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Gardner v. Superior Court, A125861

Trial court's denial of defendant's motion for section 987.9 funds on the ground that the district attorney had not announced that he was seeking the death penalty and that until he did, defendant's case was not "presently a capital case" was an 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. Therefore, 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.

Appellate Information

  • Decided 06/18/2010
  • Published 06/18/2010




  • California Court of Appeal


  • For Appellant:
  • Daniel A. Horowitz, under appointment of Contra Costa County Conflicts Program, for Petitioner., Elias Batchelder, Habeas Corpus Resource Center, Robin Lipetzky, Acting Public Defender, Jonathan Laba, Deputy Public Defender, John T. Philipsborn, California Attorneys for Criminal Justice Natasha Minsker, American Civil Liberties Union, for Amicus Curiae on behalf of Petitioner., Sharon L. Anerson, County Counsel, Esther Milbury, Deputy County Counsel, Rebecca Hooley, Deputy County Counsel, for Real Party in Interest., Robert J. Kochly, District Attorney, Doug MacMaster, Deputy District Attorney, Edmund G. Brown Jr., Attorney General, Gerald A. Engler, Senior Assistant Attorney General, at the invitation of the Court of Appeal, for Amicus Curiae on behalf of Real Party in Interest.

  • For Appellees:
  • No appearance for Respondent.
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