A San Diego judge rejected a defense attempt Friday to void David Westerfield's murder conviction because of alleged flaws in the California death penalty statute.

"All these numbers are very fine and everything," Judge William Mudd said referring to a capital punishment study cited by the defense, "but the bottom line is the death penalty is working in California."

Defense lawyer Steven Feldman argues Friday that the California death penalty statute is flawed.

The brief arguments before Mudd, who is presiding over Westerfield's trial for the killing of his 7-year-old neighbor, were largely pro forma with the defense setting the stage for the appeals process.

Westerfield's lawyers claim that under the Eighth Amendment protection against "cruel and unusual punishments," only a very narrow class of murderers should qualify for capital charges. The defense contends California's law is too broad and pointed to one study which found that 90 percent of those charged with murder in the state fit the criteria for capital charges.

"Almost everyone prosecuted and convicted of first-degree murder is eligible for the death penalty in our state," said defense lawyer Rebecca Jones.

But Mudd said California appeals courts had found no problem with the law, and the issue was one for federal courts to take up later.

On Aug. 21, a jury convicted Westerfield, 50, of kidnapping and killing Danielle van Dam last February. The same panel is now deciding whether he should die for the crime or spend the rest of his life in prison without parole.

Deliberations resume Monday morning.