Filed 3/19/21 P. v. Torres CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JAMIE REYES TORRES,

 Defendant and Appellant.

 G058849, G059325

 (Super. Ct. No. 08HF1601)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James 

Edward Rogan, Judge. Affirmed in part and reversed in part.

James M. Crawford for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora 

S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
2

Generally, a defendant’s prior crime may not be admitted for the purpose of 

proving a defendant’s character: a disposition or propensity to commit a new charged 

crime. However, a defendant’s distinctive method of committing a prior crime may be 

admitted for the purpose of proving identity: the defendant was the person who 

committed the new charged crime. (Evid. Code, § 1101, subd. (b).)1

Here, a man with white material wrapped around his head committed an 

armed bank robbery. Just after the robbery, the robber’s baseball hat was found outside 

of the bank. The police later arrested defendant Jamie Reyes Torres, who told the police 

he had a prior conviction in which he was dubbed the “Mummy Bandit.” Torres’ DNA 

sample was a match with DNA recovered from the baseball hat.

The jury convicted Torres of five counts of armed robbery. Torres filed a 

motion for new trial arguing ineffective assistance of counsel. The trial court denied the 

motion and imposed a 19-year sentence, including one year for a state prison prior.

Torres claims the court erred by: A) admitting his statement to the police; 

B) denying his new trial motion; C) quashing a subpoena for his trial counsel’s medical 

records; and D) imposing the sentence for the prison prior. We reverse the prison prior 

and remand for resentencing. In all other respects, the judgment is affirmed.

I

FACTS AND PROCEDURAL BACKGROUND

On Saturday, May 24, 2008, at about 2:30 p.m., a man entered a Wells 

Fargo Bank in Newport Beach with a handgun. There were four tellers on duty; there 

was only one customer present in the manager’s office. The robber approached each 

teller’s window demanding money. The robber specified he did not want $1 bills or bait 

money. Each of the tellers complied. The robber left the bank with over $50,000. The 

1

Further undesignated statutory references are to the Evidence Code; further references 

to section 1101, subdivision (b), are abbreviated to section 1101 (b).
3

entire armed robbery took less than two minutes.

The robber had white “gauzy” material wrapped around his face, ears, neck, 

and tied in the back of his head. The robber was wearing a black baseball hat with 

distinctive embroidered blue lettering. The robber was wearing gloves, a long coat, and 

blue jeans. One witness described the robber as having “very tan skin.” Another witness 

described the robber’s skin tone as not black, “but it wasn’t white.” Two witnesses said 

the robber may be Asian. An additional witness “got the impression that the [robber] was 

African-American.”

Right after the robbery, one of the tellers looked out a window at the bank’s 

parking lot. She saw two vehicles leaving the parking lot (a silver car and a black SUV), 

but she could not see into the vehicles and did not see the robber. The sole bank 

customer went outside and saw the distinctive baseball hat the robber had been wearing. 

The hat was lying in the middle of the road, near a grocery store within the same 

shopping center as the Wells Fargo bank. The hat was located about 300 feet from the 

front doors of the bank. The customer had been directed to the baseball hat by an 

unknown man.

The Investigation and Arrest

The police obtained still photographs from the bank’s video of the robbery. 

The police recovered DNA from the inner sweatband of the robber’s baseball hat, which 

was later identified as a potential match with Torres.

In September 2008, the police issued a wanted person bulletin identifying 

Torres as a suspect, which included still photographs from the bank and a photograph of 

Torres. The police included a description of Torres and the vehicle he may be driving 

(a black Chevy Blazer). The police did not disclose to the public how Torres had been 

identified as a suspect.
4

The police were attempting to apprehend Torres by conducting surveillance 

on his girlfriend. The police learned Torres’s girlfriend had rented a PT Cruiser from a 

car rental agency and left a black Chevy Blazer in the parking lot. The following day, the 

police conducted a traffic stop of the PT Cruiser. The police found Torres lying in the 

backseat within arm’s reach of a fixed blade knife.

Police arrested Torres and took him to the Newport Beach Police station, 

where they took a buccal (DNA) swab from his cheek. After a detective advised him of 

his rights, Torres denied responsibility for the bank robbery on May 24, 2008. The 

detective showed Torres a still image from the robbery and pointed out the baseball hat 

the robber was wearing. The detective told Torres, “‘Your DNA was found on that hat.’” 

