Filed 4/27/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B265937
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA420611)
v.
ALEJANDRO O. GUZMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Shelly Torrealba, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Defendant challenges his conviction on two counts of lewd
and lascivious acts upon a child under 14 years old. As his sole
contention on appeal, Defendant maintains the trial court
prejudicially erred when it admitted a recorded telephone
conversation between a defense witness and the mother of one of
the victims. Defendant argues the ruling contravened the
exclusionary rule stated in Penal Code1 section 632, subdivision
(d), which bars the admission of evidence obtained as a result of
recording a confidential communication without the consent of all
parties. We conclude the “Right to Truth–in–Evidence” provision
of the California Constitution (Cal. Const., art. I, § 28, subd. (f),
par. (2)), as enacted by the passage of Proposition 8 in 1982,
abrogated that exclusionary rule to the extent it is invoked to
suppress relevant evidence in a criminal proceeding. We
therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Charges
The Los Angeles County District Attorney charged
Defendant with two counts of lewd acts upon a child under the
age of 14; count 1 pertaining to Defendant’s niece, M.M., and
count 2 pertaining to Defendant’s neighbor, E.F.
2. Count Two; Lewd Acts Upon E.F.
E.F. testified that Defendant molested her in May 2011,
when she was 10 years old. She had gone to Defendant’s home to
play with his daughter. At some point, Defendant sat down next
to E.F. and pointed out that she had a hole in her leggings. He
continued to stare at the hole, which made E.F. uncomfortable.
Defendant touched E.F.’s skin through the hole, then told her she
had a lot of veins that popped out of her chest. E.F. was wearing
1 Statutory references are to the Penal Code, unless
otherwise indicated.
2
a spaghetti strap top and could feel Defendant staring at her
chest. Defendant pointed to her chest and told E.F. she should
examine the veins in the restroom. When E.F. went to the
restroom, Defendant followed her and stuck his foot in the door
before she could close it. He pressed her against the sink,
touched her on the chest slowly with his right index finger, then
took her hand and rubbed her chest with it. When a downstairs
neighbor came up the stairs, E.F. left. She was uncomfortable
and scared throughout the incident.
E.F. felt unsafe, but she was too scared to tell her mother.
Immediately after the incident, she sent a text message to a
neighbor, L.M., who was four or five years older. L.M. is
Defendant’s niece, and her family lived downstairs from him.
E.F.’s text message said Defendant had rubbed her chest and
thighs; it did not mention Defendant following her to the
bathroom. When they spoke later in person, L.M. told E.F. not to
go around Defendant if he made her uncomfortable.
The next day a teacher observed E.F. crying at school. E.F.
told the teacher that Defendant had touched her chest and
rubbed her leg. The teacher contacted social services and E.F.
gave a statement to the police later that day.
3. Count One; Lewd Acts Upon M.M.
M.M. testified that Defendant molested her in 2012, when
she was 12 years old. M.M. regularly visited Defendant’s family
to have sleepovers with her cousin (Defendant’s daughter).
During one overnight visit, M.M. was watching television alone
in Defendant’s living room when Defendant sat next to her, put
his hand inside her pajamas, and touched her vagina. Defendant
also pulled his pants down, grabbed M.M.’s hand, and made her
touch his penis.
3
In 2013, M.M. told her mother what had happened. The
disclosure prompted M.M.’s mother to contact L.M., because
M.M. said L.M. had warned M.M. about Defendant. During their
conversation, L.M. told M.M.’s mother about the incident
involving E.F. M.M.’s mother contacted the police, and M.M. told
the investigating officer about the 2012 molestation.2
4. Admission of the Recorded Telephone Conversation
Between L.M. and M.M.’s Mother
On the first day of trial, the court addressed evidentiary
issues, including L.M.’s proposed testimony that Defendant never
sexually assaulted her. The prosecutor objected that the
testimony was irrelevant, because Defendant was not charged
with criminal conduct related to L.M. Defense counsel argued
the testimony was relevant to M.M.’s credibility, because M.M.
told police that Defendant molested L.M. The court agreed the
testimony was relevant to M.M.’s credibility.
After the lunch recess, the prosecutor informed the court
and defense counsel that M.M.’s mother had recordings of two
telephone conversations she had with L.M. following M.M.’s
disclosure of the abuse allegations. The prosecutor reported that,
in the recordings, L.M. said Defendant touched her a lot,
2 At trial, Defendant testified on his own behalf and denied
the accounts given by E.F. and M.M. He testified that he had
pointed out some spots or splotches under E.F.’s neck and on her
hand, and said he “possibly touched her hand” with his finger.
He admitted pointing to her chest, but denied touching her there.
He also admitted pointing to a hole in her shorts. He denied
following her to the bathroom. He likewise denied ever touching
M.M. and claimed the last time she spent the night at his home
was in July 2012, not December 2012 when the alleged incident
occurred.
4
sometimes in ways that made her uncomfortable, but Defendant
did not touch her in the vagina or breast areas. L.M. also said in
the recordings that she believed M.M.’s allegations against
Defendant. The prosecutor did not intend to use the recordings
in her case-in-chief, but did want to use them if L.M. testified in a
way inconsistent with the conversations.
Defense counsel objected to the recordings, citing the
exclusionary rule established by section 632, subdivision (d).
After a preliminary review of relevant authorities, the court
indicated the recordings appeared to be admissible for
impeachment purposes. The court stated a final decision on
admissibility would not be made until after L.M. testified.
L.M. testified that she had a good relationship with
Defendant and lived downstairs from him growing up. Defendant
is her uncle and M.M. is her younger cousin. L.M. also said she
knew E.F., who was a neighbor and about the same age as M.M.
L.M. confirmed she received a text message from E.F., in
which E.F. indicated Defendant rubbed her chest and thighs.
L.M. later spoke to E.F. and told her not to go around Defendant
if he made her uncomfortable. L.M. did not tell anyone else about
E.F.’s disclosure because she did not think it was her business.
L.M. testified she was surprised to learn M.M. had also
made allegations against Defendant. She and M.M. were close
and M.M. had never said anything about Defendant molesting
her before. Although L.M.’s initial reaction was to believe M.M.,
she also said she was confused as she had never observed M.M.
acting uneasy around Defendant.
L.M. later learned that M.M. told police that Defendant
had also molested L.M. L.M. testified this had not occurred and
that she was angry the accusation had been made.
5
Following L.M.’s testimony, the court revisited the
admissibility of the recorded telephone conversations. After
hearing counsels’ arguments, the court ruled that “[t]o deny
admission of this evidence would be a direct violation of the Right
to Truth[-In-]Evidence provision of the California Constitution,”
which had abrogated the exclusionary rule set forth in section
632, subdivision (d) when voters passed Proposition 8 in 1982.3
The court also concluded the recording was not made by or at the
direction of law enforcement, the recording did not violate the
Fourth Amendment, and the evidence was not more prejudicial
than probative under Evidence Code section 352. After
conducting an Evidence Code section 402 hearing, the court
allowed the admission of redacted portions of the recordings for
impeachment purposes, insofar as they contradicted critical parts
of L.M.’s testimony.
3 The trial court also concluded the recordings were
admissible under the exception provided by section 633.5, and as
impeachment evidence under People v. Crow. (See § 633.5
[“Nothing in Section . . . 632 . . . prohibits one party to a
confidential communication from recording the communication
for the purpose of obtaining evidence reasonably believed to
relate to the commission by another party to the communication
of . . . any felony involving violence against the person”]; People v.
Crow (1994) 28 Cal.App.4th 440, 452 [holding otherwise
inadmissible statements made during plea negotiations were
admissible for impeachment purposes].) Because the court’s
ruling was correct under the Right to Truth-in-Evidence
provision of the California Constitution (Cal. Const., art. I, § 28),
we need not address whether the ruling also was correct under
these authorities.
6
In the portion of the first recording played for the jury,
L.M. told her aunt that she “[does not] feel good around
[Defendant]” when “wearing shorts,” while adding she had not
“done anything” because “the truth is he hasn’t touched me
anywhere else like my areas you know? Like my vagina or my
breasts like directly.”4 L.M. added, “I know he’s capable of doing
that,” and “[t]hat’s why I believe what [M.M.]’s saying.” In the
second recording, L.M. affirmed that she had told M.M. to “be
careful” around Defendant and that he “fondled” her as well.
L.M. added, “you can imagine like sometimes I think about that,
and I feel like crying and . . . I mean it didn’t happen to me like
too excessively, but if he touched M.M. then she’ll certainly never
forget that.”
