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People v. Guzman

Supreme Court of California

December 5, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
ALEJANDRO GUZMAN, Defendant and Appellant.

          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 ...


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