Welcome to my case summaries! I’m reviewing California Court of Appeal opinions that are NOT published, and pulling out of them gems of wisdom from any case in which the court has provided some level of relief to a defendant (even if so little as getting an abstract of judgment to properly reflect the sentence or the crimes of conviction). On occasion I have included a not-a-win but something struck me about the case that caused me to decide to include it anyway.
And once in a while, I post a “Gary Musing” that consists of my own thoughts du jour.
The site is searchable through the WordPress standard search function, through categories, and through tags. It is also set up so you can do the RSS thing if you’re set up for it.
(I’ve seen it, I believe it exists, I actually have it RSS’ing on my own devices, but I’m not sophisticated enough to explain to someone else what it is. What I do know is that I have an RSS app on my iPhone, and I have set it to notify me when I have released a new post (summary or Gary Musing). Daily I get up to 10 new summaries showing up on my phone, and I can read them. Yay!)
Because the courts generally post their opinions Monday through Friday, I plan to post case summaries only Monday through Friday. There will be a lag of about a week, to give me a little buffer of time in the event I’m offline for a few days.
I’m open to suggestions on categories and tags. For that matter, I’m open to any thoughts designed to improve the usefulness of my site.
Simply email your thoughts to me. In keeping with my privacy statement, I will do nothing with your email address beyond using it to respond to you if a response is called for. Since it would be sent by your email program to my email program, it will not appear or be stored on this website, because it will never pass through this website.
What You’ll Find in These Summaries
As I’ve said more elaborately elsewhere on this site, the unpublished opinions cannot be cited, but they have to base their decisions on cases that HAVE been published. So for each tidbit I have extracted from the opinion, I have listed the citable authority relied on by the Court of Appeal. Because the opinion cannot be cited as authority, my focus is not so much on the reasoning behind the result.
This means I likely will not recite all the facts that show, for instance, why the officers did not have probable cause for a warrantless search. Instead, I will pull out principles that might be useful in ANY search and seizure appeal, or even in any criminal appeal no matter the issue. (Of course, my perspective is from the appellate side of the judgment, but the principles often discuss the “rules of the road,” so to speak, that the trial courts have to navigate. So this site is not just for appellate attorneys.)
For example, from an appellate attorney’s perspective, what is the standard of review? When does the appellate court defer to the reasoning of the superior court? When does the appellate court conduct independent review? De novo review? Is this Watson error or Chapman error (important in deciding whether an acknowledged error results in relief or is found to not have made a difference, so no harm, no foul)? When is a kill zone theory appropriate? Did the trial court engage in improper factfinding at the prima facie stage? What was the trial court permitted to consider at that stage? When does the exercise of discretion–or lack of same–constitute abuse?
From a trial attorney’s perspective, the earlier principles may be nice to know, but the hope is that your case never needs to be appealed, right? Well, the summaries also list principles of law you need to know in the trial court, such as the elements a court must consider when decide whether mental health diversion is appropriate, or whether a prior conviction still qualifies as a strike or prior serious felony in light of AB 333’s changes to criminal gang activity law, or whether the court properly considered your client’s recall petition at the prima facie stage, or whether the court is required to sustain your objection to a DA’s exercise of a peremptory challenge, given CCP 231.7, or whether section 654 applies (and an understanding that the judge once again has a choice on WHICH count is to be punished and which is to be stayed–no longer must the court impose punishment on only one with the greatest sentence and stay the other), or whether the court forgot to update credits, etc.
In other words, these summaries can provide guidance at both the trial court and the appellate level stages.
Not Your Typical Summaries
Some summaries will lay out the context in which the issue arises. Maybe include some background on laws regarding the recall of the sentence in light of changes in the definitions of murder. Or how enhancements or selection of sentencing scheme may have to be reexamined in light of changes in the elements required for conduct to be criminal (such as whether a strike conviction for a gang offense is still a valid strike in light of changes in the gang offense statute). And so on.
So these summaries are likely different from what you might be used to reading in legal newspapers that summarize published opinions, or the summaries you might run across in publications by various defense-oriented organizations. I’m less interested in pointing out the reason the court ruled the way it did, and more interested in what “universal” rules it applied in reaching its result. (The same principles are cited in the unpublished decisions that do NOT result in relief, but I can’t read and summarize them all!)
Why Universal Rules, Not Case-Specific Facts?
Why that focus?
The value is there for both appellate attorneys and trial attorneys.
