People v. Jenkins

Opinion

THE COURT.

Appellant was tried before a jury and found guilty of voluntary manslaughter (Pen. Code, § 192). The jury also found that he was armed with a deadly weapon at the time of the commission of the offense. Appellant was sentenced to prison for the term prescribed by law.

On this appeal from the judgment it is contended that conclusive evidence of appellant’s intoxication would have shown (1) that he was incapable of forming the intent required for a conviction of voluntary manslaughter, and (2) that statements made to the police shortly after the offense was committed were untrustworthy and involuntary. It is also contended that the failure of the trial court to admonish the jury concerning certain remarks made by the prosecutor during closing argument constituted prejudicial error.

Appellant argues that the police had a duty to preserve evidence relating to a diminished capacity by giving appellant a blood test to determine alcohol content, and that the failure of the police to do so resulted in the denial of a fair trial to appellant.

The rule is clear that in misdemeanor actions the police have no duty to take affirmative action to procure evidence necessary to the defense of the accused.

(Kesler

v.

Department of Motor Vehicles

(1969) 1 Cal.3d 74, 79 [81 Cal.Rptr. 348, 459 P.2d 900], cert. den., 397 U.S. 989 [25 L.Ed.2d 396, 90 S.Ct. 1121];

In re Koehne

(1960) 54 Cal.2d 757, 759

[1057]

[8 Cal.Rptr. 435, 356 P.2d 179].) In the absence of any authority to the contrary, and in light of the general principles of advocacy which underlie the criminal process, there is no reason apparent why the same rule should not apply here, even though a felony is involved. Especially is this so under the facts of this case: (1) appellant did not request that a blood test be given, (2) there may have been lacking any indication at the time of his arrest that appellant was intoxicated, and (3) there is no showing that appellant was in any way foreclosed from obtaining a blood test himself. Additionally, appellant was still able to present evidence of his alleged intoxication, and there is no support for the claim that if the blood tests had been given they would have conclusively proved appellant’s intoxication. We note further that the present case does not involve the suppression of any evidence in the possession of the police, but instead merely involves the question of whether the police had the duty to obtain such information in order to assist appellant.