The “Right to Truth-in-Evidence” provision of the California Constitution (art. I, § 28, subd. (f)) abrogated the eavesdropping statute’s exclusionary rule (Pen. Code, § 632, subd. (d)) in criminal proceedings where it is invoked to suppress evidence. Guzman was convicted of two counts of lewd conduct on a child under 14 years old (Pen. Code, § 288, subd. (a)). On appeal he argued the trial court erroneously admitted a recorded telephone conversation between a defense witness and the mother of one of the complainants based on the exclusionary provision of the eavesdropping statute (Pen. Code, § 632, subd. (d)). Held: Affirmed. Penal Code section 632, subdivision (d) bars the admission of evidence obtained by recording a confidential communication without the other party’s consent. “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.” Section 632, subdivision (d) creates an exclusionary rule for evidence obtained in violation of the statute. However, Proposition 8 enacted the “Right to Truth-in-Evidence” provision of the California Constitution which provides: “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 . . . .” Under Proposition 8, relevant, unlawfully obtained evidence may only be excluded if exclusion is required under the U.S. Constitution. Here, the evidence was relevant to impeach a defense witness who testified the complainant was not credible and was therefore admissible. The evidence was not subject to exclusion under the U.S. Constitution because the complainant’s mother was not acting as a government agent when recording the conversation.

The fact that Penal Code section 632 has been amended since the voters passed Proposition 8 did not revive its exclusionary provision. The Legislature has amended Penal Code section 632 a number of times since the 1982 passage of Proposition 8. These amendments were necessitated in large part to address privacy issues raised by the increasing use of technology. “At least two-thirds of the members of each legislative house voted in favor of the legislation.” The question arises whether these legislative amendments revived the exclusionary rule of section 632, subdivision (d) under the exception set forth in the Truth-in-Evidence provision of Proposition 8. Government Code section 9605 provides that 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 unchanged portions of the newly amended statutes are “reenacted” as they existed immediately prior to the amendment. None of the amending legislation materially altered section 632, or made changes to subdivision (d) as it existed after the passage of Proposition 8. Thus, the exclusionary provisions of section 632 continue to be limited by Proposition 8.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B265937.PDF