Filed 3/20/14 P. v. Thibodeaux CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
KENNETH JEROME THIBODEAUX,
Defendant and Appellant. B246364
(Los Angeles County Super. Ct. No. KA0098244)

APPEAL from a judgment of the Superior Court of Los Angeles County, Wade Olson, Commission er. Affirmed. Vanessa Place, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Ma rgaret E. Maxwell, Supervising Deputy Attorney General, and Yu n K. Lee, Deputy Attorney General, for
Plaintiff and Respondent.

——————————2 Appellant Kenneth Thibode aux challenges his conviction for continuous sexual
abuse. He contends that the trial cour t’s admission of a su rreptitiously recorded
conversation between himself and the victim’s mother contravened Penal Code section 632, subdivision (d), and was a violation of his Fourth Ame ndment right of privacy, and his Fifth and Sixth Amendment right to counsel. We affirm.
PROCEDURAL BACKGROUND Appellant was charged by information w ith aggravated sexual assault of a child (count 1; Pen. Code, § 269, subd. (a)(1)), 1 forcible child molestation (count 2; § 288, subd. (b)(1)), continuous sexua l abuse (count 3; § 288.5, su bd. (a)), and rape (count 4; § 261, subd. (a)(2)). Appe llant pleaded not guilty. Before trial, appellant moved to suppress a recording of a cell phone call conversation between himself and his estrange d wife, the victim’s mother, C. Thibodeaux (C.), which C. made under the direction of De tective Alfonso Lopez, of the Los Angeles County Sheriff’s Department (LASD). Appe llant’s counsel argued that the conversation
was recorded in violation of sections 629.72, 631, 632 and 182, as it was “a confidential
communication recorded without the knowledge or the consen t of defendant.” Counsel also argued that the recording violated appellant’s Fourth Am endment right to privacy. At the hearing on the motion, appellant’s counsel also argued that the recording violated appellant’s right to counsel and hi s right against self-incrimination. The parties stipulated that, following a ppellant’s arrest in January 2012, he exercised his rights under Miranda v. Arizona (1966) 384 U.S. 43 6 [86 S.Ct. 1602, 16 L.Ed.2d 694] ( Miranda ), and was released, and that the phone call was recorded at the detective’s request after appellant had been released. The prosecution asserted that (1) disclosure of the recordi ng was permissible, and use of the recording was permitted for law enforcement; (2) the term “victim,” encompassed the victim’s mother; and (3) that the Invasion of Privacy Act (§ 63 0 et seq.) was not preempted by federal law

1 All further statutory references are to the Penal Code unless otherwise indicated.3 because California law is more restrictive than federal law. The pr osecutor argued that, although the “law enforcement exception” an d “victim of the crime exception” were independent of one another, both applied an d C. had acted as the LASD’s agent. Appellant’s counsel disagreed that “victim” included the victim’s mother. The parties stipulated that C. recorded th e call from appellant “under the direction” of the detective,
and at a time when no case wa s pending against appellant, but after his initial arrest and
exercise of his Miranda rights. During the portion of the hearing directed to the Invasion of Privacy Act, the trial court itself raised, and the parties argued, whether the issue was governed by Fourth Amendment search and seizure law, section 632 having been abrogated by the passage in 1982 of Proposition 8. 2 The court noted that Propos ition 8 “federalized” California’s
search and seizure law such that exclusion of unlawfully obtained evidence was required only if required by the United St ates Constitution. At the c onclusion of the hearing the trial court found no Fourth, Fifth or Sixth Amendment violations, and denied the motion to suppress. A jury deadlocked as to counts one, two and four, and the court declared a mistrial. Appellant was f ound guilty as to count 3. Appellant was sentenced to 16 years in state prison, ordered to pay various fees and fines, and awarded 162 presentence cu stody credits. The remaining counts were dismissed due to plea negotiation. This timely appeal followed.
