I concur.
I agree with the holding of the majority that there was no failure by the prosecution in its duty to preserve evidence and that there was no duty on the part of the prosecution to test the specimen.
I go further than the majority only in concluding that in the unusual circumstances of this case the specimen was not material evidence.
I recognize that People v. Nation (1980) 26 Cal.3d 169 [161 Cal.Rptr. 299, 604 P.2d 1051], has established as a matter of law that an unanalyzed vaginal specimen taken from a rape victim is material evidence requiring preservation. (Id., at pp. 175, 177.) But materiality of an item of evidence in the abstract may be vitiated by establishing that in actual fact the evidence could not be material. (People v. Matthews (1980) 112 Cal.App.3d 11, 22 [169 Cal.Rptr. 263].) Two technically impeccable attempts to perform PGM typing in October yielded no useful results. That experience established without contradiction that the specimen was at that time not material with respect to PGM typing. There had then not been any lapse from good practice in handling and preserving the evidence: the specimen had been refrigerated within an hour of its retrieval and had been properly kept in frozen storage until it was taken out for the October PGM analysis. Inferably the failure of that analysis is attributable to the delay of 24-hours or more in taking the specimen, to the observed presence of destructive microorganisms, or to the passage of time. Neither the delay nor any of the other possible causes mentioned in the evidence may be imputed to prosecuting authorities.
The only other possible basis of materiality suggested in the evidence is blood group (“ABO”) analysis. That analysis was not attempted until after the hearing on the motion to dismiss. Although the prosecution was not under a duty to perform any particular test (see People v. Hogan (1982) 31 Cal.3d 815, 851 [183 Cal.Rptr. 817, 647 P.2d 93]), there was uncon*1008tradicted evidence that ABO analysis would have been done, at a time before there had been any lapse from proper care of the specimen, but for the refusal of defendant’s former counsel to permit the investigating officer to obtain a necessary specimen of defendant’s blood. The evidence before us does not exclude the possibility that the specimen could have yielded an ABO result if it had been kept in frozen storage. But the ABO type of the specimen would not have been material without comparison with defendant’s blood type. Where it was defendant’s own refusal to supply a blood specimen that prevented comparison testing while a result could still possibly have been obtained, I conclude that the defense shares with the prosecution responsibility for precluding a possibly material ABO analysis. In that situation the defense cannot be heard to contend that material evidence has been lost.