Torres said the hat belonged to him, but he lost it on Cinco de Mayo, while working on a 

car detailing crew in Newport Beach.

Torres said that his brother had told him four of five days earlier that he 

was wanted by the police for the armed robbery. The detective asked him, “‘Well, why 

didn’t you turn yourself in?’” Torres said, “‘I was scared, my DNA was on the hat.’” 

Torres also said “he needed some time to gather some money to hire an attorney previous 

to turning himself in.” Torres was asked about a prior conviction and Torres said “‘they 

dubbed me the Mummy Bandit.’”

Court Proceedings

In December 2009, the prosecution filed an amended information charging 

Torres with five counts of robbery while armed, and one count of being a felon in 

possession of a firearm. The information further alleged Torres had two prior federal 

bank robbery convictions, six prior strike convictions, two prior serious felony 

convictions, and a state prison prior.

In January 2010, a jury trial began. The prosecution introduced the 

testimony of 13 witnesses, including a forensic DNA expert. The expert witness 
5

reviewed the DNA recovered from the robber’s baseball hat and opined there was both a 

major and a minor contributor. The witness said that the DNA obtained from Torres was 

a match with the major contributor. The prosecution introduced several exhibits, 

including a reproduction of Torres’ driver’s license near the time of the robbery, showing 

his skin complexion, approximate height, weight, etc.

Torres called two witnesses. A forensic DNA expert opined the Orange 

County Crime Lab did not handle the DNA testing according to accepted standards and 

protocols (which was challenged on rebuttal by the prosecution’s expert). Torres’ brother 

testified he owned a mobile car detailing business in which Torres was employed. 

Torres’ brother said the employees all wore baseball caps that were frequently exchanged 

for new ones. He testified that he paid his employees in cash and did not keep records. 

On cross-examination he said (for the first time) he remembered Torres was working for 

him on May 24, 2008.

In February 2010, the jury found Torres guilty of all the charges and found 

true all the enhancements. The following month, the court granted Torres’ motion to 

relieve his appointed trial counsel. Four months later, trial counsel died from advanced 

brain cancer.

In February 2015, Torres filed a motion for new trial on grounds of 

ineffective assistance of trial counsel. The court denied the motion.

In May 2019, the trial court received trial counsel’s medical records, which 

Torres had obtained through a subpoena duces tecum. Trial counsel’s estate filed a 

motion to quash the subpoena. The court granted the motion.

In January 2020, the trial court sentenced defendant to a prison sentence of 

19 years, including one year for the state prison prior.
6

II

DICUSSION

Torres contends the trial court erred by: A) admitting his statement to the 

police about being the “Mummy Bandit”; B) denying his motion for new trial on grounds 

of ineffective assistance of counsel; C) granting the third party’s motion to quash the 

subpoena; and D) imposing a one-year sentence for the state prison prior.

A. The Admission of Torres’ Statement About Being Dubbed the “Mummy Bandit”

A court’s ruling on the admissibility of evidence is reviewed for an abuse 

of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) “Specifically, we will 

not disturb a trial court’s admissibility ruling “‘except on a showing the trial court 

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted 

in a manifest miscarriage of justice.’”” (People v. Morales (2020) 10 Cal.5th 76, 97.)

In this part of the discussion we will: 1) review general principles of law 

regarding section 1101 (b) evidence; 2) consider the relevant facts from the record below; 

and 3) analyze and apply the law to the relevant facts.

1. General Principles of Law

Evidence of uncharged misconduct is inadmissible at a criminal trial if its 

purpose is to show the defendant had a disposition or propensity to commit the charged 

offense. (§ 1101, subd. (a).) However, “this rule does not prohibit admission of evidence 

of uncharged misconduct when such evidence is relevant to establish some fact other than 

the person’s character or disposition,” such as motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. (People v. Ewoldt (1994) 7 

Cal.4th 380, 393; § 1101 (b).)

“Evidence of uncharged crimes [under section 1101 (b)] is admissible to 

prove identity, common design or plan, or intent only if the charged and uncharged 
7

crimes are sufficiently similar to support a rational inference of identity, common design 

or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) “The least degree of 

similarity (between the uncharged act and the charged offense) is required in order to 

prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) “A greater degree of similarity is 

required in order to prove the existence of a common design or plan.” (Ibid.) “The 

greatest degree of similarity is required for evidence of uncharged misconduct to be 

relevant to prove identity.” (Id. at p. 403.)

