“There’s GOLD in them thar unpublished hills.”
California attorneys are aware that, for the most part, appellate court opinions cannot be cited as authority unless they have been published. (California Rules of Court, rule 8.1115.) Ideally, we put practices in place so we can be aware of published opinions that might affect our practice, right? Maybe a subscription to a legal newspaper that runs daily summaries of cases just decided, or perhaps a subscription to a newsletter created for that purpose?
Standards for Publication
But here’s the thing about published opinions. Under rule 8.1105, there are standards for determining whether an opinion should be published. Specifically, when the opinion:
- Establishes a new rule of law;
- Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
- Modifies, explains, or criticizes with reasons given, an existing rule of law;
- Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
- Addresses or creates an apparent conflict in the law;
- Involves a legal issue of continuing public interest;
- Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
- Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
- Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.
Why Limit the Number of Published Opinions?
It makes sense, of course, to limit the number of opinions published in the official reservoir of citable opinions. According to the 2024 Court Statistics Report, in Fiscal year 2022-2023, just a hair under 7900 appeals were decided by written opinion. (There were other types of proceedings disposed of, but c’mon, let’s just say roughly 8000 opinions in a single year? That’s a lotta words!) That same report tells us that only 9% are published, and of the criminal opinions, only 4% are published, compared to 17% in civil cases.
➔ Finding the Gold in Unpublished Opinions
My site is devoted to California state criminal appellate practice (from the perspective of the defense), and through my former life with the appellate projects, I’ve read far too many opinions (published and unpublished) for me to even come up with a number for HOW many. But I can unequivocally state that appellate defense attorneys have secured some relief for their clients in many, many appeals whose opinions were not published.
All of the written opinions contained some rationale for the result reached, whether or not it favored the appellant’s position. And I’m here to tell you there’s gold in those unpublished opinions. We cannot cite them as authority, but that does not mean we cannot find the same cases the courts relied on to give some attorney’s client some level of relief. The courts are bound by the same rule prohibiting reliance on unpublished opinions (with exceptions not relevant here). So for the court to reach a decision, it must have relied on some controlling or persuasive authority that is permitted to be cited under the Rules of Court. Gold dust for us!
Why Not Publish Every Opinion?
It makes sense. Let’s start by acknowledging what’s missing from the standards for publication.
The Conspicuously Absent Standard (A Nonstandard?)
Think back to the California Rules of Court rule 8.1105 I set out above for the standards of publication. You want a hint on what does NOT constitute a standard? No need to work on that. I’m here to help. “Any form of relief is granted to the appellant” is NOT one of the criteria for which an opinion should (or may) be published.
So what types of cases are left? Well, reducing the California Rules of Court Rule 8.1105. Publication of appellate opinions to its simplest (and I hope the courts forgive me for perhaps understating a carefully crafted rule), if “mistakes were made,” an opinion won’t be published merely because mistakes were made. The appellate court’s treatment of claimed mistakes must have one or more of the peculiar characteristics laid out in rule 8.1105 (see above), or the opinion will likely not be published. And except for when I’ve been frustrated because I found the exact answer I was looking for but it was not published, it makes sense.
Let’s make up an extreme (hypothetical) error.
A defendant shows up ready for trial on a felony charge, and the trial judge says “I’m not going to spend the taxpayers’ money to let you keep your appointed attorney, because I’ve reviewed the facts brought out at an earlier hearing in this case and there’s no way a jury would find you not guilty.” The defendant is forced to go to trial with no attorney, and is found guilty.
Assuming I’ve built that hypothetical case properly, that conviction will be reversed on appeal. But what new could the Court of Appeal say in its opinion? The law is very well established that the defendant was entitled to have an attorney despite the trial court’s opinion on the strength of the evidence produced at the earlier hearing. Why should the criminal case law books – whether paper or electronic – be roughly 25x as large just to state the obvious error in the law in a published opinion? The entire library would be 11x as large, if we include the civil cases as well.
Unpublished Opinions: The Silent Source
And that’s where the unpublished opinions can sometimes give us what we need. For one thing, relief given in an unpublished opinion still tells us what appeals to the panel deciding the case (no pun intended). While it would be foolish, perhaps unethical (?), to simply copy and paste paragraphs from an unpublished opinion into the opening brief, the attorney most certainly can paraphrase or even restructure the language and use the same (published) authority cited in a similar–even though totally unconnected–case that resulted in an unpublished opinion. And cases relied on in the unpublished decision might lead to other, perhaps even better, authority as the attorney continues to research the issue.
Focusing On The Published Can Obscure The Common Errors
There’s other value as well. Some things are simply obscure and might not be noticed when the primary aspects of a case are quite serious. For example, the Legislature has taken a lot of action on the subject of fines and fees and multiple-fee fees (as my son calls them in another context). Under a recent amendment (effective January 2025), restitution fines–which the trial court is essentially required to impose in every case (“unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record”)–are no longer collectible after 10 years.
You might be struggling with the complexities of resentencing in light of the change in the law on felony murder and the natural and probable consequences doctrine. How likely are you to scrutinize the various codes that impose fines and fees? (Unless you already knew there have been changes in recent years.)
