DOUGLAS SAND, Petitioner, v. THE SUPERIOR COURT OF SOLANO COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 34 Cal. 3d 567

Opinion MOSK, J. Douglas Sand, an indigent criminal defendant, seeks a writ of mandate to compel respondent superior court to grant his motion for public funds to pay for ancillary defense services. He relies on Penal Code

section 987.9 in support of his request. For the reasons discussed below, we conclude that the motion was properly denied. Defendant was charged with assault by a life prisoner causing death (§ 4500), and with murder (§ 187) with special circumstances (§ 190.2, subds. (a)(2) and (a) (15)). He was found to be indigent and an attorney was appointed to represent him. Prior to and during defendant’s first trial, his attorney requested and was granted funds pursuant to

section 987.9 to pay for the services of an investigator, two experts in the field of prison environment, and jury selection consultants. The jury was unable to reach a verdict and a mistrial was declared. Retrial has been stayed pending our resolution of this proceeding. At a hearing on defendant’s motion for a continuance of his retrial, the prosecutor stated on the record that he would not seek the death penalty, but would ask for a sentence of life imprisonment without possibility of parole in the event special circumstances were proved. Defendant, through his attorney, then moved for additional funds under

section 987.9 to assist in the second trial. The court denied the motion on the ground that defendant’s prosecution was no longer a “capital case” because the death penalty could not be imposed. Defendant contends that his case remains “capital” because special circumstances have been alleged.

Section 987.9 provides in part that “In the trial of a capital case the indigent defendant, through his counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense. ” We are asked to construe the phrase “capital case” as used in this provision. Initially, we examine the words at issue to determine whether their meaning is ambiguous. (Smith v. Rhea (1977) 72 Cal.App.3d 361, 365 [140 Cal.Rptr. 116].) The word “capital,” when used to modify “punishment,” is unambiguous: capital punishment means punishment by death.

However, defendant contends that the phrase “capital case” should be construed more broadly to include any prosecution in which death is a statutorily permissible punishment; thus, a “capital case,” in defendant’s view, is any case in which special circumstances have been alleged, regardless of whether the prosecutor has stipulated that the death penalty will not in fact be sought. Arguably the term “capital case” might be understood either to define the nature of the offense charged—i.e., murder with special circumstances—or to describe the permissible punishment—i.e., that the death penalty may be imposed.

This ambiguity invites statutory construction: “Where language [of a statute] is susceptible of more than one meaning, it is the duty of the courts to accept that intended by the framers of the legislation, so far as its intention can be ascertained.” (Stillwell v. State Bar (1946) 29 Cal.2d 119, 124 [173 P.2d 313].) In Select Base Materials, Inc. v.

Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672], this court reiterated that “The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (Accord, West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 607 [86 Cal.Rptr. 793, 469 P.2d 665]; People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 132 [74 Cal.Rptr. 294, 449 P.2d 230]; Standard Fruit and Steamship Co. v.

Metropolitan Stevedore Co. (1975) 52 Cal.App.3d 305, 310 [125 Cal.Rptr. 111].) To discern legislative intent, we must examine the legislative history and statutory context of the act under scrutiny. (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732 [114 Cal.Rptr. 460, 523 P.2d 260]; English v. County of Alameda (1977) 70 Cal.App.3d 226, 233-234 [138 Cal.Rptr. 634]; Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785 [138 Cal.Rptr. 378].) We begin this exercise by observing that the Legislature expressly conditioned the effectiveness of

section 987.9 (Stats. 1977, ch. 1048, § 2, p. 3179) on passage of the 1977 death penalty legislation (Stats. 1977, ch. 316, §§ 4-14, pp. 1256-1262). Therefore we must consider

section 987.9 in the context of this broader statutory scheme. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [134 Cal.Rptr. 630, 556 P.2d 1081]; Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 458 P.2d 33].) Former sections 190 through 190.4 of the 1977 legislation provided that when a defendant is charged with murder and special circumstances are alleged the trial shall proceed in two phases. In the first or guilt phase the trier of fact must determine whether the defendant is guilty of the offense and, if so, whether the special circumstances have been proved.

In the second or penalty phase the trier of fact must determine whether the sentence of death or of life imprisonment without possibility of parole should be imposed. Nowhere is the term “capital case” defined, and no distinction relevant for purposes of construing

section 987.9 is made between death and life imprisonment without parole. However, because the ultimate purpose of the 1977 statute was to reinstate the death penalty, we may reasonably conclude that its companion

section 987.9 was intended to insure that in cases in which the defendant actually risks death he or she will be afforded such ancillary defense services as are necessary to a “complete and full defense.” This construction of “capital case” is compatible with the following statement by the Legislature explaining why the enactment both of the death penalty statute and of

section 987.9 was an urgency measure: “The California Supreme Court has declared the existing death penalty law unconstitutional. This act remedies one aspect of the constitutional infirmities found to be in existing law, and in order to guarantee the public the protection inherent in an operative death penalty law, it is necessary that this act takes effect immediately.” (Italics added.) (Stats. 1977, ch. 1048, § 4, p. 3179; id., ch. 316, §26, p. 1266.) By explicitly linking enactment of

section 987.9 to passage of a statutory scheme denominated a “death penalty law” the Legislature has expressed its intention that the defense services funding provision apply in those cases in which death remains a possible punishment. (See Criminal Procedure: Investigation and Presentation Funds in Capital Cases (1978) 9 Pacific L.J. 454-455.) Furthermore, had the Legislature intended

section 987.9 to apply when either the death penalty or the sentence of life imprisonment without possibility of parole might be imposed, it could readily have said so explicitly, as it has done elsewhere. For example,

section 1018, reenacted in 1977 as part of the death penalty law (Stats. 1977, ch. 316, § 17, p. 1263), provides in part that “No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall any such plea be received without the consent of the defendant’s counsel.” (Italics added.)

Section 987.9, in contrast, provides for ancillary defense funds in “capital cases” only—i.e., only when the death penalty may be imposed. In those murder cases, such as that of defendant, in which the death penalty will not be sought, even though the offense charged is statutorily punishable by death,

section 987.9 is inapplicable. If defendant is found guilty of first degree murder with special circumstances he will be sentenced to life imprisonment without parole. Because he does not risk capital punishment, his is not a “capital case” within the meaning of

section 987.9 as construed in light of the 1977 death penalty statute. Our conclusion that this is not a “capital case” because the death penalty may not be imposed is consistent with United States Supreme Court decisions holding that the death penalty is fundamentally and qualitatively different from any other punishment, including life without parole. The Supreme Court equated “capital” with “death penalty” in Woodson v.

North Carolina (1976) 428 U.S. 280 [49 L.Ed.2d 944, 96 S.Ct. 2978]: in striking down a North Carolina mandatory death penalty statute the Woodson court held that the Eighth Amendment requires individualized sentencing in “capital cases,” and then explained that “This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.

Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” (Italics added; id. at p. 305 [49 L.Ed.2d at p. 961] [plurality opn.]; accord, Gregg v. Georgia (1976) 428 U.S. 153, 187 [49 L.Ed.2d 859, 882-883, 96 S.Ct. 2909] [plurality opn.]; see also Rockwell v. Superior Court (1976) 18 Cal.3d 420, 428 [134 Cal.Rptr. 650, 556 P.2d 1101].) Our views are also supported by the recent decision in Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108].

In Keenan a defendant charged with murder with special circumstances sought funds under

section 987.9 to pay for the services of a second attorney. Although we ultimately granted the request under

section 987, subdivision (b), which provides for court-appointed counsel in capital cases, we also relied on

section 987.9 because “The wording of

section 987.9, together with its legislative history, lead us to conclude that it was intended to supplement preexisting provisions for employment of defense counsel at public expense by making provision for services ancillary to those of counsel.” (Id. at p. 430.) We implicitly construed the provision of

section 987.9 for ancillary defense services in “capital cases” to apply to cases involving the death penalty. In describing the factors a trial court should weigh in deciding whether to grant a request for funds for a second attorney in such cases, we observed: “The United States Supreme Court has expressly recognized that death is a different kind of punishment from any other, both in terms of severity and finality.

