THE PEOPLE, Plaintiff and Respondent, v. RONALDO MEDRANO AYALA, Defendant and Appellant, 23 Cal. 4th 225

Opinion MOSK, J.— The San Diego County District Attorney filed an amended information on January 20, 1987, charging defendant with three murders and other offenses. The information alleged that the crimes all occurred on or about April 26, 1985. Count 1 charged defendant with murder in the death of Jose Luis Rositas (Pen. Code, § 187; all unlabeled statutory references are to this code). Counts 2 and 3 contained the same charge in the deaths of Marcos Antonio Zamora and Ernesto Dominguez Mendez (Dominguez) respectively.

Count 4 charged him with the attempted murder of Pedro Castillo (§§ 187, 664), and count 5 with robbing him (§ 211). Count 6, which the trial court later dismissed, and which the jury did not consider, charged him with robbing Zamora. Counts 7, 8, and 9 charged him with the attempted robbery of Dominguez, Rositas, and Zamora respectively (§§ 211, 664). The first six counts were accompanied by allegations that defendant personally used a firearm (§ 12022.5).

The amended information alleged that defendant committed the special circumstances of multiple murder (§ 190.2, subd. (a)(3)) and murder while attempting to commit robbery (§ 190.2, former subd. (a)(17)(i); see now § 190.2, subd. (a)(17)(A)). The amended information further alleged that defendant had been convicted of other offenses: second degree burglary (§ 459) and unlawful use of a motor vehicle (Veh.

Code, § 10851) in San Diego County in 1971, crimes for which he received probation; robbery (§ 211) in San Diego County in 1973, possessing a deadly weapon in prison (§ 4502) in Monterey County in 1974, first degree burglary (§ 459) in San Diego County in 1980, and possessing a controlled substance (Health & Saf. Code, § 11350) in 1981, those four crimes falling within the ambit of

section 667.5, subdivision (b); and that the robbery and first degree burglary also constituted serious felonies under sections 667, subdivision (a), and 1192.7, subdivision (c). The case was called for trial on April 15, 1988. On October 12, 1988, the jury convicted defendant of all the offenses charged. (None of the determinate terms is at issue here.) The jury also found, with respect to the remaining counts where it was alleged, and also with respect to the charge of attempting to rob Zamora (count 8 as renumbered), that defendant had personally used a firearm within the meaning of

section 12022.5. It further found the special circumstance allegations true. Defendant waived his right to have the prior offense allegations tried before a jury, and the court found them true. Following a penalty trial, the jury returned a verdict of death on counts 1, 2, and 3 on December 12, 1988, and the trial court entered judgment in accordance with the verdict. The appeal to this court is automatic. The Guilt Phase Facts The defendant herein, Ronaldo Medrano Ayala, and his brother Hector Juan Ayala, murdered Dominguez, Rositas and Zamora after holding them captive in an automobile repair shop.

The Ayalas would have killed their fourth intended murder victim, Castillo, but he improvised an escape plan and, though shot, survived. The prosecution also presented evidence that a third man, Jose Moreno (also known as Joe Moreno and Joseph Suarez Moreno and by his nickname Cucuy) helped to perpetrate the crimes. Castillo provided the information that led to defendant’s arrest, and served as the prosecution’s key witness at trial. The People were represented by William Woodward and Gloria Michaels; defendant by Elisabeth Semel and Robert Boyce.

Opening statements and presentation of evidence began on August 3, 1988. San Diego Police Detective Richard Carey testified that on April 26, 1985, his homicide team was summoned to the New Life automobile detailing and body repair shop located at 999 South Forty-third Street, on the east side of that street between Logan and National Avenues in southeast San Diego. He found Dominguez’s, Zamora’s and Rositas’s bodies in the shop office. All had been shot. A forensic pathologist, Dr. David Masamichi Katsuyama, testified that each had died from two gunshots to the head.

Prosecution Case The prosecution theorized that the murders resulted from a robbery attempt that failed because it was based on the perpetrators’ incorrect speculation that Dominguez had just returned from Mexico with a quantity of narcotics or cash. Castillo testified that a week before the killings he spoke with Hector Ayala about Dominguez’s whereabouts. Dominguez was in jail, apparently for minor offenses. An investigator testified that Dominguez was released the day before his murder. But Dominguez told Castillo to tell anybody asking that he was in Mexico, and Castillo so told Hector Ayala.

The prosecution told the jury in its opening statement that Dominguez invented the story about Mexico because he was embarrassed about being in jail and did not want his whereabouts disclosed. Juan Manuel Meza provided important testimony regarding motive and intent. Meza, a heroin addict at the time of the murders who had a $100- to $200-per-day habit, testified that about a month before the killings defendant, in the presence of Meza and Hector Ayala, proposed to rob the automobile body shop. About a week after that event, Hector Ayala told Meza that Dominguez had gone to Tijuana to buy drugs.

Nine days before the murders Meza attended a meeting that Hector Ayala had called at his house. Defendant was also present. As defendant prepared to use heroin in the living room, Hector Ayala emerged from the bedroom displaying a .38-caliber Smith & Wesson revolver in poor condition. He asked Meza if he could use some of Meza’s guns, which were of better quality, for the impending robbery.

The three discussed a plan for the crime, in which they would be the only participants; defendant said, in Meza’s words, that it would be “easy ... to just go in, line them all up, lay them down, tie them up and wait for [the victims to divulge the location of] the drugs” and money—one pound of heroin and $10,000—that they believed Dominguez would have after his trip to Mexico. Defendant asked Meza to perform the task of binding the victims.

During the planning meeting defendant said, in Meza’s words, that “we didn’t want any witnesses” and “that they were to die.” They were prepared to kill as many as five people if necessary to ensure that no witnesses remained alive. Meza testified that he told defendant and Hector Ayala that he would provide the requested guns and participate in the robbery, but that the promise was a falsehood. Rather, because he feared that he would be killed in the aftermath, he did not intend to do anything. The weekend before the murders, Meza encountered Hector Ayala and Moreno by chance at a liquor store in National City.

They went to Hector Ayala’s house to use drugs, and Hector Ayala asked Moreno to be the driver for the planned robbery. Moreno agreed, and offered to bring a .22-caliber gun. Two days before the killings, Hector Ayala told Meza to stand by at his house to be picked up between 5:00 and 6:00 p.m. on the day of the murders. Meza continued to pretend that he would participate, but instead, he left his house early in the afternoon of the day of the killings, and did not return until about 10:00 p.m.

Meza’s wife testified that Hector Ayala appeared at their house at 10:00 a.m. and 5:00 p.m. that day, that her husband was not there at either time, and that Ayala was annoyed. Meza acknowledged in court that he was convicted of robbery in 1975, attempted taking of another’s motor vehicle in 1985, and possession for sale of cocaine in 1987, and that he was still incarcerated for the drug offense.

He testified that in exchange for his agreeing to testify in this case the district attorney’s office had arranged to protect his family, and also would ask his sentencing judge to reconsider his sentence and order his release from prison. His agreement with the prosecution required him to testify truthfully, and he had signed a document to that effect. Castillo testified that Dominguez returned to work the day before the killings and was drinking and chatting in the body shop with all three perpetrators. Castillo was Dominguez’s employee.

He testified that Dominguez and Zamora, who was Dominguez’s brother-in-law, ran a heroin distribution business at the shop. Castillo volunteered on direct examination that on occasion he had helped distribute heroin from the premises. Defendant and Hector Ayala would visit the shop, retreat into the office, and reappear showing symptoms of having used heroin inside. Evidently either Dominguez or Zamora would sell it to them. Castillo, who was himself a user of heroin until the day of the murders, could obtain a better grade of the drug elsewhere and thus did not buy it from the body shop.

Castillo testified that he first saw defendant appear at Dominguez’s shop about four months before the killings, and thereafter he visited two to three times a week, usually in the company of Hector Ayala or Moreno. From the time that Dominguez acquired the business, Hector Ayala also had been a regular visitor. About noon on the day of the killings, Castillo injected a dose of heroin off the premises and returned to work at the shop. The drug had a stabilizing effect on Castillo, who also testified that using it that day did not impair his memory or his ability to work. About 5:00 p.m.

Castillo returned some $600 in cash to Zamora. Zamora had given him the money to buy an engine, but Castillo had not been able to buy it that day. About 6:00 p.m. Castillo, still working on cars, saw defendant, Hector Ayala, and Moreno on the premises. Later, at dusk, he looked up and saw Hector Ayala pointing a pistol at his head. Hector Ayala escorted him to the office at gunpoint, where defendant, Dominguez, Zamora, and Rositas were also present. Defendant was also holding a gun. Zamora was lying on his side; Rositas was in a crouch. They and Dominguez all had their hands bound behind their backs.

Hector Ayala said to Dominguez, “Yeah, Chacho, you thought you were real smart. Didn’t you know you had to go through us?” Moreno then bound Castillo’s hands behind his back with duct tape. Castillo had become “clear-headed” and was focused on the victims’ predicament, and when Moreno was taping him he tried to shift his hands so as to “not let[] the tape get bonded properly, because I—I felt that I had to get my hands loose.” Defendant “demanded $10,000 or someone was going to die,” Castillo further testified.

Apparently nobody had such a sum, but Castillo volunteered that he had hidden some money under the driver’s seat of a tow truck parked outside—a ruse, as he had money only in his pocket. Defendant and Hector Ayala debated whether to escort Castillo to the tow truck, and Hector Ayala warned Castillo that “if you’re lying, I’m going to blow you away,” in Castillo’s words. Hector Ayala directed Moreno to check the truck. About that time Hector Ayala also removed money from Castillo’s pocket. Before Moreno had even returned, Hector Ayala accused Castillo of lying and stabbed him in the upper left leg.

Moreno returned and informed his accomplices that the truck contained no money. Defendant urged that Castillo be taken out to get the money, but Hector Ayala disagreed. Defendant shoved his brother and quieted him, and then with a gun in one hand, began to escort Castillo outside, holding him by his jacket with the other hand and warning him that if he tried to run when the garage door opened— precisely Castillo’s plan—he would kill him. Defendant told Moreno to open the garage door slowly, and Castillo feigned that he was trying to squeeze under it, but could not do so.

In fact his feint was disguising the fact that he was propping the door up with his body. Unknown to the assailants, the door was defective, and would slam down unless supported. Once Moreno had raised it far enough for Castillo to escape, and also had relaxed his own hold on the door (which Castillo could sense by the door’s weight on him), Castillo bolted underneath, and the door slammed down, surprising defendant and Moreno. Still bound at the hands, Castillo ran toward the street.

Defendant and Moreno managed to open the garage door and shots were fired at Castillo, wounding him in the back. (A radiologist’s later testimony established that a .22-caliber projectile lodged in his abdominal area.) He fell onto Forty-third Street. At the same time as he was shot, he heard two shots ring out, and, while lying in the street shortly thereafter, six more, consisting of three sets of two closely timed shots each, and lasting a total of some five seconds. Meanwhile he was yelling for help. He then saw three silhouettes exit the shop.

Simultaneously, he saw a police car turn the comer from Logan Avenue onto Forty-third Street. Apparently he lost consciousness, and “the next thing I remember, I was on top of the officers’ hood of the car, and I was pointing towards the garage. I think I was saying, ‘In there, in there.’ ” After an officer ran back to the police car “I think I asked him, ‘what happened?’ He said, ‘Your three buddies are dead.’ ” Castillo, who described himself as “almost dead” or “half dead” after being shot, had virtually no memory of being transported to the hospital, examined, or treated.

The first discussion with the police that he could recall occurred in a hospital room, apparently after surgery. At that time he feared for his and his family’s safety—a concern evidently shared by the police, who kept a guard in his room and arranged for him to be registered in the hospital under a pseudonym. Officer Mills testified that in the ambulance Castillo said he had never seen the perpetrators before. Only eventually, two days after the murders, did he tell the police that they were defendant, Hector Ayala, and Moreno. He identified them in photographic lineups from his hospital bed.

Castillo acknowledged that at the preliminary hearing he had testified falsely with respect to heroin-related activity at the body shop, denying any knowledge that Dominguez or Zamora used or sold the drag. He testified at trial that he did this for the sake of the murder victims’ families: he did not want to taint their memories of the dead. On cross-examination, counsel questioned Castillo extensively regarding details of the body shop’s parallel drug-merchandising business.

She also asked him about statements he had made knowing them to be false, about other inconsistencies in his prior descriptions of facts or events, and about the accuracy of his memory. Despite this, the defense was unable to undermine his description of the events surrounding the murders. Parts of Castillo’s testimony were confirmed by the testimony of Miguel Angel “Pelón” Lopez, who lived in an ice cream truck and worked at a tire shop, both of which were located on the premises of 999 South Forty-third Street.

Lopez said that after he closed the tire shop at 5:00 p.m. the day of the killings, he saw defendant and Hector Ayala. Just before 8:00 p.m. he went to watch a San Diego Padres-Los Angeles Dodgers baseball game in his truck, and during the game he heard one shot ring out from the area of the body shop. He emerged to see Castillo run toward and fall onto Forty-third Street, and he heard four more shots come from inside the body shop—two sets of two. There was testimony that defendant’s fingerprints had been found on beer cans recovered from the body shop office. A police officer, Tony D.

McElroy, testified that he found Castillo in the street and discovered bodies inside the automobile body shop. He questioned Castillo, who told him after a few responses that he only wanted to answer further questions with a lawyer present. A paramedic, Wayne Johnson, testified that the blood from two of the murder victims showed that they had bled shortly before he saw them at the crime scene. He did not remember the state of the third victim’s blood. Finding that none could be treated, he did not try to administer medical aid. Defense Case Defendant did not testify at the guilt phase.

But the defense theory was that Castillo was in league with the probable actual killers: two young Latino men, one of whom was wearing a red plaid shirt of the Pendleton brand or type. During the prosecution’s case-in-chief a police detective testified that Castillo, while in the ambulance on the way to the hospital, said he did not know the killers and that one of them was wearing a red plaid shirt. The next day in the hospital, Castillo repeated that information, saying, according to the testimony of another detective, that one of the killers was wearing a red Pendleton shirt.

Traci Lynn Pittman testified that on the night of the murders she was at a liquor store across Forty-third Street. She saw two slender Hispanic men walk from that liquor store to the complex containing the automobile body shop and disappear into it. One of the men was in his early 20’s and was five feet seven to five feet eight inches tall. As he passed her he appeared to be concealing a bulky object, which could have been a gun, underneath his red Pendleton shirt. The other was the same age, but shorter, perhaps five feet six or five feet seven inches. Neither looked the same as defendant or Hector Ayala.

The lighting at the scene was poor and she could not see where they went. But about two minutes later a man (evidently Castillo) emerged running from the complex and fell onto Forty-third Street as two shots rang out. Pittman took shelter in the liquor store and from inside heard three, or possibly four, more shots. A fingerprint expert testified that a fingerprint found on the duct tape used to bind Dominguez was not defendant’s. Nor did it belong to any of the victims or other identified perpetrators; it belonged to an unknown person. Rafael “Rafa” Mendoza Lopez (Mendoza) had been Dominguez’s friend since 1976.

The purpose of his testimony was to suggest to the jury that Castillo’s involvement in drugs extended beyond personal use and low-level delivery errands, and that he might have been in league with others who committed the murders. Mendoza testified that he was using heroin in 1985 and that if he needed the drug after Dominguez’s automobile body shop had closed he would obtain it at Castillo’s house or, at Castillo’s direction, at Zamora’s.

Dominguez sold drugs from two locations and was rarely present at the 999 South Forty-third Street business; in his absence, Castillo, Zamora, and Sergio “Tony” Mancilla Hernandez would transact the sale. On the day of the murders, Mendoza went to the automobile body shop and noticed two or three men he had never seen before. It was possible that their accent and demeanor identified them as Mexican residents. He met Castillo, and the two went to a car in the lot that Mendoza was to fill with gasoline.

