What is Penal Code 653(m) PC – Making Annoying Phone Calls?

California prohibits making obscene, threatening, or repeated phone calls with the intention of harassing or annoying the person being called. The same rule also applies to the sending of emails, text messages, or any messages involving an electronic communications device (EDC). This is codified in California Penal Code 653(m) PC, which is also commonly referred to as the crime of “Annoying Phone Calls.”

Let’s examine the legal description of California Penal Code 653(m) PC so you can get a better understanding of your rights and liabilities.

The Legal Description of California Penal Code 653(m) PC – Annoying Phone Calls

In California, before you can be convicted of a domestic violence crime, the prosecutor must prove all of the elements of the particular crime that you are accused of. These elements, simply put, are just facts or facets of the crime. They are outlined in the penal code and the issues surrounding them with govern your entire case. If the district attorney cannot prove even just one of the elements of Penal Code 653(m), then you cannot be found guilty in a trial in a court of law. Conversely, to be convicted of California Penal Code 653(m), the prosecutor must prove all of the elements. The elements of California Penal Code 653(m) PC are as follows:

• You made contact with the alleged victim using an electronic communication device.
• The communications qualify as annoying or harassing.
• You made the communications with the intention of harassing or annoying the alleged victim.

Let’s go over each of the individual aspects of California Penal Code 653(m) PC one by one.

Making Contact with the Alleged Victim Using an Electronic Communication Device (EDC)

Under Penal Code 653(m) PC, California takes a broad view towards what constitutes an “Electronic Communication Device.” This means that pretty much any device could subject you to the penalties and punishments of California Penal Code 653(m) PC if you sent irritating or harassing with them. The most common forms of electronic communication seen in California Penal Code 653(m) PC cases include telephone calls on a landline, telephone calls on a mobile phone, text messages, social media messages, faxes on fax machine, pager messages, video recordings, and disturbing content/photos sent through a smartphone.

Whether or not the victim responds or answers to your communications

You are subject to California Penal Code 653(m) penalties even when the alleged victim does not respond or answer to your communications. Additionally, you are also potentially liable if the alleged victim calls you back and that is when you begin to communicate the obscene, harassing, or hostile language. This means that you can be found guilty of a Penal Code 653(m) PC violation even when you did not dial the supposed victim, if you asked the supposed victim to call or communicate with you back.

It is also important to keep in mind that you could be subject to California Penal Code 653(m) liability even if you did not actually make the phone call or electronic communication yourself. If you have someone else conduct the communication for you and you had control over the EDC, then this is enough to trigger California Penal Code 653(m) liability. Additionally, if you did not request them to do so, but you knew they were making harassing or irritating phone calls on your behalf, this could also subject you to California’s Penal Code 653(m) liability.

Example:

Ross and Rachel are in the middle of a bad breakup. Rachel is upset that Ross broke up with her because she always thought she was better than Ross. She sits down and writes an angry letter to Ross and puts it in the mail. Unsatisfied, she decides to call Ross’ phone numerous times and send angry, threatening text messages. She tells Ross he will never find anyone like her and that he will die alone. Later that night, she is hanging out with her friend Phoebe at a bar. Rachel spends the night complaining about Ross. At some point, Phoebe pulls Rachel’s phone off the table and calls Ross. Phoebe makes fun of Ross and even threatens to tell his secrets to any girl Ross dates in the future.

In this example, some of Rachel’s actions could subject her to California Penal Code 653(m) PC liability. The phone calls and text messages Rachel personally sent would definitely satisfy the electronic communication device requirement. Furthermore, Phoebe’s phone call would also subject Rachel to liability under California Penal Code 653(m) PC. There are two reasons for this. First, it could be argued that Rachel asked Phoebe to do so while they were talking at the bar. Second, it was Rachel’s phone and she was in complete control over the device the whole time. She could have asked Phoebe to get it back or ask her to stop. This is not a situation where Rachel did not know Phoebe was making harassing calls to Ross with her phone. She was right there when it happened.

However, the letter Rachel wrote would not trigger California Penal Code 653(m) liability. The writing or sending of the letter did not involve an electronic communication device and is therefore out of the purview of California Penal Code 653(m).