If a trial court finds that uncharged misconduct evidence is relevant to 

prove a material fact other than the defendant’s criminal disposition, the court must then 

consider whether the potential for prejudice outweighs the probative value of the 

evidence. (§ 352; People v. Lewis (2001) 25 Cal.4th 610, 637.) “‘The probative value of 

the uncharged offense evidence must be substantial and must not be largely outweighed 

by the probability that its admission would create a serious danger of undue prejudice, of

confusing the issues, or of misleading the jury.’” (Ibid.)

2. Relevant Proceedings

Prior to trial, the prosecution sought to admit Torres’s statements to the 

police following his arrest. The prosecution submitted a transcript of the interview, and a

still photograph of the bank robber (shown below).
8

During a pretrial hearing, the court identified Torres’ statements that were 

at issue: “number one, that he denied committing the robbery; number two, that he 

admitted he owned the hat found near the robbery scene; number three, Mr. Torres said 

he lost the hat in the area of the robbery before the crime was committed; number four, 

Mr. Torres told the police that the person who gave him the hat is now dead; number five, 

Mr. Torres said he spent ten years in federal prison for committing 54 robberies; and 

number six, then, it was for that he was dubbed the Mummy Bandit.”

The prosecution said it was not “seeking to introduce the fact that he’s 

spent ten years in federal prison. I don’t think that’s relevant.” Torres objected to the 

admission of his statements “telling the police that he committed 54 robberies and [he] 

was dubbed the mummy bandit.” After reviewing general principles of law, the court 

stated its ruling as follows:

“In this particular case, the People’s offer of proof is that the robber 

wrapped his head in some white type of cloth which gave the robber’s head an unusual

covering like that of a mummy. It would appear to this court that this is an unusual and 

distinctive manner of disguise, and far more time consuming to put together than simply 

donning a mask or some other form of head cover.

“Further, in this case the defendant volunteered to the police that he spent 

significant time in prison for multiple bank robberies, not just generic robberies, but bank 

robberies.

“It also appears from his statement that the modus operandi of those 

robberies involved some unique characteristics giving him the nickname the Mummy 

Bandit, although from Mr. Torres’s statement, he is not saying he called himself the 

Mummy Bandit. Rather, he was dubbed the Mummy Bandit.

“His volunteering that nickname to the police indicates to the court from its 

context that he adopted the sobriquet. The unique characteristics of the People’s offer of 

proof regarding the instant offense would be these factors: that the robber wrapped his 
9

head in some sort of white cloth, the robberies involved the specific site as to the crime, 

that is a bank . . . , and that Mr. Torres told the police he served federal prison time for 54 

bank robberies as opposed to robberies involving other locations, and that his actions in 

those robberies earned him the nickname the Mummy Bandit.

“When reviewing all of this evidence together, this appears to be within the 

spirit of 1101(b)’s exception . . . regarding identity evidence.”

The trial court continued:

“The next issue is whether its probative value is substantially outweighed 

by its prejudicial value under Evidence Code section 352. The court does find that its 

probative value outweighs its prejudicial value. Still an instruction to the jury to consider 

it for purposes of identity only and not for propensity evidence will help to lessen any 

prejudicial impact. The court will order the People to include such an instruction in its 

submitted packet of instructions to be submitted to the court before the People rest.

“Further, the court also feels its prejudicial impact can be lessened by 

sanitizing the statement. Preliminarily, my thoughts were that we need to excise from the 

statement that Mr. Torres said he went to federal prison for ten years for 54 bank 

robberies. That would lessen its prejudicial impact.

“The People now have offered to stipulate away a portion of that statement 

dealing with federal prison for ten years. That would leave us with Mr. Torres’s 

statement that he apparently, I guess, did time for 54 bank robberies. I think it needs to 

be sanitized further than that.” Following a recess, the parties agreed the detective would 

limit his testimony to the following: Torres said that he was convicted of a previous 

crime for which “he was dubbed the Mummy Bandit.”

On direct examination, the detective testified Torres “volunteered that he 

had a previous conviction and for that conviction he was dubbed the Mummy Bandit.” 

On cross-examination, the detective testified: “I asked him if he was given a name and 

he said, ‘Yes, you guys are going to put this in the f*cking paper. I was called the 
10

Mummy Bandit.’” The court gave a limiting instruction to the jury before its 

deliberations. (CALJIC No. 2.50 [“this evidence, if believed may not be considered by 

you to prove that defendant is a person of bad character or that he has a disposition to 

commit crimes”].)

