOT BE DELETED. THEY SHOULD NOT BE DELETED.
21 THE COURT: IT APPEARS TO THE COURT THAT A REVIEW WOULD
22 INDICATE THAT THERE IS SOME AUTHORITY THAT STANDS FOR THE
23 PROPOSITION THAT THE COURT DOES HAVE THE ABILITY TO STRIKE
24 THOSE. HOWEVER, WHAT HAPPENS IS WHEN YOU DO THAT YOU START
25 TAKING THINGS OUT OF CONTEXT. AND THE INSTRUCTION ITSELF TELLS
26 THE JURORS THAT THEY’RE TO DETERMINE WHAT, IF ANY, OF THESE ARE
27 APPLICABLE TO THE FACTS OF THE CASE. AND THEY’RE GOING TO BE
28 ABLE TO JUST ADEQUATELY MAKE THAT DETERMINATION SIMPLY THE SAME

10377
1 WAY THAT WE HAVE HERE.
2 SO OUT OF AN ABUNDANCE OF CAUTION, KEEPING THINGS
3 IN A SEQUENCED ORDER, THE COURT IS GOING TO GIVE THE INSTRUCTION
4 WITHOUT DELETING THOSE PARTICULAR REFERENCED PARAGRAPHS.
5 MS. JONES: AND THEN WE’LL HAVE PROPOSED MODIFICATIONS AS
6 I GO THROUGH THESE ARGUMENTS, YOUR HONOR.
7 THE COURT: RIGHT. NO, I UNDERSTAND THAT.
8 MS. JONES: ADDITIONALLY, AS TO THE FACTOR "A"
9 INSTRUCTION, YOUR HONOR, FAILS TO GO DIRECT — ACTUALLY, THIS
10 GOES TO ALL OF THEM — EXCUSE ME — NUMBER SEVEN ON PAGE EIGHT.
11 THE FAILURE OF THE JURY INSTRUCTION TO INDICATE TO THE JURORS
12 WHAT ARE AGGRAVATORS AND WHAT ARE MITIGATORS IS CONFUSING AND
13 FAILS TO CORRECTLY CHANNEL THEIR EXERCISE OF DISCRETION AS
14 REQUIRED BY THE 8TH AND 14TH AMENDMENTS.
15 WE WOULD THEREFORE ASK THAT EACH OF THE FACTORS AS
16 THEY’RE GIVEN TO THE JURORS BE IDENTIFIED AS EITHER — SOME OF
17 THEM ARE BOTH AGGRAVATING AND MITIGATING, AND MANY OF THEM ARE
18 MITIGATING ONLY AND CAN’T BE CONSIDERED AGGRAVATING OR THE
19 ABSENCE OF THEM BE CONSIDERED AGGRAVATING. WE’D LIKE THE JURORS
20 TO BE INSTRUCTED LIKE THAT.
21 THE COURT: ALL RIGHT.
22 PEOPLE’S POSITION.
23 MR. DUSEK: WE’RE OPPOSED, YOUR HONOR. WHAT THE DEFENSE
24 IS ASKING FOR HAS BEEN REJECTED BY THE SUPREME COURT OVER AND
25 OVER AGAIN.
26 THE COURT: REQUEST IS DENIED.
27 NEXT.
28 MS. JONES: YOUR HONOR, AS TO NUMBER EIGHT, WE’D LIKE THE

10378
1 JURORS TO BE INSTRUCTED REGARDING VICTIM IMPACT EVIDENCE,
2 REMINDING THE JURORS THAT THE EVIDENCE THAT WAS BROUGHT IN
3 REGARDING TESTIMONY OF THE VAN DAMS AND DANIELLE’S TEACHERS
4 SHOULD NOT BE CONSIDERED FOR EMOTION OR PREJUDICE, AND THAT THEY
5 MUST — REMINDING THEM THAT THEY NEED TO ADDRESS THEIR TASKS
6 SOBERLY AND RATIONALLY AND SIT DOWN AND CAREFULLY WEIGH ALL THE
7 FACTORS AND NOT JUST BE SWAYED BY THE PASSION OR PREJUDICE THAT
8 MAY HAVE BEEN ARISEN IN THEM BY VIRTUE OF SHOWING THE VIDEO AND
9 PRESENTING VICTIM IMPACT EVIDENCE.
10 THE COURT: ALL RIGHT.
11 THE PEOPLE.
12 MR. DUSEK: THIS IS AN ARGUMENT BEING MADE BY THE DEFENSE
13 THROUGH THE COURT, AT LEAST HOPEFULLY IT’S PHILOSOPHY, DEFENSE
14 PHILOSOPHY. WE ARE OPPOSED TO THIS. THE JURY KNOWS THAT
15 THEY’RE SUPPOSED TO MAKE THEIR DECISION BASED UPON THE EVIDENCE
16 AS IT COMES IN. THIS IS NOT LAW.
17 THE COURT: WELL, IT APPEARS TO BE COUCHED IN AN
18 ARGUMENTATIVE CONTEXT, NUMBER ONE. AND NUMBER TWO, THE
19 INSTRUCTIONS AS CURRENTLY WRITTEN ADDRESS THE SITUATION, AND I
20 DON’T FIND THAT THERE’S ANY PREJUDICE TO THE DEFENSE, SO THE
21 REQUESTED OUTLINE STARTING AT PAGE EIGHT PARAGRAPH EIGHT GOING
22 ON TO THE BALANCE OF THAT PAGE WOULD BE DENIED.
23 OKAY. THAT BRINGS US TO PARAGRAPH NINE.
24 MS. JONES: YOUR HONOR, THIS IS THE ISSUE OF LINGERING
25 DOUBT. AND I KNOW THAT THE PEOPLE HAVE SUBMITTED A SEPARATE
26 BRIEF REGARDING THIS. I DON’T THINK IT’S BEEN ANY SURPRISE, AT
27 LEAST TO THE PARTIES IN THIS COURTROOM AND PERHAPS TO OTHERS
28 OUTSIDE, THAT THIS IS GOING TO BE A IMPORTANT PART OF OUR

10379
1 DEFENSE ARGUMENT, THAT THERE IS A LINGERING DOUBT AS TO WHETHER
2 IT’S POSSIBLE, BEYOND ALL POSSIBLE DOUBT, THAT MR. WESTERFIELD
3 IS THE PERPETRATOR IN THIS CASE. THERE IS SOME LAW SAYING THAT
4 THE COURT DOES NOT HAVE TO GIVE THIS INSTRUCTION, BUT MANY
5 COURTS HAVE GIVEN THE INSTRUCTION, AND THIS IS VERY IMPORTANT
6 BECAUSE WHEN MR. FELDMAN AND MR. BOYCE GET UP AND DO THEIR
7 CLOSING ARGUMENTS THEY NEED TO HAVE SOME LEGAL AUTHORITY BEHIND
8 THEM TO TELL THE JURORS YOU ARE ALLOWED, EVEN THOUGH YOU’VE
9 ALREADY MADE THIS DECISION THAT MR. WESTERFIELD IS GUILTY, YOU
10 ARE ALLOWED TO GO BACK AND REVISIT THE CIRCUMSTANCES OF THE
11 OFFENSE UNDER FACTOR "A", AND CONSIDER WHETHER THERE IS ANY
12 LINGERING DOUBT IN YOUR MIND THAT WOULD MAKE YOU RELUCTANT TO
13 IMPOSE THE DEATH PENALTY IN THIS CASE.
14 IF THE COURT REFUSES TO INSTRUCT ON THAT PARTICULAR
15 FACTOR AND THAT PARTICULAR THEORY, A VERY IMPORTANT PART OF THE
16 DEFENSE ARGUMENT IS NOT GOING TO HAVE THE LEGAL AUTHORITY
17 UNDERNEATH IT TO ALLOW THE JURORS TO GO BACK INTO THE JURY ROOM
18 AND SAY HEY, WE ARE ALLOWED TO CONSIDER THIS AS SOMETHING IN
19 MITIGATION AS A REASON NOT TO IMPOSE THE DEATH PENALTY IN THIS
20 CASE. IT’S A VERY IMPORTANT INSTRUCTION. THE COURT HAS THE
21 AUTHORITY TO GIVE IT AND IT SHOULD BE GIVEN.
22 THE COURT: MR. DUSEK.
23 MR. DUSEK: LINGERING DOUBT HAS BEEN REJECTED IN MANY,
24 MANY CASES AND THE READING THE CASES — AND I TRIED TO INCLUDE
25 THE PROPOSED LINGERING DOUBT INSTRUCTIONS IN MY POINTS AND
26 AUTHORITIES, AND THOSE ARE WAY LESS ARGUMENTATIVE, WAY LESS
27 PHILOSOPHICAL THAN THIS ONE, AND VIRTUALLY BEEN REJECTED IN ALL
28 CASES.

10380
1 CERTAINLY THE DEFENSE CAN ARGUE LINGERING DOUBT.
2 YOU MAY NEED A GREATER DEGREE OF CERTAINTY BEFORE YOU CAN IMPOSE
3 THE ULTIMATE PENALTY. BUT THEY ARE CERTAINLY NOT ENTITLED TO A
4 LINGERING DOUBT INSTRUCTION CERTAINLY AS WE HAVE IT HERE. I
5 DON’T THINK ANY LINGERING DOUBT INSTRUCTION SHOULD BE GIVEN.
6 THE COURT: ALL RIGHT.
7 ONCE AGAIN, THE COURT HAS REVIEWED BOTH THE CASE
8 AND OTHER AUTHORITY THAT HAS BEEN BRIEFED IN THIS MATTER AND
9 FINDS THAT, NUMBER ONE, BY NOT ALLOWING THIS INSTRUCTION THE
10 DEFENSE IS NOT PREJUDICED IN ANY WAY THAT I CAN SEE, BECAUSE
11 LINGERING DOUBT, AS WE ALL KNOW, CAN AND WILL BE ARGUED.
12 THE FACT THAT THERE IS NO JURY INSTRUCTION
13 SPECIFICALLY ON THAT POINT IS NOT GOING TO MINIMIZE WHAT, IF
14 ANY, IMPACT THIS IS GOING TO HAVE ON THE 12 PEOPLE ULTIMATELY
15 DECIDING MR. WESTERFIELD’S FATE.
16 THE INSTRUCTION AS IT’S CURRENTLY WORDED IS
17 ARGUMENTATIVE AND AS A RESULT WILL NOT BE GIVEN. BUT AGAIN, IT
18 DOESN’T PRECLUDE THE DEFENSE FROM MAKING THE ARGUMENTS IT
19 INTENDS TO MAKE.
20 MR. BOYCE: YOUR HONOR, JUST FOR THE RECORD, WE WOULD BE
21 WILLING TO MODIFY THE INSTRUCTION TO MAKE IT LESS ARGUMENTATIVE,
22 IF THE COURT WOULD ALLOW US SOMETHING UNDER — INCORPORATED
23 WITHIN FACTOR "K", EVEN JUST TO SAY "LINGERING DOUBT" MAY BE
24 CONSIDERED BY THE JURY, BECAUSE OTHERWISE THERE’S NOTHING IN THE
25 INSTRUCTION THAT TELLS THEM THAT THEY CAN CONSIDER THIS.
26 THE COURT: WELL, IT APPEARS THAT TODAY WE’RE NOT GOING
27 TO BE ABLE TO RESOLVE ALL OF THE ISSUES SURROUNDING THE JURY
28 INSTRUCTIONS. SO IF YOU WANT TO REDO OR IN SOME WAY MODIFY AN