FACTUAL BACKGROUND

2 “[I]n 1982, the California voters passe d Proposition 8. Pr oposition 8 enacted article 1, section 28 of the California Cons titution, which provides in relevant part: ‘Right to Truth–in–Evidence. Except as pr ovided by statute hereafter enacted by a twothirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceedi ng, including pretrial and post conviction motions and hearings. . . .’ (Cal. Cons t., art. I, § 28, subd. (f), par. (2).)” ( People v. Lazlo (2012) 206 Cal.App.4th 1063, 1069.) Previously, the “Right to Truth–in–Evidence” provision enacted by Proposition 8 was found in subdivision (d) of article I, section 28 of the California Constitution.4 Prosecution evidence The victim, born in Septembe r 1994, who was 18 years old at the time of trial, was three when she met appellant. Appellant marr ied the victim’s mother, C., in 2001. C. and appellant had a son, R.. The victim lived with her mother, R., and appellant. Appellant had two daughters from a previous marriage, Ca itlyn and Kaylee, who were a few years older than the victim. They visite d their father often, and slept in the living room or den when they stayed at the house. C. left for work at about 6:45 a.m., leaving the victim home alone with appellant who drove her to and from school. The victim called appellant “dad,” and had a good re lationship with him until she was about eight years old. Once, as the vic tim fed her turtle in her bedroom after school, appellant came into her room wearing only shorts, pulled down hi s shorts and exposed his erect penis. He then walked out af ter pulling up his shorts . Later, appellant apologized for his behavior. He told the vi ctim not to say anything because her mother would be upset with her, and promised not to do it again. One night in 2004, when the victim was about 10 years old, C. saw appellant get
out of bed at about 11:00 p.m., and thought he was going to the bathroom. When he didn’t return right away C. went looking for him. She found him in the living room where the victim and Kaylee were asleep in front of the T.V. The victim was wearing underpants, and her nightgown was raised to he r chest. C. saw appellant crawling slowly toward the sleeping girls with a hand in his pa nts. When C. asked him “[w]hat [he was] doing?,” appellant pulled his hand out and sa id, “I don’t like what you’re accusing me of.” He explained that he wanted to wa tch something on television; appellant had a television in his bedroom. The next day, C. took the victim to a hospital for a sexual
abuse examination. After that exam, C. had the victim and R. sleep with her for a few days with the
door locked. A social worker investigated the incident. Appellant seemed nervous and told the victim not to say anything or it woul d break the family apart, upset her mother
and she and R. would be sent to foster care. When interviewed, the victim did not tell the social worker anything about th e prior indecent exposure incident. C. drove the victim to5 school for the next two years. After that , the victim changed schools and appellant resumed taking her to sc hool and picking her up. One morning, between Janua ry and May 2007, when the victim was 12 years old, she was lying in bed before school. Appella nt came into her bedroom in his underwear, lay down behind the victim and put his arm around her; she felt something hard. The victim turned around and appellant got on top of her and pulled off his underwear and hers while holding her hands above her he ad. The victim tried to push him off. Appellant opened the victim’s legs with his ha nds and inserted his penis into her vagina. When appellant stopped, the victim saw th at blood was smeared between her legs. Appellant told her to clean up and to get ready for school. The victim did not tell anyone what happened because she felt confused and betrayed. Around this time, appellant had
sex with the victim four or five times. The sex took place in the victim’s room when C.
was not home. Sometimes the victim tried to get away. The victim yelled at and scratched appellant, who laughed and said she was “playing hard to get.” C. noticed the scratches; appellant said they came from yard work. Between January 2008 and late Septembe r 2008, when the victim was 13 years old, appellant had sex with her every morning before taking her to school. He would lie next to her, get on top of her quickly and inserted his penis into her vagina. Sometimes the victim was able to run away, and other times he caught her and brought her back to her bedroom. Sometimes appellant held th e victim’s hands over her head. Sex was always on the victim’s bed or on the floor. A few times the victim scratched appellant on his stomach or chest. Appellant ejaculated on the victim’s stomach or leg. He washed
her blankets and curtains. C. asked appellant about the scratches; he claimed to have gotten them working in the yard. Appellant continued to have sex every mo rning with the victim after she turned 14 years old in 2008. The victim did not tell an yone because she did not think anyone would
believe her and she was afraid he r family would be broken up. One morning, in 20 09 when the victim was 15 years ol d, C. left fo r work in the morning but returned home ab out 30 minutes later because the traffic was bad. As she6 quietly entered the house, C. saw appellant coming out of the victim’s room in his underwear. He looked startled and his peni s was erect. C. yelled at appellant and confronted him. Appellant said, “[I]t’s not what you think.” Insi de the room C. found
the victim on her bed in her pajamas, curled in the fe tal position. When C. asked her daughter what appellant had been doing in he r room, the victim said she did not know. C. took the victim to school, and asked her what had been going on. The victim cried but did not tell her mother anything. After that morning, appellant stopped coming
into the victim’s room in the morning. C. did not recall ha ving any further conversations with appellant about the incident, and took no action. The victim stopped speaking to appellant after that incident. The victim graduated from hi gh school in 2011. In the two years leading up to the victim’s graduation, the victim described ap pellant as “paranoid.” He called her, looked through her journals and ph one, and followed her. Appella nt allowed the victim no privacy, and she and he argued frequently. On November 11, 20 11, the victim told her mother she did not want appellant to attend her graduation. When asked why, the vi ctim said that appellant had been sexually abusing her since she was eight years old. Th e victim also told appellant’s daughters. While appellant was out, C. packed his belo ngings and, when he returned, she accused him of raping the victim. Appellant denied “e verything” and left the house. The next day, C. took the victim to the police station to report the sexual abuse. On November 21, 2011, the victim and C. spoke with Detectiv e Lopez. Detective Lopez is assigned to the Special Victim’s Bu reau of the LASD Child Abuse Unit, and is specially trained to investigate child sexual abuse cases. The victim was unclear about
the dates on which the incidents of abuse oc curred. She told Detective Lopez that appellant had started having sex with her wh en she was 13 years old in 2008, and stopped in 2009. The victim began ha ving sex in 2007 when she star ted to have boyfriends. The victim did not tell Detective Lopez that appella nt had raped her three to four times when she was 12 years old, did not mention that he had held her hand s over her head, opened her legs with his hands, chased her or that she tried to fight him off. The victim told7 Detective Lopez appellant had exposed himsel f to her, but never mentioned the incident when she was feeding her turtle . She also told him that she had almost told her mom about appellant when C. found appellant coming out of he r room but “couldn’t bring herself to do it.” C. told Detective Lopez she had returned home that morning because she had suspicions about appellant and the vic tim. C. did not mention to Detective Lopez that appellant had an erection as he left the victim’s room.
