People v. Guzman

• Citation: 11 Cal.App.5th 184,217 Cal.Rptr.3d 509
• Decision Date: 27 April 2017
• Docket Number: B265937
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alejandro O. GUZMAN, Defendant and Appellant.

11 Cal.App.5th 184

217 Cal.Rptr.3d 509

The PEOPLE, Plaintiff and Respondent,

v.Alejandro O. GUZMAN, Defendant and Appellant.

B265937

Court of Appeal, Second District, Division 3, California.

Filed April 27, 2017

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

GOSWAMI, J.^*

Defendant challenges his conviction on two counts of lewd and lascivious acts upon a child under 14 years old. As his sole contention on appeal, Defendant maintains the trial court prejudicially erred when it admitted a recorded telephone conversation between a defense witness and the mother of one of the victims. Defendant argues the ruling contravened the exclusionary rule stated in Penal Code ¹ section 632, subdivision (d), which bars the admission of evidence obtained as a result of recording a confidential communication without the consent of all parties. We conclude the "Right to Truth–in–Evidence" provision of the California Constitution (Cal. Const., art. I, § 28, subd. (f), par. (2)), as enacted by the passage of Proposition 8 in 1982, abrogated that exclusionary rule to the extent it is invoked to suppress relevant evidence in a criminal proceeding. We therefore affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Charges

The Los Angeles County District Attorney charged Defendant with two counts of lewd acts upon a child under the age of 14; count 1 pertaining to Defendant's niece, M.M., and count 2 pertaining to Defendant's neighbor, E.F.

2. Count Two; Lewd Acts Upon E.F.

E.F. testified that Defendant molested her in May 2011, when she was 10 years old. She had gone to Defendant's home to play with his daughter. At some point, Defendant sat down next to E.F. and pointed out that she had a hole in her leggings. He continued to stare at the hole, which made E.F. uncomfortable. Defendant touched E.F.'s skin through the hole, then told her she had a lot of veins that popped out of her chest. E.F. was wearing a spaghetti strap top and could feel Defendant staring at her chest. Defendant pointed to her chest and told E.F. she should examine the veins in the restroom. When E.F. went to the restroom, Defendant followed her and stuck his foot in the door before she could close it. He pressed her against the sink, touched her on the chest slowly with his right index finger, then took her hand and rubbed her chest with it. When a downstairs neighbor came up the stairs, E.F. left. She was uncomfortable and scared throughout the incident.

E.F. felt unsafe, but she was too scared to tell her mother. Immediately after the incident, she sent a text message to a neighbor, L.M., who was four or five years older. L.M. is Defendant's niece, and her family lived downstairs from him. E.F.'s text message said Defendant had rubbed her chest and thighs; it did not mention Defendant following her to the bathroom. When they spoke later in person, L.M. told E.F. not to go around Defendant if he made her uncomfortable.

The next day a teacher observed E.F. crying at school. E.F. told the teacher that Defendant had touched her chest and rubbed her leg. The teacher contacted social services and E.F. gave a statement to the police later that day.

3. Count One; Lewd Acts Upon M.M.

M.M. testified that Defendant molested her in 2012, when she was 12 years old. M.M. regularly visited Defendant's family to have sleepovers with her cousin (Defendant's daughter). During one overnight visit, M.M. was watching television alone in Defendant's living room when Defendant sat next to her, put his hand inside her pajamas, and touched her vagina. Defendant also pulled his pants down, grabbed M.M.'s hand, and made her touch his penis.

In 2013, M.M. told her mother what had happened. The disclosure prompted M.M.'s mother to contact L.M., because M.M. said L.M. had warned M.M. about Defendant. During their conversation, L.M. told M.M.'s mother about the incident involving E.F. M.M.'s mother contacted the police, and M.M. told the investigating officer about the 2012 molestation.²

4. Admission of the Recorded Telephone Conversation Between L.M. and M.M.'s Mother

On the first day of trial, the court addressed evidentiary issues, including L.M.'s proposed testimony that Defendant never sexually assaulted her. The prosecutor objected that the testimony was irrelevant, because Defendant was not charged with criminal conduct related to L.M. Defense counsel argued the testimony was relevant to M.M.'s credibility, because M.M. told police that Defendant molested L.M. The court agreed the testimony was relevant to M.M.'s credibility.

