Penal Code § 653m PC – Annoying Phone Calls

Penal Code § 653m PC makes it a misdemeanor offense to harass or annoy someone through phone calls or electronic communications that are obscene, threatening, or repeated in nature. A conviction is punishable by up to 6 months in jail and a fine of up to $1,000.00.

The full language of the code section reads that:

653m. (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 use of a telephone may be deemed to have been 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 as a condition of probation that the person participate in counseling.

(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.

Luckily, a phone call, text message, or other communication needs to be more than simply annoying to qualify as a criminal annoying communication. It needs to

• involve obscene language or threats, or else
• be one of a series of repeated harassing phone calls.³

Often Penal Code 653m charges are filed in connection with cases that also involve

• domestic violence or
• stalking.

The bad news is that it is not always easy to tell what kind of obscene language or threats can lead to criminal liability for annoying telephone calls. California courts are still trying to figure this out too. ⁴

This means that it may be hard for someone to understand in advance whether what they are doing is a crime.

In this article, our California criminal defense attorneys⁵ discuss what you need to know about Penal Code 653m PC. Click on a topic to jump to that section.

• 1. Definition
• 2. Penalties
• 3. Defenses
• 4. Related Offenses
• Additional Resources

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. Definition

For you to be convicted of making annoying or harassing telephone calls or communications under Penal Code 653m PC, prosecutors must prove that:

1. You made or permitted a telephone call or electronic communication; and
2. It involved obscene language, threats, or repeated calls; and
3. You had the intent to harass or annoy.

Making or permitting a telephone call or electronic communication

The first element in the legal definition of PC 653m annoying phone calls is that you made telephone calls to (or made contact using an “electronic communication device” with) the person you were allegedly annoying or harassing.⁶

An “electronic communication device” includes just about anything you can think of:

• a regular phone,
• a cell phone,
• a smartphone,
• a computer,
• a fax machine,
• a pager, and
• a video recorder, for starters.⁷

So the following would all count as violations of the law against annoying or harassing electronic communications:

1. Harassing text messages,
2. Harassing emails,
3. Harassing letters sent by fax, and
4. Disturbing photos taken on, and then sent directly from, a smartphone.

The law also makes clear that you can violate Penal Code 653m even if you call or contact someone, they do not answer, and then they call you back – at which point you then use obscene or threatening language toward them.⁸

In other words, you can violate the law against annoying phone calls by behavior on a phone call that you did not actually dial – as long as you requested that the other person call you.

Example: Callie resents her ex-husband’s new girlfriend, Rachel. She calls Rachel’s cell phone. When Rachel doesn’t pick up, Callie leaves a message pretending to be a bill collector and asking Callie to call her back.

Rachel calls Callie back. Callie then insults her using profanities and threatens to burn down her house. Callie may be guilty of making annoying phone calls.

You can also be accused of making annoying phone calls under PC 653m even if you did not make a telephone call or send an electronic communication yourself. It is enough to let someone else use a phone or communication device that you control to make an annoying phone call or electronic communication.⁹

To be convicted of annoying calls for someone else’s call or communication from your phone or device, you have to have known that they were using your property for these purposes.¹⁰

Obscene language, threats, or repeated calls

There are three (3) types of criminally annoying or harassing telephone calls that violate California Penal Code 653m:

1. Calls or communications that use “obscene language,”¹¹
2. Calls or communications that involve a threat to injure the recipient, any of his family members, or his property,¹² and
3. Repeated calls or communications (regardless of the content).¹³

California courts have decided that a phone call or electronic message does not have to have sexual content in order to be obscene. Instead, the language just has to have content that is “offensive” or does not follow typical standards of what is decent and appropriate.¹⁴ So, for example,

• profanity or
• language describing graphic violence

can be obscene too.

The relationship between the person making the telephone call and the person receiving it is important in determining whether or not language is “obscene.”¹⁵ If the two people know each other well, and have a history of using strong language with one another, then language that might seem obscene in some situations might not be enough to make a phone call or communication annoying.¹⁶

Also, if the person receiving the call is in a public position – like the person who mans a customer complaint line – then it is less likely that a caller can be convicted of making annoying phone calls simply for using obscene language.¹⁷

Example: David is a very frequent customer at a national chain of ice cream shops. He also frequently calls their customer service telephone line to complain about the service he has received at the stores. In these calls, he often uses the “F” word.

David’s calls to the customer service line may be annoying, but they’re not a crime. His using the “F” word to express his strong emotions doesn’t make the calls obscene, in part because he’s calling a customer service line . . . the customer service representatives receiving the calls as part of their job don’t have the right to privacy that ordinary private citizens do.¹⁸

Intent to harass or annoy

Lastly, you can not be convicted of making annoying phone calls or electronic communications unless the prosecutor can prove that you actually intended to annoy or harass someone.¹⁹ You do not violate Penal Code 653m if you make a phone call or send an electronic message in good faith, or for some kind of legitimate business purpose.²⁰

Example: Paul and Cathy are good friends who frequently play practical jokes on one another. One day, Cathy decides to scare Paul by obtaining an email address he doesn’t recognize and sending him several emails in which she pretends to be a psychotic person who is him. These emails contain some vulgar language and threats to harm Paul. She intends to let him in on the joke the next day.

Cathy did not intend to annoy or harass Paul. She just wanted to play a practical joke. She is not guilty of the crime of sending annoying or harassing emails.

2. Penalties

The California crime of making annoying phone calls (or sending annoying electronic communications) is a misdemeanor in California law.²¹ This means that the potential consequences of a PC 653m conviction are

• up to six (6) months in county jail and/or
• a fine of up to one thousand dollars ($1,000).²²

In some cases, the defendant found guilty of annoying phone calls may be sentenced to misdemeanor probation or given a suspended sentence. If this occurs, the judge may order the defendant to participate in counseling as a condition of probation.²³

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with harassment-related offenses such as making annoying phone calls. In our experience, the following three defenses have proven very effective with prosecutors and judges.

You had no intent to annoy or harass

One of the best defenses we can bring is to claim you had no intent to annoy or harass the person you contacted.²⁴  Instead, we would argue that you had a good faith intention or business purpose for making the call or sending the communication.

Prosecutors have no definitive way to prove what is going on inside your head. Therefore, there is a good chance that they will not be able to prove beyond a reasonable doubt that you intended to annoy or harass the alleged victim.²⁵

Your language was not actually “obscene”

What qualifies as “obscene” is subjective. If prosecutors accuse you of using obscene language during your phone call, we would argue to the court that what you said was protected artistic expression.²⁶

We may even be able to call an expert witness or show clips from movies or TV that support our argument that whatever you said falls short of obscene.²⁷ If we get the D.A. to recognize our point of view, they may dismiss the annoying phone call charge.

You were legally insane

In many cases, making an annoying phone call is a sign that the caller is in mental or emotional trouble. In these cases, we can plead not guilty by reason of insanity.

For you to be found legally insane, we have to prove the following two elements by a preponderance of the evidence:

1. You were incapable of knowing or understanding your actions at the time the crime was committed, AND
2. You were incapable of distinguishing right from wrong at the time the crime was committed.²⁸

By a preponderance of the evidence is a much lower standard than beyond a reasonable doubt: It just means it is more likely than not. Therefore, a judge can find you insane even if there is some doubt in their mind.²⁹

Typical evidence we rely on in these cases are:

• medical records,
• eyewitness testimony, and
• surveillance video.

Even if the judge does not find you insane, our evidence that you suffered from mental problems at the time of the annoying phone calls might convince the judge to sentence you to probation with counseling instead of jail.

4. Related Offenses

Criminal threats (Penal Code 422 PC)

California law also makes it a crime to make criminal threats (Penal Code 422) against someone else.³⁰

You can be prosecuted for criminal threats that are made verbally (including over the telephone), in writing, or in an electronic communication (like a text message).³¹ You cannot be found guilty of Penal Code 422 unless all of the following are proven:

1. You willfully threatened to commit a crime that would result in someone’s death or great bodily injury,
2. You specifically intended your statement to be taken as a threat, and
3. The statement was unequivocal and specific enough to cause someone to reasonably fear for their own safety or that of their immediate family members.³²

The California crime of making criminal threats is a wobbler.³³ This means that the prosecutor can charge it as either a misdemeanor or a felony, depending on the circumstances of the offense and the defendant’s criminal history (if they have one).³⁴

Violating a restraining order (Penal Code 273.6 PC)

If you have had a restraining order issued against you that states that you must not contact a certain person – and you contact them by phone, text message, email, etc. repeatedly or using threatening or obscene language – then you may be charged both with

• making annoying phone calls/electronic communications AND
• violating a restraining or protective order in California.³⁵

In order to be convicted of violating a restraining order, you need to have violated the terms of the order willingly and knowingly.³⁶ So you have to have known about the restraining order and its restrictions on contacting the other person.

Violating a restraining or protective order is usually a misdemeanor in California.³⁷

Stalking and cyberstalking (Penal Code 646.9 PC)

The California crime of stalking consists of

• willfully and maliciously harassing another person, and
• making a credible threat against that person intending to place them in reasonable fear for their safety (or that of their immediate family members).³⁸

If you stalk someone using a phone or electronic communication device, it is known as cyberstalking.³⁹

Stalking is a wobbler offense.⁴⁰ The prosecutor can charge it as either a misdemeanor or a felony, depending on the circumstances of the offense and the defendant’s criminal history.⁴¹

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Rings of Privacy: Unsolicited Telephone Calls and the Right of Privacy – Yale Journal on Regulation.
• Stalked by satellite – an alarming rise in GPS-enabled harassment – IEEE Spectrum.
• Mobile Phone Harassment : An Exploration of Student’s Perceptions of Intrusive Texting Behavior – Human Technology.
• Unwanted Telephone Calls–A Legal Remedy – Utah Law Review.
• Terror by Telephone: Normative Anxieties around Obscene Calls in the 1960s – First Monday.

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