Because of other legislation, many defendants are returning to courts long after their original judgments, and if 10 years has lapsed, there’s value in getting the Court of Appeal to formally pronounce that any unpaid balance of the restitution fine is no longer subject to collection. The mechanism for getting that before the court is not within the scope of this article (okay okay, I’ll tell you–see In re Mattison (2025) 115 Cal.App.5th 1062, “we also conclude that a postjudgment motion is the proper vehicle for him to seek to amend his abstract of judgment” [to reflect that it is uncollectible under Penal Code section 1465.9]), but it’s the sort of thing that pops up in the opinions that were not published–sometimes the ONLY relief that was granted.
Little Things Can Be Big–All A Matter Of Perspective
I bet the thought occurred to some of you, with perhaps a slight tone of sarcasm, “Yeah, that’s really a win, all right. Client still got 50 years in prison, but doesn’t have to pay the balance due on the $10,000 restitution fine. Big Whoop!”
The Math of the Matter (example)
Consider this: According to the California Department of Corrections and Rehabilitation, it can deduct (as payment for the restitution fine, among other things) up to half of a prisoner’s wages (and of any OTHER money placed in the prisoner’s account–for instance, money deposited by friends and relatives in the hope that the prisoner can purchase some minor amenities). In 2024, the hourly wage–for those inmates permitted to engage in paying work–ranged from $0.16 (that’s sixteen cents, in case you read too quickly to place the decimal properly) to $0.74 per hour worked. (Fire camp prisoners used to get a daily rate of from $5.80 to $10.24. That’s per DAY, in case you read too quickly to notice the switch from hourly to daily rates. That has now changed, though. Beginning in 2026, “incarcerated individual hand crew members [i.e., fire crews] shall be paid an hourly wage equal to seven dollars and twenty-five cents ($7.25) while assigned to an active fire incident.”)
So let’s do some math. Ten years is 3,650 days (if we pretend there’s no leap year, which we can’t, but let’s do anyway).
Assume a prisoner (who was ordered to pay a restitution fine of $10,000) is earning 16 cents per hour and works 8 hours a day 7 days a week. Over a 10-year period, the inmate will have earned $4,672. CDCR will withhold half, or $2,336, to apply toward the $10,000 restitution fine.
At that rate, the prisoner would have to be imprisoned for slightly more than 42 years total to pay off the restitution fine.
(I’m not saying CDCR will keep someone in prison until the restitution fine is paid. My “42 years” and similar examples are stated simply to convey how little prisoners make and how long they would be on the hook for the restitution fine–and that’s assuming there’s no other direct restitution order competing for the same funds. But there are prisoners who have been sentenced to far more than 40, 80, 100 years, and could conceivably be short-paid for scores of years until the restitution fine is satisfied. But for the recent legislation declaring them uncollectible after 10 years.)
The governing regulations are fairly typical as an easy read. Not! Everything pretty much has to be spelled out to cover a huge variety of circumstances and conditions. (A lot of “this except for that and especially on the third Tuesday and second Wednesday of every other month in even-numbered years unless it is not a Leap Year other than the last year of a century, which ends in 00 and is not a Leap Year unless its full number is evenly divisible by four but is an exception to the non-Leap-year condition.”) But generally speaking, a work week ranges from 30 to 40 hours per week, five days a week.
So re-doing the calculations to consider 40 hours a week for 10 years, the inmate may have earned as little as about $3,341 in that decade. The CDCR collection of 50% drops the net to $1,670.50 in 10 years (at today’s minimum rate). It would take a prison term of nearly 60 years to pay off the restitution fine through prison wages. In this straw situation I set up, that client whose sentence of 50 years was confirmed will get to stash in the trust account around $15 per month as long as half the wages are taken by CDCR.
Success in getting the court to order the abstract of judgment amended to delete the unpaid balance will free up maybe another $15 per month for the rest of the inmate’s remaining time in prison. (And mind you, this is based on a 40-hour week. If the client averages only a 30-hour week, it would take more than 80 years.)
It may not sound like much, but that extra $15 can be used to purchase commissary products such as snacks, pencil and paper, hygiene products, and other basic items that can improve quality of life while the person serves out their term.
So What’s My Point?
My point: the unpublished opinions are replete with major and minor victories that may never be mentioned in the published opinions because they don’t break new ground requiring or meriting widespread proclamation through publication.
Quick Note About Unpublished Total-Loss Cases
I’m focused on the cases that provided some sort of relief to the defendant. As I’ve said, they contain a lot of authorities that could be useful in other cases. But I do NOT mean to imply there’s nothing to be learned from the total-loss cases that aren’t published. They, too, contain citations to authorities that are important to be aware of. I simply do not have the time to review and post something about every case. When I first drafted this page, I took a quick look at a then-recent week’s worth of unpublished opinions. There were 191 opinions. Of those, 94 had captions beginning “P. v.,” meaning they were criminal cases. Of those 94, I found 36 (about 38%) that granted some form of relief to a defendant. From time to time I may very well include a “total loss” case if it contains language I think would be really helpful. Many judgments are affirmed because there was an obstacle, such as a lack of objection, or a lack of a certificate of probable cause where required, or an inadequate showing that an error was not harmless. Detected by defense counsel early on, sometimes those obstacles can be dealt with and relegated to a status of “nothing to see here, Your Honor, let’s move along.” If you know in advance why someone with a similar case as yours lost, you may be able to patch those holes in your own case before yours is treated the same.