California Penal Code section 1044 explains that the duty of a trial judge is to limit the introduction of evidence with a view to the “expeditious and effective ascertainment of the truth.” However, as we know, judges often exclude evidence that is vital to the ascertainment of the truth. The California Supreme Court has brought us one step closer to finding the truth with its decision in People v. Guzman (2019) Cal.5th 673.
Law enforcement sometimes runs into the sticky situation while investigating a crime when the witness approaches them and tells them they have evidence in the form of a phone conversation that the witness has secretly recorded. California Penal Code section 632(a) makes it a misdemeanor for a person to record a confidential communication without the consent of all parties to the communication. Exceptions are codified for surreptitiously recording communications evidencing the crime of extortion, kidnapping, bribery, and any felony involving violence, such as domestic violence. Otherwise, Penal Code section 632(d) says that the recording is inadmissible in any judicial proceeding. Really? So, the victim records the defendant telling her that he stole her car, and that is inadmissible?! What happened to the search for the truth?
Defendant Guzman was convicted of two counts of lewd and lascivious acts upon a child under the age of 14. Defendant had inappropriately touched two girls, aged 10 and 12, who were friends with Defendant’s niece, Lorena, an adult. Both girls confided in Lorena, who told the girls to stay away from Defendant Guzman. One victim reported the molest to her mother, Esperanza, and told Esperanza that Lorena had warned her about the defendant. Esperanza then called Lorena to inquire. Without Lorena’s knowledge or permission, Esperanza tape recorded her phone call with Lorena. On the first day of jury selection, Esperanza alerted law enforcement of the recording. Lorena was expected to be called as a witness for the defense. Upon learning of the recording, the People informed the court that it intended to use the recording during cross-examination of Lorena. The trial court allowed the recording, holding that the Right to Truth-in-Evidence provision of Proposition 8 abrogated the statutory provision of Penal Code section 632(d).
The California Supreme Court affirmed the conviction. Penal Code section 632 was enacted in 1967 as part of the Invasion of Privacy Act. In 1982, California voters acted to limit the various grounds for excluding evidence at criminal trials by amending the California Constitution with the passage of Proposition 8. The Right to Truth-in-Evidence provision of Proposition 8 prevents the exclusion of evidence in criminal proceedings except by statutes enacted after Proposition 8 by a two-thirds vote of each house of the Legislature, with some exceptions expressly listed in Proposition 8. The voters wanted the law to allow for most relevant evidence to be admitted in criminal cases. Here, the Right to Truth prevailed over the Invasion of Privacy.
What does this mean for you? Yes, Esperanza still committed a misdemeanor; however, I don’t know any District Attorney that is going to charge a mother of a molest victim under these circumstances… keep in mind, had law enforcement directed Esperanza to make and record that phone call, her actions would have been perfectly legal pursuant to California Penal Code section 633.
