Los
Angeles County Superior Court BA420611 Shelly Torrealba Judge
Second
Appellate District, Division Three B265937
Verna
Wefald, under appointment by the Supreme Court, for Defendant
and Appellant.
Kamala
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Louis W. Karlin, Victoria B.
Wilson and J. Michael Lehmann, Deputy Attorneys General, for
Plaintiff and Respondent.
OPINION
CANTIL-SAKAUYE, C. J.
A jury
convicted defendant Alejandro Guzman of two counts of
committing a lewd and lascivious act upon a child after it
heard a recorded phone conversation between the mother of one
of the victims and defendant's niece. The mother had
secretly recorded the conversation without the niece's
consent, thereby violating Penal Code section
632.[1] Subdivision (d) of that section
prohibits the admission of “evidence obtained... in
violation of this section... in any judicial, administrative,
legislative, or other proceeding.” (§ 632, subd.
(d) (hereafter section 632(d)).) The Court of Appeal,
however, found that section 632(d) has been abrogated in the
relevant part by “the ‘Right to Truth in
Evidence' provision of the California
Constitution.” (People v. Guzman (2017) 11
Cal.App.5th 184, 186 (Guzman).) The court thus
concluded the recording was properly admitted and affirmed
defendant's convictions.
We
granted review to determine the continued viability of
section 632(d) in light of the limits placed on the exclusion
of evidence by the “Right to Truth-in-Evidence”
provision of the Constitution. Enacted as part of Proposition
8 in 1982, the provision instructs that “[e]xcept as
provided by statute hereafter enacted by a two-thirds vote of
the membership in each house of the Legislature, relevant
evidence shall not be excluded in any criminal
proceeding.”[2] (Cal. Const., art. I, § 28, subd.
(f)(2) (hereafter article I, section
28(f)(2)).)[3] Within the context of defendant's
criminal trial, the recording in this case was relevant
evidence. By the express terms of the Right to
Truth-in-Evidence provision, therefore, the recording could
“not be excluded.” (Ibid.)
We
conclude that to the extent section 632(d) demanded the
suppression of relevant evidence in a criminal proceeding, it
was abrogated when the voters approved Proposition 8.
Moreover, although the Legislature amended section 632 by a
two-thirds vote several times after the enactment of
Proposition 8, none of these amendments revived the
exclusionary remedy of section 632(d). In each of these
instances, the Legislature reenacted section 632(d) only as
an incident to its enactment of other statutory provisions.
Nothing in the language, history, or context of the
amendments evinces an intent on the part of the Legislature
to render surreptitious recordings once again inadmissible in
criminal proceedings.
Because
the Court of Appeal reached the same conclusions, we affirm
its judgment.
I.
Background
A jury
convicted defendant of two counts of committing a lewd and
lascivious act upon a child for his inappropriate touching of
10-year-old E.F. and 12-year-old M.M. Both E.F. and M.M. knew
defendant's niece, Lorena.[4] E.F. was Lorena's
neighbor, and M.M., Lorena's cousin. Immediately after an
incident in which defendant touched E.F., E.F. confided in
Lorena and Lorena advised her to avoid defendant. Sometime
thereafter, M.M. told her mother that during a sleepover she
had with defendant's daughter, defendant had put his hand
inside her pajamas, touched her vagina, and made her touch
his penis. M.M. also told her mother that Lorena had warned
her about defendant. M.M.'s mother, Esperanza, then
talked to Lorena by telephone.
Without
Lorena's knowledge, Esperanza recorded the conversation.
Although Esperanza provided various explanations as to why
she did so, she did not alert law enforcement of the
existence of the recording until the day jury selection in
defendant's trial was to begin.
Upon
learning of the recording, the prosecution informed the court
that it intended to use the recording to cross-examine
Lorena, who was expected to testify for the defense. Defense
counsel objected, arguing that the recording was
categorically inadmissible under section 632(d). The court
disagreed, reasoning that insofar as section 632(d) operated
to bar the admission of relevant evidence in criminal
proceedings, it has been abrogated by the Right to
Truth-in-Evidence provision.
A
transcript of the recording was subsequently admitted into
evidence. The jury thus heard Lorena making various
statements that were unfavorable to defendant. For instance,
Lorena said that she did not “feel good around
[defendant], like when I'm wearing shorts or
anything.” Lorena further said that although defendant
“hasn't touched me anywhere else like... my vagina
or my breasts, ” she knew “he's capable of
doing that” and “that's why [she] believe[s]
what [M.M]'s saying.” Moreover, although at trial
Lorena denied that she had warned M.M. about defendant, in
her phone conversation, she appeared to admit that she
“told [M.M.]... to be careful.”
After
hearing from the various witnesses, the jury convicted
defendant. He appealed, arguing that the trial court
prejudicially erred in admitting the recording because the
admission “contravened the exclusionary rule stated in
Penal Code section 632, subdivision (d).”
(Guzman, supra, 11 Cal.App.5th at p. 186,
fn. omitted.) The Court of Appeal rejected the argument,
finding that within the criminal context, section 632(d) has
been rendered inoperative by Proposition 8. (Guzman,
supra, 11 Cal.App.5th at p. 186.)
II.
