Penal Code 653m PC - Annoying Phone Calls in California
California Penal Code 653m PC makes it a misdemeanor crime to harass or annoy somebody through phone calls or electronic communications that are obscene, threatening, or repeated in nature.
Notably, a phone call, text message, or other communication must be more than simply annoying to qualify as a criminal annoying communication. It must involve obscene language or threats or be one of repeated harassing phone calls.
Often, Penal Code 653m charges are filed by the prosecutor when it's related to domestic violence or stalking. It's sometimes challenging to know what type of obscene language or threats can lead to criminal liability for annoying telephone calls.
To be convicted of making annoying or harassing telephone calls or communications, the prosecutors must prove that you made or permitted a telephone call or electronic communication that involved obscene language, threats, or repeated calls and that you had the intent to harass or annoy.
Violations of the law include harassing text messages, emails, letters sent by fax, and disturbing photos sent directly from a cell phone.
You can also violate PC 653m even if you call or contact somebody, they do not answer, and then they call you back, where you then use obscene or threatening language toward them.
You can also be charged with making annoying phone calls even if you did not make a telephone call or send an electronic communication yourself. In other words, it's sufficient to let someone else use a phone or communication device you control to make an annoying phone call or electronic communication. However, it must be proven that you knew they were using your property for these purposes.
What Does the Law Say?
The entire text of California Penal Code 653m PC says, "(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.
(c) Any offense committed by telephone use may be deemed committed when and where the telephone call or calls were made or received. Any offense committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committed when and where the electronic communication or communications were originally sent or first viewed by the recipient.
(d) Subdivision (a) or (b) is violated when the person acting with intent to annoy makes a telephone call or contact by means of an electronic communication device requesting a return call and performs the acts prohibited under subdivision (a) or (b) upon receiving the return call.
(e) Subdivision (a) or (b) is violated when a person knowingly permits any telephone or electronic communication under the person's control to be used for the purposes prohibited by those subdivisions.
(f) If probation is granted, or the execution or imposition of sentence is suspended, for any person convicted under this section, the court may order that the person participates in counseling as a condition of probation.
(g) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data. "Electronic communication device" also includes, but is not limited to, videophones, TTY/TDD devices, and all other devices used to aid or assist communication to or from deaf or disabled persons. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code."
Annoying Phone Calls - Quick Facts
- Penal Code 653m PC makes it a misdemeanor offense to place obscene or harassing phone calls or electronic communications "with intent to annoy."
- It's a crime to make repeated or harassing phone calls or to use obscene or threatening language.
- PC 653m makes it a crime to call someone intending to annoy by using obscene language or making threats against them, their family, or property.
- Just one incident of phone harassment is not typically enough to support a charge of annoying phone calls.
- If there are multiple phone calls or repeated harassment, a charge can be filed under Penal Code 653m(b) PC.
- Charges for making harassing or annoying phone calls also apply to sending annoying text messages, emails, or other types of electronic communication.
- The crime of annoying or harassing phone calls is more serious than simple prank calls and often falls under the umbrella of domestic violence.
- 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.
- The language doesn't have to be sexual to be considered obscene.
- The relationship between the victim and the caller can be a crucial factor in determining whether the language used was obscene.
What Is "Obscene?"
The term "obscene" in the context of PC 653m making annoying phone calls is any communication that a reasonable person would find offensive, indecent, or inappropriate, such as the following:
- Using obscene or profane language.
- Using language describing graphic violence.
- Sending photos or videos of violent acts.
- Using sexual innuendo.
- Making threats to the safety of the victim or their family.
- Sending pictures or videos of intimate body parts, such as genitals and buttocks.
- Anything that is considered offensive or violates standards of what is appropriate, such as profanity.
- Calling and saying nothing.
What Are Some Examples?
Any of the following acts could potentially classify as a violation of Penal Code 653m PC making annoying calls:
- Leaving obscene remarks or threats on someone's voicemail.
- Texting or emailing obscenities or threats to someone.
- Calling someone on the phone and making obscene remarks or threats.
- Take disturbing photos on a smartphone and send them to someone.
- Making repeated calls, texts, emails, faxes intending to harass.
- Call and leave a generic voicemail, then make obscene remarks or threats when the person calls back.
Suppose a couple is going through a stressful divorce process, living in separate locations, and their child visitation arrangement is a hotly debated issue. The husband starts making repeated threatening and harassing phone calls and leaving nasty, profane voicemails. In that case, he could be charged with making annoying phone calls.
What Are the Related Crimes?
The crime of annoying phone communication often occurs along with other law violations. Thus, you might be charged with other California crimes besides violating PC 653m, such as the following:
- Penal Code 422 PC Making Criminal Threats. This law involves making a threat to kill or seriously injure the alleged victim. If your annoying phone call includes such a threat, and the person deems it credible, you could be charged with this crime in addition to PC 653m.
- Penal Code 646.9 PC Stalking or Cyberstalking. This law involves maliciously harassing or threatening someone else. If you use a phone to do so, you might be charged with this crime in addition to PC 653m.
- Penal Code 273.6 PC Violating a Restraining Order. If the alleged victim of your "annoying" phone call was a loved one with a restraining order against you, and you violated that order by making the call, then you could also be charged with this crime in addition to PC 653m.
What Are PC 653m Penalties?
Under PC 653 m, making an annoying or obscene phone call or sending a similar electronic communication is a misdemeanor offense that carries the following penalties:
- A maximum fine of $1,000 and
- Up to six months in county jail.
However, if it is the first offense or the circumstances seem minor or incidental, a judge might reduce the sentence to misdemeanor probation or suspend it altogether.
The penalties are harsh if you are charged with the related crime of criminal threats under Penal Code 422 PC, which could apply if you threaten great bodily injury or death or intend your communication as a threat and you cause them to fear for their safety or their family.
PC 422 criminal threats is a "wobbler" that can be charged as either a misdemeanor or felony. A misdemeanor PC 422 carries up to one year in county jail and a fine of up to $1,000. A felony PC 422 carries up to three years in a California state prison and a fine of up to $10,000.
What Are the PC 653m Defenses?
To convict you of violating PC 653 m, the prosecutor must prove that you intended the communication to annoy or harass the other person and that its content was obscene or offensive.
Thus, our California criminal defense lawyers might be able to use different strategies to fight the charges, as discussed below. As noted, intent is a critical element of the crime that must be proven to charge annoying or harassing phone calls.
Perhaps we can argue that you did not intend to harass or annoy the person. Maybe you made the call for another reason and were provoked into an argument where you used profanity.
Perhaps we can argue that the call was not obscene. What was spoken between you and the alleged victim may not be categorized as patently offensive.
Perhaps we can negotiate with the prosecutor to reduce the charges or dismiss the case. If guilt is not in doubt, we might be able to obtain a favorable plea bargain.
Through prefiling intervention, we might be able to negotiate to avoid the formal filing of criminal charges in the first place (DA reject). Contact us for more information. The Hedding Law Firm is based in Los Angeles, CA.
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