SAN DIEGO -- Jurors who will consider whether David Westerfield should live or die for kidnapping and killing 7-year-old Danielle van Dam will see a videotape of her life, a judge ruled Monday.

WESTERFIELD TRIAL Judge William Mudd Issues Death Penalty Sentence Hear Jury's Death Penalty Recommendation Watch The Jury's Verdict Being Read Share Your Thoughts DANIELLE VAN DAM 1994-2002 Watch Danielle Video Montage E-mail: daniellevandam @yahoo.com Send mail to: P.O. Box 501515 San Diego, 92150

Over the objections of Westerfield's attorneys, Judge William Mudd ruled that prosecutors could show the tape during the penalty phase of the defendant's trial.

Prosecutors also produced a number of witnesses they wanted to call during the second phase of trial, Mudd said.

"Some of them will testify ... others will not," the judge said.

The penalty phase -- to determine if the defendant is sentenced to death or life in prison with no chance for parole -- starts Wednesday.

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Jury Comes Back Wednesday Morning

The same jury that found Westerfield guilty will make a recommendation on punishment, but Mudd will make the final decision.

The prosecution can legally call witnesses to testify about past bad acts to convince a jury that Westerfield, 50, should die by lethal injection for kidnapping and killing his neighbor.

Lead prosecutor Jeff Dusek told the judge last week that he would seek to introduce police reports on Westerfield if witnesses were not allowed to testify.

Danielle's parents are expected to testify about how the loss of their daughter has devastated their family. The judge last week denied a defense motion challenging the constitutionality of the death penalty.

Mudd is expected to hear argument on the subject again Tuesday.

The judge will also conduct a hearing on whether to permanently exclude San Diego Union-Tribune photographer Dan Trevan from the trial.

Trevan, the trial's pool still photographer, was kicked out of the courtroom Friday for taking a shot of the victim's grieving parents as the verdicts were read.

Mudd said he might exclude all still photography from the courtroom.

The photo of Brenda and Damon van Dam was published in newspapers across the country the next day, including an extra edition of the San Diego Union-Tribune the afternoon of the verdicts.

Westerfield was convicted of murder, kidnapping, possession of child pornography and a special circumstance allegation that the murder occurred during a kidnapping.

In presenting evidence on the pornography found in Westerfield's home office, prosecutors said it showed his motive for kidnapping the child.

Some experts have said the Westerfield doesn't fit the mold of California's 616 death row inmates.

Westerfield was a successful white businessman who had some education, while most death-row inmates are people of color, uneducated, and poor.

Some analysts contend that Westerfield will likely die of old age in prison in any event, given he is already 50 and California has a large backlog of scheduled executions, which are carried out at the rate of about one a year.

Eleven people have been executed since 1978, when the death penalty was reinstated in California, according to the Department of Corrections.

Factors to be considered in the penalty phase include the defendant's level of intoxication -- Westerfield was said to have been drunk the night before Danielle was discovered missing on Feb. 2 -- possible mental disorders and lack of criminal record, experts said.

Westerfield has only a drunken driving conviction on his record.

Meanwhile, Brenda van Dam is reportedly working with friends to create a foundation in memory of her daughter that would focus on child safety issues.

A friend of the van Dam family said the mother hopes to announce the start of the foundation on Sept. 22, which would have been Danielle's 8th birthday.