California attorneys are aware that, for the most part, appellate court opinions cannot be cited as authority unless they have been published. (Cal. 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 PUBLICATIONS
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:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) 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;
(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9) 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.
I Think It Makes Sense, Really
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.
But What About The Unpublished?
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!
The Conspicuously Absent Standard (A Nonstandard?)
Think back to the blah blah 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.
Again, It Makes Sense To Me
So what types of cases are left? Well, reducing the blah blah 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, 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 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 library would be 11x as large, if we include the civil cases as well.)
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 unrelated–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 that hey, 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) ___ Cal.App.5th ___, “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!”
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 2023, 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.)
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.
Why Am I Here?
Someone else might be doing this, I don’t know, but my goal in this blog is to pan for that gold and share it with you.
Anonymity May Save A Life
Okay, maybe “save a life” is a bit dramatic. But I intend to anonymize the cases. We cannot cite them, for one thing. For another, though, the people in these cases are real people. Regardless of why they have come into the court system, I do not want to play a part in providing fodder for shaming (or even violence) by revealing information that could lead to their identities (whether the defendants, the victims or the other witnesses, regardless of “whose side they were on”).
But If You Have A Need To Know …
I, of course, have the information–the actual opinion–on every case I will discuss. If there’s something that tweaks your interest, and you are an attorney eligible to practice in California, email me privately [once I formally launch my site and display my email address] and identify which opinion you are interested in. (I will have a protocol for identifying each case that the readers will see and can refer to in any emails to me.) I will then contact you with the information by sending you an email to the email address you have listed with the State Bar.
Let’s Focus, People
Also, my focus is going to be on the “winning” aspect of the opinion (perhaps even if technically there is no relief granted, and perhaps even if the judgment is affirmed). Using my example of the restitution fine, I’ll report relief on that issue as a win even if the rest of the judgment was affirmed. So if you do read the opinion, be prepared to read the ugly along with that bit of good.
Sometimes, though, even the opinions that affirm have snippets of law cited that are very valuable, perhaps even critical, in laying out a proper appellate argument. Often the opinion will mention the standard of review applicable to the issue before it. I may mention that aspect merely for educational purposes. Perhaps the snippet will guide the development of arguments in a case that merits relief. If it comes up, you might remember something like, “Oh, Gary wrote about a case with an issue like mine and the standard of review was mentioned.”
Don’t Trust, Just Verify
And I suppose I need to state a disclaimer. I’ve closed probably all of my articles I’ve written for CACJ’s Forum publication by stating words to the effect, “don’t trust what I say,” and it is equally applicable here. That is, don’t believe what I’ve written when belief is important. Don’t rely on it. I’m acting in good faith, but I am not the horse itself. Don’t go to court and cite AppellateAdvisor.com as your authority. A court has not cited me as authority for anything since the early 1980s.
Instead, you have to READ THE OPINION! You may decide that it says something different from what I’ve said. I may have misread it. So if I’ve said something that interests you, check it out directly. I’m not artificial intelligence. I’m real intelligence. (I did NOT say “really intelligent.”) I can get things wrong. I can think of at least two instances in the past year, although one of those two was where I thought I was wrong, but I was wrong about that because I was actually right. Okay, I apologize for that joke. I can get away with it in my own blog, right?
Seriously, though, while I might express my opinion in the context of the courts’ opinion, you have the actual opinion available to you. Even though you cannot cite it, that’s what you need to look at for the gold. I think I’m pretty good at what I do, but I also recognize I might be the only one who thinks so. I don’t promise that my analysis is correct. I don’t promise that I have seen every possible nuance in any opinion. I’ll do my best to do it right, but I will not guarantee I will be successful. Only that I will try.
And there is the practical reality as well. Sometimes I run across a dozen cases in a day with some form of value. I can’t spend hours on each one to make sure I have analyzed it suitably for discussion in a law school class setting or a continuing education seminar presentation. If I’m going to get the gist of the gold out there, I doubt I’ll be able to compare and contrast each case or issue with the vast reservoir of other published and unpublished cases. I hope that I can say enough to trigger in your mind that “oh, that’s an issue.” But when you run across that issue in your actual cases, you will need to take far more time to formulate your arguments than I took to present my summary.
Thank You, Aretha!
Also, I treat all courts, prosecutors, deputies attorney general, law enforcement personnel, etc., with professional and civil respect. I do not see this blog as an opportunity to commiserate over the trials and tribulations of frequently being on the losing side. I’ve worked with many judges and justices and prosecutors and witnesses and law enforcement officers in my (coming up on) more than 53 years of criminal defense practice. I have not agreed with them all. There may even have been some prosecutors or law enforcement individuals I had a dislike for. None come to mind, but I assume I’m normal and that there are people I did not like. But I always treated them in what I believe was a professional, civil, and courteous manner, just as I expected to be treated. (At least, I hope I did.)
This Is A Respectful Forum
And while I probably don’t particularly want to be labeled as thin-skinned or [I don’t know really what term is best here], if I enable comments, they must be worded respectfully, without resort to what is typically viewed as swearing, cussing, demeaning, etc. I do recognize that acceptable standards of language have changed since I learned to talk, and that some words that may cause me to scrunch my face may be perfectly acceptable in the contributor’s world of peers. I reserve and plan to enforce my right to censor language that I deem not G-rated, if you will. Nor will I approve tirades against “the establishment” (as we used to call it 60 years ago, I guess) or other contributors or me. My hope is to be helpful to other attorneys in honing their appellate skills. That can be achieved in a civil manner. Even though it’s a criminal case blog. (Okay, I did say it was permissible for me to utter corny jokes and puns, you know.)
This Blog Is Not The Place For Legal Advice, But I Do Have A Price For The Right Buyers
By the way, I will not give legal advice through this blog. For one of many reasons, this is available to the public for viewing, which means there would be no privilege protection. For another reason, my plan is to maintain this blog at my expense. Draw from it what you can. But if you have an interest in my advising you on a specific California felony appellate case, get in touch with me (email me–once I’ve provided it) and we can discuss the terms if we agree that I might be of service to you.
Coming Soon To A Device Near You: Let The Mining Begin
With that, my next contributions [remember, I’m formally launching in the second half of January 2026, so mark your calendar to come back] will consist of my impressions of the gold in them thar hills. If I can figure out how to facilitate communications, I welcome constructive thoughts, as well as questions. (Money, too, but I don’t have a way to accept your undoubted generosity through this blog.)