dictionary

Westerfield penalty phase continues Thursday

Friends of Danielle van Dam plead for his death

David Westerfield listens to testimony at Wednesday's penalty phase proceedings.

SAN DIEGO, California (CNN) -- Jurors will return Thursday to hear more evidence in the penalty phase of the case against a California man convicted of abducting and murdering a San Diego-area 7-year-old.

Since her death, the girl's brothers no longer sleep in separate rooms, and memorials to her brief life have sprung up, Danielle's parents and others who knew the child testified Wendesday, the first day of the penalty phase.

Prosecutors are seeking the death penalty for David Westerfield, 50, found guilty August 21 of abducting the girl from her home and killing her.

RESOURCES • Indictment: People v. Westerfield  (FindLaw document, PDF format) • Court TV.com: Judge bans still photography  • Court TV: Complete coverage of the trial      LEGAL RESOURCES Latest Legal News Law Library FindLaw Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes   CNN NewsPass VIDEO CNN's Thelma Gutierrez says David Westerfield faces a possible death sentence in the kidnap-slaying of Danielle van Dam (August 28) Play video

Under the felony murder charge, he was accused of killing Danielle during the commission of another crime -- kidnapping -- a special circumstance which makes him eligible for capital punishment. The jury unanimously found the special circumstances to be true.

Danielle's father, Damon van Dam, 37, was one of the first witnesses called by the prosecution.

He said the girl's brothers, Derek and Dylan have "recovered somewhat," but they're not back to where they were before Danielle disappeared.

"They have separate rooms, but they sleep together in Derek's room now," van Dam said.

He also described in detail, with the aid of prosecution photographs, the makeshift memorials that sprang up in the days following the girl's abduction, and later, after her body was discovered.

One of those memorial sites was at the spot her badly decomposed body was found February 27 near a desert road.

The side of the road was cleared and a volunteer fire department built a wooden staircase and someone put a bench there, van Dam said.

Numerous flowers, notes, prayers, and stuffed animals were put there atoo, he said.

Danielle was described by two of her teachers as "a very sweet, polite, hard-working little girl" and "a child who wanted to do her work and please people around her."

Damon van Dam: Brothers still recovering.

One of those teachers, Ruby Puntenney, told the jury about the impact of Danielle's death upon her second grade class, detailing how Danielle's classmates were concerned about who would receive the girl's personal effects after the child's body was found.

Puntenney also gave testimony about Brenda van Dam, the girl's mother, whom the prosecution had painted as an irresponsible mother whose lifestyle had contributed to setting the stage for Danielle's murder.

Both teachers said Brenda was a frequent volunteer for field trips and often helped at the school in other ways.

At the conclusion of the morning's testimony, the defense made a motion for a mistrial, saying the testimony had gone beyond the scope of case law on victim impact statements.

Judge William Mudd denied the motion, saying all the morning's exhibits had previously been ruled to fit "within the appropriate parameters."

In his opening statement, prosecutor Jeff Dusek told the jury that during the penalty phase they would hear testimony from Westerfield's relatives describing an incident 12 years ago, when Westerfield allegedly went into an upstairs bedroom during a family party and touched his niece, who was then 7-year-old, and other girls.

Shortly after the incident is alleged to have happened, Westerfield's niece told her mother that while she feigned sleep her uncle put his fingers into the girl's mouth and rubbed her teeth. Then, she said, Westerfield went over to where other girls were sleeping in the room and touched them in some way.

The prosecutor said the mother confronted Westerfield about the incident, which he denied.

In his opening remarks, defense attorney Steven Feldman said, "We accept your verdict," but added he was afraid that jurors would be unduly influenced by community pressure.

"Your ultimate responsibility to decide whether David Allen Westerfield lives or dies is only your decision -- no one else's," Feldman said.

"Westerfield ... is not the worst of the worst. We will show you he has a life history of doing good," he said.