Maniscalco

I

One of the recurrent problems revolving around capital punishment is whether certain benefits or liabilities extend to defendants who are charged with “capital” crimes but who nevertheless do not actually face the death penalty. For example, the right to bail may depend on a defendant’s not having been charged with a “capital crime,” while the right to extra attorneys or investigators at taxpayers’ expense may turn on whether he or she has been so charged.

The federal courts have solved the problem by examining the underlying substance of the benefit or liability. Essentially, they ascertain the reason for the benefit or liability, and ask whether the reason applies in the case at hand.

The present case requires us to confront the same problem. The defendant has been charged with special circumstance murder—a charge which carries the possibility of a death penalty—but the prosecution has announced it will no longer seek the death penalty. The defendant sought bail, but the trial court denied the request because of the “capital” nature of the charge. In denying the request, the court relied on In re Freeman (1980) 102 Cal.App.3d 838 [ 162 Cal.Rptr. 423 ], which held,…