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Court of Appeal:
Spouse Eying Bid for DVRO May Make Secret Recordings
Opinion Says Statute Authorizing Electronic Gathering of Evidence by One ‘Seeking’ Restraining Order Is Not Limited to a Person Who Has Already Filed a Petition; Otherwise, It Says, the Purpose Would Be Frustrated
By a MetNews Staff Writer
The Third District Court of Appeal on Friday affirmed a three-year order to a man to stay away from his then-wife, children and dogs, holding that the judge properly admitted three audio recordings surreptitiously made by the woman as she was being loudly berated.
Justice Peter A. Krause declared Penal Code §633.6(b) to be controlling. It creates an exception to the prohibition in Penal Code §632 on recording a conversation without the consent of all parties, providing:
“[A] victim of domestic violence who is seeking a domestic violence restraining order from a court, and who reasonably believes that a confidential communication made to him or her by the perpetrator may contain evidence germane to that restraining order, may record that communication for the exclusive purpose and use of providing that evidence to the court.”
Krause rejected the contention of the defendant/appellant, Beau Carli, that the section is inapplicable because the recordings were made by his then-wife, Brittany Carli, prior to the time she filed a petition for a domestic violence restraining order (“DVRO”).
Shouting Insults
Two recordings were made on Feb. 12, 2022. In the first one, the husband shouted profanity-laced gross insults at the wife in the presence of the children (twins born in 2019) and in the second, he berated her while in the car for taking four hours to get ready to leave and shunned her repeated pleas for him to stop the car and let her out.
In another recording, Krause said, the husband “cursed at and criticized” the wife “in several lengthy rants.” The justice did not mention the date it was made, but inferentially it was before March 21, 2022, when Brittany Carli filed in the Placer Superior Court a petition for a dissolution of marriage and requested a DVRO.
A temporary restraining order was granted the following day.
On Aug, 15, 2022, retired Placer Superior Court Judge Frances A. Kearney, sitting on assignment, granted the DVRO.
No Error
In his opinion affirming the order, Krause said that Kearney “did not err in finding section 633.6, subdivision (b) applicable and admitting the recordings.” He explained that it was “reasonable” for the wife to believe that the recordings of her husband “yelling, cursing at her, berating her, and refusing to let her out of the car despite her pleas, may be relevant to her future request for a DVRO under section 633.6, subdivision (b).”
Beau Carli contended that §633.6(b) comes into play only after a DVRO has been requested, pointing out that it makes reference to a party “who is seeking a domestic violence restraining order from a court.” Krause responded:
“We do not read this language to impose a requirement that a DVRO application be filed before recording evidence of domestic violence.”
He noted that “the statutory language does not explicitly require that a victim must petition for a DVRO before recording evidence of domestic abuse,” remarking:
“While the Legislature could have drafted the statute with this express procedural precondition, it did not do so.”
‘Prefiling Requirement’ Absent
Krause went on to say:
“[T]he statute was drafted (1) to aid domestic violence victims, by permitting them to submit relevant evidence in support of a restraining order without fear of legal retribution, and (2) to aid courts in making credibility determinations in difficult he-said, she-said scenarios, where direct evidence is often scarce. Nothing in the legislative history indicates that a DVRO petition must be filed before recordings are made. Indeed, it is difficult to see how this statute would achieve its purpose if we construed it to impose a prefiling requirement. If we did, a domestic violence victim would have to request a DVRO based on abuse that he or she was not permitted to record. Then, between the filing date and the hearing date, the victim could record any additional evidence of abuse that happened to occur, even though it did not form the basis for the DVRO request in the first instance. Such an interpretation would greatly diminish the efficacy of the statute. Similarly, one can easily imagine a circumstance in which a victim decides, during a moment of abuse, to record the event in anticipation of seeking a restraining order thereafter. The statutory language and legislative history signal that the statute is meant to encompass such a scenario, both to protect the victim and provide useful evidence to the court.”
He commented that the short time that lapsed between the making of the recordings and the seeking of a DVRO suggests that the intended purpose was for use of the evidence in support of the petition.
The wife claimed in her petition for a DVRO that the husband “abused her daily by calling her names such as ‘stupid,’ ‘fat,’ ‘lazy,’ and ‘bitch,’ ” Krause said, adding:
“This type of verbal abuse, including some of these exact terms, is heard on the recordings. Accordingly, the recordings did in part form the evidentiary basis for [the] DVRO application, further suggesting that she recorded them to help her get an order of protection from the court. Based on the foregoing, the trial court did not abuse its discretion by admitting and considering the evidence pursuant to the statutory exception.”
Substantial evidence supported the order, he found.
The case is Br. C v. Be. C., 2024 S.O.S. 1268.
Beau Carli represented himself on appeal. Attorney Trevor L. Hensley of Placer County’s Granite Bay, acting for Brittany Carli, remarked in his brief on appeal:
“Appellant/Respondent’s brief is in a form of ‘stream of consciousness’ and is, therefore, difficult to follow. Much of the argument presented by Appellant/Respondent is disconnected from legal authority and does not fall within the gamut of appealable conduct….”
Although the opinion deals with three audio recordings, a footnote makes fleeting reference to videos, and Hensley’s brief asserts that Kearney “properly admitted the videos pursuant to Penal Code § 633.5.”
That section specifies that Penal Code sections prohibiting recordings “do not prohibit 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….Kidnapping….”
The lawyer also contended that §633.5 justified Kearney’s admission of voicemails, explaining:
“Appellant/Respondent admits in his brief that Respondent/Petitioner testified that she was being kidnapped in one of the recordings….The trial court could have also admitted the recordings as proof of domestic violence.”
The marriage was dissolved on April 7, 2023.
Five days before the wife filed for divorce, her husband was arrested by sheriff’s deputies and Roseville police for battery on spouse and child endangerment. Beau Carli was arrested last Feb. 2 by Placer County sheriff’s deputies on suspicion of violating Penal Code §273.6(A), disobeying domestic relations court order.
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