Annoying or Harassing Phone Calls - Penal Code 653 PC
It is against the law in virtually every state to make an obscene phone call—but in the State of California, the law extends beyond the simple act of calling someone and being indecent.
California Penal Code 653m makes it a misdemeanor offense to place obscene or harassing phone calls or electronic communications "with intent to annoy." In other words, it's a crime to make repeated or harassing phone calls or to use obscene or threatening language.
Just one incident of harassment by phone is sufficient to support a charge of annoying phone calls under Penal Code 653m(a). Still, in reality, a single incident will not usually result in criminal charges. If there are multiple phone calls or repeated harassment, a charge can be filed under this statute.
Making harassing or annoying phone calls is not limited to calling from a telephone. It also applies to sending pesky text messages, email, or other types of electronic communication. This crime is more severe than simple prank calls and will often fall under the umbrella of domestic violence.
An example includes a couple living in separate locations through a stressful divorce process. Their child visitation arrangement has been a hotly debated issue, and the situation spirals out of control. The husband starts repeatedly threatening and harassing phone calls and leaves nasty voicemails.
Our Los Angeles criminal defense attorneys will discuss what the law entails explicitly and the penalties if you are convicted of this crime.
Overview of Annoying or Obscene Phone Calls in California
As noted, according to PC 653m, it is a crime in the State of California to call someone with the intent to annoy by using obscene language or making threats against the person, their family members, or their property.
However, in light of technological advances of recent years, the law has been amended to include a wide range of harassing activities by phone or an "electronic communication device." Thus, any of the following actions would potentially classify as a violation of this law:
- Calling the victim on the phone and making obscene remarks or threats;
- Leaving obscene remarks or threats on a person's voicemail;
- Texting obscenities or threats to the victim;
- Emailing obscenities or threats to the victim;
- Faxing a letter with obscenities or threats;
- Taking disturbing or suggestive photos on a smartphone and sending them to the victim;
- Making repeated calls/texts/emails/faxes with the intent to harass.
You can also be charged with a violation of PC 653m if you call and leave a generic voicemail or no message at all, then make obscene remarks or threats when the person calls back. You can even be charged if you don't speak the obscenities yourself but allow someone else to use your phone for that purpose.
What Is Considered "Obscene?"
The term "obscene" is one of those ambiguous terms that isn't easily defined by the law—and it is, therefore, the issue most often argued about in court concerning PC 653m—whether or not the content of the communication was "obscene."
Traditionally, obscene refers to sexually explicit content, but over time, the courts have ruled that the topic doesn't have to be sexual to be considered obscene.
Any communication that a reasonable person would find offensive, indecent, or inappropriate can be considered obscene. While there is no official list of what violates this law, some examples include:
- Using obscene or profane language;
- Using sexual innuendo;
- Using language that describes graphic violence;
- Making threats to the safety of the victim, their family, or their property;
- Sending photos or videos of an individual's body parts, such as genitals, buttocks, etc.
- Sending photos or videos of violent acts;
- Calling and saying nothing. If you call and hang up without speaking, the prosecutor could still argue that you intended to annoy or harass by calling in the first place.
As noted, the language doesn't have to be sexual to be considered obscene. It's anything deemed offensive or violates appropriate standards, such as profanity.
The relationship between the victim and the caller can be a crucial factor in determining whether the language used was obscene. As noted above, PC 653m charges are frequently directly connected to domestic violence. The prosecutor must prove that you intended to annoy or harass the victim when you made the phone calls.
What Are the Penalties for Penal Code 653m?
Making an annoying/obscene phone call, or sending a similar electronic communication, is a misdemeanor offense under PC 653m.
If you are convicted, you face a maximum fine of $1,000 and up to six months in county jail. However, suppose it is the first offense, or the circumstances seem minor or incidental. In that case, a judge may be convinced to reduce the sentence to misdemeanor probation or suspend the sentence altogether.
However, the penalties are harsh if you are charged with the related crime of criminal threats under Penal Code 422 PC. Prosecutors can charge this statute if you threaten a great bodily injury or death or intend your communication as a treat, and you cause them to fear for their safety or their family.
Criminal threats are “wobbler” that can be charged as a misdemeanor or felony offense. If convicted of misdemeanor criminal threats, the penalties include up to one year in county jail and a fine of up to $1,000.
If convicted of felony criminal threats over the phone or an electronic communication device, the penalties include up to 3 years in a California state prison and a fine of up to $10,000.
What Are the Related Offenses?
The crime of annoying/obscene phone communication often occurs in the context of other violations. In such cases, you may be charged with other crimes in addition to violating PC 653m. These include, but are not limited to:
- Making Criminal Threats (Penal Code 422 PC): Making a threat to kill or seriously injure the alleged victim. If your "annoying" phone call includes such a threat, and the person deems the threat to be credible, you may be charged with this crime as well, which may be prosecuted as a misdemeanor or felony;
- Stalking/Cyberstalking (Penal Code 646.9): The act of maliciously harassing or threatening someone else. If you use a phone or smartphone to do so, you could be charged with stalking, as well, either a misdemeanor or felony;
- Violating a Restraining Order (Penal Code 273.6): If the alleged victim of your "annoying" phone call was a significant other with a restraining order against you, chances are you violated that order by making the call—another misdemeanor offense.
How Can I Fight PC 653m Charges?
For prosecutors to obtain a conviction under PC 653m, they must show that (a) you made the communication with the intent to annoy or harass the other person; and (b) the content of your communication was obscene or offensive. Thus, the most common defenses for this crime involve refuting one or both of these points—specifically listed below.
You did not intend to harass or annoy the person. If you made the call for another reason and were provoked into an argument where you spewed profanity, you didn't make the call for annoying or harassing them.
As noted, in the making annoying or harassing phone call charges, the intent is a critical element of the crime that must be proven.
The call was not obscene. Whatever was spoken between you could not be categorized as patently offensive. As noted in the discussion over what is considered “obscene,” we might argue that language did not rise to that level. You have a constitutional right to free speech.
Perhaps we can negotiate with the prosecutor for reduced charges or dismiss the case. If guilt is not in doubt, we might be able or obtain a favorable plea bargain.
Further, through prefiling intervention, we might be able to negotiate with the law enforcement detective and the prosecution to avoid the formal filing of criminal charges in the first place, known as a “DA reject that occurs after the arrest but before the first court appearance.
Eisner Gorin LLP is a Los Angeles-based criminal defense law firm, and you can reach us for an initial consultation by calling (877) 781-1570 or filling out our contact form.