A few weeks after their in itial interview, Detective Lopez asked C. to record a “pretext” call between herself and appe llant or appellant and the victim. 3 C. and the victim made several unsuccessful attempts to reach appellant from Detective Lopez’s office. In January 2012, the district attorney’s office reje cted the case for insufficient evidence. No charges were filed and appella nt was released from custody. Detective Lopez instructed C. to try agai n to record a pretext call. In February 2012, C. filed for
divorce. In May 2012, appellant called C. from his cell phone. C. recorded the conversation and gave the recording to Detectiv e Lopez. The jury heard excerpts of that
conversation. In the call, appellant tells C. he need s to “protect himself” and hopes their
conversation will “remain between you and I and nobody else.” He says he still loves C., hopes they can still have a futu re together and apologizes for “everything and any pain” he has caused. C. asks appellant to explai n why he and the victim “continue[d] that for so long.” Appellant acknowledges that C. de serves answers but says he is afraid that Detective Lopez will be “knockin g on [his] door,” and asks C. to give him her word their
conversation will remain between them; she does. He tells her that the victim came to him lonely and seeking affec tion. She wanted appellant to cuddle with her in the mornings. Their relationship began with hugg ing, but then “one day we did that.”

3 A pretext call is a recorded conver sation between the suspect and another individual commonly used as an investigativ e technique to gather evidence against the suspect.8 Appellant says the victim was practically na ked, wearing a thong and was “like you know you like it.” Appellant tells C. the relationshi p with the victim last ed about six months
and that he had never forced himself on her. He says it was not a one-way street, but
does not want to blame the victim. When C. observed that appellant was supposed to resist, he replied, “I failed,” and acknowle dged that he was “a weak man.” C. tells appellant it is sad that he ruined his life and family “over a piece of fucking pussy.” Appellant replies, “Yea it’s pretty sad and . . . I feel horrible about it.” Defense evidence LASD Deputy Erick Escobar interviewe d the victim and C. on November 12, 2011. The victim told Escobar she was 12 years old when she was first raped by appellant. He raped her three or four times during the next six months. After she turned 13, he raped her every morning. Appellant stopped raping the victim after she started high school. The victim’s school records sh ow that she earned A’ s and B’s between 2006 and 2009, and was ranked sevent h out of 322 students at her junior high. In 2006 and 2007, the victim was involved in two conflicts with a nother student, and received detentions. She had five tardies during the 20 06 school year, one in 2007, and four in
2008. A senior LASD criminologist examined the victim’s bedroom in January 2012 for potential evidence of sexual assault, particular ly semen. None was found. According to the criminologist, temperature changes, the passage of time, and laundering of sheets, rugs or carpet tend to degrade or decrease th e chance of finding biological materials. C. told the criminologist the carpet ha d been shampooed in November 2011. Phillip Lopez, who was about a year olde r than the victim, was her boyfriend from the time she was in fourth grad e until she was in ninth grade. The victim had told him she felt close to appellant (her “father”), that she loved him and that she and he talked a lot about everything. The victim never said anything negative about appellant, never said he had sexually abused or ra ped her, and never gave Philip and reason to believe she was having problems at home.9 Serita Moore is appellant’s mother. M oore never saw appellant treat the victim any differently than any of the other ch ildren. Sometime before November 2011, appellant told Moore that the victim was angry at and not speaking to him, but he did not know why. In early November 2011, C. told Moore that th e victim had said appellant molested her twice, when she was nine and 11 years old. When Mo ore asked C. if she believed her daughter’s accusation, C. said, “We ll, if I believe Ken, I’m gonna lose [the victim]. And I will not lose my daughter.” Appellant’s youngest daughter Kaylee , from his first marriage to Cassandra Thibodeaux, was 19 at the time of trial. Kaylee was six years old when her parents
divorced. She saw her father about four times per week th ereafter, spent most weekends with appellant and lived with his family for two months in 2008 when she was in middle school. Nothing sexual ever occurred betw een Kaylee and appellant, and appellant was never aggressive with Kaylee, her sister Caitl yn, or the victim. Kaylee and the victim were like sisters and “talked about anything.” In the mornings, appellant dropped the victim off at her grandmother’s or a frie nd’s house before taki ng Kaylee to school. Appellant’s family had a turtle in the den, but not in the victim’s room. Between 2009 and 2011, the victim did not a ppear intimidated by appellant, or withdrawn or reclusive. Once when Kaylee and the victim were teenager s, the victim told Kaylee that she was trying to get appellant out because she wanted her mother to be with someone who “has money and that drives a Mercedes Benz,” not a construction worker like appellant. Appellant’s eldest daughter, Caitlyn, was 21 at the time of trial. She described appellant as a loving but strict father. As a child, Caitlyn visited appellant’s home “all the time,” and had visited freque ntly between 2007 and 2009 when everything seemed fine. The victim had written a poem and made a plaque for appellant for Father’s Day in 2008, and attended Caitlyn’s graduation in 2009 at which the family took photos together, and looked happy. The victim and appellant made a photo collage for