4 L.M. and M.M.’s mother conversed in Spanish. The
redacted portions of the recordings were played for the jury, and
the court provided the jury a transcript that included a Spanish-
to-English translation. Italicized text in the transcript indicates
English words interspersed within the conversation.
7
The court allowed Defendant to recall L.M. to testify
regarding the recording. L.M. confirmed she spoke with M.M.’s
mother on the telephone, but was unaware the call was being
recorded. She testified that she had listened to the recordings
and noted they did not include the entire conversation.
Concerning the contents of the recordings, L.M. said Defendant
had been overly affectionate with her at times, but it did not
make her uncomfortable. She explained that Defendant was a
“very affectionate” and “very loving and caring person,” who
sometimes “comes at you too close,” but “never had [she] been
touched by him in [her] vagina or [her] breast.” L.M. testified she
was “being sympathetic” when she said on the recording that she
believed M.M.
5. Verdict and Sentence
The jury found Defendant guilty on both counts. The court
sentenced Defendant to a total term of five years in prison,
consisting of three years on count one and two years on count
two.
DISCUSSION
As his sole contention on appeal, Defendant argues the trial
court prejudicially erred when it admitted the recorded telephone
conversations between L.M. and M.M.’s mother into evidence.
Specifically, Defendant contends the recordings were
inadmissible under section 632, subdivision (d), which bars the
admission of evidence obtained by recording a confidential
communication without the other party’s consent. The trial court
ruled the subject exclusionary rule was abrogated by the state
Constitution’s Right to Truth-in-Evidence provision (Cal. Const.,
art. I, § 28, subd. (f), par. (2)) when California’s voters passed
8
Proposition 8.5 We agree Proposition 8 abrogated section 632,
subdivision (d) in criminal proceedings where the exclusionary
rule is invoked to suppress relevant evidence.
A trial court’s ruling on the admissibility of evidence is
generally reviewed for abuse of discretion. (See People v.
Williams (1997) 16 Cal.4th 153, 196-197; see also People v.
Carmony (2004) 33 Cal.4th 367, 377 [“a trial court does not abuse
its discretion unless its decision is so irrational or arbitrary that
no reasonable person could agree with it”].) However, where the
court’s evidentiary ruling turns on the proper application of a
statute, the question is one of law that we review de novo. (See
People v. Grimes (2016) 1 Cal.5th 698, 712.)
“The California Invasion of Privacy Act (§ 630 et seq.) was
enacted in 1967, replacing prior laws that permitted the
recording of telephone conversations with the consent of one
party to the conversation. [Citation.] The purpose of the act was
to protect the right of privacy by, among other things, requiring
that all parties consent to a recording of their conversation.”
(Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768–769.)
Consistent with this purpose, section 632 “prohibits
5 Defendant’s opening brief does not address Proposition 8;
rather, it focuses exclusively upon the trial court’s other grounds
for admitting the recordings—namely, section 633.5 and the
exception for impeachment evidence articulated by the court in
People v. Crow, supra, 28 Cal.App.4th at p. 452. (See fn. 3, ante.)
In his reply brief, Defendant argues the cases cited in the
respondent brief are inapposite because none specifically applied
Proposition 8 to section 632, subdivision (d). For the reasons
discussed above, we conclude Proposition 8 does abrogate section
632, subdivision (d), based on the plain language of the California
Constitution and controlling Supreme Court authority.
9
eavesdropping or intentionally recording a confidential
communication without the consent of all parties to the
communication.” (Coulter v. Bank of America (1994)
28 Cal.App.4th 923, 928; § 632, subd. (a).) Section 632,
subdivision (d) creates the following exclusionary rule for
evidence obtained in violation of the statute: “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, subd. (d).)6
6 In 2016, after the trial court made the challenged
evidentiary ruling, the Legislature amended section 632. (Stats.
2016, ch. 855, § 1 (Assem. Bill No. 1671 (2015-2016 Reg. Sess.)),
eff. Jan. 1, 2017.) The amendment made “technical,
nonsubstantive changes” to portions of the existing law, including
section 632, subdivision (d). (Stats. 2016, c. 855§ 1 (Assem. Bill
No. 1671 (2015-2016 Reg. Sess.)); cf. § 632, subd. (d) [“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,” italics added]; former § 632, subd. (d) [“Except as
proof in an action or prosecution for violation of this section, no
evidence obtained as a result of eavesdropping upon or recording
a confidential communication in violation of this section shall be
admissible in any judicial, administrative, legislative, or other
proceeding,” italics added].) Because the changes were technical
and nonsubstantive, we quote from the statute as currently
written.
