Does the Attorney General have the authority to cite an unpublished opinion that agrees with this line of cases?

Notes:

1. The Attorney General also cites an unpublished Court of Appeal opinion that agrees with this line of cases. The unpublished decision does not involve defendant and is unrelated to this case other than that it has a similar legal issue. The citation violates the general rule that an unpublished opinion "shall not be cited or relied on by a court or a party in any other action or proceeding (Cal. Rules of Court, rule 977(a); see People v. Webster (1991) 54 Cal.3d 411, 428, fn. 4, 285 Cal.Rptr. 31, 814 P.2d 1273.)

Without elaboration, the Attorney General cites an exception to this general rule that applies "when the opinion is relevant to a criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant or respondent in another such action or proceeding." (Cal. Rules of Court, rule 977(b)(2).) Apparently the Attorney General claims the right to cite that case because the People were the respondent there as well as here. The People, however, are the respondent in every appeal by a criminal defendant. The terms "defendant" and "respondent" in California Rules of Court, rule 977(b)(2), relate to the previously mentioned "criminal or disciplinary action," not an appellate designation. Thus, the reference to the "same defendant" means the defendant in a criminal action, and, particularly important here, the reference to the same "respondent" means the respondent in the "disciplinary action or proceeding," not a respondent on appeal. Thus, this exception applies only when the unpublished opinion is related to the same criminal or disciplinary action; it does not permit citing every unpublished criminal opinion in every other criminal case. Accordingly, we do not consider the unpublished opinion.

Notes: