People v. Guzman

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEJANDRO GUZMAN,
Defendant and Appellant.
S242244
Second Appellate District, Division Three
B265937
Los Angeles County Superior Court
BA420611
December 5, 2019
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger
and Groban concurred.
PEOPLE v. GUZMAN
S242244
Opinion of the Court by 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
1
All further unspecified statutory references are to the
Penal Code.
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Opinion of the Court by Cantil-Sakauye, C. J.
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.
2
As is evident from its language, the Truth-in-Evidence
provision applies only in criminal cases, and nothing we say here
affects the applicability of section 632(d) to other contexts.
3
The Truth-in-Evidence provision was originally codified at
article I, section 28, subdivision (d). It was subsequently
redesignated as section 28, subdivision (f)(2). (People v. Capers
(2019) 7 Cal.5th 989, 1002, fn. 6.)
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PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
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
4
The record discloses Lorena’s surname because Lorena,
several years older than either E.F. or M.M., was an adult. We
nonetheless continue to identify Lorena by her given name since
this was how other witnesses at trial referred to her. We
likewise identify M.M.’s mother by her given name as it appears
that she and M.M. may share a surname.
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Opinion of the Court by Cantil-Sakauye, C. J.
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
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Opinion of the Court by Cantil-Sakauye, C. J.
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,
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PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
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
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PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
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
5
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.) We note that federal
law imposes no restriction on the admission of the recording in
this case. Esperanza was not acting as a government agent in
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PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
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 to “allow most relevant
evidence to be presented in criminal cases,” the natural
inference is that Proposition 8 would permit “evidence obtained
through unlawful eavesdropping” to be admitted in criminal
cases. (Ballot Pamp., supra, at p. 32.) In essence, voters were
informed that Proposition 8 would abrogate section 632(d) —
and they approved.
In light of the clear language and history of the
constitutional amendment, we conclude that the 1982 passage
taping her conversation with Lorena. As such, the Fourth
Amendment to the federal Constitution poses no bar to the
admission of the evidence she gathered. (See, e.g., United States
v. Jacobsen (1984) 466 U.S. 109, 113; Jones v. Kmart Corp.
(1998) 17 Cal. 4th 329, 332-333.) Furthermore, because
Esperanza consented to the recording, federal law does not
prohibit the recording of the conversation between herself and
Lorena. (See 18 U.S.C. § 2511(2)(d); People v. Otto (1992)
2 Cal. 4th 1088, 1097.) Finally, even if Esperanza violated
federal constitutional or statutory law in recording Lorena, she
did not violate defendant’s rights in doing so and defendant may
not vicariously seek to suppress the recording. (See Rakas v.
Illinois (1978) 439 U.S. 128, 133-134 [“ ‘Fourth Amendment
rights are personal rights which . . . may not be vicariously
asserted’ ”]; 18 U.S.C. § 2510(11); Alderman v. United States
(1969) 394 U.S. 165, 175, fn. 9; People v. Otto, supra, 2 Cal.4th
at p. 1098 [explaining that “a violation of the federal statute
renders the illegally obtained evidence inadmissible in state
court proceedings” but that only an “ ‘aggrieved person,’ ” or “one
‘who was a party to any intercepted wire, oral or electronic
communication or a person against whom the interception was
directed,’ ” may move to suppress the content of any such
communication].)
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Opinion of the Court by Cantil-Sakauye, C. J.
of the Right to Truth-in-Evidence provision repealed section
632(d) to the extent the section applies to criminal proceedings.
Defendant resists this conclusion, but none of the arguments he
makes is persuasive.
Defendant first argues that the Right to Truth-in-
Evidence provision abrogated only those exclusionary rules that
were judicially created and not those that have a statutory basis
like section 632(d). To be sure, some of our cases have found
that the Right to Truth-in-Evidence provision abrogated
judicially-created exclusionary rules. (See Lance W., supra,
37 Cal. 3d 873; People v. May (1988) 44 Cal. 3d 309 (May); accord
People v. Markham, 49 Cal. 3d 63 (Markham).) But this is not
all that the provision does. Indeed, more than once, we have
found that the constitutional amendment superseded statutory
provisions. (Lance W., supra, 37 Cal.3d at p. 893 [finding that
the Right to Truth-in-Evidence provision abrogated § 1538.5,
subd. (a)]; Wheeler, supra, 4 Cal.4th at pp. 287-288 [holding that
art. I, § 28(f)(2) abrogated the statutory rule of Evid. Code
§ 787]; People v. Mickle (1991) 54 Cal. 3d 140, 168 [same]; People
v. Harris (1989) 47 Cal. 3d 1047, 1081 (Harris) [“section 28[(f)(2)]
effected a pro tanto repeal of Evidence Code section 790”]; People
v. Ratekin (1989) 212 Cal. App. 3d 1165, 1169 [holding that the
exclusionary remedy of § 631, subd. (c) has no effect in light of
art. I, § 28(f)(2)].)
These cases find firm footing in the language of the Right
to Truth-in-Evidence provision. As they explained, if the
provision was not intended to affect statutes, there would have
been “no need” for its language “to preserve some, but not all,
existing statutory limitations on the admission of relevant
evidence.” (Wheeler, supra, 4 Cal.4th at p. 291; see Harris,
supra, 47 Cal.3d at p. 1082 [similar].) Likewise, “[t]he grant of
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Opinion of the Court by Cantil-Sakauye, C. J.
authority to the Legislature to enact new exclusionary rules, but
only by a two-thirds vote of each house, would be meaningless.”
(Harris, supra, 47 Cal. 3d at p. 1082; see Wheeler, supra,
4 Cal.4th at p. 291 [similar].) Because “[c]onstitutional
provisions, like statutes, must be read in conformity with their
plain language . . . and in such a manner as to give effect
wherever possible to every word,” we rejected the argument that
the Right to Truth-in-Evidence provision left statutory rules of
evidence undisturbed. (Harris, supra, 47 Cal. 3d at p. 1082,
citation omitted.)
We do so again here. Merely because an exclusionary
remedy is codified does not mean that it is beyond the reach of
the Right to Truth-in-Evidence provision. Nothing in our case
law or the language of the constitutional amendment supports
a contention to the contrary.
Defendant’s second argument likewise falls short of the
mark. He contends there is no need for us to find that article I,
section 28(f)(2) abrogated section 632(d) because both provisions
may be given effect by excluding “the tape recording itself” but
allowing Esperanza to testify to “her independent recollection of
the telephone conversation to impeach Lorena.” We fail to see
how this proposal would give effect to the Right to Truth-in-
Evidence provision. Regardless of whether Esperanza testified,6
the tape recording is relevant evidence. (See Evid. Code, § 210;
accord Ribas v. Clark (1985) 38 Cal. 3d 355, 360-361 (Ribas)
[stating that there is “a substantial distinction . . . between the
secondhand repetition of the contents of a conversation and its
simultaneous dissemination to an unannounced second auditor,
6
Esperanza testified both to her recollection of events and
to authenticate the recording.
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Opinion of the Court by Cantil-Sakauye, C. J.
whether that auditor be a person or mechanical device”]; People
v. Patton (1976) 63 Cal. App. 3d 211, 220 [holding that a “tape
recording is not barred by the best evidence rule merely because
a witness to the conversation is available”]; People v. Kulwin
(1951) 102 Cal. App. 2d 104, 109 [recognizing that “recordings
might be more reliable and satisfactory evidence under
circumstances than testimony from memory”].) As such, our
state Constitution requires that the recording “shall not be
excluded” in defendant’s criminal trial. (Art. I, § 28(f)(2).)
Defendant relies heavily on Frio v. Superior Court (1988)
203 Cal. App. 3d 1480 in trying to persuade us otherwise. The
case sheds no insight into the matter at hand. Frio is a civil
matter, and it is undisputed that civil, “administrative,”
“legislative,” and other noncriminal proceedings are unaffected
by Proposition 8. (§ 632(d).) The analysis of the scope of section
632(d) in Frio thus has little bearing on whether Proposition 8
abrogated the exclusionary provision in the criminal context.
For the first time on appeal, defendant contends that the
Right to Truth-in-Evidence provision cannot abrogate section
632(d) without running afoul of equal protection principles.
According to defendant, “[i]f Proposition 8 abrogated section
632, subdivision (d) in criminal cases, the defendant’s right to
due process and equal protection would be abridged because the
statute is still valid in civil cases.”7 Defendant acknowledges
that we turned back such an argument in Lance W. but
7
Although defendant mentions due process in passing, he
does not develop the argument, choosing instead to focus on his
equal protection claim. We adopt the same focus and hold that
any due process claim has been forfeited. (See Cal. Rules of
Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal. 4th
764, 793.)
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Opinion of the Court by Cantil-Sakauye, C. J.
characterizes our rejection there as mere dicta. It is true that
in Lance W., we initially expressed some skepticism about “the
applicability of the exclusionary rule to civil proceedings.”
(Lance W., supra, 37 Cal.3d at p. 892.) We went on to say,
however, that even if there were civil proceedings in which an
exclusionary remedy applies although the same rule does not
apply to criminal proceedings, “criminal defendants are not
thereby denied equal protection.” (Id. at p. 893.) This is because
criminal defendants and civil litigants are not similarly situated
and it is “constitutionally permissible for the electorate” to treat
them differently. (Ibid. [“the public stake in criminal
proceedings, and in assuring that all evidence relevant to the
guilt of the accused be presented to the trier of fact, justifies the
admission of evidence that would be excluded in other
proceedings”].) We do not think this basis for rejecting the equal
protection claim in Lance W. was dictum, but even if it were,
defendant has given us no reason to reconsider its merit.
We further reject defendant’s argument that “the right to
privacy outranks the right to truth-in-evidence” and hence
section 632(d) must be given effect regardless of Proposition 8.
We find no conflict between the different constitutional rights
such that only one may be effectuated. Although there is a
conflict between the demands of Proposition 8 and section
632(d), this conflict does not lead inexorably to friction between
Proposition 8 and the constitutional right to privacy. Defendant
claims otherwise, but his argument rests on the faulty premise
that the exclusionary rule of section 632(d) is one and the same
as the right to privacy itself. Although “[i]n enacting [the
Invasion of Privacy Act], the Legislature declared in broad terms
its intent ‘to protect the right of privacy of the people of this
state,’ ” this does not mean that substantive right of privacy —
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Opinion of the Court by Cantil-Sakauye, C. J.
that enshrined in article I, section 1 of our state Constitution —
is coextensive with the exclusionary remedy codified in section
632(d). (Ribas, supra, 38 Cal.3d at p. 359.)
We find comparable aspects between the present context
and the right to be secure from unreasonable searches and
seizures. Article I, section 13 of our state Constitution protects
the people’s right “to be secure in their persons, houses, papers,
and effects against unreasonable seizures and searches.” (Cal.
Const., art. I, § 13.) In Lance W., we 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.) As we 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.) The same cannot be said of the exclusionary rule,
which was “eliminate[d]” by Proposition 8. (Lance W., supra,
37 Cal.3d at p. 886.) But because the exclusionary rule is simply
a “remedy for violations of the search and seizure provision[],”
Proposition 8 can eliminate the exclusionary remedy without
affecting the “substantive scope” of article I, section 13. (Lance
W., supra, 37 Cal.3d at pp. 886-887.) In much the same way,
Proposition 8 can 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.)
This is demonstrated by the fact that even after the
passage of Proposition 8, surreptitious recording of telephone
conversations is still prohibited. Presently, such recording is
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punishable by a fine of as much as “two thousand five hundred
dollars ($2,500) per violation,” imprisonment in state prison of
up to a year, or “both that fine and imprisonment.” (§ 632, subd.
(a).) For repeat offenders, the penalties increase to “ten
thousand dollars ($10,000) per violation.” (Ibid.) Furthermore,
individuals who are injured by secret recordings made in
violation of section 632 can bring civil actions against the
perpetrators to recover statutory or actual damages. (§ 637.2,
subd. (a).) Given such protective measures, we cannot say that
people like Lorena have been shorn of their right to private
phone conversations simply because Proposition 8 repealed the
exclusionary remedy of section 632 as it applied to criminal
proceedings.