The Communications must be Annoying or Harassing

Under California’s Penal Code 653(m), there are 3 forms of communications that qualify as “annoying” for the purposes of the second element of the crime. The three forms are:

• Communications that include “Obscene Language”
• Communications that threaten the alleged victim, their family, or their property.
• Repeated communications, even if the underlying language is not annoying or harassing

Remember, in order to trigger California Penal Code 653(m) liability, it must be proven that the language you communicated with an electronic device fits one of these three forms of communications. Otherwise, you cannot be found guilty in a trial in a court of law.

What is an Obscene Communication?

Obscene language generally refers to inappropriate sexual communications. But for the purposes of California Penal Code 653(m), obscene language is not only limited to the topic of sex. To trigger California Penal Code 653(m), the communication could also be offensive or outside the scope of societal standards of decency. This includes language of profanity or communications that describe graphic violence. Naturally, what is considered offensive or indecent depends on the particular people involved and the surrounding community. Thus, obscene language may be easier or harder for prosecutors to prove depending on what context such language was used.

As a result, the court will scrutinize your relationship with the alleged victim heavily. If you previously shared a close relationship with the alleged victim whereby there was a past history of exercising obscene language with each another, then a particular communication may not classify as annoying or harassing. However, if the electronic communications were with someone you barely know, then a particular communication will more likely be deemed obscene and trigger California Penal Code 653(m).

Example:

Christopher is married to Carla. Even though he is married, he likes to flirt with the women at work. One night, while in a particularly frisky mood, he sends Carla nude photos of himself. Because she is busy at work, she does not respond. In need of attention, Christopher decides to send the same photos to the young, attractive intern who just started working at his office.

In this example, Christopher sent the same photos to both his wife and the intern. Without any context, a nude photo would probably qualify as an obscene communication. However, the context of a communication and the relationship between the people involved matters highly when it comes to California Penal Code 653(m) liability. So as to his wife, Christopher probably has a close relationship with her and it would not be unusual for them to share sexual content. But as to the intern who had a professional and new relationship with Christopher, the nude photos would likely qualify as offensive. Sending a nude photo out of the blue to a co-worker would likely be outside the bounds of most community standards.

Therefore, the second element would likely be met. Remember, though, that all the elements must be met to trigger California Penal Code 653(m) liability. In this case, Christopher had no intention or annoying or harassing the intern. He honestly believed she would like it. Read below to get more information about the third element of California Penal Code 653(m) PC.

Intention to Harass or Annoy

Even if you sent harassing or annoying communications through an electronic device, you cannot be found guilty of a California Penal Code 653(m) violation if the prosecutor cannot prove you did so with the intention with of annoying or harassing that person. In other words, if you did not honestly think your communications were annoying or harassing, then you aren’t subject to California Penal Code 653(m) liability. Although the burden of proving the element is on the prosecutor, your case can be strengthened by providing evidence that you sent the messages in with no bad intentions or with an appropriate business purpose in mind.

Example:
Romeo is upset that Juliette ended their relationship because Juliette’s father did approve of their courtship. Deeply saddened, Romeo constantly sent emails and texts to Juliette about how much he misses her and loves her. Many of the messages he sent contained poems about why they should run away and be together.

In this example, it could be argued that Romeo was simply sending messages with the intention of convincing Juliette to run away with him. There is no indication that Romeo was trying to annoy or harass her. Therefore, he would fall outside the purview of California’ Penal Code 653(m). However, if he was angry at her for breaking up with him, then the argument could be made that he was sending so many messages to get under her skin and upset her. If it can be shown that the messages were sent with the purpose of harassing her, then he could be liable under California Penal Code 653(m).

Credible Threat

For a threat to be considered legally credible under Penal Code 653(m), it must be one that makes a reasonable person fear for their safety or for the safety of their immediate family. This means that threats that are grandiose or ridiculous would not fit the legal standard for a credible threat. However, threats that seem like a particular person could realistically carry them out would fall under the liability of Penal Code 653(m). To be liable under Penal Code 653(m), it does not matter if you were joking when you made the threat. The intention is irrelevant. It only matters whether the threat seems credible from the point of view of the alleged victim.