Caitlyn’s 18 birthday. There was no leng thy period during which the vi ctim and appellant did not communicate. Caitlyn and the victim were close until rece ntly. Caitlyn described the victim as a person who was not intimidated, and who “gets what she wants.” In 2008 or10 2009, the victim had said her mother ne eded someone with money and who drove a Benz, not someone who came home with pain t on his hands. She said she wanted to “plot to get rid of [appellant].” When Ca itlyn said they were “all happy,” the victim responded that, “[We] could a ll be happy without him.” In November 2011, the victim told Caitlyn that appellant had molested her. Anthony Collins is appellant’s stepbrothe r. The two have a close relationship, although they drifted apart a nd had no contact from late D ecember 2006 until early 2010. Appellant had a loving and clos e relationship with his childr en, with whom he was very
close. He treated the victim the same as his other daughters. The victim was sometimes disrespectful and “talked back” when appellant criticized her clothes. In October 2011, appellant called Collins. He was upset, and said that the victim did not want C. to be married to him anymore. Collin s overheard the victim tell her mother she needed to find someone rich. Appellant lived with Colli ns’ family from November 2011 until June 2012. Collins has a daughter, but was not co ncerned about appellant being around her. Pamyla Burris is appellant’s sister, and they are very close. The victim has always been “very strong willed, very mouthy, sassy.” After she became a teenager, the victim got “more direct, more bossy, manipulative.” Appellant disciplined all his children, including the victim. Burris has seen a ppellant discipline the victim for wearing inappropriate clothing and for no t listening to adults at dinner. Burris would not believe a recording that C. produced because she and th e victim are angry with appellant and want to get rid of him. Cassandra Thibodeaux was married to appellant for 12 years before they divorced.
The divorce was amicable and they remain friends. Appellant was a caring husband, a “good dad” and never engaged in any inappropriate acts towards their daughters. After appellant married C., he was devoted to her and their family, although he was “henpecked” and C. was difficult. Between 2007 and 2009, the vi ctim frequently spent the night at Cassandra’s house. She spok e highly of appellant and seemed happy, although there was occasional conflict between the victim and Cassandra’s daughters. In11 2010, the victim started saying she wanted a ppellant to make more money and wanted C.
to be with someone who dr ove a Lexus or a Mercedes. Appellant testified that he never had sexual intercourse w ith the victim. In 2003, appellant’s family had a pet turtle, but it was kept in the den, not the victim’s room. When the victim was in eighth grade, appell ant took care of the household and dropped the victim at her grandmother’s house (whi ch was near the victim’s school) in the morning before he went to work. The relationship between appellant and th e victim changed in 2009, when the victim was in the ninth grade. At that tim e, the victim felt unlov ed by her family and came to him for hugs. Appellant told C. to read the victim’s diary because he felt she was not showing the victim enough affection; C. refused. The victim required frequent discipline for lying, inappropriate behavior with boys, wearing inappropriate clothing and being disrespectful. Disciplining the vic tim was a major source of conflict between appellant and C. Once in ear ly 2011, appellant found an empty liquor bottle. After he confronted her, the victim screamed and cursed at appellant and tried to hit him, hitting her mother instead. After appellant closed hi s bedroom door, the victim kicked a hole in
it. In July 2011, appellant and C. argued about buying the vi ctim a car. The argument lasted several hours, after which the victim said appellant did not make enough money and her mother should find so meone else and get rid of him. Appellant thought he and C. had a “good” relationship, but she often believed appellant was cheating on her. With regard to the incident in 2004, when the victim an d Kaylee were asleep in the living room, appellant explained that he awoke about 11:00 p.m. after hearing the television. He had gone into the living ro om to check on the girls, and was kneeling down to retrieve the remote control, which was between the victim and Kaylee, to turn off the television when C. came up behind hi m and startled him. C. did not lock the victim, R., and herself in the bedroom for two days after that incident.12 Appellant first learned about the victim ’s allegations of sexual abuse in early November 2011, when C. told him the victim did not want hi m to attend her graduation. The victim wanted to bring a young man to he r graduation. Appellant did not approve of the young man (he was 21; the victim was 17 ), and told the victimshe could not bring him. The victim became upset, they argued and the victim accused appellant of sexual abuse. Appellant move d out of the house a few days late r to give C. space, and because she changed the locks. Appellant was arrested in January 2012. He was released two days later, after which he and C. spoke often. They discusse d the allegations, and a ppellant denied ever having sex with the victim. Appellant believe d C. would come back to him, and they could rebuild their family if he told her “s omething.” Portions of his conversation with C. are missing from the tape that was played for the jury. In the missing portion, C. told appellant that if he told her “something, then we can possibly work through this.” Appellant told C. that his relationship w ith the victim went on for “six months” because “that’s about the time that [the vic tim] was coming to me and saying that she wanted—she just wanted hugs and she didn’t f eel loved.” He said he wanted to tell C.