3. Analysis and Application

The prosecution sought to admit Torres’ statement about previously being 

dubbed the “Mummy Bandit” for the purpose of proving Torres was the person who 

committed the instant bank robbery. (§ 1101 (b).) The court reviewed the photograph of 

the white cloth covering the robber’s head, which the court found to be “an unusual and 

distinctive manner of disguise” as opposed to “some other form of head cover.” The 

court also reviewed the transcript of Torres’ interview at that time of his arrest. Torres 

said that he spent 10 years in prison for committing 54 prior bank robberies, as opposed 

to some other form of robberies, which the court also found to be distinctive.

The trial court’s ruling under section 1101 (b) is supported by the evidence 

in the record (the photograph and interview transcript). Further, the court took additional 

steps to limit the prejudicial impact of Torres’ statement about being dubbed the 

“Mummy Bandit” by not allowing testimony about Torres’ extensive criminal record, and 

by giving a limiting instruction to the jury. (See § 352.) We cannot say that the court’s 

ruling was arbitrary or capricious; rather, the court appears to have thoughtfully weighed 

its decision and carefully crafted its ruling. Thus, we find no abuse of discretion.

Torres argues: “There was nothing particularly distinct about the 

appearance of the perpetrator in this case to deem it a signature to the crime. The 

wrapping of white cloths was not so distinctive as to render the prior event admissible to 

prove identity.” But the relevant question for this court is not whether we agree (or 

disagree) with the trial court’s ruling, but whether “its decision is so irrational or arbitrary 

that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 
11

367, 377, italics added.) Although perhaps another trial judge may have come to a 

different decision about the distinctiveness of the “mummy” disguise, we do not find the 

trial court’s decision to be beyond the bounds of reason. (See People v. Preyer (1985) 

164 Cal.App.3d 568, 573 [“‘An appellate tribunal is neither authorized nor warranted in 

substituting its judgment for the judgment of the trial judge’”].)

In any event, we find there is no reasonable probability of a different 

outcome in the absence of the alleged error. (See People v. Watson (1956) 46 Cal.2d 

818, 836.) Here, the bank tellers described the armed robber as having dark skin. The 

robber wore a distinctive baseball hat. Within moments of the robbery, a customer who 

was in the bank at the time of the robbery saw the robber’s hat on a street very close to 

the bank. Crucially, the DNA collected from the robber’s hat was a match with Torres’ 

DNA. Moreover, the prosecution introduced Torres’ driver’s license photo into evidence, 

which confirmed he was dark skinned at the time of the robbery, and he was about the 

same height and weight as the bank robber. Although Torres told the police he had “lost” 

his hat a few weeks prior to the robbery, Torres’ self-serving statement in light of the 

totality of circumstances strains credulity and is not persuasive. Torres’ brother’s last 

minute alibi testimony is similarly dubious.

In sum, we find Torres was not prejudiced by the trial court’s admission of 

his statement to the police that he had been previously dubbed the “Mummy Bandit.”

B. Motion for New Trial on Grounds of Ineffective Assistance of Counsel

In February 2015, about five years after the trial, Torres filed a motion for 

new trial on the grounds of ineffective assistance of counsel. The trial court denied the 

motion under both prongs of the well-established Strickland test. (Strickland v. 

Washington (1984) 466 U.S. 668, 684-685 (Strickland).)

Torres challenges the trial court’s ruling on appeal, and in a related habeas 

corpus petition, which we consolidated with this appeal (G059325). As the Attorney 
12

General correctly pointed out during oral argument, we must review the trial court’s 

ruling for an abuse of discretion. (See People v. Hoyt (2020) 8 Cal.5th 892, 957.)

A criminal defendant has a constitutional right to effective assistance of 

counsel. (U.S. Const., 6th Amend.; Strickland, supra, 466 U.S. at pp. 684-685.) To 

establish a violation of this right, a defendant must show: 1) counsel’s performance fell 

below an objective standard of reasonableness under prevailing professional norms; and 

2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) “‘The 

burden of sustaining a charge of inadequate or ineffective representation is upon the 

defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” 

(People v. Karis (1988) 46 Cal.3d 612, 656.)

