A mother’s audio recording of appellant sexually abusing her 4-year-old son, which was made without the appellant’s or the son’s knowledge, was admissible at trial under Penal Code section 633.5. A juvenile delinquency petition charged Trever P., 12 years old at the time of the offense, with committing several sex crimes against his 4-year-old cousin Ralph while babysitting him. The primary evidence against Trever was an audio recording made by Ralph’s mother who left her cell phone recording function on before leaving the boys alone, suspicious that Trever may have been verbally or physically abusing her son. Trever moved to exclude the recording, arguing that the recording was inadmissible under Penal Code section 632, which prohibits recording a confidential communication without the consent of both parties. The juvenile court denied his motion, concluding that the recording was admissible under an exception in section 633.5, which allows one party to record a confidential communication for the purpose of obtaining evidence reasonably believed to relate to the commission by any party to the communication of certain crimes, including any felony involving violence against the person. The juvenile court found that the vicarious parental consent doctrine applied so that Ralph’s mother could consent to the recording on Ralph’s behalf. The court found true several sex offenses. Trever appealed. Held: Affirmed. Section 633.5 does not contain an express reference to the vicarious consent doctrine. The Court of Appeal considered several federal and out-of-state cases that have adopted the vicarious consent doctrine, and concluded that it applies to the one-party consent exception in section 633.5. The requirements of the exception in section 633.5 can be satisfied when a parent gives consent on behalf of a minor child based on an objectively reasonable belief that the recording will produce evidence of an enumerated crime and that the recording is in the best interest of the child.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F073691.PDF