the truth but did not want to lose his freedom because he was afraid his words might “get
twisted.” He told C. he understood if sh e never wanted to see him again because of everything that had happened during their marriage. Appellant denied that his relationship with the victim ever went beyond hu gs. He told C. what she wanted to hear in order to restore their relationship. Appellant told C. about an incident when the victim came out of her room in a thong and he told he r not to come out dressed like that. He had
never told her about that befo re. When appellant told C. during the call that he had “failed,” he was referring to their marriage. At the end of the co nversation, appellant apologized to C. for being upset.
Rebuttal The victim testified that, even after a ppellant raped her she made him a Father’s Day plaque in middle school, because she “still wanted [her] family to be together.” She smiled in photos taken at Caitlyn’s graduation and other events because “everything was13 a secret” and she did not want to “expose” he rself. The victim did not say she wanted her
mother to be with someone who made more m oney, although late in high school she had
told C. she should be with someone else if she was unhappy with appellant. The victim also wanted C. to leave appellant because he was raping her. Appe llant only dropped the victim at her grandmother’s house on Tuesdays when she wa s in high school. She did
not have to be at school until later on those morni ngs. Otherwise, a ppellant dropped the victim at school. When appella nt raped the victim in the mo rning, she was often late to school; appellant wrote notes for her. The victim had a turtle in her room between second grade and fourth grade. A different turtle had been kept in the den when the
victim was in middle school. The victim never drank appellant’s alcohol. C. and appellant argued about the type of used car to buy for the victim. Appellant did not want
the victim to have a “decent ca r.” The victim did not want appellant at her graduation
because she was not comfortable with him. There was no 21-year-old man the victim had wanted to attend her graduation. The parties stipulated that a defense investigator had spoken to Cassandra in October 10, 2011, and Cassandra said the vi ctim did not want Ka ylee and Caitlyn to come into her room in 2010, and Caitlyn “did not want to visit the house or the victim anymore and stopped visits ther e.” The parties also stipulated that Caitlyn told a defense investigator in October 2012, that she “st opped visiting her dad’s ho use regularly because she did not feel welcome by C. and [the victim] was draining her.”
DISCUSSION Appellant contends that the trial court erred in admitting the recording of the cell phone call he made to C. As he argued be low, he maintains that admission of the recording violated section 63 2, subdivision (d), his reasona ble expectation of privacy under the Fourth Amendment and his right to counsel under the Fifth and Sixth
Amendments. We conclude otherwise. 1. Abrogation of Invasion of Privacy Ac t, Penal Code section 630 et seq. Appellant contends the tria l court violated the Invasion of Privacy Act (§ 630 et seq.), by admitting C.’s audio re cording. The Invasion of Privacy Act, enacted in 196714 (Stats. 1967, ch. 1509, p. 35 84, § 1), regulates wiretapping and electronic eavesdropping, and prohibits the electroni c eavesdropping or recording of any “confidential
communication” absent consent of all parties to the communication. 4 ( Kight v. CashCall,
Inc. (2011) 200 Cal.App.4th 1377, 1388; People v. Chavez (1996) 44 Cal.App.4th 1144, 1148.) With specified exceptions, the statute bars admiss ion of any recorded confidential communication in a judicial proceeding. (§ 632, subd. (d).) Two exceptions are pertinent
here: the law enforcem ent exception (§ 633), 5 and the evidentiary exception (§ 633.5). 6 Appellant maintains that the trial cour t erred in admitting C.’s audio recording under either exception. Regarding this cont ention, the record discloses that during the hearing on the motion to suppress, the parties stipulated that C. made the recording at the direction of Detective Lopez. The purpose of making the recording was to try to obtain an admission from appellant th at he had committed a sexual o ffense against the victim. The prosecutor argued that the recording fell within the exceptions stated in sections 633.5, and 633. At the he aring, the court bypassed the parties’ arguments regarding applicability of the exceptions. It found the recording admi ssible because the statutory

4 A “confidential communication” is “any communication carried on in circumstances as may reasonabl y indicate that any party to the communication desires it to be confined to the parties thereto . . . .” (§ 632, subd. (c).)

5 Section 633 provides that , nothing in section 63 2 prohibits “any sheriff, undersheriff, or deputy sheriff regularly em ployed and paid in that capacity by a county, . . . or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority, from . . . recording any communication that they could lawfully . . . record . . . ,” and nothing in section 632 “renders inadmissible any evidence obtaine d by the above-named persons by means of . . . recording any communication that th ey could lawfully . . . record . . . .”