As to prejudice, “the question is whether there is a reasonable probability 

that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt 

respecting guilt.” (Strickland, supra, 466 U.S. at p. 695.) “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” (People v. Williams

(1997) 16 Cal.4th 153, 214-215.) “We need not and do not determine whether petitioner 

established the first prong, deficient performance, because we conclude, as did the trial 

court, that even if counsel’s performance was deficient, petitioner has failed to sustain his 

burden on the issue of prejudice.” (In re Alvernaz (1992) 2 Cal.4th 924, 945.)

Here, Torres filed a 44-page motion for new trial. Torres argued 10 

separate claims of ineffective assistance: 1) trial counsel’s challenge to the reliability of 

the DNA evidence was “hopeless” and “irrational”; 2) counsel failed to clarify that the 

black SUV seen leaving the scene could not have been the getaway vehicle; 3) counsel 

failed to investigate and present corroborating evidence that the person Torres claimed 

had given him the baseball hat had actually died; 4) counsel failed to investigate and 

present alibi evidence from defendant’s brother; 5) counsel failed to investigate and 

present evidence about the unknown person who directed the bank customer to the 

robber’s baseball hat; 6) counsel failed to present evidence that Torres did not come into 
13

the possession of a large amount of money; 7) counsel failed to cross-examine two police 

witnesses regarding the bank robbery suspect’s initial description as an Asian male or a 

Black male; 8) counsel failed to exclude evidence of the knife found near Torres at the 

time of his arrest; 9) counsel inadvertently adduced evidence on cross-examination that 

the investigating officer had reviewed video from different robberies near the time of the 

instant robbery and this may have led jurors to believe Torres was involved in those 

robberies; and 10) counsel failed to adequately argue against the admission of the 

“Mummy Bandit” evidence. 2

The trial court conducted a hearing on Torres’ motion for new trial. At the 

close of the hearing, the court cited relevant constitutional principles concerning 

ineffective assistance of counsel claims. The court then stated:

“After considering the [respective] briefs of counsel and considering the 

arguments of both sides and then also having done a review of the proceedings before 

this court during the trial, the court rules as follows:

“First as to the various claims . . . , although there will always be collateral 

issues defense trial counsel might have pursued upon reflection, based upon the totality of 

the circumstances, the court finds . . . trial counsel’s representation was neither deficient 

nor fell below an objective standard of reasonableness. . . . Further, based upon the same 

totality of the circumstances, the court finds there is no reasonable probability the result 

of the proceeding would have been different but for counsel’s alleged unprofessional 

errors . . . . The court finds that trial counsel acted in a manner of a reasonably competent 

attorney, acting as a diligent advocate . . . .”

We need not address Torres’ claims regarding his trial counsel’s 10 alleged 

errors (the first prong of the Strickland test). We have independently reviewed the record 

and we agree with the trial court’s ruling that Torres has failed to demonstrate prejudice: 

2

Torres’ arguments in the motion for new trial are largely repeated verbatim on appeal.
14

a reasonable “probability sufficient to undermine confidence in the outcome.” (See 

People v. Williams, supra, 16 Cal.4th at pp. 214-215.) “[A] court need not determine 

whether counsel’s performance was deficient before examining the prejudice suffered by 

the defendant as a result of the alleged deficiencies. The object of an ineffectiveness 

claim is not to grade counsel’s performance. If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will 

often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)

Here, when we review the entirety of the evidence—particularly the 

compelling DNA evidence—we conclude there is no “reasonable probability that, absent 

[counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.” 

(Strickland, supra, 466 U.S. at p. 695.) The prosecution’s DNA expert testified: “‘The 

major DNA profile from the baseball hat is estimated to be found in less than one in one 

trillion unrelated individuals if you take a person at random from a population.’” To put 

“the rarity of that profile” in perspective, the expert further testified that the population of 

the entire planet is about 6.5 billion people. (See additional discussion regarding 

prejudice as to evidentiary claim, infra.)

Indeed, trial counsel’s strategy of attempting to cast doubt on the DNA 

evidence was perhaps Torres’ best defense under the circumstances. In short, we find 

Torres has not established a reasonable probability of a more favorable outcome. Thus, 

we find that the trial court did not abuse its discretion by denying Torres’ motion for new 

trial on the grounds of ineffective assistance of trial counsel.