Castillo rummaged in the trunk, extracted a bundle of clothing that contained two guns, and mentioned that “he was waiting for some people from Mexico.” When Mendoza returned from a nearby Chevron station, Castillo was chatting with the group of Mexicans. On rebuttal, as described below, Mendoza recanted his testimony in important respects. A handwriting expert buttressed the defense’s theory of Castillo’s role by testifying that Castillo had written text that evidently referred to heroin sales. Prosecution’s Rebuttal The prosecution presented a brief rebuttal case.

The prosecution’s fingerprint expert, disagreeing with defendant’s, testified that Dominguez might have left the fingerprint that was found on the duct tape. And Castillo testified in order to rebut the implications of Mendoza’s testimony. He denied having had Mendoza fill a car with gasoline on the day of the murders, or keeping guns or clothes in the trunk of any car. He also denied seeing any mysterious Mexicans on the premises that day, or that he told anyone he was expecting any Mexicans to arrive later. As stated, Mendoza appeared as a prosecution witness on rebuttal to recant his prior testimony.

He also provided important new evidence against defendant, showing his consciousness of guilt. Mendoza testified that, contrary to his prior testimony, Castillo did not show him any guns on the day of the murders, nor was there present a group of unknown Mexicans. Mendoza explained that he gave his false prior testimony at defendant’s request. Mendoza had heard that defendant wished to see him, and he felt forced to visit him and Hector Ayala in the county jail in June or July of 1985. During the visit, defendant held a written note against a glass partition separating him from Mendoza.

The note directed Mendoza to contact an investigator and give him the false story. Defendant told him to explain that two guns were involved, one of them chrome plated: a .22-caliber and a .38-caliber weapon. The note explained, in Mendoza’s words, that “what happened to [Dominguez] had to happen.” He explained that he had testified falsely because he feared that otherwise defendant would seek deadly revenge against him. On cross-examination, defense counsel asked Mendoza to describe the size of the paper defendant purportedly showed him, and he answered about five by six inches.

She asked him how a piece of paper that size could convey the amount of information he had described on direct examination, and how he could absorb defendant’s written instructions in a jail visiting room regularly subject to monitoring. She also succeeded in introducing chronological evidence that cast considerable doubt on the credibility of Mendoza’s recantation.

Contrary to Mendoza’s direct testimony, he could not have gone to the jailhouse meeting in June or July of 1985 accompanied by another individual known by the nickname “Rudy Green Eyes,” because that person, whose real name was shown in federal records as Rudy Ayala Ybarra (or possibly Ibarra), was a federal prisoner continuously from 1982 to December 1985, and was imprisoned in Tucson, Arizona, from June 5, 1985, to October 28 of that year. Argument The prosecutor began his closing argument by suggesting to the jury that it could rest its verdict on Castillo’s testimony alone.

He argued that because Rositas, Zamora, and Dominguez were murdered execution-style, the murders were premeditated and deliberate. He argued that because the victims died during a robbery, defendant was also guilty of first degree murder on a felony-murder theory. He characterized defendant’s case as consisting of attempts to distract from the core facts, and emphasized his ruthlessness, as revealed by the murders and the fear he had instilled in certain witnesses. For her part at closing argument, defense counsel impugned the honesty of the prosecution witnesses and the consistency of their testimony.

She argued that the absence of these qualities and the “many, many unanswered questions in this case” required the jury to find that the case had not been proven beyond a reasonable doubt. Castillo had lied at the preliminary hearing about Dominguez’s drug business, and continued to evade the truth. He needed to lie to conceal his own involvement in the murders—he was actually one of the perpetrators until something went awry. The story of his escape was too miraculous to be true.

Rather, Castillo was involved with the two men that Pittman had seen—the actual killers, the men Castillo originally described, one of whom wore a red Pendleton shirt. There were many other chronological or logical improbabilities or impossibilities in the evidence presented by the prosecution—certainly too many for the jury to convict defendant beyond a reasonable doubt. Defense counsel further disputed the truth of Mendoza’s recantation.

She questioned the likelihood of defendant’s carrying around and displaying a note in the county jail that admitted committing a triple murder, and that Mendoza could memorize all the information that he claimed to have obtained from the small piece of paper. In rebuttal, the prosecutor argued that the two Hispanic men coming from the liquor store across the street could not have bound and killed three men in the very short time that elapsed between the time Pittman saw them cross Forty-third Street to the time she saw Castillo collapse on that street and heard shots fired.

Issues on Appeal I. - Magnetometer Screening Defendant contends that placing a magnetometer (i.e., a metal detector) at the public entrance to the courtroom violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and their equivalent guaranties in the California Constitution. The prosecution, stating that defendant had a history of violence and was reported to be a member of a well-known prison gang, some of whose members might wish to attend the trial, moved to have a magnetometer placed outside the courtroom.

The motion stated that the security measure was needed to safeguard defendant himself and those who might testify against him. It stated specifically that “Castillo is, as is a matter of record, in the witness protection program and past solicitations to kill him are a matter of record.” The prosecution noted that it was not requesting that defendant be shackled as long as “there is some reasonable assurance that spectators who may attend the court proceedings are not armed . . . .” Defendant responded to the request on procedural and substantive grounds.

He requested an evidentiary hearing to refute the motion’s factual allegations. He asserted that his constitutional right to due process of law compelled the trial court to convene such a hearing. And, arguing as a matter of state law, he maintained that a magnetometer’s presence would prejudice the jury against him. Without calling witnesses, the trial court conducted a hearing.

After hearing argument, it stated that “[t]his court would be naive, and I think counsel would be naive, to assume that this court has not become aware of allegations that have surfaced concerning the membership in various gangs of various potential witnesses in this case. It’s also a known fact that threats allegedly were made as to Mr.

Castillo." The court also noted that one potential witness had claimed to have been a member of the Mexican Mafia (a prison-based gang also known as La Eme, the Spanish word for the letter “M,” and frequently referred to in the trial proceedings by that term), and that another may have been a member of the Aryan Brotherhood, a different prison gang. Describing a magnetometer as “unobtrusive" and “nondiscriminatory,” the court decided that it would order one to be used during the evidentiary portion of the trial. It implicitly denied defendant’s request for an evidentiary hearing.

Defendant apparently sought a writ of mandate against the order in the Court of Appeal, which rejected it. Thereafter he moved for the trial court to reconsider its decision, but it also refused.

Instead, at his request, it instructed the jury, immediately after the alternate jurors had been sworn, to disregard the magnetometer’s presence. “[I]t is my policy in serious felony cases to have everyone except jurors pass through a metal detector before entering the courtroom. [IQ Therefore, you can expect that a metal detector will be placed outside the courtroom when the trial begins, and it will remain throughout the course of the trial. [^] The practices of other judges in this courthouse differ from courtroom to courtroom.

You should not view the presence of a metal detector outside this courtroom, or the absence of one outside other courtrooms, as a reflection on either party or any of the witnesses. fl[] It is solely a matter of my personal policy.” In bringing his claim, defendant relies, as he did at trial, on People v. Duran (1976) 16 Cal.3d 282 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1]. Though he labels his claim one of constitutional error, its substance is of state law error, namely a violation of Duran.

Through Duran and its progeny, it has become settled that “because of its potentially prejudicial impact on the jury, shackling should be ordered only as a last resort and only upon a showing of a manifest need for such restraints. [Citations.] Any restraints should be as ‘unobtrusive as possible, although as effective as necessary under the circumstances.’ [Citation.] Although these restrictions make the trial court’s discretion to order restraints ‘relatively narrow’ [citation], the court’s ruling will be upheld on appeal absent a showing of a manifest abuse of that discretion.” (People v.