Appeals
On appeal, every appellate brief has to inform the appellate court of the applicable rules! And since it is expected, it is important to know the options so you can intelligently argue in favor of the option that most favors your client or, if there is only one option, how YOUR client is entitled to win even given that principle. For example, if you know that there was no objection in the trial court to preserve what would otherwise be a good issue (thus subjecting it to not being even considered by the court, as it was forfeited for lack of timely objection), then you can frame your argument to demonstrate how an objection would have been futile, or how the issue is a straight question of law that the court can consider despite the lack of objection, or why, in your client’s case, the court should exercise its discretion and treat the issue anyway (which it has the right to do). And you may find authority in the PUBLISHED cases cited in the unpublished cases,
If you can characterize an error as a violation of a federal constitutional right, then it is likely that the Chapman standard applies (reversal unless the error is harmless beyond a reasonable doubt). If it is argued as a state error, then prejudice will be assessed under Watson–no reversal unless, but for the error, there is a reasonable probability that there would have been an outcome more favorable to the defense. So whatever your error is, you want to persuade the court–based on the law, of course, not just on desire–that the Chapman standard applies, not Watson. Or if you can’t, then you need to actively demonstrate just how a better result for your client would likely have been the outcome had the error not been committed. Courts of Appeal are seldom swayed by bald statements “and my client was prejudiced by the error.” Maybe the citations following the summaries on prejudice will give you the info you need to make your best case for a suitable finding of prejudice.
Trial court
The summaries show you the types of errors commonly made in the trial courts. Most errors are considered harmless. After all, if Officer A testifies as to what Witness B said, but then Witness B is called to the stand and says the same thing, the error in overruling counsel’s hearsay objection to Officer A’s testimony is harmless, right? Unless, of course, there is something more to it than just getting a statement in. If Officer A adds, “and I think she was telling the truth,” then maybe that is an error unto itself that is NOT harmless. But it won’t even be considered on appeal if your client is convicted and you did not object to it timely and on the proper grounds.
Since I’m generally not relating information from the unpublished cases that affirmed the conviction entirely, trial counsel may not get a complete sense of how often convictions are affirmed that had arguable issues that the courts refuse to even consider because there was no objection. You kinda have to take my word for it, if you’re not getting that sense from the published cases. But my summaries of the unpublished “wins” should alert trial counsel to possibilities for objections.
Yes, there are a FEW cases in which the appellate courts have considered forfeited issues, usually with a phrase something like “to forestall unnecessary ineffective assistance of counsel claims.” Much to my own surprise, I don’t have any statistics on whether appellate courts are more likely to dispose of a forfeited issue by treating it on the merits and ruling against the issue, but I know I have seen many such instances. And my feeling (which I admit may be tainted by my defense attorney bent) is that those “we’ll treat it anyway” instances occur far more frequently when the court then rules against the issue than when a court treats the forfeited issue and grants relief on account of it.
I welcome being set straight on that if my bias has led me astray.
But it all goes back to trial counsel. If there is a proper objection, then at least the issue will be considered if the appellate attorney presents it to the court.
And the summaries certainly should remind trial counsel that credit for time served is important. When I was in trial practice, I treated credit for time served very seriously. Though I have never been confined, I know it would matter to me whether I was eligible for release in 1 day or 2 days or 20 days or 60 days. I wouldn’t want to be kept an extra day. Not even if it was rainy outside.
Also, the summaries should alert the trial attorneys to the importance of checking the written abstracts of judgment, minutes, and probation orders. Checking my stats recently, I determined that around 20% of the case summaries in which there was a win had errors in the abstracts, minutes, and/or probation orders, and those errors painted a worse picture of the defendants’ plights. Sometimes characterizing a straight life term to an LWOP. Reflecting a $10,000 fine that wasn’t ordered. Shorting thousands of days of credit for time served. Recognizing that the 20% was of only the wins, I also computed that roughly 5% of all the appellate criminal opinions contained errors in the abstracts and minutes. And that was of only cases on appeal. I think it’s fair to conclude that the percentage is probably of all criminal cases, whether or not appealed. Trial counsel is the only one who can spot those unappealed cases and get them corrected by the trial court.
Using Citations as a Research Springboard
While you cannot cite the unpublished opinion itself, you can review the citations I have listed below the discussion of the lack of objection or prejudice (or whatever). While not universally true, it is not unusual for the published opinion the court relied on to have a factual situation somewhat like the case it is deciding. Maybe that citation will be a springboard for you to find one or more cases very close to your own. The closer your research relies on cases similar to your own, the harder it is for the opposition to argue that the cited case is so distinguishable as to be not helpful.
How to Read These Summaries
My plan is to have a brief statement of context (a statement of the error and relief granted) at the beginning of each post, but I hope you consider it to be simply the context in which the principles were announced, and that you read the full summary to see those “rules” that the courts generally follow to guide their analyses. Don’t look at a summary that mentions burglary and ignore it because your case is a drug offense. The summary itself may have little to do with the law of burglary, and instead it will contain “binding” maxims that you’ll need to be aware of (and address) in your briefing or at trial, whether your case is a burglary or a drug sale or a homicide or ….
Want the Full Opinion?
Remember also that, if you are an attorney, I will, on your request, send you the full unpublished decision to the email address you have showing on the state bar website. (Unless, of course, there is an overwhelming demand for this service, in which case I’d probably have to rescind the offer.)
Happy Hunting!
Gary