10
“[I]n 1982, the California voters passed Proposition 8.
Proposition 8 enacted article I, section 28 of the California
Constitution, which provides in relevant part: ‘Right to Truth–
in–Evidence. 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 . . . .’ ” (People v. Lazlo (2012)
206 Cal.App.4th 1063, 1069, quoting Cal. Const., art. I, § 28,
subd. (f), par. (2).) Our Supreme Court has observed that
Proposition 8 “was intended to permit [the] exclusion of relevant,
but unlawfully obtained evidence, only if exclusion is required by
the United States Constitution.” (In re Lance W. (1985) 37 Cal.3d
873, 890 (Lance W.); People v. Lazlo, at p. 1069.).) Proposition 8
is applicable to statutory rules of exclusion and evidentiary
restrictions. (See, e.g., Lance W., at p. 893; People v. Ratekin
(1989) 212 Cal.App.3d 1165, 1169 (Ratekin).)
While it appears no published opinion has applied
Proposition 8 to evidence obtained in violation of section 632, the
appellate court in Ratekin examined this question with respect to
section 631—a provision of the Invasion of Privacy Act that
closely resembles section 632. Section 631 “prohibits
‘wiretapping,’ i.e., intercepting communications by an
11
unauthorized connection to the transmission line.”7 (Ratekin,
supra, 212 Cal.App.3d at p. 1168.) In language substantively
similar to the exclusionary rule at issue in this case, section 631,
subdivision (c) provides: “Except as proof in an action or
prosecution for violation of this section, no evidence obtained in
violation of this section shall be admissible in any judicial,
administrative, legislative, or other proceeding.” (Cf. § 632,
subd. (d); see also fn. 6, ante.)
In Ratekin, federal agents investigating a narcotics
operation obtained a wiretap order from the United States
District Court pursuant to section 2518, title 18, United States
Code—the federal wiretap statute. (Ratekin, supra,
212 Cal.App.3d at p. 1167.) The trial court admitted recordings
obtained from the wiretap over the defendant’s objection, and the
defendant appealed his subsequent conviction on the ground that
the evidentiary ruling violated California’s Invasion of Privacy
7 As noted, section 632 prohibits “eavesdropping,” which the
Ratekin court described as “the interception of communications
by the use of equipment which is not connected to any
transmission line.” (Ratekin, supra, 212 Cal.App.3d at p. 1168.)
The practice is different from wiretapping, which is prohibited by
section 631, insofar as it does not require an unauthorized
connection to a transmission line, whereas wiretapping does.
(Ibid.) Further, because wiretapping requires an unauthorized
connection, the prohibition established by section 631 is not
limited to “confidential communications” as is the case for the
prohibition against eavesdropping established by section 632.
In all other substantive respects the conduct prohibited by the
two statutes is the same.
12
Act.8 Addressing whether the wiretap evidence was admissible
notwithstanding section 631, subdivision (c), the Ratekin court
invoked our Supreme Court’s holding in Lance W.; observing,
under Proposition 8, “relevant evidence may be excluded only if
exclusion is required by the United States Constitution.”
(Ratekin, at p. 1169, citing Lance W., supra, 37 Cal.3d at p. 890.)
Then, citing a uniform consensus regarding the federal wire tap
statute’s constitutionality, the Ratekin court declared it was
“clear that evidence obtained under the provisions of 18 United
States Code section 2510 et seq. is not required to be excluded by
the United States Constitution.” (Ratekin, at p. 1169.) Thus,
because the wiretap evidence was “relevant” and obtained
pursuant to a constitutional federal statute, the Ratekin court
held the evidence was properly admitted under Proposition 8,
notwithstanding section 631, subdivision (c). (Ratekin, at
p. 1169.)
The Ratekin court’s analysis is sound and wholly apposite
to the evidentiary ruling at issue in this appeal. Under Ratekin,
the recorded telephone conversations between L.M. and M.M.’s
mother are admissible, notwithstanding section 632, subdivision
(d), if the evidence is relevant and not subject to exclusion under
8 The defendant in Ratekin moved to suppress the wiretap
evidence under section 632’s exclusionary rule. (See Ratekin,
supra, 212 Cal.App.3d at p. 1167.) However, the Ratekin court
concluded section 632 did not apply because the conduct at issue
involved a wiretap, as prohibited by section 631, not
eavesdropping, as prohibited by section 632. (Ratekin, at
pp. 1168-1169.) The Ratekin court nevertheless considered
whether the evidence should have been suppressed under section
631, subdivision (c). (See Ratekin, at p. 1169.)