Livaditis (1992) 2 Cal.4th 759, 774 [9 Cal.Rptr.2d 72, 831 P.2d 297].) But Duran is inapposite. Here, unlike the situation in People v. Duran, supra, 16 Cal.3d 282, defendant was not shackled. Rather, a magnetometer was placed by the courtroom door. Unlike occasions on which the government can be accused of creating a public spectacle or directing suspicion at a criminal defendant by parading him or her in shackles, or driving him or her to court in an ostentatious manner, the trial court’s use of a magnetometer was, as it observed, “nondiscriminatory.” (Cf. Holbrook v.

Flynn (1986) 475 U.S. 560, 567 [106 S.Ct. 1340, 1344-1345, 89 L.Ed.2d 525].) In People v. Duran, supra, 16 Cal.3d 282, we stated that the presence of armed guards ordinarily “need not be justified by the court or the prosecutor.” (Id. at p. 291, fn. 8; see also generally Holbrook v. Flynn, supra, 475 U.S. 560 [discussing the presence of uniformed and armed personnel].) “We believe that the use of a metal detector outside a courtroom, like the use of additional security forces within the courtroom, is not. . . inherently prejudicial. . . .

Unlike shackling and the display of the defendant in jail garb, the use of a metal detector does not identify the defendant as a person apart or as worthy of fear and suspicion.” (People v. Jenkins (2000) 22 Cal.4th 900, 996 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) To the extent the metal detector’s use focused attention on the proceedings, it pointed to the nature of the case, not to defendant’s character. (See People v. Miranda (1987) 44 Cal.3d 57, 114-115 [241 Cal.Rptr. 594, 744 P.2d 1127].) The distinction is crucial. Nor did the magnetometer improperly highlight the nature of the case.

The jurors already knew they were hearing a multiple murder trial and that “the defendant appearing before them did not arrive there by choice or happenstance.” (Holbrook v. Flynn, supra, 475 U.S. 560, 567 [106 S.Ct. 1340, 1345].) Hence the magnetometer’s presence did not objectionably dramatize the proceedings. The device was, in its neutrality, akin to that of, and indeed likely less dramatic than, the use of armed guards in the courtroom. “A trial court has broad power to maintain courtroom security and orderly proceedings.” (People v.

Hayes (1999) 21 Cal.4th 1211, 1269 [91 Cal.Rptr.2d 211, 989 P.2d 645].) Accordingly, we review the court’s decisions regarding security measures in the courtroom, including deploying a magnetometer at the entrance, for an abuse of discretion. (Ibid.; People v. Jenkins, supra, 22 Cal.4th 990, 997.) We find none. The court was entitled to rely and act on the prosecutor’s representations, as an officer of the court, that bringing the case to trial posed certain risks.

There was no violation of state law, and because defendant’s constitutional claims are predicated on his assertion that state law was violated, they too must fail. We turn next to defendant’s procedural claim: that it violated due process to install a magnetometer without an evidentiary hearing. We do not agree that due process requires a contested evidentiary proceeding. It is well known that “ ‘ “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” ’ ” (People v.

Tilbury (1991) 54 Cal.3d 56, 68-69 [284 Cal.Rptr. 288, 813 P.2d 1318].) We have already explained that defendant’s interest in a fair trial was unaffected by installing a magnetometer outside the courtroom: it was a neutral measure that did not focus attention on him. Holding a contested evidentiary hearing would not have been useful: it would have imposed a needless burden on the trial court, which, as we have explained, enjoys wide discretion to maintain courtroom security.

It might have resulted in a wasteful minitrial at which witnesses would have had to testify about their gang affiliations or other potential for generating security problems. Neither the federal nor the state Constitution requires such consumption of the parties’ and the trial court’s time. Indeed, by holding a hearing of any kind, the trial court gave defendant more than he was entitled to. (People v. Hayes, supra, 21 Cal.4th 1211, 1268.) II. Search of the Garage Office and Seizure of Items Therefrom As stated, defendant’s fingerprints were found on beer cans recovered from the automobile body shop office.

At trial, he filed a motion to exclude evidence obtained from the search of the premises where the murders occurred. (§ 1538.5.) He claimed that (1) searching the premises, and (2) removing therefrom certain small items, namely “vodka containers, orange juice containers and beer cans in which [he had] a proprietary interest,” violated his rights under the Fourth Amendment to the United States Constitution and

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section 13 of the California Constitution. The prosecution opposed the motion on the grounds that the premises did not belong to defendant and that the killers were only business invitees there even before they began their robbery; the search was a proper emergency search, followed by the police’s continuous occupation of the premises; and defendant did not own and lacked any reasonable expectation of privacy in the seized items.

Referring explicitly to the seizure claim but apparently considering the search claim as well, the trial court ruled that defendant lacked standing to invoke the Fourth Amendment, and rejected his motion on that ground. It also considered the merits of the seizure claim, but concluded that defendant had abandoned the seized items and lacked any expectation of privacy in them. We apply the Fourth Amendment standard in deciding what remedy may be available following a claim of unlawful search or seizure. (In re Lance W. (1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744]; Bowens v.

Superior Court (1991) 1 Cal.4th 36, 47 [2 CaLRptr.2d 376, 820 P.2d 600].) The inquiry is substantive in nature, and consists of a subjective and an objective component. “[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i. e., one that has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” (Minnesota v.

Carter, supra, 525 U.S. 83, 88 [119 S.Ct. 469, 472].) “In other words, the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable.” (State v.

Yakes (1999) 226 Wis.2d 425, 430 [595 N.W.2d 108, 110].) “ ‘An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] HO In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.” [Citations.] [^Q The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.’ ” {People v.

Alvarez (1996) 14 Cal.4th 155, 182 [58 Cal.Rptr.2d 385, 926 P.2d 365].) The claim is without merit. Even if defendant left the containers at the automobile body shop while there as an invitee or a social guest, he had no expectation of privacy in the premises. “ ‘ “[Occasional presence on the premises as a mere guest or invitee” ’ ” is insufficient to confer such an expectation. (U.S. v. Chaves (11th Cir. 1999) 169 F.3d 687, 691.) Moreover, the trial court found that he had abandoned the containers—a factual finding supported by substantial evidence and to which, accordingly, we defer.

Abandoning them, he relinquished any expectation of privacy in them. As a general matter, “ ‘the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilage thereof.’ ” (People v. Machupa (1994) 7 Cal.4th 614, 629, fn. 5 [29 Cal.Rptr.2d 775, 872 P.2d 114]; see People v. Roybal (1998) 19 Cal.4th 481, 507-508 [79 Cal.Rptr.2d 487, 966 P.2d 521]; see also Abel v.

United States (1960) 362 U.S. 217, 240-241 [80 S.Ct. 683, 697-698, 4 L.Ed.2d 668].) For the foregoing reasons, we find defendant’s Fourth Amendment claims to lack merit, and reject them. III. Representation of Hispanics and the Young in Jury Pool Defendant, who is Hispanic, contends that underrepresentation of Hispanics in the jury pool violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. (Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748].) He brought the same claim at trial, but the trial court rejected it.

The claim is without merit. “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v.

Missouri (1979) 439 U.S. 357, 364 [99 S.Ct. 664, 668, 58 L.Ed.2d 579].) Defendant satisfies the first of these requirements. “Whether characterized on the basis of Spanish surname or self-identification, Hispanics are a cognizable population . . . .” (People v. Ramos (1997) 15 Cal.4th 1133, 1154 [64 Cal.Rptr.2d 892, 938 P.2d 950].) Defendant cannot establish a prima facie case of systematic exclusion of Hispanics merely by presenting statistical evidence of underrepresentation in the jury pool, venire, or panel.

He must show that any underrepresentation “is the result of an improper feature of the jury-selection process.” (People v. Howard (1992) 1 Cal.4th 1132, 1160 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) The parties stipulated to use the prior testimony of the San Diego County coordinator of jury services. That individual had testified that every year the jury commissioner’s office compiles the names of all registered voters and persons with a California driver’s license or identification card onto a source list, which contains 2.5 million people.

