Category Archives: Gary Musings

Gary Musings

That Which Goes Awry 6/11/2026

Posted on by Gary McCurdy

What I Don’t Know Could Fill The Universe.

I recognize that I tend to be somewhat of a snoot when it comes to the English language. I’m not an expert in it, by any means, and frankly, short of probably being able to call something a noun or a verb or a preposition or an article, I do not have a handle on the grammarian’s patois. Restrictive, nonrestrictive, antecedent, dependent, independent,subordinate, appositive, absolute, and so on. I think I generally know how to use English, but I couldn’t tell you (with any confidence) what the names of its parts are. I don’t even qualify for Potter Stewart’s “I know it when I see it.” Maybe I’m more of a “Smoke’em if you got’em” kinda guy. (Though I don’t smoke, whether or not I got’em.) I know that old-fashioned watches kept time by spring-action moving various gears, but I couldn’t tell you the name of any of the parts.

Oxfords or Loafers, Anyone?

But I do recognize that I definitely have some biases on a few of those earth-shaking controversies. I like, for example, to set off by a comma the penultimate item in a series. Who doesn’t love a good Oxford comma, right? “John, Mary and I went to the park.” “John, Mary, and I went to the park.” Those two sentences could mean exactly the same thing, or they could mean two different things. In the first sentence, either two or three people went to the park. Either I told John that Mary and I went to the park, or all three of us went to the park. In the second sentence, most of the time it would mean that all three of us went to the park. (A possible exception: If I’m speaking to John AND Mary, then only I went to the park. But who comes up to two people and say, “John comma Mary comma I went to the park”? More likely, “Hey kids, I went to the park.”)

The REAL Battle of the Century?

Anyway, I know there are raging defenses from both sides on it. I remember a popular trend in the 1950s or 1960s toward dropping that last comma. I resisted. (Fortunately, my English teachers were rather meh about it all, so I wasn’t dinged for going up the flow instead of with it.) Over the years, I have found more instances of ambiguity in sentences without the Oxford comma than in those with it.

I Like To Think I’m Simply, Well, Anchored.

Maybe that’s just a shortcoming of my own thought processes. I admit I tend to cringe when I hear “She graduated high school in 2015.” (A long way from the original usage, “She was graduated from high school in [an 18th or 19th century date].) I confess, though, that I never adopted the “was,” and tend to say “She graduated from high school.” There’s no more justification for me to cringe at the evolution dropping the “from” than there was for my grandparents (or great-grandparents) to cringe at the dropping of the “was.” (I believe the original idea was that the institution bestowed the graduation by conferring a degree, so it did the graduating, and the person was graduated from the school by the institution.)

Why Do They Call The End The Start?

Then again, disclosure here: For a long time, I never really thought about the meaning of “Commencement” at graduation. For years (I won’t say whether it was years after graduating from high school or from law school), I blithely associated “Commencement ceremonies” as meaning the end of the road. I’m not sure what made me realize that nope, it’s the beginning of a new life (or some such positive bromide).

And Now Back To Our Regular Programming.

Which brings me to That Which goes awry. I’ve mentioned elsewhere on this site that I do a lot of copying and pasting from opinions, and that I reorganize and even substitute some of the words. I intend to convey the same principle, but because I am not presenting the entire opinion, sometimes I have to tinker to give some context, or maybe I’ll slap a couple of sentences together because they share a significance but in the opinion they were several paragraphs apart. One of the things I’ve been doing more and more is changing what I perceive to be the use of the word “which” where I think the word “that” is more formally the correct term.

Anyone Darwinian?

I do keep in mind that our language evolves. Thank goodness for that. I remember reciting a passage from Chaucer’s Canterbury Tales as an English assignment. I did not have the luxury of listening to a digital recording of a native 14th century English speaker, so I’m guessing my accent was a tad off, but my goodness, I had to trust my English teacher that it was written in English, because you couldn’t prove it by me. I suppose it’s like speaking any foreign language when you don’t know how, but I’m sure I sprayed a few students in the front row as I spat out the words the best I could. So amen to change, right?

Me, A Culpa? Never!

Keeping in mind my opening confession of snootiness, I do believe that the that/which enigma has not yet been formally accepted by most grammarians to consider that the two words are easily interchangeable and mean the same thing (or signal the same thing to the reader, perhaps).

Ding Dong, The Witch Is … Oh, Wait! Wrong Song!

Generally speaking, “which” will introduce a clause that the sentence could do without and still have meaning. “The manual, which comes in paper and electronic format, tells me how to assemble the chair.” I could write that as “The manual tells me how to assemble the chair,” and that’s a perfectly fine sentence. The “which” clause adds interesting and related information, but it is not the answer to “What should I read to learn how to assemble the chair?”

That That Is, Is; That That Is Not, Is Not That Is. (Or IS That?)

On the other hand, “that” introduces something that is vital to the sentence. “The book that says “This is how to assemble the chair” is the droid you’re looking for.” If I take out the “that” clause, it says, “The book is the droid you are looking for.” If my question is “What should I read to learn how to assemble the chair?” I’m not going to learn much without the “that” clause.

You’ve Got To Punc-Tu-U-Ate The Positive (Oh Wait, Another Wrong Song!)