6 Section 633.5 provides that, nothing in section 632 “prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to re late to the commission by another party to the communication of the crime of . . . any fe lony involving violence against the person,” or “renders any evidence so obtained inadmi ssible in a prosecution for . . . any felony involving violence against the person . . . .”15 exclusionary rule contained in section 632 was abrogated by passage of Proposition 8, and concluded it was bound by federal Four th Amendment law. These issues were recently addressed by our coll eagues in Division Four in People v. Algire (2013) 222 Cal.App.4th 219 ( Algire ), a decision published after briefi ng was completed here. Rather than reinvent the wheel, we draw extens ively on that thorough and well-reasoned opinion. “‘[I]n 1982, the California voters passe d Proposition 8. Proposition 8 enacted article I, section 28 of the California Cons titution, which provides in relevant part: “Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a twothirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceedi ng, including pretrial . . . motions and hearings . . . .” (Cal. Const., art. I, § 28 , subd. (f), par. (2).)’ [C itation.] The ‘Truth-inEvidence’ provision in subdi vision (f), paragraph (2), of article I, section 28 of the California Constitution (article 1, 28(f)(2)) ‘was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if ex clusion is required by the United States Constitution . . . .’ ( In re Lance W . (1985) 37 Cal.3d 873, 890 ( Lance W .).) Section 28(f)(2) is applicable not only to judicially created rules of exclusion [citation], but also to statutory evidentiary restrictions [citations].” ( Algire
, supra , 222 Cal.App.4th at p. 227.)
In Algire
, supra , 222 Cal.App.4th 219 the defenda nt began sexually abusing his stepdaughter when she was 17, shortly after sh e came to the United States from China to live with her mother and defendant, who had recently married. The victim, who wanted to obtain her green card, had a practice of re cording conversations to advance her English skills. ( Id . at p. 223.) In one conversation reco rded on the victim’s cell phone without the defendant’s knowledge, the defendant stated that the last time he had touched the
victim she “was not ‘wet at a ll’ and that he believed that she needed instruction in sex from him because her body did ‘not u nderstand what [was ] happening.’” ( Ibid .) Before trial, the defendant objected to th e admission of the audio recording on the basis of section 632. The prosecutor argued th at the recording fell within the exception16 for felonies involving violen ce against the person (§ 633.5) or, alternatively, that Proposition 8 abrogated the statutory rule requiring exclusion of such evidence. ( Algire
, supra , 222 Cal.App.4th at pp. 2 26–227.) The appellate court addressed only the former ground. ( Id . at p. 227.) Algire
, supra , 222 Cal.App.4th 219 confronted th e following issue. “[I]n 1985, the Legislature enacted the Cellular Radio Te lephone Privacy Act of 1985 (1985 Act). (Stats 1985, ch. 909, p. 2900.) The focal elem ent of that legislation is Penal Code section 632.5, which prohibits the interception of cellular telephone communications, absent specified circumstances. [Citati on.] In enacting the statute, the Legislature also amended
section 632 and related statutes to reflect the addition of section 632.5, without making substantial changes to the wordin g of the exclusionary rule se t forth in subdivision (d) of
section 632. At least two-thirds of the memb ers of each house of the Legislature voted in favor of the 1985 Act.” ( Algire
, at p. 228, fns. omitted.) At issue in Algire was whether the 1985 enactment revived the exclusionary rule of section 632, subdivision (d), previously abrogated by section 28(f)(2). ( Ibid .) Guided by the Supreme Court’s analysis in Lance W ., supra , 37 Cal.3d 873, the
court in Algire
, supra , 222 Cal.App.4th 219 found no legi slative intent to resuscitate the abrogated exclusionary rule of section 632, subdivision (d). ( Algire
, at p. 230.) The 1985 Act reflected a declaration of legislative inte nt focused exclusively on the need to protect private cell phone communications. (Stats.1985, ch. 909, § 2, pp. 2900–2901 [“[T]his act is intended to provide recour se to those persons whose private cellular radio telephone communications have been maliciously invaded by persons not intend ed to receive such communications”].) The court observed that th e narrow scope of the Legislature’s intent was further illustrated by section 632.5 itself, the primary elemen t of the 1985 Act. “That provision discloses no intent to nullify the op eration of Proposition 8, as it contains no provision akin to subdivision (d) of secti on 632 establishing an exclusionary rule.” ( Algire
, at p. 230.) As a result, the audio recording of th e cell phone conversation between the victim and defendant was excludable only under the federa l rule applicable to evidence seized in17 violation of the Fourth Amendment. ( Algire
, supra , 222 Cal.App.4th at pp. 229–230;
Lance W. , supra , 37 Cal.3d at p. 896.) Because the victim in Algire had not recorded the conversation while acting as a government agent, the defendant’s Fourth Amendment interests were not implicated. ( Algire , at p. 230; see also Jones v. Kmart Corp . (1998) 17 Cal.4th 329, 333; Zhou v. Pittsburg State University (D.Kan. 2003) 252 F.Supp.2d 1194, 1203–1204 [under 18 U.S.C. § 2511(2)(d), recordi ngs of conversation between private
individuals made with consent of one party to conversation is admissible].) The same principles obtain here. Th e only distinction between this case and Algire
, supra , 222 Cal.App.4th 219 is that in Algire , there was no question the recorded conversation was between two private individuals. 7 Here the parties stipulated that C.
acted “under the direction of” the LASD when she recorded her cell phone conversation with appellant. 8 Thus, the question is whether fe deral law required exclusion of the recording. ( Lance W ., supra , 37 Cal.3d at p. 896.)