The county then uses a “sophisticated random sampling” technique to draw names from the source list to create a master list of 350,000 people, from which in turn individuals are summoned via a “second sophisticated random sampling” to form a venire. The foregoing method does not discriminate on the basis of ethnicity or national origin. (People v. Ramos, supra, 15 Cal.4th 1133, 1156.) Hence, defendant has not shown that the jury selection process contained an “improper feature” (People v. Howard, supra, 1 Cal.4th 1132, 1160).

Defendant also claims that underrepresentation of the young violated his Sixth and Fourteenth Amendment rights. With regard to young people, the trial court ruled that the young are not a cognizable group, but even if it were, there was no improper exclusion of them in the jury-selection process. “California courts have not been receptive to the argument that age alone identifies a distinctive or cognizable group within the meaning of [the representative cross-section] rule.” (People v.

McCoy (1995) 40 Cal.App.4th 778, 783 [47 Cal.Rptr.2d 599] [citing cases].) We need not decide, however, whether peremptory challenges on the basis of age violate the strictures of Batson or Wheeler, defendant simply does not persuade, any more than he does regarding Hispanic jurors, that the young were improperly excluded under the jury-selection system in place.

As the People observe, aside from a mention of statistical disparity in the presence of young people as a result of the jury-selection process, a factor that does not by itself establish systematic exclusion, the only fault defendant finds with the process is that the master list of the jury pool was only updated annually, so that those who turned 18 during the year would not be included and some 18-year-olds would turn 19. We do not believe that amounts to systematic exclusion. In order to avoid that effect or a similar one, the master list would have to be updated daily. The law does not require such diligence.

IV. Granting Prosecution’s Motion to Excuse for Cause Defendant contends that the trial court violated the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution when it excused certain prospective jurors. He claims that he received a lack of due process under the Fifth and Fourteenth Amendments and denial of his right to a reliable penalty determination under the Eighth and Fourteenth Amendments.

A juror may be excused for cause based on his or her views concerning capital punishment only if they would prevent or substantially impair the performance of the duties defined by the trial court’s instructions and the juror’s oath. (Ross v.

Oklahoma (1988) 487 U.S. 81, 85 [108 S.Ct. 2273, 2276-2277, 101 L.Ed.2d 80] [speaking of the due process clause of the Fourteenth Amendment].) As a general matter, “ ‘the determinant is “whether the juror’s views about capital punishment would prevent or impair the juror’s ability to return a verdict of death in the case before the juror.” ’ [Citation.] If the prospective juror’s responses to voir dire questions are conflicting or equivocal, the trial court’s determination of the juror’s true state of mind is binding upon the reviewing court.” (People v.

Bradford (1997) 15 Cal.4th 1229, 1318-1319 [65 Cal.Rptr.2d 145, 939 P.2d 259].) On Hovey voir dire (Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301]), the trial court granted the prosecution’s challenges to excuse Prospective Jurors Marie B., Fidela C., and Bertram E. for cause. When the trial court asked Marie B. if she would vote against a first degree murder verdict or find false a special circumstance allegation “just to avoid the penalty issue,” she stated, “I would have to avoid the penalty issue.

I do not believe in capital punishment and the death penalty.” In response to another question, she stated that it would be “difficult” to impose the death penalty no matter what evidence was presented. On examination by counsel for defendant, Marie B. retreated somewhat from the implications of her initial comments, or gave answers inconsistent with them. She clarified that she could find defendant guilty or not guilty despite her opposition to the death penalty.

Still, she found the punishment “barbaric” and she “could not impose it.” In response to another question, however, she stated that she could put aside her feelings and follow the court’s instructions, even if she did not “believe I could be in favor of anyone getting the death penalty.” But on further examination by the prosecutor, Marie B. agreed that the prosecution would be “wasting its time,” in the prosecutor’s words, to ask her to return a verdict of death.

The trial court ruled in essence that Marie B.’s opposition to the death penalty either substantially impaired or entirely negated her ability to follow her oath as a juror. Fidela C. also stated, in answer to the trial court’s question, that it would be difficult to impose the death penalty no matter what evidence was presented. On examination by counsel for defendant, the prospective juror wavered. She answered essentially in the affirmative leading questions about her ability to follow her oath.

But then she volunteered that she did not “want to be part of a jury if it comes to a death penalty or life in prison,” “because it is going to be in my conscience. I don’t want to be the one who decides” on life or death. Counsel reverted to leading questions, and Fidela C. stated that she thought she could follow the law. Examined by the prosecutor, Fidela C. gave inconsistent answers. She denied being in the group of people who would be so preoccupied with the question of penalty that she could not consider defendant’s guilt or the truth of the special circumstance allegations.

This answer came in answer to a compound question that asked her, in part, whether she could not sit on a death penalty case because she opposed the penalty. The nature of the question left her response ambiguous. In the next question, the prosecutor asked directly whether Fidela C. would “want to decide” on life or death, and she said no, because she opposed capital punishment. But asked whether that feeling would make it “very difficult for you to return a verdict of death, no matter what you heard,” she responded, “I don’t know. I don’t really know now.” The prosecutor continued.

She asked her own series of leading questions, which generated equivocal answers. Defense counsel asked more questions, receiving more equivocal answers; the trial court could not hear one of them. Finally, the trial court asked Fidela C., “are you indicating . . . that assuming that you are at the penalty phase and assuming that in your heart you felt that death was the appropriate penalty, would you be able to come into court and voice a vote for the death penalty?

Would you be able to do that?” She answered, “I don’t think so, your Honor.” After hearing argument from both parties, the trial court ruled that Fidela C. would be excused for cause. “It is painfully clear,” the court explained, “that the notion of a death penalty verdict is something that she would be incapable of doing even if the evidence justifies that in her mind. . . .

Her whole demeanor was one of trepidation, fear, and indeed extreme emotional pain just at the thought of being included on this particular jury. ftQ I think it is also clear . . . just during the first phase of the trial that she would be substantially impaired because of a preoccupation with maybe having to deal with the issue of the death penalty, that she could not be fair to the facts or the parties.” Bertram E., who had served on approximately three juries, answered the court’s questions by stating that he did not “believe in the death penalty . ...

HD ... 0Q [ujnder certain circumstances,” and that he “would be prepared to say the person isn’t guilty. I kind of feel the death penalty hasn’t proved anything heretofore as far as being a deterrent to murder.” Questioned by counsel for defendant, Bertram E. retreated, stating that he could follow an instruction to consider guilt without contemplating punishment. Bertram E. also stated that he was not automatically opposed to the death penalty. He could impose it in cases involving airplane hijacking with hostages or the sale of large amounts of narcotic drugs.

With regard to murder simpliciter, he stated, “we have murdered other people because they murdered somebody. That hasn’t deterred it in the past. ... I don’t think it will deter [murder] in the future. Consequently, I don’t think that it’s effective.” He also stated that if he were punished for murder, he would prefer execution to life imprisonment.

Informed by defense counsel that the case involved allegations of the sale of narcotics, and over the prosecution’s objection that she was asking the prospective juror to prejudge the case (an objection that the trial court later agreed was proper, but overruled anyway so as to obtain the most information possible), Bertram E. said that “you can’t kill a person for having a few marijuana cigarettes in his pocket. But if he had a couple hundred thousand . . . marijuana cigarettes in his possession, he’s affecting that many people, cocaine, or heroin, or whatever.

Then I would come down much harder on that person . . . .” Thus, he agreed in response to counsel’s words, which are quoted in this sentence, that the involvement of a large quantity of drugs would be a “factor” that could lead him to impose “a more severe punishment.” The prosecutor then questioned Bertram E. He asked him again whether he would avoid convicting defendant of a crime or finding true a special circumstance allegation that would make him death eligible.

Bertram E. hesitated, then said, “I would have to say my answer is yes on that.” The prosecutor pointed out that the case was a murder case, not a drugs or hijacking case, and Bertram E. acknowledged that under that circumstance he would only vote for life imprisonment, even if he was able to consider the presence of drugs as a circumstance of the crimes during the penalty phase. Counsel then argued whether Bertram E. should be excused for cause.