10381
1 8.85 TO HAVE A NEUTRAL STATEMENT, I’LL REVISIT IT, BECAUSE I AM
2 AWARE OF THE FACT THAT I HAVE THE DISCRETION TO INCLUDE IT AS
3 COUCHED, HOWEVER, IT’S CLEARLY ARGUMENTATIVE, BUT I’LL TAG
4 PARAGRAPH "K" AND I’LL REVISIT IT.
5 MR. BOYCE: THANK YOU, YOUR HONOR.
6 MS. JONES: YOUR HONOR, THE NEXT ISSUE IS THE POSSIBLE
7 PROBLEM OF DOUBLE COUNTING RAISED AT THE BOTTOM OF PAGE 10 AND
8 GOING ON TO PAGE 11.
9 GIVEN THE FACT THAT UNDER FACTOR "A" THE JURORS ARE
10 TO CONSIDER THE FACTS AND CIRCUMSTANCES OF THE GUILT PHASE,
11 THERE IS THE POSSIBILITY THAT THEY’RE GOING TO CONSIDER THE
12 ACTUAL PROOF OF THE SPECIAL CIRCUMSTANCE, OR THE ACTUAL PROOF OF
13 SOMETHING THAT HAPPENED AT THE GUILT PHASE, IN AND OF ITSELF AS
14 A FACTOR IN AGGRAVATION AND IMPROPERLY DOUBLE COUNT IT.
15 THIS IS JUST ASKING THE COURT TO REMIND THE JURORS
16 THAT THE EXISTENCE OF THE SPECIAL CIRCUMSTANCE OR ANY OF THE
17 FACTS IN SUPPORT OF THE SPECIAL CIRCUMSTANCE SHOULD NOT BE
18 CONSIDERED BY THEM AS A SEPARATE AGGRAVATOR SO THAT WE DON’T
19 HAVE ANY DOUBLE COUNTING VIOLATIONS OF THE 8TH AND 14TH
20 AMENDMENTS.
21 THE COURT: MR. DUSEK.
22 MR. DUSEK: WE’RE OPPOSED TO THE LANGUAGE AND THE THEORY
23 IN WHICH IT’S OFFERED. THE LANGUAGE DOESN’T MAKE SENSE TO ME.
24 SECONDLY, THERE’S ONLY ONE SPECIAL CIRCUMSTANCE, SO
25 THERE IS NO PROBLEM WITH DOUBLE COUNTING, AND THE JURY WILL BE
26 TOLD IN ONE OF THE OTHER INSTRUCTIONS I THINK THAT YOU’RE JUST
27 SUPPOSED TO ADD UP FACTORS. YOU’RE SUPPOSED TO LOOK AT THE
28 WEIGHT OF EVERYTHING THAT’S INCLUDED. AT LEAST NO REALISTIC
10382
1 FEAR THAT THERE WILL BE ANY DOUBLE COUNTING.
2 THE COURT: IT APPEARS TO THE COURT THAT, NUMBER ONE,
3 IT’S NOT WELL FOUNDED BUT, NUMBER TWO, THE JURY WAS ADVISED IN
4 OTHER INSTRUCTIONS IN SUCH A WAY THAT THEY’LL BE ABLE TO CLEARLY
5 AVOID DOUBLE COUNTING. SO THAT REQUEST IS OUT OF LINE ON PAGES
6 NINE AND 11, WILL BE DENIED.
7 MS. JONES: NEXT, YOUR HONOR, THIS IS A MODIFICATION
8 REGARDING THE OTHER AGGRAVATORS AND MITIGATORS IN 8.85. WE’D
9 ASK FOR LANGUAGE IDENTIFYING FACTORS. "A," "B" AND "C" CAN BE
10 CONSIDERED AS AGGRAVATING FACTORS, AND THEY CAN ALSO ALL BE
11 CONSIDERED AS MITIGATORS. I BELIEVE FOR "C" ANY ACTION CAN BE
12 CONSIDERED AS A MITIGATOR.
13 ADDITIONALLY, WE WANT THE JURY TO BE REMINDED THAT
14 THE ABSENCE OF AN AGGRAVATOR IS NOT AND CANNOT BE CONSIDERED AS
15 A AGGRAVATOR. THE LANGUAGE SET FORTH HERE IS NOT ARGUMENTATIVE.
16 IT’S A CORRECT STATEMENT OF THE LAW AND IT DIRECTS THEIR
17 DISCRETION, THEIR EXERCISE OF THEIR DISCRETION AS DIRECTED BY
18 THE U.S. SUPREME COURT.
19 THE COURT: ALL RIGHT.
20 MR. DUSEK.
21 MR. DUSEK: THE CALIFORNIA SUPREME COURT HAS INDICATED
22 THAT 8.85 IS ACCEPTABLE AND IT IS GOOD LAW AS STATED TO THE
23 JURY.
24 THERE IS NO REQUIREMENT THAT THE AGGRAVATING
25 FACTORS BE IDENTIFIED AND THE UNMITIGATED FACTORS BE IDENTIFIED.
26 NUMEROUS SUPREME COURT CASES SO STATE. THIS LANGUAGE SHOULD BE
27 REJECTED. WE SHOULD STICK TO THE CALJIC.
28 THE COURT: ALL RIGHT.
10383
1 THE CALJIC INSTRUCTION 8.85 HAS WITHSTOOD REPEATED
2 APPELLATE REVIEW. I’M SATISFIED THAT AS A PROPER STATEMENT IT
3 IS NOT CONFUSING AND, AS A RESULT, THE REQUEST AS OUTLINED ON
4 PAGES 11 THROUGH 12 WILL BE DENIED.
5 I ALSO WOULD NOTE THAT IT IS IN SOME WAYS
6 REPETITIVE OF THE REQUESTS TO DELETE SOME OF THE FACTORS, BRING
7 US OVER TO PARAGRAPH 12.
8 MS. JONES: THAT’S CORRECT, YOUR HONOR. AND ACTUALLY,
9 THE END OF PARAGRAPH 11, PARAGRAPH 12, 13, AND 14 ALL BASICALLY
10 RAISE THE SAME ISSUE. THESE ARE INAPPLICABLE FACTORS, FACTORS
11 "D", "E", "F" AND "G". AND WE WOULD ASK THAT THE JURORS BE
12 DIRECTED, SINCE THE COURT’S NOT GOING TO DELETE THEM, BE
13 DIRECTED AS TO EACH OF THOSE FACTORS, THAT IN NO EVENT CAN A
14 FACTOR NOT IN MITIGATION BE A FACTOR IN AGGRAVATION.
15 THE COURT: ALL RIGHT.
16 MR. DUSEK.
17 MR. DUSEK: IT’S BEEN DENIED BOTH IN CALIFORNIA AND
18 SUPREME COURT. IT SHOULD BE DENIED AGAIN.
19 THE COURT: THOSE REQUESTS WILL BE DENIED. THAT BRINGS
20 US BACK OVER TO PARAGRAPH 15.
21 MS. JONES:
15, YOUR HONOR, YES. GIVEN THE COURT’S
22 INDICATION THAT IT’S GOING TO INSTRUCT THE JURORS REGARDING ALL
23 OF THE DIFFERENT FACTORS IN 190.3, WE’D ASK THAT FACTOR "H" BE
24 AUGMENTED TO EXPLAIN TO THE JURORS THAT ANY POSSIBLE MENTAL
25 IMPAIRMENT THAT THEY MAY HAVE FOUND THAT EXISTED IN MR.
26 WESTERFIELD DURING THE COMMISSION OF THE OFFENSE NEED NOT
27 NECESSARILY LESSEN HIS CULPABILITY FOR THE TRIAL. IT COULD
28 STILL BE CONSIDERED AS A MITIGATOR.
10384
1 THE COURT: ALL RIGHT.
2 MR. DUSEK, "H".
3 MR. DUSEK: THE LANGUAGE IN "H" HAS BEEN ACCEPTED OVER
4 THE YEARS. IT IS ALSO COVERED IN FACTOR "K".
5 THE COURT: IT’S ALREADY ADEQUATELY COVERED. THE REQUEST
6 WILL BE DENIED. THAT BRINGS US TO 16.
7 MS. JONES: YOUR HONOR, THE PURPOSE UNDER 190.3 IS FOR
8 THE JURORS TO TAKE INTO CONSIDERATION FACTS REGARDING MR.
9 WESTERFIELD, AND FACTS REGARDING THE ACTUAL CRIME ITSELF, TO
10 MAKE A DETERMINATION ABOUT WHAT’S THE APPROPRIATE PENALTY IN
11 THIS CASE.
