We’ve written before about how the bench and bar consider it acceptable in certain circumstances to cite unpublished Court of Appeal opinions even when doing so clearly violates the letter of rule 8.1115(a). (See here, here, and here.) Acceptance goes all the way to the top — it’s OK by the Supreme Court, which authored the rule. And there was another example of that acceptance earlier this month.
In People v. Gentile, the Supreme Court interpreted a recent statutory change as precluding an accomplice’s liability for second degree murder based on the murder having been the natural and probable consequence of the aided and abetted crime. The decision cited two unpublished Court of Appeal opinions that an amicus curiae had relied on for the purpose, the court said, of “illustrat[ing] the importance” of adopting a different rule than the court ended up with. The amicus brief said that the opinions described two other prosecutions and that the opinions were cited “only to show where the cases may be found, and not as legal authority.”
Citing unpublished opinions as other than legal authority is how rule 8.1115(a) is often applied. But it’s not how the rule is written.
Subdivision (a) broadly states, “Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” Subdivision (b) provides two narrow exceptions: when a nonpub is “relevant under the doctrines of law of the case, res judicata, or collateral estoppel” or is “relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”
The Gentile citations are barred by subdivision (a)’s terms and don’t fall within either of subdivision (b)’s exceptions. Maybe it’s time to revise the rule to make those citations accepted by more than just practice. (See here and here.)