Is it legal in California to record an in-person conversation if all parties are aware that a recording is being made but one of the parties objects to the recording (but keeps talking anyway). Assume that the conversation takes place in the home of both parties and that the objecting party is making unwanted (and potentially harassing) verbal statements to the party doing the recording.
If it is illegal, is there any way to mitigate liability after the recordings have been made if they have not been published (assume the recording party was not aware of the illegality at the time of recording and only wished to obtain evidence of harassment; they have not used the tapes for any purpose at the current point in time, nor have any criminal or civil charges been made against the recording party as of yet)?
Criminal Defense Attorney
California law requires not only knowledge of the recording device, but also consent from all parties (Pen Code. 631, 632). I think that should answer the first part of your question.
There is an exception to this which arises when the recording is being made of a bribery or violent felony. This will prevent the State from prosecuting the recorder in those circumstances.
Construction / Development Lawyer
I agree with the other answer, however, you could argue that if the other party was warned, even though they did not expressly consent to being recorded, but went ahead talking anyway knowing that they were recorded, the may have impliedly consented, or waived any argument that you did not consent.