12 FACTOR "I" REFERENCES HIS AGE, AND THAT’S ONLY ONE
13 OF THE ONLY FACTORS OVER WHICH HE HAS ABSOLUTELY NO CONTROL IN
14 THIS CASE. THEREFORE, IT’S AN IMPROPER FACTOR UPON WHICH THE
15 JURORS COULD RELY TO MAKE A DETERMINATION ABOUT WHETHER THE
16 SENTENCE OUGHT TO BE MITIGATED OR NOT. THEREFORE, WE ASK THAT
17 THAT BE STRICKEN.
18 THE COURT: ALL RIGHT.
19 THE PEOPLE.
20 MR. DUSEK: IT’S CONSTITUTIONAL AND ACCEPTABLE THROUGHOUT
21 THE STATE, YOUR HONOR.
22 THE COURT: YES. AND IT HAS WITHHELD — I MEAN, IT HAS
23 WITHSTOOD APPELLATE SCRUTINY. THE REQUEST WILL BE DENIED.
24 BRINGS US TO 17.
25 MS. JONES: YOUR HONOR, THIS IS JUST REVISITING THE SAME
26 ARGUMENT WE’VE MADE AS TO THE OTHER FACTORS THAT DON’T APPLY.
27 FACTOR "J", WHETHER THE DEFENDANT WAS AN ACCOMPLICE
28 AND HIS PARTICIPATION WAS RELATIVELY MINOR. SINCE THE COURT’S
10385
1 INDICATED IT’S GOING TO INSTRUCT ON THAT FACTOR, WE’D LIKE THE
2 JURORS TO BE DIRECTED THAT THE ABSENCE OF THAT FACTOR CANNOT BE
3 CONSIDERED AN AGGRAVATION.
4 THE COURT: ALL RIGHT.
5 FOR THE REASONS PREVIOUSLY NOTED, I’M ASSUMING THE
6 PEOPLE OBJECT.
7 MR. DUSEK: SAME REASONS.
8 THE COURT: THE SAME REASONS THE COURT HAS GIVEN BEFORE.
9 I THINK THIS JURY’S SHARP ENOUGH THAT THEY’LL BE ABLE TO FIGURE
10 OUT WHICH ONES APPLY AND WHICH DON’T. I SEE NO REASON TO
11 MODIFYING THE INSTRUCTION. SO THE REQUEST AT PARAGRAPH 17 WILL
12 BE DENIED.
13 THAT BRINGS US TO FACTOR "K" WHICH IS PARAGRAPH 18 14 ON PAGE 14.
15 MS. JONES: YES, YOUR HONOR. AND ACTUALLY, THERE ARE A
16 COUPLE OTHER FACTOR "K" TYPE OF INSTRUCTIONS HERE.
17 AS TO SUBSECTION B, WHICH IS REALLY THE FIRST
18 ARGUMENT THAT WE MAKE, THE COURT’S INDICATED IT’S GOING TO
19 INCLUDE THE BRACKETED 8.85, WHICH I BELIEVE SAYS THE JURORS
20 CANNOT CONSIDER THE IMPACT — EXCUSE ME — SYMPATHY FOR THE
21 FAMILY OF THE DEFENDANT OR EVIDENCE REGARDING THE IMPACT OF
22 THE — EXCUSE ME — THE IMPACT OF AN EXECUTION ON THE FAMILY BY
23 THE DEFENDANT.
24 THIS POINTS OUT TO THEM THAT THEY MAY CONSIDER THE
25 EXECUTION OF MR. WESTERFIELD TO HIS FAMILY AND FRIENDS, THAT IT
26 ILLUMINATES SOME POSITIVE CHARACTER OF HIS STATE OR BACKGROUND,
27 AND I BELIEVE THAT’S INCLUDED IN LAW.
28 THE COURT: IT IS, AND THAT’S INCLUDED IN THE BRACKETED
10386
1 PORTION THAT THE PEOPLE HAVE, IN FACT, SUBMITTED. AND IT’S ALL
2 ADEQUATELY COVERED AND MODIFIED. THE 2002 MODIFIED VERSION OF
3 8.85 DOES INCLUDE THAT, AND SPECIFICALLY ALMOST IDENTICAL TO
4 WHICH YOU’VE REQUESTED. SO TO THAT EXTENT I’LL AGREE. IT IS
5 NOT TECHNICALLY A MODIFICATION, BUT IT IS IN BRACKETED PORTIONS.
6 AND THE COURT WILL GIVE THEN ALL OF THE BRACKETED PORTIONS IN
7 FACTOR "K".
8 MR. FELDMAN: YOUR HONOR, I HAVE A QUESTION.
9 THE COURT JUST REFERRED TO THE 2002 EDITION, WHICH
10 I’M AWARE OF, BUT THE INSTRUCTION 2.85 IS A 2000 REVISION. I
11 JUST WANT TO MAKE SURE WE’RE ON THE SAME PAGE.
12 THE COURT: WE ARE ON THE SAME WAVELENGTH. THE
13 MODIFICATION WAS IN 2001, BUT THE PUBLICATION OF THE POCKET PART
14 ISN’T UNTIL 2002.
15 MR. FELDMAN: THE 8.85 I’M LOOKING AT, YOUR HONOR, IS A
16 2000 REVISION, YOUR HONOR.
17 THE COURT: LET MY CLARIFY THAT.
18 MR. FELDMAN: I THINK IT’S ALSO WHAT THE PROSECUTION
19 SUBMITTED.
20 THE COURT: I BELIEVE WE’RE ALL TALKING ABOUT THE SAME
21 THING.
22 MR. FELDMAN: I’M SORRY. I JUST HEARD YOUR HONOR SAY
23 2002, AND I WAS JUST REACTING TO THAT.
24 THE COURT: I’M SURE YOU WERE. AND IT JUST DEPENDS ON
25 WHERE YOU PICK UP THE DATE. YES, YOU’RE CORRECT, BUT IT IS THE
26 SAME INSTRUCTION.
27 MR. FELDMAN: THANK YOU, YOUR HONOR.
28 THE COURT: ALL RIGHT.
10387
1 OKAY. SO THAT TAKES CARE OF ARGUMENT PARAGRAPH 18.
2 NOW THAT GETS US TO 19.
3 MS. JONES: ACTUALLY, WE DIDN’T ADDRESS PARAGRAPH "C",
4 YOUR HONOR, IN 18. GIVEN THE FACT THAT THE UNITED STATES
5 SUPREME COURT HAS SAID THAT TRIAL JUDGES CANNOT LIMIT THE
6 DISCRETION OF THE JURORS TO CONSIDER ANY FACT THAT’S POSSIBLE IN
7 MITIGATION, WE WOULD ASK THE JURORS THAT POTENTIAL FOR
8 REHABILITATION IS A FACTOR THAT THEY MAY CONSIDER.
9 THE COURT: ALL RIGHT.
10 MR. DUSEK.
11 MR. DUSEK: FIRST OF ALL, THERE IS NO EVIDENCE TO SUPPORT
12 THAT. SECONDLY, IT’S COVERED BY THE "K" FACTOR, AND THIS IS
13 ARGUMENTATIVE.
14 THE COURT: IT’S COVERED BY OTHER INSTRUCTIONS THAT CAN
15 BE ARGUED. AND SO — IF THE DEFENSE SO ELECTS, THEN ON THAT
16 BASIS THE COURT WILL NOT GIVE IT. THAT’S SUB-PARAGRAPH "C",
17 ARGUMENT 17 FOUND AT PAGE 14.
18 ALL RIGHT. THAT BRINGS US TO PARAGRAPH 19.
19 MS. JONES: YES, YOUR HONOR. THIS ARGUMENT, THE FIRST
20 ARGUMENT REGARDING UNANIMITY AND GENERAL INSTRUCTIONS REGARDING
21 MITIGATING EVIDENCE DOVETAILS A LITTLE BIT WITH OUR RING AND
22 APPRENDI ARGUMENTS AS TO THE AGGRAVATING FACTORS WHICH ARE LATER
23 ON IN THE BRIEFING.
24 IT’S CLEAR THAT THE UNITED STATES SUPREME COURT HAS
25 SAID THAT THE 8TH AMENDMENT PROHIBITS ANY REQUIREMENT THAT THE
26 JURORS UNANIMOUSLY AGREE ON A MITIGATING FACTOR BEFORE THEY CAN
27 CONSIDER IT. THERE’S GOING TO BE SOME CONFUSION AMONG THE
28 JURORS’ ORGANIZATION, PARTICULARLY GIVEN THE FACT THAT THEY HAD