Indeed, the facts of this case demonstrate why an
exclusionary remedy may, at times, prove to be an ill-suited tool
for protecting an individual’s privacy. On the one hand, a rule
like section 632(d) does little to deter a person who, like
Esperanza, in recording a conversation may not have
anticipated it being used in a criminal trial. The exclusionary
remedy thus may do little to protect the right to privacy of
individuals like Lorena. On the other hand, the remedy would
benefit individuals like defendant, a person who was not
recorded and whose privacy was in no way implicated. Of
course, the fact that defendant was not a party to the
conversation is not dispositive to our holding. But such a
circumstance demonstrates the relatively attenuated
relationship between the exclusionary provision of section
632(d) and the right to private communication in this case. Such
a scenario provides further evidence that the exclusionary
remedy and the right to privacy are not equivalent and that
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section 632(d) should not afforded the status of an “inalienable
right.”
In sum, we find that section 632(d) did not survive the
1982 passage of the Right to Truth-in-Evidence provision. This
does not end our inquiry. Because article I, 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,” we next examine whether the Legislature
revived section 632(d) after the passage of Proposition 8 by
reenacting it with the requisite vote.
B. Whether Subsequent Amendments of Section
632 Revived the Exclusionary Remedy
As the Court of Appeal noted, “the Legislature has
amended section 632 numerous times since the voters passed
Proposition 8 in 1982.” (Guzman, supra, 11 Cal.App.5th at
p. 194.) Indeed, 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.8
Yet, there is less to this fact than meets the eye. Although
section 632 has been reenacted more than once since 1982, each
time, the exclusionary remedy was reenacted only as an incident
8
For a tally of the votes of the 1985, 1990, and 1992
amendments, see Guzman, supra, 11 Cal.App.5th at page 194,
footnote 9. The final votes for the 1994 amendment were 76 ayes
and 1 no in the Assembly and 38 ayes and 0 noes in the Senate.
(Sen. Bill No. 2053, 3d reading Aug. 24, 1994, 2 Sen. Final Hist.
(1993-1994 Reg. Sess.), p. 1406.)
Defendant also references a 2016 amendment to section
632. As we discuss below, however, that bill did not garner the
requisite two-thirds vote of each house’s membership.
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to other provisions of section 632 being amended. (See Cal.
Const., art. IV, § 9 [“A section of a statute may not be amended
unless the section is re-enacted as amended”].) More than
technical reenactment is needed to overcome Proposition 8.
Article IV, section 9 of our 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 addresses such a situation and 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.” (Gov. Code, § 9605, subd. (a).) As we
explained in Lance W., “[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.)
Rather, “[t]he clear intent of Government Code section 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.)
Accordingly, mere reenactment of section 632 does not
necessarily revive the exclusionary rule of section 632(d). To
find that a subsequent amendment of section 632 had the effect
of reviving its exclusionary provision, 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 (Christian
S.) [articulating this rule in a different context]; see also Lance
W., supra, 37 Cal.3d at pp. 893-896; People v. Ewoldt (1994)
16
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
7 Cal. 4th 380, 391-392 (Ewoldt); People v. Sullivan (1991)
234 Cal. App. 3d 56, 64.) Without evidence of such an intent, the
reenactment of section 632 simply reinstates 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. (See Gov. Code, § 9605, subd. (a); Lance
W., supra, 37 Cal.3d at p. 895, fn. 18.)
Two cases illustrate when a statutory provision may be
revived by a subsequent reenactment. In Ewoldt, we considered
an amendment to section 1101, subdivision (b). We found that
the amendment revived subdivision (a) of the same section.
(Ewoldt, supra, 7 Cal.4th at p. 392.) This is because changes the
Legislature made to subdivision (b) “would have no effect”
unless the Legislature revived subdivision (a) as well. (Ibid.) By
contrast, in Lance W., we held that an amendment to section
1538.5 did not revive subdivision (a) of that section, which had
been abrogated previously by the Right to Truth-in-Evidence
provision. (Lance W., supra, 37 Cal.3d at pp. 893-894.) We
reasoned that the amendment to section 1538.5 was simply a
“ ‘clean-up’ ” amendment, and the Legislature cannot be
presumed to have “understood or intended that such far-
reaching consequences — virtually a legislative repeal of the
‘Truth-in-Evidence’ section of Proposition 8 — would follow an
amendment so casually proposed and adopted without
opposition.” (Id. at p. 894.)
