In restraining order cases, people often ask to use secretly recorded telephone conversations as evidence. Recording telephone calls without permission presents several significant legal issues. The main issue is having the other person’s consent to record the conversation. California protects people’s right to privacy, even during telephone conversations.
California’s Invasion of Privacy Act has long been held to prevent one party to a telephone conversation from recording it without the other’s consent. However, an attorney can help you establish the other party’s consent which may allow the admissibility of recorded telephone conversation evidence.
Recording telephone conversations without consent may subject you to legal problems. The California Invasion of Privacy Act (§ 630 et seq.) was enacted in 1967, replacing prior laws that permitted the recording of telephone conversations with the consent of one party to the conversation. The purpose of the act was to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation.
Every person who, intentionally and without the consent of all parties to a confidential communication eavesdrops upon or records the confidential communication shall be punished by a fine not exceeding $ 2,500 or imprisonment not exceeding one year.
Does telling the other party that they are being recorded fix the problem?
Not every telephone conversation is confidential. Under California Penal Code 632(c), the term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties on the call.
Any communication made in a public gathering, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded are excluded.
Confidential telephone communication includes any communication carried on in circumstances that may reasonably indicate that any party to the communication desires it to be confined to the parties and excludes a communication made in a public gathering or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
A conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Frio v. Superior Court (1988) 203 Cal. App. 3d 1480 [250 Cal. Rptr. 819]; Coulter v. Bank of America (1994) 28 Cal. App. 4th 923 [33 Cal. Rptr. 2d 766]. A conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. O’Laskey v. Sortino (1990) 224 Cal. App. 3d 241 [273 Cal. Rptr. 674]; Deteresa v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460.
This is an area that requires the careful oversight of a train attorney. If you have questions regarding recorded telephone conversations, please call the office immediately at (408) 816-2311.
How to Prove Self Defense in a Domestic Violence Case
California Courts have long recognized the theory of self defense, even in domestic violence cases. The law allows people to apply any necessary force to protect yourself from wrongful injury. If your spouse, significant other, or family member attacked you, and you defended yourself – you need to speak with an attorney immediately. Self defense requires the defendant to prove certain elements to the court. The sooner you speak with a lawyer, the better your defense will be.
It is very common for two people who live together to engage in physical altercations. Often, there are no injuries, and the person who gets arrested was simply defending himself. The police are often under instruction to take one party into custody to diffuse a situation where one party alleges domestic violence.
Courts have defined self defense as:
1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and
3. The defendant used no more force than was reasonably necessary to defend against that danger.
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant’s belief must have been reasonable and he must have acted because of that belief. You are only entitled to use the amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.
The defendant is justified in taking quicker or harsher action when he or she is aware of threats against the defendant or others, or past violence by the victim. People v. Minifie (1996) 13 Cal.4th 1055, 1065. In California, there is no requirement to retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 494.
When deciding whether the defendant’s beliefs were reasonable, juries are instructed to consider all the circumstances as they were known to the defendant.Read More
What are the elements of Penal Code 243(e)(1)?
Misdemeanor Domestic Violence charges are one of the most common crimes heard at the San Jose Hall of Justice. California Penal Code 243(e)(1) describes the elements of Domestic Violence, and how the crime is punished.
There are two basic elements:
1. Did the Defendant commit a battery on the alleged victim?
2. At the time of said battery, was the alleged victim the spouse, fiance, or any individual that ever had a dating relationship with the Defendant?
Common defenses for this charge include: the parties never had a dating relationship, no battery was ever committed, the defendant acted in self defense, the victim was actually the aggressor, or the police acted in a way inconsistent with the law.
The punishment for a conviction for PC 243(e)(1) will depend on the severity of the circumstances of the crime. However, the Defendant may not be sentenced to more than one year of jail. Further, any person who has been convicted of PC 243(e)(1) may not own or even possess a firearm within 10 years of the conviction.
If the Defendant is not yet a citizen of the United States, there may be immigration and deportation consequences. Under 18 U.S.C. section 16, a “crime of violence” means an offense that has an element of the use of physical force against the person of another or involves a substantial risk that physical force against the person of another may be used in the course of committing the offense. Also, under 8 U.S.C 1227(a)(2)(E), a non-citizen is deportable if convicted of an offence relating to domestic violence including crimes against children or violations of protective orders.Read More
Alternative Programs to Jail Time
Nobody wants to go to jail, and your attorney should know how to keep you out of jail. Depending on the crime you are charged with, your attorney may be able to argue for jail alternative programs that eliminate or limit jail time.
These are among the most common alternative sentencing programs:
- Sheriff’s work alternative program (SWAP). This is the most common jail alternative program in the Bay Area. In a work alternative program, the defendant can serve the jail sentence by participating in a public service work project. Common examples include picking up trash in a public area (like a park or school), cleaning graffiti, and removing litter from the freeway. Most programs allow the defendant to go home after working an eight hour day. More severe programs require the defendant to spend nights in jail.
- Work furlough program or school furlough program. In a work furlough program, the defendant goes to work or school during the day, but returns to jail to spend the night. This jail alternative program is utilized when the jail sentence is too long for SWAP, and the defendant has a full time job.
