11 Cal. App. 5th 184
Cal. Ct. App.2017Background
- Defendant was convicted of two counts of lewd and lascivious acts on two girls (M.M. and E.F.), sentenced to five years total.
- L.M., the defendant’s niece and a potential defense witness, testified at trial that the defendant never sexually assaulted her and denied warning M.M. about him.
- The prosecutor disclosed recorded telephone calls between L.M. and M.M.’s mother in which L.M. made statements suggesting discomfort with the defendant and said she believed M.M.; portions were inconsistent with L.M.’s in-court testimony.
- Defense objected to admission of the recordings under Penal Code § 632(d), which bars admission of evidence from unlawfully recorded confidential communications; the trial court allowed redacted portions for impeachment.
- The trial court ruled Proposition 8’s Right to Truth-in-Evidence (Cal. Const., art. I, § 28(f)(2)) abrogated § 632(d) in criminal proceedings unless exclusion is required by the U.S. Constitution; the recordings were admitted and conviction affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recordings of a confidential call are admissible despite Penal Code § 632(d) | Recordings were relevant impeachment evidence and admissible because Proposition 8 abrogated § 632(d) as an exclusionary rule in criminal cases | § 632(d) bars admission of evidence from secretly recorded confidential communications absent consent of all parties; admission violated statutory exclusion | Courts may admit relevant evidence despite § 632(d) under Proposition 8 unless U.S. Constitution requires exclusion; recordings admissible for impeachment here |
| Whether admission violated federal constitutional (Fourth Amendment) limits | Recordings were private-party acts, not government searches, so no Fourth Amendment bar | Admission implicates privacy interests and should be suppressed | No Fourth Amendment bar because recordings were made by a private party, not state actors |
| Whether subsequent legislative amendments (post‑Prop 8) revived § 632(d)’s exclusion | Legislative amendments did not materially alter § 632(d); Government Code § 9605 and Lance W. show earlier abrogation remains | Later statutes (e.g., addressing cellular privacy) should be treated as reenactment by two‑thirds votes and revive exclusion | Amendments were non‑substantive regarding § 632(d); Proposition 8’s limitation remains in effect |
| Whether recordings were more prejudicial than probative (Evid. Code § 352) | Recordings were narrowly redacted and directly impeached key testimony — probative weight outweighed prejudice | Admission would unduly prejudice the jury | Trial court did not abuse discretion in balancing; admission limited to redacted impeachment use |
Key Cases Cited
- Lance W. v. Superior Court, 37 Cal.3d 873 (1985) (Proposition 8 permits exclusion of relevant evidence only when U.S. Constitution requires it; guides reenactment analysis)
- People v. Ratekin, 212 Cal.App.3d 1165 (1989) (applied Proposition 8 to bar state statutory exclusion for wiretap evidence when federal constitution permits admission)
- Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989) (Fourth Amendment protects against state action, not private-party recordings)
- Flanagan v. Flanagan, 27 Cal.4th 766 (2002) (discusses purpose and scope of California Invasion of Privacy Act § 630 et seq.)
- People v. Crow, 28 Cal.App.4th 440 (1994) (discusses impeachment exceptions for otherwise inadmissible statements)
- People v. Lazlo, 206 Cal.App.4th 1063 (2012) (explains Proposition 8’s Right-to-Truth-in-Evidence textual effect)
- People v. Grimes, 1 Cal.5th 698 (2016) (standard of review where statutory application controls evidentiary rulings)