With these principles in mind, we examine the 1985, 1990,
1992, 1994 and 2016 amendments to determine whether, in
light of the Constitution’s Right to Truth-in-Evidence provision,
the Legislature intended to revive section 632(d) in any of these
instances.
17
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
1. 1985 Amendment
In 1985, the Legislature enacted the Cellular Radio
Telephone Privacy Act, and as part of this act, amended section
632, subdivision (a). (Stats. 1985, ch. 909, §§ 1, 2.5, pp. 2900,
2901). The purpose of the act — as indicated by its name, a
declaration of legislative intent accompanying the enactment,
and various legislative history materials — was to protect the
privacy of communications conducted via a new means of
communication: cellular radio telephones. (See Stats. 1985,
ch. 909, § 2, pp. 2900-2901; Legis. Counsel’s Dig., Sen. Bill
No. 1431 (1985-1986 Reg. Sess.) 4 Stats. 1985, Summary Dig.,
p. 295; Assem., 3d reading analysis of Sen. Bill No. 1431 (1985-
1986 Reg. Sess.), as amended Aug. 27, 1985, p. 1; Com. on
Energy and Pub. Utilities, letter to Governor George
Deukmejian, Sept. 10, 1985 (letter to Governor Deukmejian).)
Specifically, the act worked to “prohibit and make the same
criminal penalties applicable” to intrusions on cellular radio
telephone conversations as existed for landline telephone
communications. (Legis. Counsel’s Dig., Sen. Bill No. 1431
(1985-1986 Reg. Sess.) 4 Stats. 1985, Summary Dig., p. 295.)
The Cellular Radio Telephone Privacy Act of 1985
accomplished its purpose primarily through the enactment of
section 632.5. Section 632.5 imposes the same fine and term of
imprisonment on “person[s] who, maliciously and without the
consent of all parties to the communication, intercept[],
receive[], or assist[] in intercepting or receiving a
communication transmitted between cellular radio telephones
or between any cellular radio telephone and a landline
telephone” as section 632 does on violators of its prohibitions.
(§ 632.5, subd. (a).) In essence then, section 632.5 extends the
protection available under section 632 (and other provisions) to
18
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
a new form of communication, cellular radio telephone
conversations. Notably, section 632.5 contains no exclusionary
provision — just as section 632 effectively did not after the
passage of Proposition 8.
The Cellular Radio Telephone Privacy Act also worked a
substantive change to subdivision (a) of section 632. Subdivision
(a) of section 632 provides, among other things, enhanced
penalties for repeat violations of certain provisions of the
Invasion of Privacy Act. Before 1985, section 632, subdivision
(a) read, “[i]f [a] person has previously been convicted of a
violation of this section or Section 631 or 636,” the person would
be punished as a repeat offender. (Stats. 1976, ch. 1139, § 258,
p. 5134.) With the enactment of section 632.5, the Legislature
amended section 632, subdivision (a) to include the newly
created section, stipulating that persons “previously convicted
of a violation this section or Section 631, 632.5, or 636” would be
subjected to the heightened penalties. (Stats. 1985, ch. 909,
§ 2.5, p. 2901.) The Legislature made no change to section
632(d). Nonetheless, to effectuate the change to section 632,
subdivision (a), the Legislature reenacted section 632 in its
entirety. (See Cal. Const., art. IV, § 9; Ewoldt, supra, 7 Cal.4th
at p. 391.)
Nothing in the language, legislative history, or
surrounding context of the 1985 amendment indicates that the
Legislature intended to overcome the Right to Truth-in-
Evidence provision and revive section 632(d). Indeed, the
Legislature did not once mention the exclusionary provision.
This is understandable. Prohibiting the admission of landline
telephone conversations recorded in violation of section 632
would have done little to protect cellular radio telephone
communications. As such, the exclusionary remedy of section
19
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
632(d) could play no role in advancing the Legislature’s stated
purpose of “provid[ing] a legal recourse to those persons whose
private cellular radio telephone communications have been
maliciously invaded.” (Stats. 1985, ch. 909, § 2, pp. 2900-2901.)
