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People v. Epps6/27/1986
dering materiality has certainly been decided. The standard of materiality is Trombetta, not Hitch.
Here the blood and urine obtained from appellant, insofar as indicative of appellant's use of alcohol and drugs at or near the time of the murder, cannot, obviously, be obtained again. This point is conceded. In considering this case it is clear that, while not available to appellant, the evidence was at least analyzed using proper scientific methodology and those results were admitted into evidence. This is not the hopeless situation faced by the defendant in People v. Nation, supra, 26 Cal. 3d 169 where a semen sample was not preserved properly for blood typing after it had been extracted from the region of the victim's vagina. Nor is it the situation in People v. Mejia (1976) 57 Cal. App. 3d 574 [129 Cal. Rptr. 192] where eyewitnesses were deported out of the country.
In the instant case the evidence was in fact analyzed, the results were helpful to appellant, and it is quite apparent that the trial court gave at least as much weight to the defense witnesses' extrapolation of the results of analysis as would likely have been possible given an adequate sample for retesting. Quite simply put, appellant got as much mileage out of the evidence of alcohol/drug influence as he could reasonably have expected, no matter how many experts analyzed the evidence.
The blood alcohol analysis showed a level of .16 at the time of the test. The defense expert opined that errors in testing could indicate an actual level of .22 at the time of the test. By backtracking the burnoff to the time of the crime, defense experts estimated the blood alcohol could have been slightly over .30. The trial judge, hearing both prosecution and defense evidence, indicated he found a blood alcohol level of .27 or .28, which is a relatively high blood alcohol level. Had enough of the blood sample been retained to permit retesting by appellant, it is theoretically possible the defense might have established that appellant was unconscious, or even comatose, at the time of the crime. The evidence presented, however, clearly
showed appellant consciously doing the physical acts which resulted in the murder and the destruction of the victim's home. None of the defense experts indicated that any particular blood alcohol or blood amphetamine level would produce nonintentional acts. The experts suggested appellant could well have been suffering from a "blackout" or "greyout," but it is important to note that this opinion would have been the same regardless of any differences in blood/drug alcohol levels, assuming any error indicated a lower blood/drug alcohol level. In short, absent testimony that appellant could not have committed the acts due to unconsciousness or loss of motor ability, the levels indicated by the prosecution examination afforded appellant the essential evidence he needed to present his case. It is obvious that the trial court considered that appellant's blood alcohol level was very high and also that evidence indicated that the blood amphetamine level, while still within therapeutic levels, was also very high. Mindful of the origins of this area of law, this court cannot find that the errors complained of herein resulted in a denial of due process.
II.
Does the Felony-murder Special Circumstance Require a Finding That the Appellant Committed a Premeditated and Deliberate Murder as Well as an Intentional Murder?
Appellant contends that the trial court erred in imposing a sentence of life in prison without possibility of parole (LWOP), based on its finding of special circumstances pursuant
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