13
the United States Constitution. (Ratekin, supra, 212 Cal.App.3d
at p. 1169; Lance W., supra, 37 Cal.3d at p. 890.) Both prongs are
met in this case.
First, the recorded telephone conversations were not
subject to exclusion under the United States Constitution. This
is because the federal Constitution proscribes only acts of
government officers or their agents, and M.M.’s mother was
acting as neither when she recorded her telephone conversations
with L.M. (See Skinner v. Railway Labor Executives’ Assn. (1989)
489 U.S. 602, 614 [the Fourth Amendment applies only to the
acts of government officers or their agents]; Jones v. Kmart Corp.
(1998) 17 Cal.4th 329, 333 [“In order for conduct by private
parties to be deemed state action under the federal Constitution,
‘the party charged with the deprivation [of a federal right] must
be a person who may fairly be said to be a state actor. This may
be because he is a state official, because he has acted together
with or has obtained significant aid from state officials, or
because his conduct is otherwise chargeable to the State.’ ”].)
Second, the record supports the trial court’s conclusion that
the evidence was relevant to impeach L.M. Defendant was
permitted to offer L.M.’s testimony for the purpose of challenging
M.M.’s credibility, particularly with respect to M.M.’s allegation
that Defendant also molested L.M. In her direct testimony, L.M.
denied that Defendant ever touched her inappropriately, and said
that she had no recollection of ever “warning” M.M. about
Defendant. However, in the recorded telephone conversations,
L.M. affirmed that she told M.M. to “be careful” around
Defendant and she made statements suggesting that Defendant
touched her in ways that made her uncomfortable, though never
on her breasts or vagina. On this record, the trial court
14
reasonably concluded the recordings were relevant to the issue of
both M.M.’s and L.M.’s credibility.
There is a final issue to address concerning section 632 and
Proposition 8. As the People acknowledge, the Legislature has
amended section 632 numerous times since the voters passed
Proposition 8 in 1982. In 1985, for instance, the Legislature
enacted the Cellular Radio Telephone Privacy Act. (Stats 1985,
ch. 909, p. 2900.) The focal element of that legislation was
section 632.5, which prohibits the interception of cellular
telephone communications, absent specified circumstances.
(Stats 1985, ch. 909, pp. 2900-2904.) In enacting the statute, the
Legislature also amended section 632 and related statutes to
reflect the addition of section 632.5, without making substantive
changes to the wording of the exclusionary rule set forth in
section 632, subdivision (d). Subsequent amendments to the
Invasion of Privacy Act have followed the same pattern, in each
instance focusing on privacy issues raised by the increased use of
cellular and cordless phone technology, without making
substantive changes to section 632, subdivision (d). (See Stats
1990, ch. 696, pp. 3267-3269 [adding section 632.6, prohibiting
interception of cordless telephone communications]; Stats 1992,
ch. 298, pp. 1212-1214, 1216 [adding section 632.7, prohibiting
unauthorized recording of cellular or cordless telephone
communications]; see also Flanagan v. Flanagan, supra,
27 Cal.4th at p. 775.) At least two-thirds of the members of each
legislative house voted in favor of the legislation.9 Thus, the
9 The final votes for the legislation in question were as
follows: Senate Bill No. 1431 (1985-1986 Reg. Sess.), the
Assembly vote was 64 ayes and 7 noes, the Senate vote was
27 ayes and 4 noes (Sen. Final History, (1985-1986 Reg. Sess.)
15
question presented is whether these legislative enactments
revived the exclusionary rule in section 632, subdivision (d),
under the exception for newly enacted legislation set forth in
Proposition 8. (Cal. Const., art. I, § 28, subd. (f), par. (2)
[abrogating exclusionary rules in criminal proceedings, “[e]xcept
as provided by statute hereafter enacted by a two-thirds vote of
the membership in each house of the Legislature”].)