In fact, to the extent that the Legislature intended to “grant[]
the same protection against eavesdropping to those who speak
over cellular radio (car) telephones, as is now guaranteed to all
other telephone conversations,” a revival of section 632(d) would
contravene that intent. (Letter to Governor George
Deukmejian, supra, italics added.) Because section 632.5
includes no exclusionary provision, cellular radio telephone
conversations would be afforded less protection in criminal
matters than landline telephone conversation were we to infer
that the exclusionary remedy of section 632(d) — after a lapse
of years — had become operational again. We will not do so,
given the lack of any indicia suggesting that this is what the
Legislature intended.
In resisting this conclusion, defendant makes two
arguments — neither of which persuades. He first contends that
we do not require that “in order for an exclusionary provision to
survive Proposition 8, there must be a substantive amendment
to the exclusionary provision itself.” The contention is true
enough, but it does not help defendant. In Ewoldt, supra,
7 Cal.4th at page 391, for instance, we concluded that the
Legislature revived subdivision (a) of section 1101 of the
Evidence Code — whose language was unaltered — when it
amended subdivision (b) of the same section and reenacted the
section in its entirety. Because subdivision (b) of section 1101
clarifies the scope of subdivision (a), we reasoned that the
amendment to subdivision (b) “would become a complete nullity”
if subdivision (a) were not revived. (Ewoldt, supra, 7 Cal.4th at
20
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
p. 392.) Here, in contrast, nothing that the Legislature did
would be nullified, or even affected, if section 632(d) remains
inoperative in the face of the Right to Truth-in-Evidence
provision. In other words, it is not the lack of any change to
section 632(d) that leads us to the conclusion that the
Legislature did not revive it. Rather, our conclusion is
compelled by what the Legislature did do and by what it said it
was doing — neither of which evidences any intent to revive
section 632(d).
Defendant next argues that because the Legislature made
a substantive change to section 632, subdivision (a), it must
have revived subdivision (d) in reenacting the section as a whole.
We can make little sense of this argument. We do not see how
a change to one part of a statutory provision — whether
technical or substantive — inexorably leads to the conclusion
that another part of the provision has been revived.
In short, we conclude that section 632(d) remains
abrogated by Proposition 8, despite having been reenacted in
1985. We reach the same conclusion with respect to the
subsequent reenactments.
2. 1990 and 1992 Amendments
The next two amendments to section 632 are similar to the
1985 amendment. In 1990, the Legislature became concerned
about another new technology — cordless telephones — much as
it had with regard to cellular radio telephones. (Stats. 1990,
ch. 96, §§ 2, 4, pp. 3268, 3269-3270.) To provide “legal recourse
to those persons whose private cordless telephone
communications have been maliciously invaded,” the
Legislature enacted section 632.6, which mirrors section 632.5
as enacted by the Cellular Radio Telephone Privacy Act. (Stats.
21
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
1990, ch. 696, §§ 2, 4, pp. 3268, 3269-3270.) Like section 632.5,
section 632.6 contains no exclusionary provision. The
Legislature also amended section 632, subdivision (a) to include
section 632.6 in the list of provisions whose violations subject a
person to heightened punishment as a repeat offender. The
Legislature then reenacted section 632 in its entirety, with
section 632(d) unchanged and not otherwise mentioned.
Although section 632(d) received no mention in the either
statutory text or legislative history of the 1990 amendment,
Proposition 8 was briefly mentioned in the legislative materials.
In a section titled “No apparent impact on rules of evidence,” a
Senate committee analysis states, “[section 631] subdivision (c)
provides that no evidence obtained in violation of the section is
admissible in any judicial, administrative, legislative or other
proceeding. [¶] Given the broad language of Section 631, it
appears that interception of cordless telephone communications
may already be prohibited, and any evidence derived therefrom
is presently inadmissible. Thus, the fact that this bill would
provide greater privacy protections to a cordless telephone user
than is provided under federal law does not appear to raise
Proposition 8 questions.” (Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 3457 (1990-1991 Reg. Sess.) June 19, 1990, p. 4
(Judiciary Committee Analysis).)
