SAN DIEGO -- The judge in the David Westerfield trial has denied a defense motion asking for a ruling that California's death penalty violates the Eighth Amendment because it constitutes cruel and unusual punishment.

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

The same jury that found Westerfield guilty of kidnapping and killing Danielle van Dam is trying to determine whether the former Sabre Springs design engineer should be executed by lethal injection or spend the rest of his life in prison.

The final decision on whether to impose the sentence recommended by the jury rests with the judge.

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Attorneys Wanted Arguments On The Record

In court papers, defense attorney Robert Boyce said the death penalty in California violates the Eighth Amendment because the amendment states that "death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion."

"Our law does not narrow the class of first-degree murderers the way the Eighth Amendment requires," defense attorney Rebecca Jones told the judge.

But Mudd said the study actually showed that "the death sentence is working in the state of California" and is not applied "willy-nilly."

In 1977, when the California Legislature re-established the death penalty, it returned discretion to the jury in applying the death penalty, but attempted to limit that discretion by requiring that one of 12 special circumstances be found beyond a reasonable doubt to make a murderer death-eligible, according to the documents filed by Boyce.

There are now 33 special circumstances listed in California's penal code.

The jury in the Westerfield trial found that the defendant killed the 7-year-old during the commission of a kidnapping.

Deputy District Attorney Richard Armstrong, in his written response to the defense motion, said higher courts have repeatedly found that California's death penalty is constitutional.

Jurors -- who have deliberated about 14 hours over parts of four days in the trial's penalty phase -- are expected to resume deliberations Monday.

Judge William Mudd suspended deliberations Tuesday when a female juror was stricken with a stomach ailment.