Metropolitan News-Enterprise


Friday, December 6, 2019


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California Supreme Court:

Relevant Surreptitiously Recorded Tapes Are Admissible

Cantil-Sakauye Says ‘Right to Truth in Evidence’ Provision Overrides Statutory Exclusionary Rule


By a MetNews Staff Writer


Surreptitiously recorded conversations are admissible in evidence in a criminal case, under the “Right to Truth in Evidence” provision added to the state Constitution in 1982 by voters in enacting Proposition 8, nullifying the prohibition in Penal Code §632(d), the California Supreme Court held yesterday in a unanimous opinion.

Chief Justice Tani Cantil-Sakauye was the author of the opinion. It affirms an April 27, 2017 decision by Div. Three of this district’s Court of Appeal.

 That opinion, which was unpublished, was written by Los Angeles Superior Court Judge Rupa S Goswami, sitting on assignment. It upheld the conviction of Alejandro Guzman on two counts of lewd and lascivious acts upon a child under 14 years old, agreeing with the decision of Los Angeles Superior Court Judge Shelly Torrealba to admit a redacted version of a recording secretly made of a conversation recorded by the mother of one of the two victims.

Underlying Facts

Guzman molested one girl, “E.F.,” in 2011 when she was 10, and other, a niece of his, “M.M.,” in 2012 when she was 12. The recording was of a conversation between E.F.’s mother, Esperanza, and Guzman’s adult niece, Lorena, who had grown up in the same house as Guzman. In it, Lorena told of being sexually molested, herself, by her uncle, and saying she believed the account by her cousin, M.M.

The recording was used to impeach Lorena’s testimony that Guzman had never molested her.

Torrealba admitted only that portion of the tape that contradicted Lorena’s testimony.

Constitutional Provision

The “Right to Truth-in-Evidence” provision—Art. I, §28(f)(2)—says:

“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 postconviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court….”

Cantil-Sakauye wrote:

“We conclude that to the extent section 632(d) demanded the suppression of relevant evidence in a criminal proceeding, it was abrogated when the voters approved Proposition 8. Moreover, although the Legislature amended section 632 by a two-thirds vote several times after the enactment of Proposition 8, none of these amendments revived the exclusionary remedy of section 632(d). In each of these instances, the Legislature reenacted section 632(d) only as an incident to its enactment of other statutory provisions. Nothing in the language, history, or context of the amendments evinces an intent on the part of the Legislature to render surreptitious recordings once again inadmissible in criminal proceedings.”

Arguments Rejected

Guzman argued that Proposition 8 only abrogated judicially created exclusionary rules, not those erected by statute. Cantil-Sakauye responded:

“Merely because an exclusionary remedy is codified does not mean that it is beyond the reach of the Right to Truth-in-Evidence provision. Nothing in our case law or the language of the constitutional amendment supports a contention to the contrary.”

The appellant also suggested that both §632(d) and Proposition 8 be given effect by excluding the recording, as required by the statute, but allowing the mother to testify as to the conversation, as required by the “Right to Truth in Evidence” provision.

“We fail to see how this proposal would give effect to the Right to Truth-in-Evidence provision,” the chief justice said. “Regardless of whether Esperanza testified, the tape recording is relevant evidence.”

Right to Privacy

Sec, 632 was enacted in 1967 as part of the Invasion of Privacy Act. Guzman contended that the right to privacy must prevail. Cantil-Sakauye rejected the contention, declaring:

“We find no conflict between the different constitutional rights such that only one may be effectuated. Although there is a conflict between the demands of Proposition 8 and section 632(d), this conflict does not lead inexorably to friction between Proposition 8 and the constitutional right to privacy. Defendant claims otherwise, but his argument rests on the faulty premise that the exclusionary rule of section 632(d) is one and the same as the right to privacy itself.”

The case is People v. Guzman, 2019 S.O.S. 4083.


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