Defendant’s counsel agreed that his answers were in “clear conflict” and “equivocal.” The trial court ruled that Bertram E. was “very clear that he . . . would not consider the death penalty” “for a triple homicide.” It ruled that the prospective juror did not have “an open mind,” and that his ability to follow the law was “substantially impaired.” In excusing the prospective jurors for cause, the trial court ruled that they could not impose the death penalty against defendant even if they thought the evidence merited it. That determination of their state of mind is binding on us.

State law required the court to excuse them, for they acknowledged their inability “to act with the ‘entire impartiality’ required of jurors.” (People v. Balderas (1985) 41 Cal.3d 144, 183 [222 Cal.Rptr. 184, 711 P.2d 480]; see now Code Civ. Proc., § 225, subd. (b)(1)(C) [same].) There was no constitutional impediment to the exercise of state law, for their ability to perform their duties was at least substantially impaired—in fact their views prevented them from following the law. The court did not deprive defendant of due process or violate any other constitutional guaranty by excusing the prospective jurors.

V. Failing to Excuse Jurors for Cause Next, defendant contends that his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and

article I,

section 16 of the California Constitution were violated by rulings that a number of prospective jurors need not be excused for cause. In defendant’s view, the prospective jurors were predisposed in favor of the death penalty without sufficient regard for the legal standards to be applied to facts that might eventually be presented—in other words, they could not be impartial as to penalty—and should have been excused for cause. Defendant concedes that he did not use all of his peremptory challenges. Accordingly, he has waived his claim that the prospective jurors should have been excused for cause. (People v.

Osband (1996) 13 Cal.4th 622, 670 [55 Cal.Rptr.2d 26, 919 P.2d 640]; see also United States v. Martinez-Salazar (2000) 528 U.S. 304, 313-314 [120 S.Ct. 774, 780-781, 145 L.Ed.2d 792, 801-802].) He now claims perfunctorily that he was dissatisfied with the jury, but this “belated recitation” (People v.

Johnson (1992) 3 Cal.4th 1183, 1211 [14 Cal.Rptr.2d 702, 842 P.2d 1]), though understandable given his death sentence, is insufficient (ibid.). “To preserve a claim of trial court error in failing to remove a juror for bias in favor of the death penalty, a defendant must either exhaust all peremptory challenges and express dissatisfaction with the jury ultim'ately selected or justify the failure to do so.” (People v. Williams (1997) 16 Cal.4th 635, 667 [66 Cal.Rptr.2d 573, 941 P.2d 752].) Defendant did not fulfill these requirements.

Rather, he told the trial court that he was satisfied with the jury as constituted, even though it included a juror whom he had previously challenged for cause. Defendant also urges that he has justified his failure to express dissatisfaction with the jury as constituted because the trial court used the “struck jury” selection system rather than the “jury box” method.

He asserts that he challenged approximately 30 jurors for cause because of their attitude toward either the death penalty or him, that most of those challenges were rejected, that the number of peremptory challenges remaining when he indicated satisfaction with the jury was insufficient to purge the prospective jurors he had challenged for cause, and therefore exhausting his “remaining eleven peremptories would result in an equally, if not more, unfavorable jury.” But we have previously rejected the argument that the struck-jury system permits exceptions to the exhaustion rule (People v.

Johnson, supra, 3 Cal.4th 1183, 1211), and we decline to reexamine our reasoning (accord, People v. Osband, supra, 13 Cal.4th 622, 670). Even if defendant had not explicitly said that he was satisfied with the jury, we would not be persuaded by his argument. As we stated in Johnson: “ ‘Regardless of the system of jury selection, a party’s failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors.

Having so indicated in this case, defendant cannot reasonably claim error.’ ” (Johnson, at pp. 1211-1212.) In any event, the jury’s composition did not prejudice defendant in any way. The parties agree that only one seated juror, James C., was the subject of a challenge for cause by defendant. Our review of James C.’s Hovey voir dire testimony satisfies us that the trial court properly denied the challenge.

James C. initially testified that he favored imposing the death penalty in 80 percent of murder cases, though “if there were mitigating circumstances, I would take them into [account] and weigh them.” And he agreed that the death penalty was, in counsel’s words, “justified” in the abstract for the killings of three people execution style. But he also testified that he would follow instructions to impose life imprisonment if he found that the mitigating Und aggravating evidence was in balance, and to impose the death penalty only if he found that the aggravating evidence substantially outweighed the mitigating.

He further testified that he would be receptive to mitigating evidence at the penalty phase even if defendant had been convicted of three execution-style murders. Following defendant’s challenge for cause, the trial court ruled that James C.’s views on the death penalty did not substantially impair his ability to follow his oath as a juror. The ruling was proper. VI. Denying Motions for Polygraph and Medical Examinations Defendant filed motions to conduct a polygraph examination and psychiatric and neurological examinations of Castillo.

The basis for the first was Castillo’s purported lack of credibility, and for the other two his purported incompetence to testify. The trial court denied both motions. 1. Polygraph Examination In seeking to have Castillo tested by polygraph, defendant relied on constitutional guaranties of due process, the federal constitutional prohibition of cruel and unusual punishments, the California constitutional guaranty against cruel or unusual punishments, and the right to heightened reliability in the factfinding aspects of a capital case.

At a hearing on the motion, counsel for defendant explained, “we’re not saying that the case should be dismissed, but rather that the special circumstances which Pedro Castillo— which his testimony is the underpinning for, should be stricken, in the absence of every legitimate effort on the part of the prosecution ... to determine whether or not Pedro Castillo is telling the truth . . . .” The trial court ruled, however, that “there is not either authority [,] nor acceptance in the scientific community, with reference to the polygraph, [and] for those reasons, the motion will be denied.” We agree that defendant was not entitled to have the court compel a polygraph examination of Castillo.

Defendant acknowledged that he could not admit in evidence the result of a polygraph test (Evid. Code, § 351.1), but he asserted that a test was justified anyway. “Based on the inconsistencies in his [preliminary hearing] testimony and statements to the police, there is a strong probability that Pedro Castillo in some or all respects will not pass a polygraph examination. His failure to do so is a fact that should at least be . . . considered by the prosecution in deciding whether to proceed with the special circumstances against these defendants [defendant and Hector Ayala, who joined defendant in the motions].

Also, the defendants are entitled to have the court consider favorable [sic] polygraph results in deciding whether or not to grant a Penal Code

section 1385 motion to dismiss the special circumstances and in reviewing a finding imposing the death penalty pursuant to Penal Code

section 190.4(e).” The use of the results of a psychological examination to impeach a witness’s credibility is, in the main, disfavored. (See People v. Marshall (1996) 13 Cal.4th 799, 835 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) Evidence Code

section 351.1 provides: “(

a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results. flQ (

b) Nothing in this

section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.” It is implicit in Evidence Code

section 351.1 that a trial court may not compel a polygraph examination. It would be an idle act, which “[t]he law neither does nor requires.” (Civ. Code, § 3532.) The statute provides that the result of a polygraph examination is without evidentiary effect. It would probably be improper for a trial court to take into consideration, in ruling on a motion to dismiss an action under

section 1385, or in ruling on an automatic motion to modify a verdict of death (§ 190.4, subd. (e)), results from a technique that the Legislature has disfavored. We need not decide that question—it suffices to note here that state law certainly does not require a court to compel a polygraph examination. Defendant relied, however, on constitutional notions of due process. He may be understood to assert that because Evidence Code

section 351.1 bars the admission of reliable impeachment evidence, or at least the discovery of facts that might lead to impeachment evidence, it violates the due process clauses of the federal and California Constitutions. But we have held that before a criminal defendant can establish a right under state law or as a matter of due process to use the results of a polygraph examination, it is necessary (we expressed no opinion on whether it would suffice) to offer proof that the technique has become generally accepted in the scientific community. (People v.