C. Motion to Quash

In July 2010, about five months after the jury trial, Torres’ trial counsel 

died of brain cancer. In August 2019, about four years after the motion for new trial, and 

about nine years after the trial, Torres issued a subpoena for his trial counsel’s medical 

records. Trial’s counsel estate promptly filed a motion to quash the subpoena. After 
15

receiving opposing briefs and after conducting a hearing on the matter, the court granted 

the motion without explaining its ruling (and apparently without conducting an in-camera 

review of the subpoenaed records). Torres challenges the ruling of the court.

In a criminal case, a defendant (or the prosecution) may issue a subpoena 

for records without a showing of good cause. (Pen. Code, § 1326; Facebook, Inc. v. 

Superior Court (Touchstone) (2020) 10 Cal.5th 329, 343-344 (Facebook).) However, “to 

defend such a subpoena against a motion to quash, the subpoenaing party must at that 

point establish good cause to acquire the subpoenaed records. In other words, as we have 

observed, at the motion to quash stage the defendant must show ‘some cause for 

discovery other than “a mere desire for the benefit of all information.’”” (Id. at p. 344.)

“We review a ruling on a motion to quash, like other discovery orders, for 

abuse of discretion.” (Facebook, supra, 10 Cal.5th at p. 359.) Under the doctrine of 

implied findings and the abuse of discretion standard of review, we infer all findings 

supported by substantial evidence in favor of the judgment. (Smith v. Adventist Health 

System/West (2010) 182 Cal.App.4th 729, 745 [implied findings inferred by appellate 

court if supported by substantial evidence]; People ex rel. Dept. of Corporations v. 

SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [under abuse of 

discretion standard of review, appellate court must accept trial court’s implied findings of 

fact when supported by substantial evidence].)

In considering whether good cause has been shown to enforce a subpoena 

that has been challenged by a third party’s motion to quash, the factors a trial court 

ordinarily should consider are: 1) if defendant carried his burden of showing a plausible 

justification for acquiring documents from a third party; 2) whether material sought is 

adequately described and not overly broad; 3) whether material is reasonably available to 

the entity from which it is sought and not readily available to defendant from other 

sources; 4) whether production of requested materials would violate a third party’s 

confidentiality or privacy rights or intrude upon any protected governmental interest; 
16

5) whether defendant’s request is timely; 6) whether the time required to produce 

requested information would necessitate an unreasonable delay of defendant’s trial; and 

7) whether the production of records containing the requested information would place an 

unreasonable burden on a third party. (Facebook, supra, 10 Cal. 5th at pp. 345-347.)

Here, Torres failed to show a plausible justification for releasing his 

deceased trial counsel’s subpoenaed medical records. Torres did not provide an affidavit 

to the trial court (or any other evidence) establishing a nexus between his alleged 

ineffective assistance claim and trial counsel’s death from brain cancer about six months 

after the trial. Further, Torres’ subpoena was exceptionally untimely (about nine years 

after the trial). Indeed, by the time Torres had issued the subpoena, the trial court had 

denied his motion for new trial about four years earlier, and the court had specifically 

found that trial counsel’s representation of Torres was not ineffective.

Finally, it is undisputed that trial counsel’s medical records were privileged 

and confidential. (See § 994 [patient can refuse to disclose and prevent another from 

disclosing confidential communication between patient and physician if privilege is 

claimed]; see also California Consumer Health Care Council, Inc. v. Department of 

Managed Health Care (2008) 161 Cal.App.4th 684, 694 [“physician-patient privilege 

survives death and the estate’s representative is the holder of the privilege”].)

Thus, we conclude that the trial court did not abuse its discretion by 

granting the third party motion to quash trial counsel’s medical records.

D. One-Year State Prison Prior

Effective January 1, 2020, the Legislature approved Senate Bill No. 136 

(2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1). The amendment generally eliminates 

the one-year sentencing enhancement for a defendant who has served a prior prison term, 

with an exception for sexually violent offenses. (Pen. Code, § 667.5, subd. (b).) The 
17

statutory change is ameliorative and applies retroactively. (See In re Estrada (1965) 63 

Cal.2d 740, 744.)

Here, the trial court imposed a one-year prison prior for a crime that was 

not a sexually violent offense. Thus, we reverse Torres’ one-year prison prior 

enhancement (the Attorney General concedes the issue). We further remand the matter 

for resentencing to allow the trial court to exercise its sentencing discretion.

II

DISPOSITION

The one-year prior prison term enhancement is reversed. (Pen. Code, § 

667.5, subd (b).) In all other respects, the judgment is affirmed. The matter is remanded 

for resentencing consistent with this opinion.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.