Because life is at stake, courts must be particularly sensitive to insure that every safeguard designed to guarantee defendant a full defense be observed.” (Id., at p. 430.) Additionally, our discussion in Keenan of the complexity of criminal defense litigation as an additional factor to be considered by the trial court in determining whether to grant a defendant’s request features language that clearly defines a “capital case” as one in which the death penalty may be imposed: “In a murder prosecution that is factually and legally complex, the task of effectively preparing for trial places a substantial burden on the defense attorney.

This is particularly true of a capital case, since the possibility of a death penalty raises additional factual and legal issues.” (Italics added; id., at pp. 431-432.) Specifically, we were persuaded by the defendant’s argument that the difficulty of preparing his case for trial “was compounded ... by the inherent problem present in any capital case of simultaneous preparation for a guilt and a penalty phase of the trial. [Counsel] noted that the issues and evidence to be developed in order to support mitigation of the possible death sentence were substantially different from those likely to be considered during the guilt phase.” (Italics added; id., at p. 432.) Here, by contrast, because the death penalty cannot be imposed no penalty phase will take place.

If defendant is found guilty of murder and the alleged special circumstances are proved true, he will be sentenced automatically to life imprisonment without possibility of parole. Thus one of the justifications for affording ancillary defense services to defendants in “capital cases”—i.e., to assist in preparation of the additional penalty phase—is absent in the matter at bar. Defendant contends that his case is analogous to Ramos v. Superior Court (1982) 32 Cal.3d 26 [184 Cal.Rptr. 622, 648 P.2d 589]. In addition to arguing that the special circumstance allegation was barred under

section 1387, the defendant in Ramos claimed that the prosecutor had introduced insufficient evidence in support of the allegation. The superior court believed the power to dismiss special circumstance allegations under sections 871 and 995 was limited to special circumstance cases in which the death penalty was sought. Because the district attorney had stated he would not seek the death penalty against Ramos, the court concluded that the adequacy of the evidence in support of the special circumstance allegation was not subject to review.

This court rejected the distinction between death penalty and life without parole cases, but carefully and explicitly limited its holding: “In our view, the court erred in drawing a distinction—in this context—between special circumstance cases in which the People are seeking the death penalty and those in which the defendant only faces a potential punishment of life without possibility of parole. ... [t] ... If, as is conceded, the sufficiency of evidence underlying a special circumstance allegation may always be tested in superior court under

section 995, we see no purpose to be served in construing

section 871 to preclude the magistrate from making this reasonable cause determination concurrently with his evaluation of the adequacy of the evidence with respect to the remainder of the charges.” (Italics added; id., at pp. 33-34.) Neither

section 871 nor

section 995 deals explicitly with “capital cases,” nor is either provision linked with the death penalty statute enacted concurrently with

section 987.9. Although no statutory language or legislative history exists to warrant limitation of these provisions to death penalty cases, we do find ample evidence of legislative intent to limit

section 987.9 to cases in which the death penalty may be imposed. Defendant next directs our attention to In re Freeman (1980) 102 Cal.App.3d 838 [162 Cal.Rptr. 423]. Freeman was charged with murder with special circumstances. The prosecuting attorney promised he would not seek the death penalty and the defendant signed a written waiver of the penalty phase of his trial. The defendant then petitioned for habeas corpus seeking bail; he argued that although bail may be denied in capital cases, his was no longer a capital case because the death penalty could not be imposed.