10388

1 TO UNANIMOUSLY AGREE ON TWO THINGS, BOTH THE GUILT AND THE —
2 WHICH IMAGE OR IMAGES CONSTITUTED PROHIBITED IMAGES DURING —
3 COUNT THREE DURING THE GUILT PHASE.
4 WE ARE ASKING THE COURT TO ALSO — THEY HAVE TO
5 UNANIMOUSLY AGREE ON ANY AGGRAVATING FACTOR. AND, OF COURSE,
6 THEY WILL BE TOLD THEY HAVE TO BE UNANIMOUS AS TO THE ULTIMATE
7 PENALTY THAT THEY REACH A VERDICT ON. THEY NEED TO BE TOLD IN
8 THE FACE OF ALL THESE REQUIREMENTS THAT THEY BE UNANIMOUS, THAT
9 THEY OUGHT TO MAKE AN INDIVIDUALIZED DETERMINATION. AND THEY
10 NEED NOT BE UNANIMOUS ON ANY OF THOSE BECAUSE TO GET ANY SORT OF
11 UNANIMITY WOULD VIOLATE MR. WESTERFIELD’S 18TH AMENDMENT RIGHTS.
12 THE COURT: ALL RIGHT.
13 MR. DUSEK.
14 MR. DUSEK: THEY’RE ASKING THE COURT TO CHANGE THE LAW IN
15 THE MIDST OF THE TRIAL. USUALLY THERE’S NONE FOR AGGRAVATING OR
16 MITIGATING EVIDENCE. THAT’S WHY WE’D FOLLOW THE SPECIAL
17 INSTRUCTION, WHICH AT LEAST THE 8.85 INSTRUCTION TALKS ABOUT
18 NEITHER FACTOR HAS TO BE PROVED BY UNANIMOUS DECISION OF THE
19 JURY BEFORE THEY CAN CONSIDER IT’S AN INDIVIDUAL DECISION. BUT
20 ONCE WE SUBMIT IT, LOOKS LIKE AN EVEN-HANDED STATEMENT OF THE
21 LAW AS OPPOSED TO BE A ONE-SIDED MISSTATEMENT FROM THE DEFENSE.
22 THE COURT: ALL RIGHT. I’LL HEAR YOUR ARGUMENT AS TO THE
23 PEOPLE’S PROFFERED INSTRUCTION WHICH DOES — IN MY PACKAGE IT
24 FOLLOWS 8.85.
25 MS. JONES: THAT’S CORRECT, YOUR HONOR. UP UNTIL RING
26 AND APPRENDI WERE DECIDED BY THE UNITED STATES SUPREME COURT,
27 THAT MAY HAVE BEEN A CORRECT STATEMENT OF THE LAW, YOUR HONOR,
28 THAT EVERY JUROR WAS TO MAKE AN INDIVIDUAL DECISION AS TO THE
10389
1 ACTUAL VERDICT. I THINK RING AND APPRENDI DEMONSTRATE THAT ANY
2 FACT OR ANY DECISION MADE BY THE JURY THAT’S GOING TO INCREASE
3 THE POSSIBLE STATUTORY PENALTY THAT CAN BE IMPOSED ON MR.
4 WESTERFIELD HAVE TO BE SUBJECT TO THE 6TH AND 14TH AMENDMENT
5 REQUIREMENTS OF PROOF BEYOND A REASONABLE DOUBT AND JURY
6 UNANIMITY.
7 THIS STATE HAS, IN ADDITION, A STRONG HISTORY OF
8 REQUIRING UNANIMITY ON ANY PARTICULAR FACT THAT COULD
9 POTENTIALLY MAKE IT SO THAT THERE’S SOME JURORS WHO ARE REACHING
10 AN ENTIRELY DIFFERENT DECISION THAN OTHER JURORS ON THE BASE
11 LINE FACTS THAT ARE NEEDED TO UNDERCUT OR — EXCUSE ME — TO
12 SUPPORT A VERDICT.
13 FOR EXAMPLE, THERE CAN BE PEOPLE WHO MAKE A
14 DETERMINATION THAT THE JENNIE N. INCIDENT OCCURRED AND THERE CAN
15 BE PEOPLE WHO MAKE THE DETERMINATION THAT IT DIDN’T OCCUR AND
16 THEY WOULD ALL COME BACK WITH A DEATH VERDICT BECAUSE, AS
17 EXPLAINED IN SCHAD VERSUS ARIZONA, WHICH IS A U.S. SUPREME COURT
18 CASE, AND IN CALIFORNIA’S HISTORY — CALIFORNIA’S HISTORY OF
19 REQUIRED UNANIMITY ON GUILTY VERDICTS, ON PARTICULAR FACTS
20 RELATED TO GUILTY VERDICTS AND AS TO ENHANCEMENTS THAT APPLY TO
21 CERTAIN GUILTY VERDICTS.
22 FOR EXAMPLE, THERE HAS TO BE UNANIMITY REGARDING A
23 GUN ENHANCEMENT. OR IN THIS CASE THERE WAS ACTUALLY THE AGE
24 ENHANCEMENT THAT WAS ALLEGED ON THE KIDNAP COUNT. THAT HAS TO
25 BE REACHED UNANIMOUSLY.
26 IT WOULD BE A VIOLATION OF EQUAL PROTECTION TO
27 ALLOW — REQUIRE JURIES TO REACH UNANIMOUS VERDICTS REGARDING
28 GUILT, TO REACH UNANIMOUS VERDICT REGARDING A SENTENCING
10390
1 ENHANCEMENT, AND NOT TO REACH A UNANIMOUS VERDICT REGARDING THE
2 ULTIMATE PENALTY THAT CAN BE IMPOSED ON A HUMAN BEING, I.E., THE
3 DEATH PENALTY. MAKE IT ABSOLUTELY CLEAR THAT IF THERE IS A FACT
4 TO BE DETERMINED THAT WILL INCREASE THE STATUTORY MAXIMUM
5 PENALTY, AND IN THIS CASE UNTIL THIS JURY RETIRES AND MAKES SOME
6 SORT OF FACTUAL DETERMINATION, THE HIGHEST PENALTY THAT CAN BE
7 IMPOSED ON MR. WESTERFIELD IS LIFE IN PRISON WITHOUT POSSIBILITY
8 OF PAROLE.
9 THE DECISION OF THE JURY MUST BE MADE BEYOND A
10 REASONABLE DOUBT AND MUST BE ATTAINED UNANIMOUSLY. AND I
11 UNDERSTAND MR. DUSEK SAYS WE’RE CHANGING THE LAW IN THE MIDDLE
12 OF THE TRIAL. WELL, RING CAME DOWN IN THE MIDDLE OF THIS TRIAL
13 THAT IT’S STILL A FACT, STILL A NEW LAW THAT APPLIES TO MR.
14 WESTERFIELD. IT GIVES HIM CONSTITUTIONAL PROTECTION FROM BEING
15 SUBJECTED TO A DEATH PENALTY WITHOUT DUE PROCESS OF LAW AND
16 WITHOUT RIGHT TO A JURY TRIAL.
17 THE COURT: I SEE THIS AS AN EXTREME DOUBLE-EDGED SWORD,
18 BUT JUST LIKE THE DEFENDANT GETS SOME MODICUM OF HELP FROM A
19 NON-UNANIMOUS JURY AS TO AN AGGRAVATING FACTOR, HE’S ALSO GOING
20 TO GET THE BENEFITS OF THOSE INDIVIDUALS THAT FIND MITIGATING
21 FACTORS TO BE IMPORTANT TO ONE MORE — ONE MORE THAN THE OTHER
22 AND SO FORTH.
23 I DON’T BELIEVE THAT AT THIS POINT IN TIME THIS IS
24 ANYTHING BUT A CORRECT STATEMENT OF THE LAW, I.E., IS THE ONE
25 THAT IS PRESENTED BY THE PEOPLE, AND AT THIS POINT IN TIME IT
26 APPEARS TO ME TO BE A CORRECT STATEMENT OF THE LAW.
27 IT MAY WORK TO HIS FAVOR BUT IT MUST WORK TO HIS
28 DETRIMENT. THE WAY I HAVE OUTLINED HERE IS CONFUSING, NUMBER

10391

1 ONE, AND IMPOSES A BURDEN THAT AT THIS POINT IN TIME DOESN’T
2 APPEAR TO BE APPROPRIATE.
3 SO THE WAY I AM GOING TO HANDLE IT, I’M GOING TO
4 GIVE THE INSTRUCTION AS IT EXISTS IN THE UNANIMITY INSTRUCTION
5 PROFFERED BY THE PEOPLE, AND IT WILL BE GIVEN AFTER 8.85.
6 MS. JONES: YOUR HONOR, I JUST WANT TO MAKE CLEAR, IN
7 CASE IT WASN’T CLEAR, THAT WE’RE ASKING FOR AN INSTRUCTION ON
8 UNANIMITY ONLY AS TO AGGRAVATING FACTORS, AND WE WANT THE JURY
9 INSTRUCTED IN THAT THEY NEED NOT BE UNANIMOUS IN MITIGATING
10 FACTORS.
11 THE COURT: YOU WANT YOUR CAKE AND EAT IT, TOO, BUT THE
12 BOTTOM LINE IS YOU DIDN’T GET IT. I THINK ALL OF US INTERPRETED
13 IT THE WAY YOU WERE ARGUING FOR.
14 MS. JONES: THANK YOU.
15 THE COURT: THAT BRINGS US TO PARAGRAPH 20 AT PAGE 15.
16 MS. JONES: THAT’S CORRECT, YOUR HONOR.
17 THIS IS JUST AN EXPLANATION FOR THE JURORS BECAUSE
18 UNLIKE AGGRAVATING FACTORS, JURORS CAN CONSIDER STATUTORY
19 MITIGATING FACTORS. HOWEVER, THEY CAN CONSIDER ANY FACT THAT
20 ANY ONE OF THEM DETERMINES TO BE MITIGATING AND FINDING THAT
21 THERE’S SOME MITIGATING EVIDENCE IN THIS CASE. THIS PROPOSED
22 INSTRUCTION WOULD DIRECT THE DISCRETION OF THE JURY. IT WOULD
23 GIVE THEM THE LEGAL INFORMATION THAT THEY NEED TO MAKE A
24 DETERMINATION OUT THERE THAT THERE’S SOME FACT OR FACTOR THAT’S
25 BEEN PROVED THAT DOESN’T NEATLY FIT INTO ONE OF THE STATUTORY
26 MITIGATING FACTORS, NEVERTHELESS CAN BE CONSIDERED BY THEM AS
27 MAKING A DIFFERENCE IN THIS CASE. AND THAT THEY ALSO OUGHT TO
28 BE TOLD THEY’RE NOT TO ENGAGE IN MECHANICAL WEIGHING, BUT ONE
10392
1 MITIGATOR CAN OUTWEIGH ALL THE OTHER AGGRAVATORS IN THIS
2 INSTRUCTION VERY NEATLY AND UNARGUMENTATIVELY EXPLAINS TO THE
3 JURY WHAT THEIR SCOPE OF MITIGATING IS AND HOW THEY’RE TO
4 CONSIDER IT.
5 THE COURT: MR. DUSEK.
6 MR. DUSEK: IT IS ARGUMENTATIVE. IT IS DEFENSE
7 PHILOSOPHY. IT IS COVERED BY FACTOR "K" WHEN IT TALKS ABOUT ANY
8 OTHER MITIGATING EVIDENCE THAT CAN BE CONSIDERED. ALSO THE
9 WEIGHING PROCESS IN 8.88 ADEQUATELY TELLS THE JURY WHAT TO DO.
10 THE COURT: IT’S COVERED ADEQUATELY IN OTHER
11 INSTRUCTIONS, NUMBER ONE. AND NUMBER TWO, IT DOESN’T IN ANY WAY
12 RESTRICT THE ARGUMENTS THAT THE DEFENSE INTENDS TO MAKE.
13 ALL RIGHT. WELL, LET’S SEE. THE NEXT — WELL,
14 MIGHT AS WELL DEAL WITH ITEM ARGUMENT 21 FOUND AT PAGE 16 15 BECAUSE IT DEALS WITH ARGUMENT PER SE, NOT AN INSTRUCTION.
16 MS. JONES.
17 MS. JONES: YOUR HONOR, YES. THIS ADDRESSES ARGUMENT,
18 AND PERHAPS THE COURT COULD SUA SPONTE INSTRUCT ON THIS IF IT
19 BELIEVED IT WERE NECESSARY. THE FACT THAT THERE MAY HAVE NOT
20 BEEN ANY EVIDENCE OF REMORSE BY MR. WESTERFIELD IN THIS CASE IS
21 NOT A STATUTORY AGGRAVATING FACTOR, AND THE PROSECUTION CANNOT
22 BE PERMITTED TO ARGUE THAT THE ABSENCE OF REMORSE DOES NOT EXIST
23 IN THIS CASE.
24 IF THEY WERE TO OFFER THAT ARGUMENT I THINK IT
25 WOULD BE VERY IMPORTANT FOR THE COURT TO INSTRUCT THE JURORS
26 THAT THERE HAS NOT BEEN ANY EVIDENCE OF REMORSE PRESENTED TO
27 THEM. THAT’S NOT A STATUTORY AGGRAVATING FACTOR AND CANNOT BE
28 CONSIDERED FOR THAT PURPOSE.