Discussion
In
determining whether the Right to Truth-in-Evidence provision
abrogated the exclusionary remedy of section 632(d) as that
remedy applies to criminal proceedings, we undertake two
separate inquiries. First, we ask whether the constitutional
provision repealed section 632(d) at the moment of its
passage in 1982. Second, if it did, we examine whether the
Legislature revived section 632(d) by a two-thirds vote any
time thereafter, thus restoring the section's prohibition
against admission of secret recordings.
A.
Whether the Exclusionary Remedy of Section 632(d) Survived
the Passage of the Truth-in-evidence Provision
In
1967, the Legislature enacted section 632 as part of the
Invasion of Privacy Act (§ 630 et seq.). “The
purpose of the act was to protect the right of privacy by,
among other things, ” “replacing prior laws that
permitted the recording of telephone conversations with the
consent of [only] one party to the conversation.”
(Flanagan v. Flanagan (2002) 27 Cal.4th 766,
768-769.) Section 632, a multipart provision, operates to
prohibit such recordings.
At
issue in this case is subdivision (d), the exclusionary
remedy of section 632. The wording of subdivision (d) has
been modified only slightly since its enactment in 1967. In
its current form, the subdivision states, “Except as
proof in an action or prosecution for violation of this
section, evidence obtained as a result of eavesdropping upon
or recording a confidential communication in violation of
this section is not admissible in any judicial,
administrative, legislative, or other proceeding.”
(§ 632(d).) We focus here on the viability of the
provision “to the extent it is invoked to suppress
relevant evidence in a criminal proceeding.”
(Guzman, supra, 11 Cal.App.5th at p. 186.)
Subsequent
to the enactment of the section 632, California voters acted
to limit the grounds for excluding evidence at criminal
trials. In 1982, the voters approved Proposition 8, thereby
amending the state Constitution. Proposition 8 contains a
provision known as the Right to Truth-in-Evidence, now
codified at article I, section 28(f)(2). In relevant part,
the provision states: “Except as provided by statute
hereafter enacted by a two-thirds vote of the membership in
each house of the Legislature, relevant evidence shall not be
excluded in any criminal proceeding, including pretrial and
post conviction motions and hearings, or in any trial or
hearing of a juvenile for a criminal offense, whether heard
in juvenile or adult court. Nothing in this section shall
affect any existing statutory rule of evidence relating to
privilege or hearsay, or Evidence Code Sections 352, 782 or
1103.” (Art. I, § 28(f)(2).)
To
determine whether the constitutional right of article I,
section 28(f)(2) abrogated the exclusionary remedy of section
632(d), “[w]e begin, as we must, with the express,
unambiguous language of section 28[(f)(2)].” (In re
Lance W. (1985) 37 Cal.3d 873, 886 (Lance W.).)
Section 28(f)(2) states that “[e]xcept as provided...,
relevant evidence shall not be excluded in any criminal
proceeding.” As we noted in Lance W.,
“[t]his clearly stated command has only one apparent
meaning” - to prohibit the exclusion of evidence at
criminal proceedings except on those grounds expressly
contemplated by the constitutional provision. (Lance
W., supra, 37 Cal.3d at p. 886.)
Section
632(d) does not fit within any of those grounds. At the time
of the passage of Proposition 8, the section was not an
“existing statutory rule of evidence relating to
privilege or hearsay.” (Art. I, § 28(f)(2).) Nor,
obviously, was it “Evidence Code Sections 352, 782 or
1103.” (Art. I, § 28(f)(2).) As such, section
632(d) was not exempt from the dictate of the Right to
Truth-in-Evidence provision. Hence, to the extent that
section 632(d) demanded the suppression of relevant evidence
at criminal proceedings, it was superseded when the voters
approved the constitutional amendment in 1982. (See
People v. Wheeler (1992) 4 Cal.4th 284, 291
(Wheeler) [“section 28[(f)(2)] supersedes all
California restrictions on the admission of relevant evidence
except those preserved or permitted by the express words of
section 28[(f)(2)] itself”].)
Not
only does the language of the Right to Truth-in-Evidence
provision unambiguously abrogate part of section 632(d), the
history of the provision also “buttress[es] our reading
of the statute.” (Scher v. Burke (2017) 3
Cal.5th 136, 148.) Proposition 8 was a voter initiative
measure, and the ballot materials relating to the proposition
included this statement from the Legislative Analyst:
“Under current law, certain evidence is not permitted
to be presented in a criminal trial or hearing. For example,
evidence obtained through unlawful eavesdropping or
wiretapping, or through unlawful searches of persons or
property, cannot be used in court. This measure generally
would allow most relevant evidence to be presented in
criminal cases, subject to such exceptions as the Legislature
may in the future enact by a two-thirds vote.” (Ballot
Pamp., Primary Elec. (June 8, 1982) analysis of Prop. 8 by
Legis. Analyst, p. 32 (Ballot Pamp.); see also Lance
W., supra, 37 Cal.3d at p. 888, fn. 8
[“Ballot summaries and arguments are accepted sources
from which to ascertain the voters' intent and
understanding of initiative measures”].)[5] Because the
ballot material specifically singled out “evidence
obtained through unlawful eavesdropping, ” which was
then “not permitted to be presented in a criminal trial
or hearing, ” and advised voters that Proposition 8
would change the law so as ...