The court rejected the argument, declaring that it did “not find it necessary to discuss the nature or effect of the appellant’s agreement with the district attorney or whether it is binding on the court . . . .” (Id., at p. 840, fn. 2.) Instead, the court focused exclusively on the nature of the offense charged and stressed there was “nothing in the record to show that any promise has been made by anyone to change the charge . . . .” (Id., at p. 840.) Whatever the merits of the Court of Appeal’s approach in Freeman of focusing exclusively on the offense charged rather than considering as well the potential punishment, the bail situation is distinguishable.

Section 987.9 was enacted simultaneously with the 1977 death penalty statute to ensure that defendants in “capital cases” be afforded ancillary defense services because of the gravity of the punishment they risk. Whether the Legislature intended, by enacting sections 1268a and 1270, to deny bail to persons charged with “capital offenses” but not in fact subject to the death penalty is not a question presently before us.

The Legislature’s provision of special funding in “capital cases” reflects a belief that ancillary defense services may be needed both because of the inherent difficulty of preparing for a murder trial and because of the gravity of the potential penalty. In construing the scope of “capital cases” we must give weight to these same concerns. A defendant charged with a “capital offense,” i.e., murder with special circumstances, may suffer the death penalty if the special circumstance allegations are proved true and if, at the penalty phase, the jury determines that the penalty is appropriate.

However, when the prosecuting attorney stipulates that the death penalty will not be sought, as here, the defendant need not prepare for a penalty phase and no longer risks capital punishment. Because the defendant will not be sentenced to death, his case is no longer capital for purposes of

section 987.9 funding. Defendant’s request under this provision was therefore properly denied. We observe, however, that defendant may be able to secure equivalent relief by alternate means. He may invoke his statutory right to legal assistance, which has recently been defined by the Legislature to include necessary defense services. Moreover, both state and federal decisions have recognized that the right to counsel and to due process may include the right to expert and investigative services. Thus although state resources allocated pursuant to

section 987.9 for “capital cases” are not available to this defendant, he has the right to petition the trial court for public funds. Indeed, he has already received some funds, but has been denied others, for such services. The alternative writ of mandate is discharged and the peremptory writ is denied. Richardson, J., Kaus, J., Broussard, J., Reynoso, J., and Grodin, J., concurred. All statutory references are to the Penal Code. A contrary

interpretation would lead to an absurd result in certain cases. Under Penal Code

section 209, subdivision (a), a person convicted of kidnaping “shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act [of kidnaping] suffers death or bodily harm, or is intentionally confined in a manner which exposes such person to a substantial likelihood of death . . . .” (Italics added.) In a kidnaping case in which the victim was physically hurt or placed in mortal danger, but in fact survived, the defendant surely could not claim that because the penalty would be life without parole his was a “capital case” within the meaning of

section 987.9.

Section 987, subdivision (a), provides for court appointment of counsel in noncapital cases;

section 987.8, subdivision (f)(1), provides that, based on a defendant’s present ability to pay; he may be required to reimburse the court for “legal assistance” provided, and further defines “legal assistance provided” to include: “legal counsel and supportive services including, but not limited to, medical and psychiatric examinations, investigative services, expert testimony, and any other form of services provided to assist the defendant in the preparation and presentation of defendant’s case.” (Italics added.) For the proposition that the right to counsel includes the right to effective counsel, and thus to ancillary defense services, see In re Ketchel (1968) 68 Cal.2d 397, 399-400 [66 Cal.Rptr. 881, 438 P.2d 625]; People v.

Faxel (1979) 91 Cal.App.3d 327, 330 [154 Cal.Rptr. 132]; Mason v. State of Arizona (9th Cir. 1974) 504 F.2d 1345, 1351. To avoid disclosure of defense strategy, Puett v. Superior Court (1979) 96 Cal.App.3d 936 [158 Cal.Rptr. 266], provides that the defendant may make his showing at an in camera hearing outside the presence of the prosecutor. (Id., at p. 940, fn. 2.) Because defendant was charged with committing a crime while in state prison, any county funds awarded to him by the trial court for preparation of his case would be reimbursed by the state. (Pen. Code, § 4700.)