Jackson (1996) 13 Cal,4th 1164, 1212 [56 Cal.Rptr.2d 49, 920 P.2d 1254].) The same requirement applies to any right to obtain a polygraph examination for possible use. Defendant undertook no effort here to show that polygraph examinations have been generally accepted by scientists in the relevant field. 2. Psychiatric and Neurological Examinations Defendant’s motion to compel the psychiatric and neurological examinations was based on state law, in particular Evidence Code

section 730, which provides in relevant part that the trial court, if it thinks an expert evaluation is required, “may appoint one or more experts to investigate . . . the fact or matter as to which the expert evidence is or may be required.” His appeal is also based on state law grounds.

At trial, he argued that such tests were justified in order to ascertain whether Castillo was competent to testify. “Whether his testimony is the result of his own genuine memory or the result of pressures and suggestions that were brought to bear upon him at a time when he was injured, in a ‘fog,’ and chemically dependent must be resolved . . . prior to his testimony.” Defendant made clear that he wanted to use any adverse test results for impeachment. The trial court denied the motion without comment. There was no error. Evidence Code

section 700 provides: “Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” Subdivision (

a) of

section 701 of the Evidence Code provides in turn: “A person is disqualified to be a witness if he or she is: [^]

(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through

interpretation by one who can understand him [or her]; or [^

(2) Incapable of understanding the duty of a witness to tell the truth.” Defendant bore the burden of showing Castillo’s incompetence. (People v. Cudjo (1993) 6 Cal.4th 585, 621-622 [25 Cal.Rptr.2d 390, 863 P.2d 635].) He failed to meet that burden. The trial court could even have ruled after Castillo’s direct examination. (Evid. Code, § 701, subd. (b).) By that time, however, it was apparently evident that he was competent to testify. The court did not err in denying defendant’s motion for psychological and neurological examinations. VII.

Denying Sanctions Motions Based on Castillo’s Purported Perjury Defendant moved the trial court “for an order enjoining any further prosecution of the instant matter. Said motion is made on the grounds that: [1D

(1) The prosecution of Defendant^ under the information presently filed against them is based solely on the testimony of Pedro Castillo; [f]

(2) On the basis of. . . the preliminary examination in this case . . . , good cause exists to believe Pedro Castillo has committed, and will continue to commit, material perjury.” As authority for the motion, defendant asserted “a right not to be placed in jeopardy of the death penalty by perjurious testimony,” a right located, in his view, in the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and

article I, sections 15 and 17 of the California Constitution. Elsewhere in the motion, defendant argued in essence that either the prosecution must prove the reliability and credibility of Castillo’s testimony via “an evidentiary presentation of its investigative efforts” at a hearing, or the case, or at least the special circumstances, must be “enjoined,” stricken, or dismissed. At a hearing on his motion, defendant objected that the police had never questioned Castillo about his involvement with narcotics, even though they knew from the outset that this was a drug-related case.

Without abandoning the forms of relief he had sought in his written papers, he asked the trial court to consider his motion, in the alternative, as one to dismiss the information under

section 995. The People argued that there was no authority for the motion and that Castillo’s purported perjury was tangential to the question whether defendant and Hector Ayala had committed murder. The trial court interpreted defendant’s motion as one to order the prosecution or the police to investigate items of evidence. It ruled that it lacked authority to do so, and denied the motion.

Defendant -cites no pertinent authority in support of his motion, and our own research has not disclosed any either. “The impartiality of the trial court in affording the litigants a fair trial is buttressed by the realization that at the fact-finding stage of the proceeding the court possesses no investigatory or inquisitorial function.” (Matter of Smith (1986) 133 Misc.2d 1115, 1116 [509 N.Y.S.2d 962, 963].) Moreover, “the District Attorney [is] entitled to a strong presumption of legitimacy of [its] role.” (People v.

Doe (1990) 148 Misc.2d 286, 291 [560 N.Y.S.2d 177, 181].) We agree with principles stated by the Arkansas Supreme Court, which rejected a claim similar to defendant’s. In State v. Pulaski County Circuit Court (1994) 316 Ark. 514 [872 S.W.2d 414] (per curiam), the state sought a writ of prohibition against a trial court order directing the prosecutor to perform scientific tests on samples taken from three defendants charged with rape.

The Arkansas Supreme Court held that “the circuit court lacked the authority to direct the prosecutor as to what scientific tests to perform in its investigation and trial preparation.

A circuit court may not perform the duties of the prosecuting attorney. [Citation.] We have held in this regard that the powers given to a prosecutor to charge the accused are guarded by the doctrine of separation of powers. [Citation.] [U] Moreover, the United States Supreme Court has determined that the defendant’s right to a fair trial as embraced within the Due Process Clause is not violated ‘when the police fail to use a particular investigatory tool.’ [Citation.]” (Id. at p. 516 [872 S.W.2d at p. 415].) Without making any judgment on the applicability of the Arkansas Supreme Court’s reasoning to scientific-testing requirements in this state, we agree with its description of limitations on a trial court’s authority in general to compel prosecutorial investigative action.

The trial court herein committed no error under California law, whether constitutional, decisional, or statutory, nor was there any violation of the federal Constitution. VIII. Denying Motion to Introduce Statements of Deceased Persons The question presented in this claim is whether defendant had either a constitutional or a state law right to present exculpatory but unreliable hearsay evidence that is not admissible under any statutory exception to the hearsay rule. We hold that he did not.

Defendant moved to introduce the hearsay statements of two individuals who were interviewed by his investigators but who died before they could appear at trial. The trial court denied the motion on grounds that he sought to introduce inadmissible hearsay evidence, and that some of the evidence was cumulative. He claims that this ruling violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and under state law.

Defendant’s moving papers explained that he wished to have Bill Papenhausen and Carlos Vasqiiez, both licensed private investigators, testify about statements made to them respectively by Arthur Stephen Castro and Ignacio Vejar Nogales (Vejar), before they died. He stated that Castro’s and Vejar’s statements were “critical to the defense in establishing his innocence of the crimes charged.” Citing Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297], he argued that even if state law prohibited the testimony, due process required the trial court to let him present it.

He also claimed in his motion that had the prosecution not improperly delayed its filing of notice of uncharged incidents in aggravation (§ 190.3) for almost two years, Castro and Vejar would have been alive and available to testify. He asserted that the prejudice caused by this delay could only be remedied by permitting him to have Papenhausen and Vasquez testify about the content of the decedents’ statements. He attached death certificates showing that Castro died April 15, 1988, and Vejar died September 5, 1988. The two investigators filed affidavits describing what the decedents told them.

According to Papenhausen’s affidavit, he interviewed Castro in state prison. Castro told him he went to the body shop to buy heroin the day before the killings, and found Dominguez arguing in Spanish with three men about a large sum of money. They ignored him (Castro was of the view that they did not realize he understood Spanish) and he went across the street to buy a beer. When he returned, he saw the visitors driving away in a car with Mexican license plates. Castro could tell that all three were Mexican residents.

Castro concluded that they represented Dominguez’s heroin connection and that Dominguez was in trouble with them. Vejar, interviewed by Vasquez at Vejar’s mother’s house in Tijuana on August 24, 1988, related a version of events that varied markedly from others’ accounts of the killings. According to Vasquez’s affidavit, Vejar went to 999 South Forty-third Street on the day of the killings to pick up his brother. While waiting for him, he heard a shot and saw Castillo run into the street and collapse.

Ten to fifteen minutes later, the police, who had arrived in the interim, and Vejar took Castillo to a patrol car. Vejar asked Castillo what had happened, and Castillo said he did not want to talk about it. After placing Castillo in the car, Vejar and the police heard three shots come from the direction of the body shop. Vejar suggested that the police open the garage door. The police acted “scared,” but one officer went with Vejar to open it. More police officers arrived, and they pulled Vejar away.