And normally, a “which” clause is going to be set off by punctuation. (Not to be confused with Santa Claus, who sets off with a team of reindeer.) If it is in the middle of the sentence, a pair of commas will usually do the trick. “The book, which has a yellow cover, is on the table.” Or a period could work, depending on location. “Look on the table for the book, which has a yellow cover.”

Accept Except?

There are, of course, many times when “which” is appropriate in slightly other contexts. “I don’t know which book to pick up.” “That which is the most reliable is often the most overlooked.” Neither of those sentences would sound good substituting “that” for “which.”  There are probably a few other exceptions, too.

Everywhere I Go Egos.

I think it is my ego that instigated the writing of this article. When I see “which” where I think “that” ought to do, I change the language used by the courts in many opinions–in fact, some of the language appears in quotations from cases cited by the opinion as seminal authority–because I don’t want to sound like I don’t know when to use “which” and when to use “that.” Fully recognizing that usage is more of a guideline than an actual law, of course. And I don’t mean to cast disrespect on the courts that have chosen to use “which” where I think “that” is the more correct word. As the declarers of the law, what they say IS the law, right? So who am I to nitpick on a point on which (see, there’s a place where which works and that doesn’t) it’s probably just a matter of time before I’m wrong, or I’m right AND they’re right.

Why Stop With The Teeth?

I do have authority supporting my view, of course. (Never go armed without authority. Especially when sometimes it’s easy to find authority supporting either side of opposing and incompatible views.) From oldest to most recent of the weapons in my writing arsenal:

Guide to Modern English
Corbin, Perrin
Pub by Scott, Foresman and Company
1960

A Dictionary of Modern English Usage
H.H. Fowler, Second edition
Pub by Oxford at the Clarendon Press
1965

Line by Line
Clair Kehrwald Cook
Pub by Houghton Mifflin Company
1985

Woe Is I
Patricia T. O’Conner
Pub by Riverhead Books, New York
1996

A Dictionary of Modern American Usage
Bryan Garner
Pub by Oxford University Press
1998

Garner’s Modern American Usage
Bryan A. Garner, Third Edition
Pub by Oxford University Press
2009

Garner’s Modern English Usage (Kindle Edition)
Brian Garner, Fifth Edition
Pub by Oxford University Press
2022

The Internet
2026 (and counting)

And with that, I’m back to my which hunt!

 

Gary Musings, Trivia by Gary

Trivia by Gary 6/4/2026

Posted on by Gary McCurdy

Trivia by Gary June 4, 2026

I’m pretty sure most of us know that a person who serves any time in jail up through sentencing gets credit for that pre-sentence time, assuming it’s attibutable to the reason the person is in jail. Prior to 1972 in California, a defendant was not entitled to credit for time spent in custody prior to conviction. Penal Code section 2900.5 was enacted in 1971.

It was originally to be applied prospectively only, but that was held to violate equal protection guarantees.

Keep in mind that California operated under the Indeterminate Sentence Law prior to 1977. Defendants were simply sentenced “to the term prescribed by law,” which usually involved a range, such as six months to life, or one to fourteen years. The Adult Authority was vested with the obligation to decide when a prisoner should be released.

Section 2900.5 has been amended many times. Of interest to me is that the 1976 version contained language in subdivision (c) that appeared to prevent judges from considering the amount of presentence credit when deciding what term should be imposed: “The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.”

Alas, that restriction is nowhere to be found today.

Duty of counsel, Gary Musings

Case 000015

Posted on by Gary McCurdy

Error and/or relief

You might want to draw a cuppa joe for this one.  It’s probably less related to criminal law practice than it is to law office management with regard to criminal clients.  The “Eighth Holding” is not a holding in the opinion, but some speculative observations by me.  “Gary Musings.”

This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already).

And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation.

What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I don’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.

First Holding:

Counsel has a duty to turn over client’s file to client.

Authority:

State Bar proposed opinion 19-0004 (duty to retain files while client is alive)

State Bar Rules of Professional Conduct rule 1.16

Second Holding:

As of 1/1/26, Penal Code section 1054.9 was be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment.

Authority:

PEN 1054.9

Barnett v. Superior Court (2010) 50 Cal.4th 890

People v. Superior Court (Morales) (2017) 2 Cal.5th 523

Satele v. Superior Court (2019) 7 Cal.5th 852

Third Holding:

Review of nonappealable order is by petition for writ of mandate.

Authority:

In re Steele (2004) 32 Cal.4th 682, 692 [after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal]

Fourth Holding:

The appellate Court can treat the appellate opening brief as a petition for writ of mandate.

Authority:

Olson v. Cory (1983) 35 Cal.3d 390, 401

Shrewsbury Management Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222

Fifth Holding:

Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel.

Authority:

Legislative history, AB 1987 in 2018

Sixth Holding:

The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney.

Authority:

Rose v. State Bar (1989) 49 Cal.3d 646, 653–655

White v. Molfetta (2021) 64 Cal.App.5th 628

Seventh Holding:

Section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.

Authority:

PEN 1054.9

Eighth Holding-Gary Musings:

Well, not exactly a holding in the opinion, but here’s exactly what 1054.9(g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”  I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.”

That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.”

The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows: “Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.”

Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration.

Authority:

Not much of one, Just Gary’s Brain

Gary Musings

Welcome Post

Posted on by Gary McCurdy

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