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My girlfriend committed domestic violence against me and…

My girlfriend committed domestic...

My girlfriend committed domestic violence against me and when I told her if she continued I would call the police she extorted me by saying she would make false accusations of domestic violence against me if I did so. I recorded her saying these things, admiring to assaulting me and her extortion of making false accusations against me. Are the recordings legal?

Lawyer's Assistant: Since laws vary from place to place, what state is this in? And when did this happen?

California. Yesterday. I believe I am clear under 633.5

Lawyer's Assistant: Has anything been filed or reported?

Not yet. The eviedence is in the video recording

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That sums it up.

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Answered in 1 minute by:
3/12/2018
Olivia Kent
Olivia Kent, Attorney
Category: Legal
Satisfied Customers: 4,633
Experience: Partner at Kent Law Group, LLC
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Hello and welcome to JustAnswer. My name is ***** ***** I'm an attorney. Please note this site is for general information for educational purposes only and does not constitute legal advice. Communicating with an expert on this site does not establish an attorney-client relationship. You might be offered a phone call, but you are under no obligation to accept; the phone call requests don’t come from me - they’re offered by the site - but if you do want a phone call I’d be happy to do that as well.
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Customer reply replied 5 months ago
She wants me to continue to allow her to live in our apartment rent free. This is also in the video, I told her if she doesn't meet her financial obligations I would have to take her to small claims court. Basically I only started to record the conversation as she began to say she would simply tell the police I have assaulted her if I called them on her for her actual assault on me. Once she proclaimed she would make false acuusations and have me arrested under false pretenses I began to record her.

So, California IS a two party consent state which means it is illegal to record a conversation ... HOWEVER if the person is trying to extort you, you may decide to use the recording as a bargaining chip... they may not want to risk being CRIMINALLY charged with extortion b/c, frankly, who knows if you're bluffing.

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All that being said, if it was ME (remember, we can't give you legal advice on what to do... just general educational information) ... I personally would release the video to ANY judge in ANY action where I was accused of anything that might get me charged with ANYTHING criminal (but that's just me!).

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Because if she's going to try to get you arrested and you have a video in which she says she's going to try to get you arrested that's sort of a giant thing, wouldn't you say?

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Customer reply replied 5 months ago
Doesn't 633.5 of the penal code give the exemption that if the recording is being done in the commission of a crime it is allowed? Her stating she would like to the police and falsely accuse me of committing a crime that she in fact just committed is an exemption under 633.5?

I wouldn't even know how she could escape being criminally charged with extortion if there was PROOF that she was guilty of extortion...

As for living in the apt rent free... you can follow formal procedures for eviction and get her out that way.

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Customer reply replied 5 months ago
I would agree, I just don't want to be guilty of breaking the 2 party consent law.
Customer reply replied 5 months ago
She is on the lease

"under California Penal Code § 632(d), an illegally recorded conversation is inadmissible in any court proceeding. However, California courts have carved out exceptions to this blanket exclusion in both civil and criminal actions...In Frio v. Superior Court (1988) 203 Cal.App.3d 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code §632 as a shield for perjury. “The repugnance of an opportunity for a witness who was recorded to lie in this situation is akin to the circumstance of a criminal defendant who testifies at variance with an earlier statement ruled inadmissible because of a violation of Miranda." https://www.bc-llp.com/illegally-recording-conversation/

That's what I was trying to get at as far as the recording...

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Customer reply replied 5 months ago
If i do proceed with a police report then the following should protect me theoretically... 633.5, which provides: "Nothing in Section 631, 632, 632.5, 632.6, or 632.7 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 the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith."In short, an individual has no reasonable expectation of privacy in a conversation wherein the individual threatens the other party to the conversation, with a criminal act identified in Penal Code 633.5.

Yes, that would be correct. You can’t commit a crime and try to hide the crime by asserting that somebody else would be committing a crime by exposing your crime. That still doesn’t mean you can’t get in trouble for recording a phone call… But it does mean they can’t avoid trouble by arguing that the phone call isn’t valid evidence. And that’s why people often choose to use evidence like that. I hope that makes sense.

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Customer reply replied 5 months ago
Ok, this was an in person conversation, well I was calmly talking while she was yelling. But it was a video recording on my phone but we were both in the same room. If that changes anything

And often a good attorney argues that their clients reasonably expected to record somebody threatening them or otherwise intending to extort something from them…

Reminder: Just Answer provides general educational information which does not constitute legal advice and does not create an attorney-client relationship. Only your local attorney can provide you with legal advice.

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In the age of phones… I sort of figured it was that sort of situation. It makes it a lot easier in states with one party consent

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In general you always want to come about a result without putting yourself in harms way. So, for example, if you let her know you have such a recording and you will use it if you need to she may leave on her own because she may realize that once it comes out nothing good will happen for her.

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Customer reply replied 5 months ago
Ya but wouldn't that in itself be extortion?
Customer reply replied 5 months ago
Or blackmail.?

Telling someone that they need to follow the law or you will report them for not following the law is not extortion or blackmail.

Olivia Kent
Olivia Kent, Attorney
Category: Legal
Satisfied Customers: 4,633
Experience: Partner at Kent Law Group, LLC
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Customer reply replied 5 months ago
Lol thanks I appreciate you educating me on this topic.

Telling someone to leave your apartment because they are not paying rent is not extortion or blackmail. Now, obviously there is a correct way to get someone to leave if they won’t leave… You have to follow the law and you have to provide them with a notice to vacate and then file a formal eviction proceeding to get them leave – but asking someone to do something legal/legitimate in exchange for not reporting them for doing something illegal

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is not extortion or blackmail.

Thanks so much for your rating :-)

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Customer reply replied 5 months ago
One last question in regard to the apartment. We are co-tenants she and I are equally on the lease. I don't think I can evict her. The apartment would have to only if she violates the lease. The issue here is that we are both 100% liable for the rent. If she doesn't pay I'm still liable for it and if I don't pay so is she. Another California specific law lol. I couild either just remove myself from the lease and pay the early termination fees and let her get evicted (the full rent surpasses her monthly income) or I could simply stop paying and ride out the eviction. I could also report her for domestic violence, use the video as proof, and then get a no contact restraining order against her witch would subsequently act as an eviction. I just don't know the best course of action in this situation

You are correct - if she's a cotenant you can't evict her but the landlord can.

Both of the things you suggested are options... you just need to do a cost benefit analysis and decide which is the best option for you. Obviously if you get evicted there are assorted headaches for you going forward (getting another apartment, etc.) so that will play a role in your decision.

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If you report her for domestic violence and get her booted from the apartment then you do have to be able to pay the rent on your own of course.

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