10393

1 THE COURT: MR. DUSEK.
2 MR. DUSEK: I THINK REMORSE, YOUR HONOR — THE CALIFORNIA
3 SUPREME COURT CAN BE BROKEN DOWN INTO TWO AREAS. ONE BEING THAT
4 IT WOULD BE AN AGGRAVANT IF THERE IS A LACK OF REMORSE BEING
5 DEMONSTRATED UNDER THE CRIME ITSELF. THAT WOULD COME IN UNDER
6 FACTOR "K", THE SUPREME COURT HAS TOLD US THAT.
7 THE SECOND WAY, LACK OF REMORSE, ABLE TO BE
8 DISCUSSED IN ARGUMENT WOULD BE TO MINIMIZE ANY MITIGATING FACTOR
9 THE DEFENSE INTENDS TO INTRODUCE.
10 THE — CERTAINLY, IT’S NOT ARGUED AND WILL NOT BE
11 ARGUED AS AN AGGRAVATING FACTOR, BUT THE LACK OF REMORSE WILL GO
12 TOWARDS HOW MUCH TIME TO GIVE THE MITIGATING FACTORS THE DEFENSE
13 HAS PRESENTED. SO IT WILL NOT BE ARGUED AS A AGGRAVATING FACTOR
14 AND THAT MEANS — THAT IS PROPER, BUT IT ALSO COULD BE AN
15 AGGRAVATING FACTOR IF THERE IS EVIDENCE OF NO REMORSE WHILE HE
16 WAS COMMITTING THIS CRIME IN THE IMMEDIATE TIME PERIOD OF THE
17 CRIME.
18 THE COURT: JUST GIVE ME SOME PREVIEW AS TO HOW YOU THINK
19 YOU COULD MAKE THAT ARGUMENT WITHOUT VIOLATING THE AGGRAVANT
20 POTENTIAL PITFALL.
21 MR. DUSEK: I WON’T. I WILL KEEP IT LIMITED TO THE
22 MITIGATING ASPECT THAT THAT IS A FACTOR TO CONSIDER WHEN YOU
23 DECIDE HOW MUCH WEIGHT TO GIVE THE MITIGATING FACTORS, IS
24 FAILURE TO SHOW ANY REMORSE DURING THE TELEVISION INTERVIEW OR
25 AT ANY POINT AT ALL.
26 THE COURT: ALL RIGHT.
27 WELL, I THINK THAT’S A VERY FINE LINE. SO THE WAY
28 I’M GOING TO HANDLE IT IS QUITE SIMPLE. THE DEFENSE REQUEST IS

10394

1 GRANTED IF THE PEOPLE ARGUE, BECAUSE I THINK IT’S SUCH A
2 NARROWLY DEFINED LINE, THAT THE JURY HAS GOT TO BE USED — THAT
3 IT CAN’T BE USED AS AN AGGRAVATING FACTOR. YOU SHOULD HAVE AN
4 INSTRUCTION PREPARED THAT BASICALLY OUTLINES — YOU HAVEN’T
5 REALLY PROPOSED IT HERE. I THINK — STRIKE THAT.
6 SENTENCE TWO OF YOUR FIRST PARAGRAPH STARTING AT
7 LINE THREE PAGE 16, THE ABSENCE OF REMORSE, IS NOT A STATUTORY
8 AND AGGRAVATING FACTOR. PUT THAT ON A PIECE OF PAPER AND I’LL
9 PUT IT IN THE PACKAGE, BECAUSE IT’S JUST A FINE LINE, THAT IT IS
10 GOING TO BE VERY CONFUSING TO A JUROR TO BE TOLD, IN ESSENCE,
11 THAT THEY CAN CONSIDER THE LACK OF REMORSE HEAD TO HEAD WITH
12 MITIGATING FACTOR BUT IT’S NOT AN AGGRAVATING FACTOR. I CAN’T
13 SEE IT BEING MADE WITHOUT THE POTENTIAL FOR CONFUSION. IF
14 YOU’RE GOING TO MAKE THE ARGUMENT, THE REQUEST IS GRANTED.
15 MS. JONES: IF THEY’RE PERMITTED TO MAKE THAT ARGUMENT,
16 THAT SOME JURORS ARE GOING TO TAKE THE FACT THAT WE HAVE
17 PRESENTED A DEFENSE THAT MR. WESTERFIELD DIDN’T DO IT, AND WE’RE
18 ARGUING IN OUR MITIGATION LINGERING DOUBT, THERE’S GOING TO BE
19 SOME SORT OF PROOF OF LACK OF REMORSE SO THAT THE FACT THAT HE’S
20 TO DEFENSE TO THE CASE THAT HE DID NOT DO IT CANNOT BE
21 CONSIDERED AS EVIDENCE OF LACK OF REMORSE.
22 WE OBJECT TO ANY ADMISSION OF THAT KIND OF ARGUMENT
23 ON THE GROUNDS OF THE 5TH, 6TH, 8TH AND 14TH AMENDMENTS, BECAUSE
24 IT IMPLICATES BASICALLY THE IDEA THAT NOW THAT HE’S FOUND
25 GUILTY, MR. WESTERFIELD HAS SOME SORT OF OBLIGATION TO COME
26 FORTH AND WAIVE HIS 5TH AMENDMENT RIGHT TO REMAIN SILENT AND
27 DEMONSTRATE REMORSE FOR THIS CRIME THAT HE SHOULD BE GIVEN THE
28 LIGHT SENTENCE.
10395
1 THE COURT: THE BOTTOM LINE IS THE PEOPLE HAVE DEFINED
2 THE SCOPE OF WHERE THEY’RE GOING, WHICH WOULD BE A PROPER WAY TO
3 GO. MY JOB’S TO MAKE SURE THAT THE JURY UNDERSTANDS WHERE THAT
4 FINE LINE IS, AND THEY’RE NOT TO CONSIDER AS AN AGGRAVATING
5 FACTOR. SO THAT’S THE REASON I’M PUTTING IT THERE.
6 I’M NOT GOING TO ORDER THAT THE PEOPLE DON’T MAKE
7 AN ARGUMENT THEY’RE ENTITLED TO MAKE. WHAT I’M GOING TO DO IS
8 SAY THAT IF THEY MAKE THAT ARGUMENT I’M GOING TO SHOW WHERE THE
9 DIVIDING LINE IS AS TO THE OTHER ISSUES YOU RAISED THAT IT
10 DOESN’T APPEAR TO ME TO BE A PROBLEM. I THINK IT’S COVERED
11 ADEQUATELY IN THE OTHER INSTRUCTIONS.
12 OKAY. THAT BRINGS US TO 8.87. NOW, IN THAT
13 REGARD, WE’VE GOT YOUR PROPOSED JURY INSTRUCTION ON BATTERY AND,
14 APPARENTLY, THE PEOPLE HAVE AN INSTRUCTION ON 288.
15 IS THAT CORRECT?
16 MR. DUSEK: YES, YOUR HONOR.
17 WE DID NOT INCLUDE ANY CRIME INSTRUCTIONS BECAUSE
18 IT WAS THE DEFENSE OPTION WHETHER OR NOT TO BE INSTRUCTED ON
19 THAT.
20 THE COURT: RIGHT.
21 MR. DUSEK: WE HAVE A 288 INSTRUCTION, 10.41 AND A
22 STANDARD BATTERY INSTRUCTION, WHAT IS 16.14.0.
23 THE COURT: ALL RIGHT.
24 MR. DUSEK: AND 16.14.1.
25 THE COURT: ALL RIGHT.
26 ALL RIGHT. IN ORDER TO SET THE STAGE FOR ALL OF
27 THIS THEN, FIRST OF ALL, I’LL NOTE THAT THE ARGUMENTS OF THE
28 DEFENSE ON THIS SPECIFIC ISSUE ARE FOUND AT PARAGRAPH 22 OF

10396

1 THEIR BRIEF STARTING AT PAGE 16 GOING OVER TO PAGE 17.
2 IN ADDITION TO THAT, THEY’VE PROFFERED 16.14.0 AND
3
16.14.1. SO FIRST I’LL HEAR FROM YOU, MR. DUSEK, AS TO WHY YOU
4 BELIEVE THE 288 INSTRUCTION, WHICH IS FOUND AT 10.41, SHOULD
5 ALSO BE GIVEN.
6 MR. DUSEK: BECAUSE I THINK THAT IS THE OTHER HALF OF THE
7 CRIME THAT WAS COMMITTED BY THE DEFENDANT WHEN HE TOUCHED HER AS
8 HE DID. THE PHYSICAL ACT AND THE MENTAL ELEMENT OF THAT CRIME I
9 THINK IS ESTABLISHED BASED UPON WHAT WE’VE HEARD, BASED UPON THE
10 DEFENDANT’S OWN STATEMENT AS TO HOW HE INTERPRETED IT AS A
11 MOLESTATION, THEREFORE, IMPLICATING THE SPECIFIC INTENT. SO I
12 THINK BOTH DEFINITIONS OF THE CRIME SHOULD BE GIVEN TO THE JURY.
13 THE COURT: ALL RIGHT.
14 MS. JONES.
15 MS. JONES: YOUR HONOR, WE’VE BEEN GIVEN NO NOTICE THAT
16 THIS WAS GOING TO HAPPEN, AND CONSTITUTIONALLY ADEQUATE NOTICE
17 THEY’RE SUPPOSED TO PUT IN WRITING TO US, AND FACTS IN
18 AGGRAVATION WHAT ACTUAL OTHER CRIMES THEY ARE GOING TO ATTEMPT
19 TO PROVE. THEY SAY IT’S AN ASSAULT AND BATTERY. WE’VE OFFERED
20 AN INSTRUCTION ON A BATTERY. THAT’S WHAT WAS TESTIFIED TO BY
21 JENNIE N. AND 288 IS NOT NECESSARILY A CRIME OF VIOLENCE UNDER
22 FACTOR "B". 288 CAN BE COMMITTED WITHOUT USING FORCE AND
23 VIOLENCE, AND SO IT’S NOT EVEN NECESSARILY A POSSIBLE CRIME THAT
24 YOU COULD PROVE UNDER FACTOR "B" UNDER THE STATUTE.
25 SO WE’VE BEEN GIVEN CONSTITUTIONALLY INADEQUATE
26 NOTICE. IT’S NOT A PROPER FACTOR TO BE CONSIDERED. IF THAT’S
27 WHAT THEY’RE TRYING TO PROVE THEY COULD HAVE NOTICED US AND WE
28 COULD HAVE BRIEFED IT THAT THEY CAN’T PROVE A 288 BECAUSE IT’S
10397
1 NOT A CRIME OF VIOLENCE, AND IT’S ENTIRELY INAPPROPRIATE IN THIS
2 CASE. WHAT THEY SAY THERE WAS A BATTERY PROVED ON JENNIE N.,
3 THAT’S WHAT THEY NOTICED US ON AND THAT’S WHAT WE’VE OFFERED AN
4 INSTRUCTION ON.
5 THE COURT: MR. DUSEK, YOUR RESPONSE.
6 MR. DUSEK: WE GAVE NOTICE OF THE INCIDENT, I BELIEVE, IN
7 THE POINTS AND AUTHORITIES THAT WE FILED EARLIER. IT WAS
8 INCLUDED AS BOTH A BATTERY, ASSAULT AND A 288. THEY’VE
9 CERTAINLY RECEIVED NOTICE OF THAT.
10 WITH REGARD TO THE FORCE OR VIOLENCE, IT REQUIRES
11 THE TOUCHING, THE CONTACT, WHICH IS THE SAME THING AS A BATTERY.
12 YOU CANNOT DO THIS WITHOUT MAKING PHYSICAL CONTACT WITH THE
13 CHILD. SO I THINK BOTH CRIMES, IF THEY CHOOSE TO INSTRUCT THE
14 JURY, THE CRIMES SHOULD BE GIVEN.
15 THE COURT: ALL RIGHT.
16 IT APPEARS TO THE COURT’S READING OF THE 190.3 17 STATEMENT THAT THE DEFENSE WAS ON NOTICE. I MEAN, THAT WOULD BE
18 MY IMPRESSION OF EXACTLY ONE OF THE OPTION CRIMES, IF YOU WILL,
19 THAT COULD HAVE ARISEN FROM THIS PARTICULAR INCIDENT.
20 NOW, OBVIOUSLY, THIS IS ONE OF THOSE DIVIDING LINES
21 THE DEFENSE HAS TO MAKE ITS DECISION RELATIVE TO THE INCIDENT
22 ITSELF. BUT IT WOULD APPEAR TO ME THAT IF WE GIVE 8.87 AS IT
23 RELATES TO OTHER CRIMINAL ACTIVITY, THAT THE PROFFERED
24 INSTRUCTIONS ON BATTERY, AS WELL AS LEWD ACT ON A CHILD, WOULD
25 BE APPROPRIATE, KEEPING IN MIND AGAIN THAT THE OBLIGATION IS ON
26 THE PEOPLE TO ESTABLISH THIS BEYOND A REASONABLE DOUBT.
27 MR. FELDMAN: YOUR HONOR, TWO POINTS.
28 WITH REGARD TO THE SUPPLEMENTAL NOTICE IN

