CALCRIM No. 3010. Eavesdropping or Recording Confidential Communication (Pen. Code, § 632(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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3010.Eavesdropping or Recording Confidential Communication
(Pen. Code, § 632(a))
The defendant is charged [in Count ] with using an electronic
device to eavesdrop on or to record a confidential communication [in
violation of Penal Code section 632(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intentionally listened to or recorded a
2. When the defendant listened to or recorded the (conversation/
communication), (he/she) used (an/a) (electronic amplifying/
recording) device;
3. When the defendant listened to or recorded the (conversation/
communication), (he/she) did not have the consent of all the
individuals who were party to the (conversation/communication);
4. At least one of the [other] individuals who were party to the
(conversation/communication) intended that the (conversation/
communication) be confidential;
5. The individual[s] who intended that the (conversation/
communication) be confidential had objectively reasonable
grounds to believe that the (conversation/communication) would
be confidential(;/.)
<Give element 6 if evidence shows defendant may have been an offıcer,
agent, or employee of a public communications utility.>
[6. The defendant was not an officer, agent, or employee of a public
communications utility company acting in the lawful performance
of (his/her) duties.]
[A confidential communication does not include a communication made
in a public gathering or in any legislative, judicial, executive, or
administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may reasonably
expect that the communication may be overheard or recorded.]
New March 2022
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
Elements. Pen. Code, § 632(a).
Confidential Communication. Pen. Code, § 632(c); Flanagan v. Flanagan (2002)
27 Cal.4th 766, 774-776 [117 Cal.Rptr.2d 574, 41 P.3d 575].
Exceptions. Pen. Code, § 632(e) & (f).
Intent to Record Confidential Communication
In People v. Superior Court of Los Angeles County (1969) 70 Cal.2d 123, 133 [74
Cal.Rptr. 294, 449 P.2d 230], the California Supreme Court interpreted a prior but
similar version of Penal Code section 632 and held that the recording of a
confidential communication must be intentional.
Prostitution and Reasonable Expectation of Privacy
“A person’s participation in sexual activities at a private residence in exchange for
money, without more, does not necessarily cause them to expect that their words
and actions will be recorded without their consent.” (People v. Lyon (2021) 61
Cal.App.5th 237, 247 [275 Cal.Rptr.3d 581].)
Wiretapping is the interception of communications by an unauthorized connection to
the transmission line. (See Pen. Code, § 631.) Penal Code section 632 does not
prohibit wiretapping but instead prohibits the interception of communications with
equipment that is not connected to a transmission line. (See People v. Ratekin
(1989) 212 Cal.App.3d 1165, 1168 [261 Cal.Rptr. 143].)
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.20 (Matthew Bender).
3011-3099. Reserved for Future Use

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