We acknowledge that the significance of this legislative
analysis is far from clear. It is puzzling that the Senate
Committee would recognize that a bill “provide[s] greater
privacy protections . . . than is provided under federal law”
(Judiciary Committee Analysis, supra, at p. 4) but assert,
without any explanation other than a reference to section 631
(which is similarly subject to the stricture of Proposition 8), that
the proposition is not implicated. (See, e.g., Markham, supra,
22
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
49 Cal.3d at p. 71 [“the intent of the electorate in passing
Proposition 8 was to curtail the exclusion of relevant evidence
based upon independent state grounds, except as required by the
Constitution of the United States”]; May, supra, 44 Cal.3d at
p. 318.) On balance, however, the citation to Proposition 8
within a part of the analysis titled “[n]o apparent impact on
rules of evidence” is some indication that the Legislature wanted
to maintain the effect of Proposition 8. (Judiciary Committee
Analysis, supra, at p. 4.) The opposite conclusion — that the
Legislature intended a sea change in the law, “virtually a
legislative repeal of the ‘Truth-in-Evidence’ section of
Proposition 8” while mentioning the proposition only once in a
legislative analysis — appears far less tenable. (Lance W.,
supra, 37 Cal.3d at p. 894.)
As for the 1992 amendment, the Legislature during that
year enacted section 632.7 to reach conduct that was not
criminalized under section 632.6.9 (Stats. 1992, ch. 298, § 6,
p. 1216.) Again, like sections 632.5 and 632.6, section 623.7 has
9
(Compare § 632.6, subd. (a) [“Every person who,
maliciously and without the consent of all parties to the
communication, intercepts, receives, or assists in intercepting or
receiving a communication transmitted between cordless
telephones as defined in subdivision (c), between any cordless
telephone and a landline telephone, or between a cordless
telephone and a cellular telephone shall be punished . . . .”] with
§ 632.7, subd. (a) [“Every person who, without the consent of all
parties to a communication, intercepts or receives and
intentionally records, or assists in the interception or reception
and intentional recordation of, a communication transmitted
between two cellular radio telephones, a cellular radio telephone
and a landline telephone, two cordless telephones, a cordless
telephone and a landline telephone, or a cordless telephone and
a cellular radio telephone, shall be punished . . . .”].)
23
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
no exclusionary provision. And again, as it had done previously,
the Legislature amended section 632, subdivision (a) to include
section 632.7 in its list of offenses qualifying a person for
enhanced penalties and reenacted the section. (Stats. 1992,
ch. 298, § 3, p. 1214.)
For the same reasons discussed above, we find that
neither the 1990 nor 1992 reenactment of section 632 revived
the exclusionary remedy of section 632(d). Nothing in the
amendments suggests an intent by the Legislature to overrule
the effect of Proposition 8 and render evidence obtained from
surreptitious recordings once again inadmissible in criminal
proceedings.
3. 1994 and 2016 Amendments
The 1994 and 2016 amendments differ from the previous
amendments in that these amendments changed the text of
section 632(d) itself. As defendant concedes, however, “the
wording change does not add anything to subdivision (d).” The
change does not indicate an intent to revive the substance of
section 632(d), and neither does anything else in the
amendments.
In 1994, the Legislature revised the Uniform Limited
Partnership Act. (Legis. Counsel’s Dig., Sen. Bill No. 2053
(1993-1994 Reg. Sess.) 5 Stats. 1994, Summary Dig., p. 410.) As
part of this change, the Legislature amended subdivision (b) of
section 632, modifying the definition of “person” subject to
section 632’s prohibitions to include a “limited liability
company.” (Stats. 1994, ch. 1010, § 194, p. 6130.) Nothing about
this change suggests an intent to revive section 632(d).
In addition to amending subdivision (b) of section 632, the
Legislature also deleted the heading to each subpart of section
24
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
632. (Sen. Bill No. 2053 (1993-1994 Reg. Sess.), Legis. Serv.,
ch. 1010, p. 97.) Thus, subdivision (d) “no longer had the
heading ‘evidence.’ ” The change was entirely stylistic, and we
cannot read into it the intent to “continue [the] operation [of the
exclusionary remedy] as it had been construed and applied prior
to the adoption of Proposition 8.” (Lance W., supra, 37 Cal.3d at
p. 895.)
