In Abernathy v. Superior Court (2007) 157 Cal.App.4th 642 the Court faced with the issue whether a defendant in a special circumstance case was entitled to daily preliminary hearing transcripts under section 190.9, subdivision (a)(1), which provides that in "any case in which a death sentence may be imposed," a court reporter is to "prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing." The magistrate "read subdivision (a)(1) of section 190.9 to require distribution of daily preliminary hearing transcripts only in those cases in which the prosecutor has announced a decision to seek the death penalty" (Abernathy, supra, 157 Cal.App.4th at p. 645), and, as the district attorney had not announced that decision, the magistrate denied the motion. The defendant filed a petition for writ of mandate, which the superior court denied, concluding in part that, "absent the prosecutor's decision, ... daily preliminary hearing transcripts were not required." (157 Cal.App.4th at pp. 645-646.) The court also concluded that without " 'a holding order the superior court does not have jurisdiction to conduct a capital trial.' " (Abernathy, supra, 157 Cal.App.4th at p. 646.) Division One reversed, holding that the requirement for daily preliminary hearing transcripts in a special circumstances case did not hinge on an affirmative act by the prosecutor: "As Abernathy correctly argues, the plain language of subdivision (a)(1) is unambiguous. It makes no mention of the prosecutor's decision to seek the death penalty, nor any requirement of a holding order. ( 872.) Instead, subdivision (a)(1) expressly requires preparation of a daily preliminary hearing transcript 'in any case in which a death sentence may be imposed.' Moreover, no statute or case law requires the prosecutor to give a notice of the intention to seek the death penalty. Nothing in section 190.9 requires a holding order and the setting of a trial date as prerequisites to the requirement of daily preliminary hearing transcripts." (Abernathy, supra, 157 Cal.App.4th at p. 648.) The footnote referenced in the quotation above supports our conclusion. Discussing Sand, the footnote observes that "section 987.9 (requiring funds for indigent defendants in capital cases), for example, does not require notice from the prosecutor. But the district attorney's voluntary formal notice declining to seek the death penalty precludes authorization of such funds." (Abernathy, supra, 157 Cal.App.4th at p. 648.)