In denying defendant’s motion to introduce the statements, the trial court implied that they could be introduced if they showed aspects of “trustworthiness, or other indicia of reliability.” But it found that they did not have such indicia. The court also concluded that other witnesses had already provided evidence that Castillo did not want to discuss events immediately after being shot and stabbed, and so Vejar’s statement would be cumulative in that regard. Evidence Code

section 1200, subdivision (

b) provides that “Except as provided by law, hearsay evidence is inadmissible,” and the parties do not point to any provision of the Evidence Code that would provide an exception to the hearsay rule for the purported witness statements. But “ ‘[l]aw’ includes . . . decisional law” (Evid.

Code, § 160), and California decisional law includes our own comment that “exceptions to the hearsay rule are not limited to those enumerated in the Evidence Code; they may also be found in . . . decisional law” (In re Malinda S. (1990) 51 Cal.3d 368, 376 [272 Cal.Rptr. 787, 795 P.2d 1244]), and our affirmation of that principle in In re Cindy L. (1997) 17 Cal.4th 15, 26 [69 Cal.Rptr.2d 803, 947 P.2d 1340]. Nevertheless, defendant cites no law of this state, whether “constitutional, statutory, [or] decisional” (Evid.

Code, § 160), that would have required the trial court to permit the investigators to testify about Castro’s and Vejar’s statements. He relies on In re Carmen O. (1994) 28 Cal.App.4th 908 [33 Cal.Rptr.2d 848]. Carmen O. applied the rule that the appellate courts of this state may recognize exceptions to the hearsay rule beyond those listed in the Evidence Code. It created an exception for the out-of-court statement of four-year-old Carmen O. that her father had sexually abused her.

In In re Cindy L., supra, 17 Cal.4th 15, we approved Carmen O' s creation of a judicially announced exception to the hearsay rule, and refined the rule ourselves. But we warned that “in developing new exceptions to the hearsay rule, courts must proceed with caution.

The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.” {Id. at p. 27.) And we stated that appellate courts “may not create evidentiary exceptions in conflict with statute.” {Id. at p. 28.) We approved of the exception announced in Carmen O. because it was needed to effectively prosecute child sexual abuse cases with reticent, very young direct witnesses. (See also In re Lucero L. (2000) 22 Cal.4th 1227, 1238-1239 [96 Cal.Rptr.2d 56, 998 P.2d 1019] (plur. opn.).) There is, by contrast, no proper exception to the hearsay rule that would have permitted defendant to introduce Castro’s and Vejar’s statements.

There are no indicia of reliability surrounding those statements even remotely similar to those that have justified the exception for certain hearsay statements of very young children. Via cross-examination or further investigation the prosecutors might have discovered evidence, for example, that defendant had coerced Castro and Vejar into making them, just as they had introduced evidence that he induced Rafael Mendoza Lopez to perjure himself regarding the presence of Mexican men at the body shop on the day of the murders.

Indeed, that part of Castro’s statement referring to Mexican visitors buttressed aspects of Mendoza’s initial testimony, which Mendoza himself later repudiated as having been fabricated at defendant’s behest. Moreover, on cross-examination the prosecution could have questioned Castro about why Dominguez and the Mexican visitors would continue to discuss large sums of money in front of a total stranger, particularly if it involved sales of heroin, and about the basis for his view that they thought he could not understand Spanish. There was no state law error.

Defendant urges, as noted, that the trial court infringed on various constitutional guaranties when it barred the jury from hearing potentially exculpatory evidence. But it did not. “Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Chambers v.

Mississippi, supra, 410 U.S. 284, 302 [93 S.Ct. 1038, 1049].) Thus, “[a] defendant does not have a constitutional right to the admission of unreliable hearsay statements.” (Com. v. Piper (1997) 426 Mass. 8, 11 [686 N.E.2d 191, 194]; accord, People v. Fudge (1994) 7 Cal.4th 1075, 1123 [31 Cal.Rptr.2d 321, 875 P.2d 36].) Moreover, both we (People v. Hawthorne (1992) 4 Cal.4th 43, 56 [14 Cal.Rptr.2d 133, 841 P.2d 118]) and the United States Supreme Court (United States v.

Scheffer (1998) 523 U.S. 303, 316 [118 S.Ct. 1261, 1268; 140 L.Ed.2d 413]) have explained that Chambers is closely tied to the facts and the Mississippi evidence law that it considered. Chambers is not authority for the result defendant urges here. The foregoing principles were applied to a case with facts similar to the matter herein in State v. Bunyan (1998) 154 NJ. 261 [712 A.2d 1091].) In Bunyan, the defendant, convicted of murder, had sought to introduce the exculpatory hearsay statement of a witness who later died.

The witness, shown a photograph of Bunyan out of court, told an investigator that he was not the killer. The witness refused to execute a written statement before dying. Moving for a new trial, Bunyan sought to introduce the investigator’s affidavit memorializing his conversation with the witness.

The New Jersey Supreme Court held that the statement was inadmissible hearsay under state law, and that relevant provisions of the federal Constitution (it emphasized the right to a fair trial) did not compel its consideration. “There is no ‘particularized guarantee[] of [its] trustworthiness.’ [Citation.] Her statement was not against her interests. She made it years after the crime occurred. After making her statement to a private investigator, [she] immediately threatened to disavow it. Additionally, . . . there will be no opportunity to cross-examine [her; she] is now deceased.

And [her] statement. . . was not spontaneous. On the contrary, she gave it in response to questions posed by a private investigator defendant hired.” (State v. Bunyan, supra, 154 N.J. 261, 271 [712 A.2d 1091, 1095-1096].) Not all of these factors apply to the statements of Castro and Vejar. Castro’s statement may have been against his interest: he was admitting that he had gone to the body shop to buy heroin; but on the other hand, Papenhausen interviewed him in prison and double jeopardy might have barred any prosecution for Castro’s act.

As far as is known, neither witness disavowed his statement after making it; indeed, Papenhausen’s affidavit declared that Castro later reaffirmed his statement. Nevertheless, other factors mentioned in Bunyan are significant: the statements were given to a person seeking exculpatory evidence, they were not spontaneous, and there was no opportunity for cross-examination. California has an interest “in ensuring that reliable evidence is presented to the trier of fact in a criminal trial.” (United States v.

Scheffer, supra, 523 U.S. 303, 309 [118 S.Ct. 1261, 1268].) Given the potential unreliability of Castro’s and Vejar’s statements and the evidence of defendant’s attempt to supply false evidence to the jury that bore a similarity to Castro’s statement, we are unable to discern any constitutional violation in the trial court’s refusal to admit the investigators’ accounts of those statements. Defendant also renews a claim that improper delays in bringing his case to trial caused the delay that in turn caused Castro and Vejar to become unavailable because of death.

His claim is perfunctory, and he does not cite any statute, rule, or legal tenet that the prosecution may have violated. The claim is without merit. IX. Denying Motion to Exclude Certain Testimony of Meza Defendant claims that the trial court violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution when it failed to give him an adequate opportunity to try to prove, in an in limine hearing at which Juan Manuel Meza testified, that the People coerced the testimony Meza gave against him at trial.

He argues that this court should either reverse his convictions or order a new hearing on the issue of the voluntariness of Meza’s testimony. But the record shows that he was able to question Meza about whether he had been coerced, and he denied that he had been. In People v.

Badgett, supra, 10 Cal.4th 330, 351, we stated that “if the issue is not litigated below because the defendant has been precluded by an erroneous ruling on standing from attempting to carry his burden of demonstrating that third party testimony is coerced, there will not be an adequate record for the appellate court to review.” Defendant asserts that this error occurred in his case. But the record shows that the trial court gave him sufficient opportunity to show that Meza’s testimony was coerced.

Defense counsel was unable to establish any coercion in her examination of Meza, and in fact she established the opposite. The factual predicate of defendant’s claim of constitutional error is faulty, and so the claim itself is unavailing. Defendant also claims that the trial court erred by ruling that he could not impeach Meza with evidence that he had once lied to a probation officer about owning a gun. We agree with defendant that the court erred in ruling that the gun evidence was inadmissible character evidence. It was evidence of dishonesty with which Meza could have been impeached.

But we discern no prejudice: applying the reasonable probability test of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d

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