7 If she were not, appellant’s Fourth Amendment interests would not be implicated. ( Algire
, supra , 222 Cal.App.4th at p. 230.)

8 The trial court also found the recording admissible on the ground that C. acted as an agent of law enforc ement. We need not address the propriety of this ruling, as the recording was admissible on th e alternative ground articulated by the trial court. We affirm the trial court’s ruli ngs, not its reasoning and will affirm on any theory properly established by the record. ( People v. Mason (1991) 52 Cal.3d 909, 944; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18–19.)18 2. No Fourth Amendment violation As pertinent here, the Fourth Amendm ent protects ones oral conversations from the “uninvited ear,” unless one of the par ties to the conversation consents to the eavesdropping or recording. ( Katz v. United States (1967) 389 U.S. 347, 352 [88 S.Ct. 507, 19 L.Ed.2d 576]; People v. Murphy (1972) 8 Cal.3d 3 49, 359, fn. 9 ( Murphy ) [“one party to a telephone conversation may cons titutionally allow anothe r to listen to” and record it]; People v. Windham (2006) 145 Cal.App.4th 881, 891–892.) Murphy
, supra , 8 Cal.3d 349 guides our analysis. There, the defendant argued that, although he may not have had a reasonable expectation that informants would not testify to their conversations with him in cour t, he did have a reasonable expectation their conversations were not simultaneously bei ng heard and recorded by the police. ( Id . at p. 360.) The California Supreme Court saw “no distinction between the risk one faces that the person in whom he confides will la ter breach that trust by testifying about the conversation and the risk that such pe rson has already betrayed him and is instantaneously transmitting their conversati on electronically to police equipped with radio receivers.” ( Ibid; accord Unite d States v. White (1971) 401 U.S. 745, 751 [91 S.Ct. 1122, 28 L.Ed.2d 453]; Lopez v. United States (1963) 373 U.S. 427, 439 [83 S.Ct. 1381, 10 L.Ed.2d 462].) Similarly, appellant had no reasonable e xpectation that C. would not breach his
trust. In Lopez v. United States
, supra , 373 U.S. 427, the United States Supreme Court rejected a claim similar to th e one urged here, stating: “Stripped to its essentials, petitioners argument amounts to saying that he has a constitutional right to rely on possible flaws in the [Internal Revenue] agen t’s memory, or to ch allenge the agent’s credibility without being beset by corroborating evidence th at is not susceptible to impeachment. For no other ar gument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We th ink the risk that petitioner took in offering a brib e to [the agent] fairly incl uded the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” ( Id . at p. 439, fn. omitted.) Here, appellant was well aware of the risks19 involved in confiding in C., and willingly a ssumed the risk that she could “divulge the contents of that conversation, and should that happen, ther e has been no violation of the right of privacy.” ( Smith v. Cincinnati Post & Times-Star (6th Cir. 1973 ) 475 F.2d 740, 741.) Accordingly, appellant’s Fourth Amendment claim fails. Federal statutory law is in accord. (See 18 U.S.C. § 2511(2)(c) [“It shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior cons ent to such interception”]; 18 U.S.C. § 2511(2)(d) [party to communication not acting under color of law may intercept communication except for purpose of committing criminal or tortious act]; Zhou v. Pittsburg State University (D. Kan. 2003) 252 F.Supp.2d 1194, 1203–1204 [evidence
obtained in contravention of Pen. Code, § 632, but which does not violate 18 U.S.C. § 2511(2)(d), is admissible in non-diversity action].) Appellant’s Fourth Amendment
claim fails. 3. No Fifth Amen dment violation Appellant argues that the audio recording was the product of “badgering” by C. who was on a mission on behalf of the police intended to get appellant to incriminate
himself. With respect to the scope of our review as to whether a Miranda violation occurred, “‘We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they ar e substantially supported. [Citations.] However, we must independently determin e from the undisputed facts, and those properly found by the trial court, whet her the challenged statement was illegally obtained.’ [Citations.] We apply federal sta ndards in reviewing defendant’s claim that the challenged statements were elicited from him in violation of Miranda . [Citations.]” ( People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
Illinois v. Perkins (1990) 496 U.S. 292 [110 S.Ct. 2394, 110 L.Ed.2d 243] ( Perkins ) is instructive. In Perkins , the United States Supreme Court held that Miranda was not implicated by a conver sation between an incarcerated suspect and an undercover20 agent posing as a fellow inmate. No Miranda warning was given before the conversation. “It is the premise of Miranda that the danger of coercion results from the interaction of custody and offi cial interrogation . . . . When the suspect has no reason to think that the listeners have official power over him, it should no t be assumed that his words are motivated by the reaction he expects from his listeners.” ( Perkins , at p. 297.) “Questioning by captors, who appear to cont rol the suspect’s fate , may create mutually reinforcing pressures that the Court has a ssumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist.” ( Ibid .)
