SAN DIEGO -- The jury in the penalty phase of the David Westerfield trial says it is deadlocked on whether he should get the death penalty or life in prison for kidnapping and killing 7-year-old Danielle van Dam.

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 jury foreman sent a note to the judge that read: "We are unable to reach a unanimous verdict at this time and would like further guidance. Thanks, Juror No. 10."

Superior Court Judge William Mudd set a 1:30 p.m. hearing to consider the issue.

The judge can direct the jury to continue deliberating or he can declare a mistrial. Prosecutors then have the option of asking to retry the penalty phase with another jury.

After taking nearly a week off, jurors returned to court Monday morning. The jury suspended deliberations Tuesday after one member got sick and another had a doctor's appointment.

The same jury convicted Westerfield, a twice-divorced design engineer, on Aug. 21 of kidnapping, murder and possession of child pornography.

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Jury Has Been Out Almost A Week

In the penalty phase, the jury deliberated nearly 14 hours over four days before the judge suspended deliberations because one juror had a gastrointestinal ailment.

Danielle was last seen on Feb. 1 when her father put her to bed in their home on the suburban northern edge of San Diego.

Her body was found nearly a month later along a rural road east of the city.

Last Friday, Mudd rejected a defense motion that California's death penalty is unconstitutional because it violates the Eighth Amendment, which prohibits cruel and unusual punishment.

In court documents, attorneys for Westerfield presented a statistical study trying to indicate that the class of first-degree murderers who are death-eligible is too broad.

But Mudd said that 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 it 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 Westerfield's lawyers.

There are now 33 special circumstances listed in California's Penal Code.