Provided by CPOA Legal Counsel, James R. Touchstone, Jones & Mayer
In the case of People v. Guzman, the Supreme Court of California found that a surreptitious recording was properly admitted into evidence in a defendant’s trial for committing a lewd and lascivious act upon a child. The Court concluded that the “Right to Truth-in-Evidence” provision in the state constitution enacted as a result of the passage of Proposition 8 abrogated a Penal Code provision prohibiting the admission of evidence obtained from recording a confidential communication.
10-year-old E.F. confided to her adult neighbor Lorena that Lorena’s uncle, defendant Alejandro Guzman, had inappropriately touched E.F. In a separate later incident, 12-year-old M.M. told her mother Esperanza that, during a sleepover with Guzman’s daughter, Guzman had touched her and made M.M. touch him. M.M. also told Esperanza that Lorena, who was M.M.’s cousin, had warned M.M. about Guzman. Esperanza spoke with Lorena by phone, but did not tell Lorena that the call was being recorded.
Esperanza did not inform law enforcement of the recording’s existence until the day jury selection in Guzman’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 Penal Code Section 632(d), which prohibits the admission of “evidence obtained … in violation of this section … in any judicial, administrative, legislative, or other proceeding.” The trial court determined instead that Section 632(d) had been repealed by the “Right to Truth-in-Evidence” provision of the California Constitution, which was enacted as part of Proposition 8 in 1982.
A transcript of the recording was subsequently admitted into evidence. The jury thus heard Lorena making various statements that were unfavorable to Guzman. After hearing from the various witnesses, the jury convicted Guzman of two counts of committing a lewd and lascivious act upon a child.
Guzman 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).” The Court of Appeal rejected the argument, finding that within the criminal context, Section 632(d) had been rendered inoperative by Proposition 8. The appellate court thus concluded the recording was properly admitted and affirmed Guzman’s convictions. Guzman sought review of the decision by the California Supreme Court.
The California Supreme Court 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.
The Court noted that the Legislature enacted Section 632 in 1967 as part of the Invasion of Privacy Act. “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.) Subdivision (d) of Section 632, the exclusionary remedy of the section, provides: “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.” (Section 632(d).)
In 1982, the voters approved Proposition 8, thereby amending the state Constitution. Proposition 8 contained 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.” (Cal Const., Art. I, section 28(f)(2) (hereafter, “Section 28(f)(2)”).)
The Court explained that it would pursue two separate inquiries to determine whether the Right to Truth-in-Evidence provision abrogated the exclusionary remedy of Section 632(d) as that remedy applies to criminal proceedings. First, the Court considered whether the constitutional provision repealed Section 632(d) at the moment of its passage in 1982. If so, the second inquiry would 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.
Did the Exclusionary Remedy of Section 632(d) Survive the Passage of the Truth-in-evidence Provision in 1982?
The Court reminded that the “the express, unambiguous language of [S]ection 28[(f)(2)]” (In re Lance W. (1985) 37 Cal.3d 873, 886) states that “[e]xcept as provided … , relevant evidence shall not be excluded in any criminal proceeding.” (Section 28(f)(2).) The Court determined that “[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), the Court found, was not exempt from the Right to Truth-in-Evidence provision because Section 632(d) did not fit within any of those grounds: Section 632(d) was neither an “existing statutory rule of evidence relating to privilege or hearsay,” nor “Evidence Code Sections 352, 782 or 1103.” (Section 28(f)(2).)
From the express language of Section 28(f)(2), the Court determined that 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 [“[S]ection 28[(f)(2)] supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of [S]ection 28[(f)(2)] itself”].)
Moreover, the history of the Right to Truth-in-Evidence provision supported the Court’s view of the finding that Section 632(d) was abrogated by the Section 28(f)(2). The Court noted that the ballot materials related to Proposition 8 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.) The Court explained that 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 told voters that Proposition 8 would change the law so as to “allow most relevant evidence to be presented in criminal cases,” the natural inference was that Proposition 8 would permit “evidence obtained through unlawful eavesdropping” to be admitted in criminal cases. “In essence,” the Supreme Court explained, “voters were informed that Proposition 8 would abrogate [S]ection 632(d)—and they approved.”
The Court thus concluded that the clear language and history of the constitutional amendment meant that the passage of the Right to Truth-in-Evidence provision in 1982 repealed Section 632(d) to the extent the section applied to criminal proceedings.
The Court rejected Guzman’s various arguments contrary to the Court’s conclusion.