This is not to say that the Legislature may never revive a
statutory provision while making only stylistic changes to the
text of the provision. Indeed, as discussed, the Legislature can
reenact a provision while making no change to its language at
all. (See Ewoldt, supra, 7 Cal.4th at p. 391.) But just as a
change to the text of a provision is not necessary to make its
substance operative, neither is it sufficient to effect such a
result. Put differently, we do not simply look to see whether the
language of a particular provision was altered, however
minutely. Instead, we examine the language, legislative
history, and context surrounding a legislative reenactment to
discern whether the Legislature intended to revive the
substance of a lapsed provision. Here, weighing against the
minor textual change is the fact that “there [wa]s no discussion,
not a single mention” of reviving the exclusionary remedy.
(Christian S., supra, 7 Cal.4th at p. 782.) In addition, the
Legislature was plainly concerned with something else (the
Uniform Limited Partnership Act) when it amended the heading
to section 632(d). To find that this change had the effect of
reviving the substance of the exclusionary provision would
amount to embracing legislation by inadvertence. We will not
do so. (Christian S., supra, 7 Cal. 4th at p. 776.)
The 2016 amendment likewise does not help defendant.
The amendment garnered 52 ayes and 26 noes in the Assembly
25
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
and 26 ayes and 13 noes in the Senate. (Assem. Bill No. 1671
(2015-2016 Reg. Sess.), Bill Hist.). “As the Assembly has 80
members and the Senate has 40 members (Cal. Const., art. IV,
§ 2, subd. (a)(1), (2)),” the affirmative votes for the 2016
amendment fall (just) short of two-thirds of each house’s
membership. (Guzman, supra, 11 Cal.App.5th at p. 194, fn. 9.)
Thus, the 2016 amendment could not have overridden the
limitation on the exclusion of relevant evidence imposed by the
Right to Truth-in-Evidence provision. (See art. I, § 28(f)(2)
[providing that a statute must “hereafter [be] enacted by a two-
thirds vote of the membership in each house of the Legislature”
to qualify as an exception to the mandate of Prop. 8].)
Furthermore, even were we to consider the content of the
2016 amendment, we would find that it falls short. In 2016, the
Legislature strengthened the penalties for violating the
Invasion of Privacy Act. In particular, the Legislature amended
section 632, subdivision (a) to provide that the monetary fines
specified there would be imposed “per violation” of the provision.
(Stats. 2016, ch. 855, § 1; Legis. Counsel’s Dig., Assem. Bill
No. 1671 (2015-2016 Reg. Sess.) (Assembly Bill 1671 Digest).)
In addition, the Legislature changed the phrasing of section
632(d), so that it reads “evidence obtained . . . in violation of this
section is not admissible” instead of “no evidence obtained . . . in
violation of this section shall be admissible.” (Stats. 2016,
ch. 855, § 1.) The Legislature expressly declared that the
alteration was a “technical, nonsubstantive change[].”
(Assembly Bill 1671 Digest, supra, at p. 2.) We glean no intent
to revive the substance of section 632(d) from such a “technical,
nonsubstantive” amendment. (Assembly Bill 1671 Digest,
supra, at p. 2.)
26
PEOPLE v. GUZMAN
Opinion of the Court by Cantil-Sakauye, C. J.
Having found that Proposition 8 abrogated section 632(d)
and the Legislature has not acted since to overcome the effect of
the proposition, we conclude that the exclusionary provision of
section 632(d) posed no bar to the admission of the recording at
defendant’s criminal trial.
III. DISPOSITION
For the reasons discussed above, we affirm the judgment
of the Court of Appeal.
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
27
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Guzman
_______________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 11 Cal.App.5th 184
Rehearing Granted
_______________________________________________________________________________
Opinion No. S242244
Date Filed: December 5, 2019
_______________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Shelly Torrealba
_______________________________________________________________________________
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Verna Wefald
65 North Raymond Avenue, #320
Pasadena, California 91103
(626) 577-2658
J. Michael Lehmann
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6205