A similar conclusion was reached in People v. Williams (1988) 44 Cal.3d 1127, in which the California Supreme Court held that Miranda “has never been applied to
conversations between an inmate and an undercover agent.” ( Williams , at pp. 1141– 1142.) As the court explained: “This is because Miranda warnings serve to dispel the coercive effect of police custodial ques tioning. Both adjectives are crucial: Miranda does not apply to noncustodial police in terrogation or to nonpolice custodial interrogation. When a defendan t talks to a fellow inmate, the coercive atmosphere of custodial police interrogation is absent.” ( Id . at p. 1142, italics omitted.) Nor, for purposes of the Fifth Amendment analysis, does it matter that appella nt did not know C. was acting at or under the direction of the pol ice when he spoke with her. As explained
in Perkins
, supra , 496 U.S. 292, “Conversations between suspec ts and undercover agents do not implicate the concerns underlying Miranda . . . . [¶] It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.” ( Perkins , at p. 296.) These principles are well illustrated by People v. Plyler (1993) 18 Cal.App.4th 535 ( Plyler ). There, the defendant was arrested for child molestation and asserted his right to counsel. While in jail, defendant called the victim’s gr andmother who told the police about the call. With th e grandmother’s permission, the police attached a recorder to her phone, and instructed th e officer in charge of the co unty jail to tell defendant to “call [the grandmother], collect .” Defendant called the gr andmother twice, and spoke21 with the victim during each call. In one call he made incrimin ating statements. ( Id . at pp. 540–541.) The court held that defendant’s incriminating statements made during the surreptitiously-record ed conversations were not the pr oduct of custodial interrogation within the meaning of Miranda . In so holding, the court reasoned that “ Miranda was designed to protect and preserve an accuse d’s Fifth Amendment privilege against selfincrimination during incommuni cado interrogation of indivi duals in a police-dominated atmosphere.” ( Plyler , at p. 544.) But when “‘a su spect does not know that he is conversing with a government ag ent,’” the pressure to incrim inate himself does not exist, and there is no requirement to give Miranda warnings. ( Plyler , at p. 545.) Although appellant claimed his phone call to the victim amounted to “‘official intimidation’” and a custodial interrogation, the court found that “one would be hard-pre ssed to characterize appellant’s phone conversations with [the vi ctim] as ‘police custodial’ interrogation as
defined in Miranda . . . . Even if appellant had been ‘forced’ to place the call, he did not know [the victim] was workin g with the police. Under Perkins , [ supra , 496 U.S. 292,] absent such knowledge there is no reason to assume he might feel coerced and no Fifth Amendment violation occurred.” ( Plyler , at p. 545.) So too here. Clearly, appellant’s statem ents to C. were not the product of a coercive custodial interroga tion within the meaning of Miranda . Appellant’s statements were freely made several months after he had been released from custody because the district attorney declin ed to file formal charges, to a person whom he did not believe was acting under the direction of police. ( Perkins
, supra , 496 U.S. at p. 297; Williams
, supra , 44 Cal.3d at pp. 1539–1540.)
4. No Sixth Amendment violation Finally, appellant faults the trial court fo r violating his Sixth Amendment right to counsel. The asserted right never arose and could not have been violated here. “The Sixth Amendment right to counsel a ttaches at the time adversary judicial proceedings are initiated against the accused, such as when th e defendant is indicted or arraigned. [Citations.]” ( People v. Frye (1998) 18 Cal.4th 89 4, 987, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 42 0, fn. 22.) “Hence, an22 uncharged suspect undergoing police questi oning possesses no such Sixth Amendment right.” ( People v. DePriest (2007) 42 Cal.4th 1, 33; Davis v. United States (1994) 512 U.S. 452, 456–457 [114 S.Ct. 2350, 1 29 L.Ed.2d 362].) As explained in People v. Woods (2004) 120 Cal.App.4th 929, “[U]ntil such time as the ‘“‘government has committed itself to prosecute, and . . . the adverse pos itions of the government and defendant have solidified,’”’ the Sixth Amendment right to counsel does not attach. [Citation.]” ( Id . at p. 940.) “‘Any other [result] would be in consistent with the United States Supreme Court’s recognition that, before the formal instigation of charges, the investigative functions of the police should not be “u nnecessarily frustrate[d ]” by overprotective application of the Sixth Ame ndment. [Citations.]’” ( Id . at p. 941.) C.’s recording was made befo re formal charges were filed. No Sixth Amendment
violation occurred.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, Acting P. J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.