In analyzing a constitutionally protected right and an associated exclusionary rule requiring suppression in violation of the right, the Court pointed to concordant reasoning in Lance W. The Court observed that Article I, section 13 of the California Constitution protects the people’s right “to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches.” (California Constitution, article I section 13.) In Lance W., the Supreme Court distinguished between the right protected by article I, section 13 and the associated exclusionary rule requiring suppression of evidence seized in violation of that right. (Lance W., supra, 37 Cal.3d at pp. 886–887.) There, the Court explained, “the substantive scope of [article I, section 13] remains unaffected by Proposition 8” and “[w]hat would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today.” (Id. at p. 886.) However, the same could not be said of the exclusionary rule, which was “eliminate[d]” by Proposition 8. (Lance W., supra, 37 Cal.3d at p. 886.) Lance W. explained that because the exclusionary rule is simply a “remedy for violations of the search and seizure provision,” Proposition 8 could eliminate the exclusionary remedy without affecting the “substantive scope” of article I, section 13. (Lance W., supra, 37 Cal.3d at pp. 886–887.)
Similarly, the Court here reasoned that Proposition 8 could eliminate the exclusionary remedy of Section 632(d) without affecting the substantive scope of privacy of article I, section 1, or even more narrowly, the privacy of telephone conversations. (Lance W., supra, 37 Cal.3d at pp. 886–887.) The Court noted that even after the passage of Proposition 8, secret recording of telephone conversations is still prohibited and is punishable by a fine of up to $2,500, imprisonment up to a year, or both. Moreover, those injured by secret recordings may bring civil actions against the perpetrators to recover damages. Thus, the Court determined that Proposition 8’s repeal of the Section 632(d)’s exclusionary remedy as it applied to criminal proceedings did not vanquish the right to private phone conversations itself; the right and the exclusionary remedy were not equivalent.
In sum, the Supreme Court found that the Right to Truth-in-Evidence provision abrogated Section 632(d) when Proposition 8 passed in 1982, and the Court’s first inquiry was resolved. Because Section 28(f)(2) provides that exclusionary remedies may be created, or recreated, “by a two-thirds vote of the membership in each house of the Legislature,” the Court reached its second inquiry: whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter.
Did Subsequent Amendments of Section 632 Revive the Exclusionary Remedy?
The California Supreme Court noted that in 1985, 1990, 1992, and 1994, the Legislature—by at least a two-thirds vote of the membership of both the Assembly and Senate—amended one or more subdivisions of Section 632 and reenacted the section in its entirety. However, the Court determined that each time, the exclusionary remedy of subdivision (d) of Section 632 was reenacted only as an incident to other provisions of Section 632 being amended. The Court therefore found the exclusionary remedy was not revived by the section amendments.
The Court noted that Article IV, section 9 of the California Constitution requires an amended statute to be reenacted, but a reenacted statute may be amended in only some parts and not others. Government Code section 9605 provides that “[i]f a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form. The portions that are not altered are to be considered as having been the law from the time when those provisions were enacted.” (Government Code section 9605(a).) The Court clarified that “[n]either article IV, section 9, nor Government Code section 9605, contemplates reenactment of the unchanged portions of an amended statute in the form of its original enactment if there have been intervening amendments of those portions.” (Lance W., supra, 37 Cal.3d at p. 895, fn. 18.) Instead, “[t]he clear intent of [S]ection 9605 is to codify the rule that the unchanged portions of the newly amended statute be ‘reenacted’ as they existed immediately prior to the amendment.” (Id., at p. 895, fn. 18, italics added.)
Thus, the Supreme Court determined that mere reenactment of Section 632 did not necessarily revive the exclusionary rule of Section 632(d). To find that a subsequent amendment of Section 632 effected the revival of its exclusionary provision, the Court stated that there must be something in the “language, history, or context of the amendment” to support the conclusion that the Legislature intended such a result. (In re Christian S. (1994) 7 Cal.4th 768, 771.) Absent evidence of such an intent, the Court continued, the reenactment of Section 632 simply reinstated the statute as it existed at the time of reenactment—i.e., the statute, as limited by the Right to Truth-in-Evidence provision to include no exclusionary remedy.
HOW THIS AFFECTS YOUR AGENCY
Agencies should be cognizant of the fact that surreptitious recording of telephone conversations is still prohibited by Penal Code Section 632. Those who violate Section 632 are subject to fines, imprisonment, or both. Moreover, those injured by such recordings made in violation of Section 632 may bring a civil action to recover damages. Recordings made in violation of Section 632, however, are, pursuant to the Guzman decision, admissible in criminal proceedings pursuant to Section 28(f)(2) of the California Constitution.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 People v. Guzman, 2019 Cal. LEXIS 8937 (Dec. 5, 2019).
 Penal Code section 630 et seq.
 See 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”.
 The Court noted that the Legislative Analyst also advised the voters that Proposition 8 “could not affect federal restrictions on the use of evidence.” (Ballot Pamp., supra, at p. 32.), and the Court commented that federal law imposed no restriction on the admission of the recording in this case.