After the lunch recess, the prosecutor informed the court and defense counsel that M.M.'s mother had recordings of two telephone conversations she had with L.M. following M.M.'s disclosure of the abuse allegations. The prosecutor reported that, in the recordings, L.M. said Defendant touched her a lot, sometimes in ways that made her uncomfortable, but Defendant did not touch her in the vagina or breast areas. L.M. also said in the recordings that she believed M.M.'s allegations against Defendant. The prosecutor did not intend to use the recordings in her case-in-chief, but did want to use them if L.M. testified in a way inconsistent with the conversations.

Defense counsel objected to the recordings, citing the exclusionary rule established by section 632, subdivision (d). After a preliminary review of relevant authorities, the court indicated the recordings appeared to be admissible for impeachment purposes. The court stated a final decision on admissibility would not be made until after L.M. testified.

L.M. testified that she had a good relationship with Defendant and lived downstairs from him growing up. Defendant is her uncle and M.M. is her younger cousin. L.M. also said she knew E.F., who was a neighbor and about the same age as M.M.

L.M. confirmed she received a text message from E.F., in which E.F. indicated Defendant rubbed her chest and thighs. L.M. later spoke to E.F. and told her not to go around Defendant if he made her uncomfortable. L.M. did not tell anyone else about E.F.'s disclosure because she did not think it was her business.

L.M. testified she was surprised to learn M.M. had also made allegations against Defendant. She and M.M. were close and M.M. had never said anything about Defendant molesting her before. Although L.M.'s initial reaction was to believe M.M., she also said she was confused as she had never observed M.M. acting uneasy around Defendant.

L.M. later learned that M.M. told police that Defendant had also molested L.M. L.M. testified this had not occurred and that she was angry the accusation had been made.

Following L.M.'s testimony, the court revisited the admissibility of the recorded telephone conversations. After hearing counsels' arguments, the court ruled that "[t]o deny admission of this evidence would be a direct violation of the Right to Truth[-In-]Evidence provision of the California Constitution," which had abrogated the exclusionary rule set forth in section 632, subdivision (d) when voters passed Proposition 8 in 1982.³ The court also concluded the recording was not made by or at the direction of law enforcement, the recording did not violate the Fourth Amendment, and the evidence was not more prejudicial than probative under Evidence Code section 352. After conducting an Evidence Code section 402 hearing, the court allowed the admission of redacted portions of the recordings for impeachment purposes, insofar as they contradicted critical parts of L.M.'s testimony.

In the portion of the first recording played for the jury, L.M. told her aunt that she "[does not] feel good around [Defendant]" when "wearing shorts," while adding she had not "done anything" because "the truth is he hasn't touched me anywhere else like my areas you know ? Like my vagina or my breasts like directly."⁴ L.M. added, "I know he's capable of doing that," and "[t]hat's why I believe what [M.M.]'s saying." In the second recording, L.M. affirmed that she had told M.M. to "be careful" around Defendant and that he "fondled" her as well. L.M. added, "you can imagine like sometimes I think about that, and I feel like crying and ... I mean it didn't happen to me like too excessively, but if he touched M.M. then she'll certainly never forget that."

The court allowed Defendant to recall L.M. to testify regarding the recording. L.M. confirmed she spoke with M.M.'s mother on the telephone, but was unaware the call was being recorded. She testified that she had listened to the recordings and noted they did not include the entire conversation. Concerning the contents of the recordings, L.M. said Defendant had been overly affectionate with her at times, but it did not make her uncomfortable. She explained that Defendant was a "very affectionate" and "very loving and caring person," who sometimes "comes at you too close," but "never had [she] been touched by him in [her] vagina or [her] breast." L.M. testified she was "being sympathetic" when she said on the recording that she believed M.M.

5. Verdict and Sentence

The jury found Defendant guilty on both counts. The court sentenced Defendant to a total term of five years in prison, consisting of three years on count one and two years on count two.

DISCUSSION

As his sole contention on appeal, Defendant argues the trial court prejudicially erred when it admitted the recorded telephone conversations between L.M. and M.M.'s mother into evidence. Specifically, Defendant contends the recordings were inadmissible under section 632, subdivision (d), which bars the admission of evidence obtained by recording a confidential communication without the other party's consent. The trial court ruled the subject exclusionary rule was abrogated by the state Constitution's Right to...