[453
P.3d 1133] [256 Cal.Rptr.3d 115] Second Appellate District,
Division Three, B265937, Los Angeles County Superior Court,
BA420611, Shelly Torrealba, Judge
Page 674
[Copyrighted Material Omitted]
Page 675
COUNSEL
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.
Page 676
[256
Cal.Rptr.3d 116] A jury convicted defendant Alejandro Guzman
of two counts of committing a lewd and lascivious act upon a
child
Page 677
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,
217 Cal.Rptr.3d 509 (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.
Page 678
I. BACKGROUND
A jury
convicted defendant of two counts of committing a lewd and
lascivious act upon [453 P.3d 1134] 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 [256 Cal.Rptr.3d
117] 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
Page 679
Penal Code section 632, subdivision (d)." (Guzman,
supra, 11 Cal.App.5th at p. 186, 217 Cal.Rptr.3d 509,
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, 217 Cal.Rptr.3d 509.)
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 [256 Cal.Rptr.3d 118] 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, 117 Cal.Rptr.2d 574, 41 P.3d 575.)
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 [453 P.3d 1135]
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, 217
Cal.Rptr.3d 509.)
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 ...