Filed 3/19/21 P. v. Torres CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058849, G059325
v. (Super. Ct. No. 08HF1601)
JAMIE REYES TORRES, OPINION
Defendant and Appellant.
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.
* * *
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
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committed the new charged crime. (Evid. Code, § 1101, subd. (b).)
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).
2
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.
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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
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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.
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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
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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).
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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
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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
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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
10
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
11
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
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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
2
“Mummy Bandit” evidence.
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.
13
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
14
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;
15
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
16
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.
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