What is the effect of section 633.5 of the California Penal Code on a phone recording pursuant to section 632 of the Penal Code?

Appellant argues that the trial court erred in admitting the phone recording pursuant to section 633.5. Although the phone call was surreptitiously recorded, the trial court found that it was a communication relating to a felony involving violence against a person with the meaning of section 633.5. We review for abuse of discretion. (People v. Nazary (2010) 191 Cal.App.4th 727, 746.)

Subject to certain exceptions, section 632, subdivision (d) provides that surreptitiously recorded phone calls are inadmissible. 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 relate to the commission by another party to the communication of . . . any felony involving violence against the person, or a violation of Section 653m." Our courts "have examined the relationship between Penal Code sections 632 and 633.5. All have concluded -- correctly -- that the latter exempts from the former an unconsented recording made with the requisite reasonable belief although the recording fails to capture the anticipated evidence [citation] or where the initial purpose of the recording is self-protection rather than to gather evidence for use in criminal prosecution [citation]." (Lubetsky v. State Bar (1991) 54 Cal.3d 308, 321.)