In a previous blog I posted about recordings and the application of Penal Code sections 631 and 632. Today the Court of Appeal issued a ruling on a case that is a bit of a game changer as it applies to Domestic Violence Cases only. This ruling is so new that we do not even have a legal citation either in the case or within the body of the case. Literally just released this morning.
B.R.C v. B.E.C. (2024) Cal. App. 5th [April 2024]
Surreptitious recordings are not excludable under PC 632(d) IF intended to obtain evidence for a Domestic Violence Restraining Order (DVRO).
Several statutes address the admissibility of surreptitious recordings. Under California Penal Code 632(d), such recordings are generally inadmissible, and this is reinforced by California Family Code 2022(a). However, Penal Code 633.6(b) provides an exception for recordings made by someone “seeking” a Domestic Violence Restraining Order, if they reasonably believe the recordings may contain evidence relevant to the restraining order. The issue here is what does “seeking” a restraining order mean?
In this California Appellate Case, Husband engaged in verbal abuse towards the wife, witnessed by their children. He called her profane, derogatory names daily and threw objects, including at her. The trial court admitted three surreptitious recordings wife made of these incidents. The court found that the husband’s behavior disturbed wife’s peace, placed her in apprehension of serious bodily injury, and issued a Domestic Violence Restraining Order against Husband.
The California Appellate Court sustained the trial court ruling. The Court of Appeal found an exception under California Penal Code 632.6(b) for recordings made by someone “seeking” a DVRO and the recordings look to the individual’s intent when making the recording. (Id. at p.) The crucial question is whether the recordings were made “for the purpose of providing evidence to the court.” (Id. at p.) Although evidence of intention was sparse in this particular case, it was sufficient to establish intent. Additionally, there was enough evidence to support the trial court’s finding of abuse. (Id. at p.)
A party in these types of cases must have specific, truthful testimony regarding the intention to obtain evidence. The respondent’s argument is limited to questioning the credibility of such testimony and whether the petitioner reasonably believed the recordings would provide evidence.
If you or a loved one has been a victim of domestic violence, it’s crucial that you get help immediately. There are several online resources for supporting and assisting those in bad situations and we recommend you consult an attorney as soon as it is safe and possible. At Alexandra McIntosh, we are here to help. Give us a call today to schedule your free consultation.