- Electronic monitoring program (EMP). This is commonly known as “house arrest.” With an EMP, the defendant is allowed to serve his or her sentence at home and is monitored through either GPS technology or electronic monitoring. For electronic monitoring, the offender must have a basic service telephone line installed in their house and pay up to $100/day for the service.This is the most popular jail alternative program for defendants who can afford it.
- Weekender program. In a weekender jail program, the defendant is allowed to serve his or her jail sentence over the weekends. Some programs do not require overnight confinement.
- Community Service Work. In rare instances, defendants are allowed to serve their sentences at non-profit or charity organizations such as the Red Cross, local animal shelter, homeless shelter or ASPCA. These jail alternative programs are usually reserved for infractions, drug crimes, and low level misdemeanors.
The facts of your case will determine which program is available to you. Before taking a plea or agreeing to a particular program, it is best to discuss all of your options with an attorney.Read More
California Penal Code §243(e)
The most common criminal charge associated with Domestic Violence is California Penal Code §243(e) or “domestic battery” – a misdemeanor. Misdemeanors, by definition, have a one year jail term limit. However, there are ways a sharp defense attorney can keep your exposure to a minimum.
The prosecutor must show that the defendant committed a battery at the time the victim was a spouse, fiance, or someone with whom the defendant has or had a dating relationship with.
If the alleged victim is injured, or the conduct is considered severe, then the prosecutor may charge you under California Penal Code §273.5, “Corporal Injury on a Spouse, Cohabitant, or Fellow Parent” – a felony. Felonies have the potential of a state prison sentence – not just local jail time.
If the defendant has been keeping track of, or following the alleged victim, and the victim allegedly suffered severe emotional distress, then the prosecutor could charge California Penal Code §646.9 – “Stalking.” Other possible charges include Assault, Battery, Criminal Threats, and False Imprisonment depending on the facts of the case.
The first issue the Court will address in Domestic Violence cases is usually a criminal restraining order. This order may be a “stay away” order and/or a “move out” order.
The Court may restrict the defendant from anything but “peaceful contact” between the parties. Bay Area Courts have been requiring the parties to attend a class before a “peaceful contact” order can replace a “no contact” order. Domestic violence restraining orders require the defendant to turn in, or sell all firearms for the duration of the orders. (Penal Code §136.2(d))
A conviction with Domestic Violence conditions can include probation, completion of a court-ordered batterer’s treatment program, fines, warrantless search conditions during probation, orders to support dependents, prohibitions against drugs and alcohol, and orders to enroll in a chemical dependency program.
If you have been arrested for any type of domestic violence, it is critical to be represented by an attorney immediately to protect your legal rights, and to help maintain your freedom. Please call our office at (408) 816-2311 at any time.
What is considered domestic violence?
California’s Domestic Violence laws define an “act of domestic violence” with a very broad area of conduct and class of victims. It is not necessary to be married or engaged to an alleged domestic violence victim in order for the law to apply. The California Penal Code defines domestic violence as “abuse committed against an adult or a minor who is:
- former spouse
- cohabitant (someone who lives in the same house, apartment, or living area
- former cohabitant (someone who used to live in the same house, apartment or living area)
- person with whom the suspect has had a child
- person with whom the suspect is having a child (pregnant women)
- person to with home the suspect had a dating relationship with (See California Penal Code §13700)
Under this definition, you can be charged with domestic violence even if you only dated the alleged victim. No marriage, engagement, children, or living together is necessary.
The law also defines Domestic Violence abuse as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” California Penal Code §13700.
Witness statements, signs of injury (such as bruises, scratches, abrasions, etc.), and party admissions often strengthen the prosecution’s case.
This area of the law can result in serious legal consequences, and proper legal representation early in the case is critical to maintaining your freedom. Please make an appointment to speak with an attorney at (408) 816-2311.
What to do when you have to go to court for the first time
Court dates at the Hall of Justice tend to sneak up on people. If you have a court date tomorrow, and you don’t have an attorney, then this article was written for you.
- Get to court early. The doors at the Hall of Justice open at 8:30am. If you are late to your first court date, you run the risk of the Judge issuing an arrest warrant if they call your name and you aren’t there. Of course, if you hired an attorney before your first court date, you may not have to attend court at all.
2. Dress appropriately. Courtrooms in San Jose, Fremont, and Morgan Hill have fairly strict dress codes. People who are wearing shorts, or tank tops have been kicked out of the courtroom. It’s best to wear slacks, a collared shirt, and dress shoes. If you have a tie, or a suit – you should wear it to court.
3. Know what to say, and don’t say the wrong thing. Your first court date is NOT going to determine your innocence or guilt in your case. People often confuse Superior Court with TV Court where cases are resolved in one day. Everything you say in the courtroom can be used against you in your case. Saying the wrong thing can result in harsh penalties. The right thing to say is “I want to talk to an attorney.” Period. Say nothing else. Saying that you want to talk to an attorney will not negatively affect your case in any way.
4. Talk to an attorney. It’s best to talk to a lawyer before your court date. The attorneys at the Bay Area Law Center are available to talk to you – even the night before your court date, or even the same day of your court date. Our call center is open 24 hours a day. Even if you’re reading this at the court house, walk to the hallway and call (408) 816-2311. We might be able to send an attorney down to the courthouse right away.Read More