10398

1 AGGRAVATION TO WHICH COUNSEL IS REFERENCING, IT’S DATED JUNE
2 28TH, AND SPECIFICALLY SAYS ALL EVIDENCE, FACTS UNDERLINED —
3 I’M SORRY — "ALL EVIDENCE, COMMA, FACTS, COMMA, STATEMENTS OF
4 WITNESSES AND THE DEFENDANT RELATING TO THE DEFENDANT’S USE AND
5 THREATENED USE OF FORCE AND ASSAULT AND BATTERY UPON JENNIE N.,
6 A SEVEN-YEAR-OLD CHILD, IS DISCOVERY," ET CETERA.
7 THEN IT SAYS "INVESTIGATION INTO PENALTY PHASE IS
8 CONTINUING. AS ADDITIONAL EVIDENCE BECOMES AVAILABLE THE
9 DEFENDANT WILL BE NOTIFIED AND PROVIDED DISCOVERY."
10 OUR POSITION IS THE NOTICE IS CONSTITUTIONALLY
11 DEFECTIVE. BUT IF YOUR HONOR DISAGREES WITH US, MY REQUEST IS
12 THAT WE PRESERVE THAT ISSUE AND WE’LL WITHDRAW OUR REQUEST UNDER
13 PROTEST OR WHATEVER — YOU UNDERSTAND.
14 THE COURT: NO, I UNDERSTAND EXACTLY WHAT YOU’RE SAYING.
15 BECAUSE, LIKE I SAID, THIS IS A BRIGHT DEFINING LINE IN THE
16 MATTER. BUT WHEN YOU TAKE INTO ACCOUNT ALL THAT THE DEFENSE
17 KNEW ABOUT THIS PARTICULAR INCIDENT, INCLUDING, IT’S MY
18 RECOLLECTION THAT ONE OF THE FIRST CONTACTS CAME THROUGH A
19 REPRESENTATIVE OF YOUR OFFICE, AND THE CONTEXT IN WHICH IT
20 ARISES IN THIS CASE THROUGH THE STATEMENTS OF MR. WESTERFIELD TO
21 MR. REDDEN IN THE INTERVIEW WOULD APPEAR TO ME AT LEAST TO
22 INDICATE THAT THE DEFENSE WAS ON NOTICE.
23 SO HERE’S MY TENTATIVE RULING SUBJECT TO OUR FINAL
24 DISCUSSION IS THIS. AND THAT IS THAT IF 8.87 IS GIVEN, AND THE
25 CRIMES NEED BE DELINEATED FOR MR. CLARKE, WHO’S GOING TO BE
26 DOING THIS, THE COURT WILL GIVE THE INSTRUCTIONS ON BATTERY,
27 WILL GIVE THE INSTRUCTIONS ON LEWD ACT ON A CHILD, AND THOSE
28 WILL BE NOTED IN THE BODY OF 8.87.
10399
1 JUST SO THE WHOLE PACKAGE IS CLEAR, RIGHT AFTER
2 THESE INSTRUCTIONS, AND I’LL JUST PUT THEM IN THE THEORETICAL
3 ORDER THEY’RE GOING TO APPEAR, 8.87 WOULD BE GIVEN FIRST
4 MENTIONING THE TWO CRIMES; 16.40, THE DEFINITION OF BATTERY
5 WOULD BE GIVEN NEXT.
16.41.1 — 1.41 — 16.14.1 WILL BE GIVEN
6 NEXT.
10.41 WILL BE GIVEN NEXT AND THEN 2.02, SPECIFIC INTENT,
7 WOULD HAVE TO BE INSERTED THEREAFTER.
8 NOW, THAT’S A TENTATIVE RULING SUBJECT TO OUR FINAL
9 DISCUSSION ON JURY INSTRUCTIONS.
10 MR. FELDMAN: SO THE RECORD’S CLEAR, IF THE RULING IS
11 PREDICATED ON THE DEFENSE REQUEST FOR A 16.14.0 AND THE RECORD’S
12 PRESERVED ON THE ISSUE, OUR OPPOSITION IS PRESERVED, WE’LL
13 WITHDRAW OUR REQUEST SO THAT WILL MOOT THE ISSUE I BELIEVE.
14 THE COURT: OH, ALL RIGHT.
15 WELL, THEN — SO YOU’RE, IN ESSENCE, REQUESTING
16 THAT — WELL, YOU’RE REQUESTING THE 8.87 BE WITHDRAWN?
17 MR. FELDMAN: YES.
18 THE COURT: ALL RIGHT.
19 MR. FELDMAN: WELL, WE DIDN’T OFFER IT. MR. DUSEK
20 OFFERED IT. MR. DUSEK ARGUED IT’S THE DEFENSE PROPOSITION, IT’S
21 THE DEFENSE ELECTION TO REQUEST THE CHARGES.
22 MAYBE YOU CAN DEFER IT, PLEASE.
23 THE COURT: WE’LL LOOK AT IT AGAIN. I’LL NOTE THAT AS
24 ONE OF THE ISSUES WE HAVE TO RESOLVE.
25 ALL RIGHT. IN TERMS OF SEQUENCING, BEFORE I GIVE
26 2.90 —
27 MS. JONES: YOUR HONOR, ARE WE GOING TO ADDRESS SOME OF
28 THESE OTHER ONES?

