(Contra Costa County Super. Ct. No. 02-301820-7) Trial Judge: Hon. Mary Ann O'Malley
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
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 defendant "actually risks death." (Sand v. Superior Court (1983) 34 Cal.3d 567, 571 (Sand).) So, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is exposed to that punishment, and a section 987.9 request must be heard on the merits.
On April 17, 2009, petitioner Raymond Gardner was charged with a violation of Penal Code section 187, subdivision (a)*fn1 , for the willful, deliberate, and premeditated murder of Bruce King, with two "special circumstances," that the murder was committed during the commission or attempted commission of a robbery and burglary.*fn2 (§ 190.2, subd. (a)(1).) After arraignment but before the preliminary hearing, petitioner's counsel filed a motion entitled "Request for Investigative Funding (Capital Murder Case--Penal Code § 987.9)," requesting funds for a second counsel (under Keenan v. Superior Court (1982) 31 Cal.3d 424), a paralegal, and an investigator.*fn3 The presiding judge of the Contra Costa County Superior Court denied the motion without reaching the merits, concluding that section 987.9 did not apply because the "[d]efendant's case is not presently a capital case." Specifically, the court said, the prosecution had not made a "final determination" on whether to seek life without possibility of parole (LWOP) or the death penalty and, until such determination is made, petitioner "has an LWOP case."
Petitioner renewed his request, citing Abernathy v. Superior Court (2007) 157 Cal.App.4th 642 (Abernathy). The superior court again denied the motion and petitioner filed a petition for writ of mandate. After receiving informal opposition from the Attorney General,*fn4 we issued an order to show cause and have received the briefing by the parties and, in addition, amicus briefs from California Attorneys for Criminal Justice, American Civil Liberties Union, Habeas Corpus Resource Center, and the Contra Costa County Public Defenders Office. We then heard oral argument.
1. The Petition is Moot, But We Decide the Issue Anyway
In the course of the briefing here petitioner was advised by the District Attorney of Contra Costa County that he would not seek the death penalty in this case. Because of this decision real party in interest and the district attorney argue the petition is moot, relying on the California Supreme Court decision in Sand, supra, 34 Cal.3d 567, which specifically held that section 987.9 does not apply to a murder case in which the prosecution has stated it will not seek the death penalty. (Sand, supra, at pp. 571-572.)
As a general rule "[a] writ of mandate will not issue to enforce an abstract right, when the occurrence of an event subsequent to the commencement of the proceeding makes the issuance of the writ of no practical benefit to the petitioner." (Clementine v. Board of Civ. Ser. Commrs. (1941) 47 Cal.App.2d 112, 114.) That general rule bends, however, when the case presents an "important question affecting the public interest that is ' " 'capable of repetition yet likely to evade review.' " ' " (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190 fn. 6; see also Peterson v. City of San Diego (1983) 34 Cal. 3d 225, 227 [appellate courts have discretion to consider a case that is technically moot when the issues are of continuing public importance].) This aptly describes the situation here.
Before 2009, the policy of the Contra Costa County Superior Court was to rule on requests for section 987.9 funds on the merits, even when the funds were sought before the preliminary hearing. However, sometime in 2009 the presiding judge apparently instituted a new policy, to deny requests for ancillary funding made prior to an announcement that the district attorney would seek the death penalty. Since then at least two other petitions for mandate have been filed in this court arising from this policy: Burris v. Superior Court, A126366, in Division Three, and Miranda v. Superior Court, A127054, in Division Five, both of which petitions were denied. While Miranda was uneventful, with no petition for review filed after the denial. Burris was not. In that case, after Division Three denied the petition, the Supreme Court granted defendant's petition for review and transferred the case back to Division Three "with directions to vacate its order denying the writ of mandate and to issue an alternative writ."*fn5 Division Three issued the alternative writ and later dismissed the petition as moot when the superior court decided the motion on its merits and "granted funds pursuant to Penal Code section 987.9."
While the superior court complied with the alternative writ in Burris, it is far from clear that the issue has gone away: nothing in the record or anything said at oral argument indicates that the superior court has changed its policy. Absent such a policy reversal, the ancillary defense funding in every special circumstance case in Contra Costa County is affected. It is, in short, an important issue. And unquestionably one capable of repetition. And of evading review. The petition here was filed on August 25, 2009, more than a month before the petition in Burris, filed on October 9, 2009. Yet, Burris was able to wend its way through this ...