Gardner

Penal Code section 987.9 (section 987.9) provides that in “the trial of a capital case . . . [an] indigent defendant . . . may request the court for funds for . . . investigators, experts, and others for the preparation ... of the defense.” Apparently for years, the Contra Costa County Superior Court entertained section 987.9 requests by indigent defendants charged in special circumstances murders even when the requests were made before the preliminary hearing. Petitioner Raymond Gardner, charged with special circumstances murder, moved in 2009 for section 987.9 funds, a request the court denied solely because the district attorney had not announced that he was seeking the death penalty and, until he did, petitioner’s case was not “presently a capital case.”

We conclude this was error, as a “capital case” as used in section 987.9 means one where the defendant faces the possibility of the death penalty, where the defendant “actually risks death.” (Sand v. Superior Court (1983) 34 Cal.3d 567, 571 [ 194 Cal.Rptr. 480 , 668 P.2d 787 ] (Sand).) So, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is…