The exclusionary remedy set forth in Penal Code section 632, subdivision (d) was superseded by Proposition 8, and did not render the secret recording of a witness inadmissible at defendant’s criminal trial. Defendant was charged with two counts of committing a lewd and lascivious act upon a child, based upon inappropriate touching of E.F. and M.M. The prosecution sought to introduce a recording of a phone conversation between M.M.’s mother and defendant’s niece, in which the niece made damaging statements about defendant. Defendant argued the recording was inadmissible under section 632, subdivision (d), because it was made without his niece’s consent. The trial court admitted the recording and defendant was convicted. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Affirmed. Section 632 was enacted in 1967 as part of the Invasion of Privacy Act and prohibits secret recording of telephone conversations. Subdivision (d) provides that any evidence obtained in violation of section 632 is inadmissible in any judicial, administrative, legislative, or other proceeding. In 1982, voters approved Proposition 8, which amended the California Constitution to include the Right to Truth-in-Evidence provision. This section 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.” However, “[n]othing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 110.” (Art. I, § 28(f)(2).) Section 632 does not fit within the exception, as it was not an existing statutory rule of evidence related to privilege or hearsay, nor was it part of Evidence Code section 352, 782, or 1108. Thus, to the extent section 632, subdivision (d) demanded suppression of relevant evidence in criminal proceedings, it was abrogated when voters approved Proposition 8 in 1982.

The exclusionary remedy set forth in Penal Code section 632, subdivision (d) was not restored by later amendments to section 632. To revive the exclusionary provision of section 632, there must be something in the language, history, or context of the amendment to support the conclusion the Legislature intended such a result. Here, section 632 was amended numerous times after Proposition 8 passed, and four of these amendments were by at least a two-thirds vote of both the Assembly and the Senate. However, the court examined each amendment and determined that the Legislature did not intend to revive section 632, subdivision (d) in any of these instances. Thus, section 632, subdivision (d) does not apply in criminal cases, and the secret recording was properly admitted at defendant’s criminal trial.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/S242244.PDF