10400

1 THE COURT: WELL, WHICH ARE THE ONES YOU’RE TALKING
2 ABOUT?
3 MS. JONES: WE HAVE A COUPLE OF INSTRUCTIONS THAT WE’D
4 REQUESTED REGARDING FAILURE TO TESTIFY, INDIVIDUAL DETERMINATION
5 OF MITIGATION, A PRESUMPTION OF LIFE AND MERCY INSTRUCTION. IN
6 ADDITION, I DID WANT TO MAKE SOME ADDITIONAL COMMENTS REGARDING
7 THE APPRENDI AND RING.
8 THE COURT: I THINK THE WAY I’M GOING TO HANDLE THE MERCY
9 INSTRUCTIONS AND SO FORTH IS TAKE THEM UP WHEN WE GET INTO THE
10 8.88. WHAT THE PEOPLE’S PACKAGE NEXT DOES IS GO TO — WELL,
11 LET’S SEE, 2.90 HAS TO BE CONSIDERED ALONG WITH 8.87, SO I’LL
12 PUT THAT IN THERE. AND THEN I NEED TO GET THE INSTRUCTION
13 DEFENDANT NOT TESTIFYING.
14 MR. FELDMAN: YOUR HONOR, ALSO 61 — 61, PLEASE.
15 THE COURT: I NEED 2.60, 2.61, ALL RIGHT. THOSE WOULD BE
16 GIVEN BEFORE WE GET INTO THE SUBSTANTIVE OFFENSES.
17 NOW WE GET INTO THE AREA I THINK, MS. JONES, THAT
18 YOU WERE REFERENCING BECAUSE I HAVE A NUMBER OF PROFFERED
19 INSTRUCTIONS FROM THE PEOPLE. I HAVE YOUR ARGUMENTS STARTING
20 AT — WE MIGHT AS WELL COVER 8.88 AT THIS JUNCTURE AS WELL.
21 BOTH SIDES HAVE PRESENTED ARGUMENT ON 8.88. THAT
22 STARTS AT PARAGRAPH 25 PAGE 18. THE MERCY INSTRUCTION IS AT
23 PARAGRAPH 26. PAGE 19, MORE ARGUMENT AS TO 8.88 AT PARAGRAPH
24 27. YOU’VE ALSO FILED OPPOSITION TO THE PEOPLE’S MOTION TO
25 MODIFY 8.88. SO LET’S DEAL WITH 8.88, AND THEN WE’LL DEAL WITH
26 ALL THESE SPECIAL INSTRUCTIONS. FIRST, I’LL HEAR FROM THE
27 PEOPLE AS TO WHY IT SHOULD BE MODIFIED.
28 MR. DUSEK: IT SHOULD BE MODIFIED BECAUSE I BELIEVE IT’S
10401
1 A CORRECT STATEMENT OF THE LAW. CERTAINLY IT MIRRORS THE
2 LANGUAGE OF THE PENAL CODE AND THE CASES THAT WE’VE CITED IN THE
3 POINTS AND AUTHORITIES PROVIDE FOR THE CHANGE IN THE CALJIC
4 LANGUAGE TO THE SCHAD LANGUAGE SO THAT IT SAYS THE SAME THING AS
5 THE PENAL CODE. IT IS A LANGUAGE THAT HAS BEEN ACCEPTED HERE IN
6 THIS COURTHOUSE ON SEVERAL OTHER CASES.
7 I WOULD SUBMIT IT ON THE POINTS AND AUTHORITIES,
8 YOUR HONOR, THAT THAT’S THE ONE THAT SHOULD BE GIVEN IN THIS
9 CASE.
10 THE COURT: MS. JONES?
11 OH, ALL RIGHT. MR. BOYCE.
12 MR. BOYCE: YOUR HONOR, THE USE NOTES TO THE JURY
13 INSTRUCTIONS SAY THAT THE SCHAD LANGUAGE SHALL NOT BE GIVEN IN
14 RATHER MANDATORY LANGUAGE. THE CASES THAT ARE REFERRED TO IN
15 THE PEOPLE’S POINTS AND AUTHORITIES ADDRESS THE GIVING OF THE
16 SCHAD INSTRUCTION BEFORE — IN CASES THAT AROSE BEFORE THE
17 LANGUAGE WAS WITHDRAWN FROM THE CALJIC INSTRUCTIONS. AND SO I
18 THINK IT’S CLEAR UNDER BROWN THAT THIS LANGUAGE SHOULD NOT BE
19 GIVEN AND THAT WE WOULD SUBMIT IT ON OUR POINTS AND AUTHORITIES.
20 THE COURT: IT DEPENDS ON WHAT THE WORD "NEVER" MEANS.
21 IN MY WAY OF THINKING "NEVER" MEANS 15, 20 YEARS FROM NOW, IF
22 THIS IS UNDER APPEAL, DID MUDD PUT HIS FOOT IN IT. THE ANSWER
23 TO THAT QUESTION IS, LOOKING AT THE — STRAIGHT AT THE WORD
24 "NEVER", AND A CAVIAT TO A TRIAL JUDGE WOULD BE LIKE STICKING
25 YOUR FOOT IN IT. AND FRANKLY, I’M A LITTLE BIT SURPRISED. I
26 HAVEN’T TOUCHED BASE WITH MY COLLEAGUES THAT DO DEATH PENALTY
27 WORK, BUT I’M VERY SURPRISED THAT THIS INSTRUCTION HAS BEEN
28 OFFERED IN THAT FORM. THIS COURT DOESN’T INTEND TO GIVE IT. I
10402
1 DON’T INTEND — NOT THAT I HAVEN’T BEEN GIVEN THE SUPREME COURT
2 OR SOMEBODY ELSE LOTS OF FODDER TO WORK WITH ALREADY, BUT I
3 DON’T INTEND TO WALK INTO THIS MINE FIELD AND DISREGARD THE WORD
4 "NEVER."
5 SO AT THIS POINT — AND ALSO IT’S INTERESTING.
6 I’VE GOT THE DEFENSE ACTUALLY ARGUING THAT THE ACTUAL WORDING OF
7 AN INSTRUCTION SHOULD BE GIVEN, WHICH I FIND TO BE VERY UNIQUE.
8 AT ANY RATE, 8.88 AS REQUESTED BY THE PEOPLE WILL
9 NOT BE GIVEN. 8.88 AS IT CURRENTLY EXISTS SUBJECT TO OUR
10 DISCUSSION, IT WOULD BE THE INTENT OF THE COURT TO GIVE IT, BUT
11 YOU HAD SOME ARGUMENTS ON THAT AS WELL.
12 MS. JONES: I DO, YOUR HONOR. AGAIN, GIVEN THE U.S.
13 SUPREME COURT’S DICTATES THAT THE DISCRETION OF THE JURY NOT BE
14 LIMITED IN ANY WAY IN ITS CONSIDERATION OF MITIGATING EVIDENCE,
15 WE ASK THAT THE JURY BE INSTRUCTED WITH SOME OF THE PROPOSED
16 MODIFICATIONS THAT WE’VE PUT ON OUR PAPERS AT PAGE 18, 19 AND
17 20, ALLOWING THE JURY, FOR EXAMPLE, TO IMPOSE A LIFE SENTENCE
18 EVEN IF THEY FIND THAT THERE ARE NO MITIGATORS AND THERE ARE
19 MORE AGGRAVATORS THAN MITIGATORS. THEY CAN RECOMMEND A LIFE
20 SENTENCE FOR ANY REASON AT ALL. THEY CAN RECOMMEND A LIFE
21 SENTENCE BECAUSE THEY’VE DECIDED TO EXERCISE MERCY ON MR.
22 WESTERFIELD’S BEHALF, AND THAT THEY MUST MAKE A DETERMINATION
23 BEFORE THEY COULD COME BACK WITH A DEATH SENTENCE THAT EACH
24 PERSON MUST BE PERSUADED BEYOND A REASONABLE DOUBT THAT THE
25 AGGRAVATORS SO OUTWEIGH THE MITIGATORS, THAT THE ONLY POSSIBLE
26 SENTENCE IS DEATH AS OPPOSED TO LIFE WITHOUT POSSIBILITY OF
27 PAROLE.
28 I THINK THE PROPOSED LANGUAGE IS SET OUT IN OUR

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1 PAPERS AND WE’D ASK THAT THE JURY’S DISCRETION AGAIN BE GIVEN
2 FULL REIGN IN TERMS OF WEIGHING MITIGATING FACTORS.
3 THE COURT: PEOPLE.
4 MR. DUSEK: WHAT THE DEFENSE IS ASKING YOU TO DO IS TO
5 TAKE OFF ANY LIMITATIONS AT ALL ON THE JURY’S ASSESSMENT. LET
6 THEM DO WHATEVER THEY WANT AS LONG AS IT LEADS THEM TO LIFE
7 WITHOUT PAROLE POSSIBILITY. THAT’S NOT LAW AND THAT’S NOT FAIR.
8 THEY CERTAINLY ALSO DO NOT NEED TO BE CONVINCED
9 BEYOND A REASONABLE DOUBT THAT THE AGGRAVANTS OUTWEIGH THE
10 MITIGANTS. WE’D ASK THE COURT TO REJECT THIS POSSIBILITY.
11 THE COURT: I THINK 8.88 IS A CORRECT STATEMENT OF THE
12 LAW. IT THINK IT ARGUED IN ADDITION TO THAT. IT DOESN’T
13 RESTRICT OR PROHIBIT IN ANY WAY DEFENSE ARGUMENTS IN THE CASE.
14 SO IT WILL BE THE INTENT OF THE COURT TO GIVE AS ITS CONCLUDING
15 INSTRUCTION, SINCE THAT’S THE FORM IT IS IN, 8.88 AS WRITTEN.
16 MS. JONES: YOUR HONOR, TO THE EXTENT — I’VE ALREADY
17 MADE STATEMENTS OF RING AND APPRENDI TO THE UNANIMITY
18 REQUIREMENT AND I WOULD JUST LIKE TO POINT OUT TO THE EXTENT
19 THAT THE COURT BELIEVES THE STATUTES 192, 190.3 REQUIRE OR
20 PERMIT THE COURT NOT TO IMPOSE UNANIMITY REQUIREMENT AND PROOF
21 OF REASONABLE DOUBT REQUIREMENT ON THE AGGRAVATING FACTORS, THAT
22 THAT DECISION WOULD RENDER THOSE STATUTES UNCONSTITUTIONAL IN
23 REGARDS TO THE 6TH, 8TH, AND 14TH AMENDMENTS.
24 THE COURT: THOSE ARGUMENTS ARE DULY NOTED.
25 ALL RIGHT. NOW, THERE ARE A SERIES OF WHAT I WILL
26 CALL SPECIAL INSTRUCTIONS. LET ME JUST — JUST WHAT I WANT TO
27 DO RIGHT NOW, MS. JONES, IF IT’S AGREEABLE WITH YOU, IS KIND OF
28 JUMP FROM YOUR TEXT AS IT RELATES TO 8.88 BECAUSE I THINK WE’VE
10404
1 COVERED ALL THOSE ARGUMENTS.
2 MS. JONES: I THINK WE HAVE, YOUR HONOR. IT DOES JUMP
3 AROUND A LITTLE BIT.
4 THE COURT: LET’S TAKE UP YOUR REQUEST AS PARAGRAPH 26 5 MERCY INSTRUCTION BEFORE WE GET TO THESE INDIVIDUALIZED.
6 MS. JONES: YOUR HONOR, AS I STATED BEFORE, I THINK THE
7 JURY SHOULD NOT HAVE ITS DISCRETION LIMITED IN TERMS OF WHAT
8 IT’S GOING TO CONSIDER IN SUPPORT OF OR AS PROOF OF MITIGATION,
9 AND THE JURORS SHOULD BE EXPLICITLY TOLD, AS IS CORRECT UNDER
10 THE LAW, THAT THEY MAY BE ASKED TO EXERCISE MERCY IN
11 RECOMMENDATION TO RECOMMEND A SENTENCE OF LIFE WITHOUT PAROLE.
12 THE COURT: PEOPLE.
13 MR. DUSEK: WE ANTICIPATED THIS ARGUMENT. THAT’S WHY WE
14 FILED THE POINTS AND AUTHORITIES WE DID, YOUR HONOR. I THINK
15 IT’S ALSO COVERED UNDER THE "K" FACTOR.
16 THE COURT: IT IS, AND COVERED IN OTHER AREAS. AND
17 AGAIN, IT DOESN’T RESTRICT THE DEFENSE ARGUMENT BY SIMPLY NOT
18 HAVING THE INSTRUCTION. SO THE ARGUMENT AS OUTLINED AT
19 PARAGRAPH 16 LINE 19 WILL BE DENIED. 27 DEALS WITH 8.88. WE’LL
20 LEAVE 17.40 WHICH IS IN PARAGRAPH 28 FOR A MOMENT.
21 I HAVE BEFORE ME TWO PROFFERED INSTRUCTIONS FROM
22 THE PEOPLE. ONE CITING OCHOA ONLY AS IT RELATES TO THE VICTIM’S
23 BELIEF AS TO AN APPROPRIATE SENTENCE. THE OTHER CITING BEMORE,
24 B-E-M-O-R-E, IN OCHOA WHICH TALKS ABOUT SYMPATHY FOR THE
25 DEFENDANT’S FAMILY OR FRIENDS. THEN I HAVE RECEIVED LABELED
26 PROPOSED PENALTY PHASE AND PHRASE INSTRUCTIONS NUMBER ONE, TWO
27 AND THREE FROM THE DEFENSE. SO FIRST LET’S TALK ABOUT PROFFERED
28 PEOPLE’S INSTRUCTION CITING OCHOA.