Our Supreme Court’s analysis in Lance W. controls our
resolution of this issue. There, the Supreme Court addressed
section 1538.5, subdivision (a), which authorizes a criminal
defendant to seek suppression of evidence obtained in violation of
“state constitutional standards.” (Lance W., supra, 37 Cal.3d at
p. 893; § 1538.5, subd. (a)(1)(B)(v).) As the court noted, after
Proposition 8 abrogated that provision, the Legislature amended
section 1538.5 twice, once by a two-thirds majority in both houses
of the Legislature. (Lance W., at pp. 893–896.) Because article
IV, section 9 of the California Constitution provides that “[a]
section of a statute may not be amended unless the section is re-
enacted as amended” (Cal. Const., art. IV, § 9, italics added), the
court examined whether the amendments revived that provision.
(Lance W., at pp. 893-896.)
p. 965); Assembly Bill No. 3457 (1989-1990 Reg. Sess.), the
Assembly vote was 69 ayes and 0 noes, the Senate vote was
32 ayes and 2 noes (Assem. Final History, (1989-1990 Reg. Sess.)
p. 2223); Assembly Bill 2465 (1991-1992 Reg. Sess.), the
Assembly vote was 71 ayes and 0 noes, the Senate vote was
37 ayes and 0 noes (Assem. Final History, (1991-1992 Reg. Sess.),
p. 1685.) As the Assembly has 80 members and the Senate has
40 members (Cal. Const., art. IV, § 2, subd. (a)(1), (2)), the
affirmative votes constituted at least two-thirds of each house’s
membership for each piece of legislation.
16
The Lance W. court concluded the amendments did not
reinstate the abrogated provision, because the effect of the
amendments was to re-enact section 1538.5 as it existed after the
passage of Proposition 8. (Lance W., supra, 37 Cal.3d at p. 896.)
The Supreme Court based its conclusion on Government Code
section 9605, which establishes a statutory rule for interpreting
legislative intent, “consistent with article IV, section 9” of the
California Constitution, when a statute is amended. (Id. at
p. 895.) Government Code section 9605 provides: “Where 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 which are not altered are to be considered as having been
the law from the time when they were enacted; the new provisions
are to be considered as having been enacted at the time of the
amendment; and the omitted portions are to be considered as
having been repealed at the time of the amendment.” (Italics
added.) “The 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.” (Lance W., at pp. 895-896, fn. 18, italics added.)
Because the subject legislation did not materially modify the
pertinent provision of section 1538.5, the Supreme Court
concluded that “[t]he law which continued without interruption
pursuant to Government Code section 9605, and was reenacted
by [the subject legislation] pursuant to article IV, section 9, was
section 1538.5 as limited by the impact of [Proposition 8].”
(Lance W., at p. 896, italics added.)
The same analysis applies to the legislation amending the
Invasion of Privacy Act after the passage of Proposition 8. As
explained, none of the subject legislation materially altered
17
section 632. Rather, in each instance, the legislation’s only
substantive effect was to amend the language in section 632,
subdivision (a) by adding references to newly enacted statutes
prohibiting the interception or recording of cellular or cordless
telephone communications. (See Stats 1985, ch. 909, pp. 2900-
2904 [adding reference to section 632.5]; Stats 1990, ch. 696,
pp. 3267-3268 [adding reference to section 632.6]; Stats 1992,
ch. 298, pp. 1212-1214 [adding reference to section 632.7].) In no
case did the subject legislation make substantive changes to the
language of section 632, subdivision (d) as it existed after the
passage of Proposition 8. Thus, under our Supreme Court’s
holding in Lance W., the law which continued without
interruption pursuant to Government Code section 9605, and
which was reenacted by the subject legislation pursuant to article
IV, section 9 of the California Constitution, was section 632,
subdivision (d) as limited by the impact of Proposition 8. (Lance
W., at p. 896.)
Proposition 8 limited the exclusionary rule set forth in
section 632, subdivision (d) by allowing the admission of evidence
collected in violation of the Invasion of Privacy Act where the
evidence is relevant and its admission is not otherwise barred by
the United States Constitution. (See Ratekin, supra,
212 Cal.App.3d at p. 1169; see also Lance W., supra, 37 Cal.3d at
p. 890.) For the reasons discussed above, we conclude both
prongs are met by the recordings in question. The trial court did
not err when it admitted the evidence.
18
DISPOSITION
The judgment of conviction is affirmed.
CERTIFIED FOR PUBLICATION
GOSWAMI, J.*
We concur:
EDMON, P. J.
ALDRICH, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
19