Example:

Carl and Harriet are married and recently separated. Carl hears that Harriet might go on a date, which drives him nuts. He calls Harriet and tells her that if she goes out on that date he will kill all her immediate family. Harriet’s family lives in China in a small remote village.

In this case, the argument could be made that Carl’s threat were so outlandish that no reasonable person would be placed in fear from his statements. It would be very difficult for Carl to find Harriet’s family and hurt them. On the other hand, it could be argued that Carl could just buy a plane ticket to China and follow up on his threat. This might depend on how much money Carl possesses. Or the reasonability of the threat might depend on Carl’s past history of violence. As you can see, the determination of what is a credible threat depends highly on a variety of facts. The way these facts are presented and which ones are highlighted can make or break your case.

What are the potential consequences for violating California Penal Code 653(m)- Annoying Phone Calls?

California Penal Code 653(m) is classified as a misdemeanor crime. If convicted, you could face up to a maximum of six months of county jail time and/or a fine reaching up to a thousand dollars. However, if the circumstances surrounding the incident(s) are not particularly serious or if you have a small criminal history, the judge could just sentence you to informal probation or even give you a deferred sentence. In these cases, you could be ordered to enroll in a mandatory counseling program as one of the requirements of your probation.

What are the legal defenses to California Penal Code 653(m) – Annoying Phone Calls?

The penalties for a conviction under California Penal Code 653(m) can be quite severe. Fortunately, there are a variety of legal defenses to a California Penal Code 653(m) charge. An experienced and diligent domestic violence attorney, who is versed in the area of domestic violence crimes, can review the specific facts of your case and develop a strategy that utilizes all available legal defenses. Using all the procedural and substantive legal tools available, a skilled domestic violence attorney can effectuate the best possible outcome for your particular case. The following are some of the more common legal defenses to a California Penal Code 653(m) charge:

1. There was No Intention to Harass or Annoy

Remember, a conviction in a trial in a court of law requires that the prosecutor prove all the elements of the crime. Therefore, if it cannot be shown that you sent the communications with the intention of harassing or annoying the alleged victim, then you cannot be found guilty under California Penal Code 653(m) in a court of law. A domestic violence attorney can boost your case by presenting admissible evidence that you sent particular communications with no bad intentions or for a reason other than harassment. For example, your attorney can demonstrate to the jury that you were trying to win back your ex-partner or trying to re-establish a line of communication.

2. The Language in the Communications were not Obscene

A smart domestic violence attorney can argue that a particular set of electronic communications were not obscene. Because our nation’s Constitution protects the 1^st Amendment right to Freedom of Speech, judges are limited in the way they categorize certain speech as obscene. In fact, many judges are hesitant to ban speech in general. By using the procedural tools available, a domestic violence attorney can put the pressure on a prosecutor to prove your language was not only obscene but also not protected by our Constitution. This is a difficult task for many prosecutors and they often prefer to reduce or dismiss charges rather than fight such a case.

3. Insanity

It is not uncommon for people who suffer from a psychological or emotional illness to send annoying or harassing phone calls to other people. In these situations, you could avoid a California Penal Code 653(m) charge by asserting an insanity defense. In order for this defense to apply, the following facts must be proven. First, you were unable to know or understand the actions you committed. Second, you were unable to tell the difference between wrong from right when you committed the acts that lead to the “annoying phone calls.” If both of these facts can be proven, you cannot be found guilty of a California Penal Code 653(m) charge.

At the very least, this information can go a long way in reducing your sentence. If a judge believes you were suffering from an emotional or psychological problem during the commission of the crime, you might be able to get sentenced to just probation or even get your sentence suspended. In these situations, the judge will probably order mandatory counseling or mental health treatment.

What Should You Do Next If You Are Facing Penal Code 653m Charges?

If you are accused of “Making Annoying Phone Calls”, there is only one call you should make and that is to Contact Domestic Violence Attorney. Feel free to call Domestic Violence Attorney at 424-276-6060 for a free consultation. We will gladly review your case and advise you on a course of action.