10405

1 MR. DUSEK: YOUR HONOR, WE SUBMITTED THAT BECAUSE WE WERE
2 CERTAINLY AWARE OF WHAT WE COULD ASK AND COULD NOT ASK THE VAN
3 DAM FAMILY TO WHAT THEY THOUGHT SHOULD HAPPEN TO THE DEFENDANT
4 IN THIS CASE. AND OCHOA DEALT WITH A SITUATION WHERE THERE WAS
5 SOME DISCUSSION, WELL, HOW COME THE VICTIM’S FAMILY WEREN’T
6 ASKED WHAT THEY THINK SHOULD HAPPEN TO THE CASE.
7 THIS INSTRUCTION EXPLAINS TO THE JURY WHY THEY’RE
8 NOT ALLOWED TO GIVE AN ANSWER TO THAT QUESTION, AND THAT THEY
9 SHOULD NOT CONSIDER IT, ADDRESS IT OR BE GUTTED BY THE FAILURE
10 TO ASK AND THE FAILURE TO ANSWER THAT QUESTION.
11 THE COURT: ALL RIGHT.
12 MS. JONES, OR WHOEVER’S GOING TO ARGUE.
13 MR. FELDMAN: YOUR HONOR, THIS IS AN ARGUMENT FOR THE
14 PROSECUTION. THAT’S, IN ESSENCE, THE INSTRUCTION. WE DON’T
15 THINK THAT IT’S NECESSARY. THERE IS NO AUTHORITY FOR THE
16 PROPOSITION TO GIVE THE JURY INSTRUCTION, NOT THE LANGUAGE IN
17 THE CASE. I THINK IT INAPPROPRIATE. I THINK ANYTHING CAN INFER
18 HOW THEY FEEL. I’M SORRY — IF YOU’RE TALKING THE BEMORE — I’M
19 SORRY — WE’RE NOT AT THE BEMORE INSTRUCTION.
20 THE COURT: NO. WE’RE SIMPLY AT OCHOA.
21 MY RESPONSE TO THIS INSTRUCTION IS THE FACT THAT,
22 AS A PRACTICAL MATTER, THE DEFENSE HAS, BASED ON THE COURT’S
23 RULINGS REGARDING WHAT PEOPLE THOUGHT WAS APPROPRIATE FOR MR.
24 WESTERFIELD, HAS STAYED AWAY FROM THAT COMPLETELY AND HAVE
25 BASICALLY TESTIFIED THAT THEY ARE HERE TO SUPPORT HIM. THE
26 LOGICAL ARGUMENT THERE IS THEY DON’T WANT THE GUY TO BE
27 EXECUTED. AND I THINK IT’S FAIR TO SAY THAT THE FAMILY HAS A
28 DIRECTLY OPPOSED POINT OF VIEW, ALTHOUGH NEITHER SIDE HAS ASKED

10406

1 A QUESTION. THIS UNDUELY DRAWS ATTENTION TO ONE SIDE OVER THE
2 OTHER. AS A RESULT, IT WILL NOT BE GIVEN. IT WILL BE MARKED
3 FOR IDENTIFICATION FOR THE RECORD.
4 NEXT IS THE INSTRUCTION THAT DEALS WITH BEMORE AND
5 OCHOA AS IT RELATES TO SYMPATHY.
6 FIRST OF ALL, MR. DUSEK, IT APPEARS TO ME THAT THIS
7 IS ADEQUATELY COVERED IN ANOTHER INSTRUCTION.
8 MR. DUSEK: IT IS, YOUR HONOR. 8.85.
9 THE COURT: SO THAT WILL BE WITHDRAWN.
10 MR. DUSEK: YES.
11 THE COURT: THAT WILL BE WITHDRAWN.
12 ALL RIGHT. THAT BRINGS US TO THE DEFENSE PROFFERED
13 INSTRUCTION, THEN WE ARE GOING TO NEED TO TAKE A BREAK FOR THE
14 REPORTERS. THE FIRST IS ENTITLED PROPOSED PENALTY PHASE
15 INSTRUCTION NUMBER ONE CITING PEOPLE V. BROWN.
16 MS. JONES.
17 MS. JONES: I THOUGHT IT WE WERE STILL IN MY BRIEF, YOUR
18 HONOR. HOLD ON, JUDGE, JUST A SECOND.
19 THE COURT: OKAY.
20 MS. JONES: DID THE COURT WANT TO ADDRESS ANY OF THE
21 OTHER PARAGRAPHS IN THE BRIEFS OR —
22 THE COURT: I THINK YOU’VE ALREADY COVERED MOST OF THEM.
23 YOU’VE ALREADY TALKED ABOUT 28.
24 MS. JONES: I HAVE TALKED ABOUT 28. I DIDN’T KNOW IF THE
25 COURT WANTED TO GIVE 29, WHICH INSTRUCTS THE JURY THAT THERE’S
26 NO PREFERENCE ON THE PART OF THE PRESUMPTION OF LIFE VERDICT
27 WHICH IS A MODIFICATION OF 2.70, AND THAT’S NO. 25 AND 26 AND
28 NO. 33.

10407

1 THE COURT: I INTEND TO GIVE, AS I’VE INDICATED, 8.88
2 WITHOUT MODIFICATION, AND I THINK THESE OTHER ARGUMENTS THAT
3 YOU’VE MADE YOU HAVE MADE. I THINK WE’VE COVERED EVERY ONE OF
4 THEM.
5 MS. JONES: OKAY.
6 AS TO THE PACKET THAT WE SUBMITTED TODAY, YOUR
7 HONOR, GIVEN THE COURT’S RULINGS REGARDING THE SCHAD LANGUAGE, I
8 THINK THE PROPOSED INSTRUCTION NUMBER ONE HAS NEVER BEEN IN
9 CALIFORNIA AS A CORRECT STATEMENT OF THE LAW.
10 MR. DUSEK: EITHER PUNISHMENT IS MANDATORY. THIS IS
11 CERTAINLY ONE-SIDED. IT DOES NOT NEED TO BE GIVEN.
12 THE COURT: IT UNDULY, ONCE AGAIN, DRAWS ATTENTION TO ONE
13 SIDE AND NOT THE OTHER. SO THE INSTRUCTION AS PROPOSED WILL BE
14 NOTED FOR THE RECORD AND DENIED.
15 MS. JONES: YOUR HONOR, JUST TO MAKE THE RECORD CLEAR, AT
16 THIS POINT IN TIME A SENTENCE OF LIFE WITHOUT PAROLE IS MANDATED
17 FOR MR. WESTERFIELD AND NOTHING LESS CAN BE IMPOSED, SO IT IS
18 MANDATORY TO THAT EXTENT. AND THE DEATH PENALTY OR OPPOSITION
19 THEREOF IS COMPLETELY DISCRETIONARY WITHIN THE JURY.
20 THE COURT: I UNDERSTAND THAT. AND I’VE TAKEN GREAT
21 PAINS TO GET THE WORD "SHALL" OUT OF HERE. WHEN YOU START
22 FOCUSING, IT OPENS PANDORA’S MIND, AND RIGHT NOW YOU CAN
23 SUCCESSFULLY ARGUE THAT BUT WE DON’T BELIEVE WE NEED A FOCUSING
24 INSTRUCTION AT ANY RATE. EVERYBODY’S MADE THE RECORD. ONE,
25 IT’S NOT GOING TO BE GIVEN.
26 PROPOSED PENALTY PHASE INSTRUCTION NUMBER TWO,
27 CITING PEOPLE V. MARSHAL.
28 MS. JONES: YOUR HONOR, FACTOR "C" COULD EITHER BE AN

10408

1 AGGRAVATOR OR MITIGATOR SINCE THERE’S AN ABSENCE OF ANY PRIOR
2 FELONY CONVICTIONS BY MR. WESTERFIELD IN HIS PAST. WE ASK THAT
3 THE JURY BE SPECIFICALLY TOLD THAT FACTOR "C" IN THIS PARTICULAR
4 CASE CAN ONLY BE CONSIDERED AS A MITIGATOR.
5 THE COURT: THE PEOPLE.
6 MR. DUSEK: EVIDENCE IN THE CASE SHOULD NOT BE GIVEN.
7 THE ARGUMENT CAN BE MADE.
8 THE COURT: THE ARGUMENT CAN BE MADE QUITE CLEARLY. THE
9 ARGUMENT CAN BE MADE AS MITIGATING FACTORS AS A MATTER OF FACT.
10 ONE OF THE PROBLEMS THAT I HAVE IS SPECIALLY OR
11 FOCUS INSTRUCTIONS IS OFTENTIMES THEY GET TO A POINT WHERE THE
12 PEOPLE COULD THEN COME BACK AND START FOCUSING ON DIFFERENT
13 INSTRUCTIONS.
14 I SIMPLY FIND THAT THIS IS NOT CALLED FOR. IT
15 DOESN’T DEPRIVE THE DEFENSE OF ANY ARGUMENT WHATSOEVER, AND IT’S
16 COVERED BY OTHER INSTRUCTIONS. SO 2 WILL NOT BE GIVEN.
17 AND THEN A PROPOSED INSTRUCTION NO. 3, CITING A
18 SOUTH CAROLINA CASE OR — IS PROFFERED AT ANY RATE.
19 MS. JONES: YOU CAN GIVE IT, TOO.
20 THE COURT: I’M SURE YOU WOULD HAVE ME DO THAT.
21 ALL RIGHT.
22 MS. JONES: YOUR HONOR, AGAIN, THIS IS A LITTLE DIFFERENT
23 IN KIND THAN SOME OF THE OTHER INSTRUCTIONS THAT WE’VE PROFFERED
24 BECAUSE IT DOESN’T — MANY OF THE MITIGATING FACTORS DON’T
25 NECESSARILY EXPLAIN TO THE JURY THAT THEY CAN BE USED BY THE
26 JURY TO DECIDE ON A SENTENCE OF LIFE WITHOUT PAROLE, THE JURY
27 DETERMINING THAT MR. WESTFIELD IS LESS CULPABLE FOR THE
28 COMMISSION OF THE OFFENSE, AND THIS DIRECTS THEIR ATTENTION TO

10409

1 THE FACT THAT EVEN IF IT DOESN’T LESSEN HIS CULPABILITY —
2 THE COURT: I DON’T NEED TO HEAR FROM THE PEOPLE. IT’S
3 COVERED BY OTHER INSTRUCTIONS AND IT WILL NOT BE GIVEN.
4 ALL RIGHT, COUNSEL. WE NEED TO TAKE A SHORT BREAK
5 SINCE WE NEED TO SHIFT THE REPORTERS SINCE IT’S THE APPROPRIATE
6 PLACE. LET’S BE BACK ON BOARD AT 2:40, PLEASE. 2:40.
7 (AT 2:27 P.M. THE COURT WAS IN

RECESS UNTIL 2:40 P.M.)

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