What Is The App That Has A Conversation With The Telemarketer

3 Types of Prank Calls That Could Land You in Jail (Penal Code 653m PC)

California Penal Code 653m PC prohibits phone calls, electronic messages or emails that are obscene, threatening or repeated, when done with the intent to harass or annoy the recipient. The offense is a misdemeanor, punishable by up to 6 months in jail and a fine of up to $1000.00.

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 California stalking.)

The bad news is that it's 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're doing is a crime.

In this article, our California criminal defense attorneys ⁵ explain Penal Code 653m PC, the Penal Code section for annoying phone calls, and the consequences of an annoying phone calls conviction, by addressing the following:

• 1. What is the legal definition of annoying telephone calls in California (Penal Code 653m PC?)
  • 1.1. Making or permitting a telephone call or electronic communication
  • 1.2. Obscene language, threats, or repeated calls
  • 1.3. Intent to harass or annoy
• 2. What are the penalties for annoying phone calls?
• 3. How can I fight charges of annoying telephone calls or electronic communication?
  • 3.1. Lack of intent to annoy or harass
  • 3.2. Language not actually "obscene"
  • 3.3. Insanity defense
• 4. PC 653m and related offenses
  • 4.1. Criminal threats (Penal Code 422 PC)
  • 4.2. Violating a restraining order (Penal Code 273.6 PC)
  • 4.3. Stalking and cyberstalking (Penal Code 646.9 PC)

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

You commit the crime of "annoying phone calls" under California Penal Code 653m PC if you make a telephone call that is obscene, threatening or one of a series of repeated calls, with the intent to harass or annoy the person you are calling

1. What is the legal definition of annoying telephone calls in California (Penal Code 653m PC)?

If you are charged with the crime of making annoying or harassing telephone calls or communications under Penal Code 653m PC, there are certain things the prosecutor must prove before you can be convicted. These are known as the "elements" of the crime.

1.1. 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 crime of "annoying phone calls" in California also includes annoying text messages and emails.

The law also makes clear that you can violate Penal Code 653m even if you call or contact someone, they don't answer, andthen 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 didn't make a telephone call or send an electronic communication yourself…it's enough to let someone else use a phone or communication device that you control to make an annoying phone call or electronic communication.⁹

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

Example: Parker owes Walter money and hasn't paid him back. He has also stopped answering calls from Walter's number. So Walter uses the cellphone of his girlfriend, Jessica, to call Parker. When Parker answers, Walter makes explicit threats to kill him.

If Jessica knows what Walter was doing and that his intent was to threaten Parker, she may be guilty under the California annoying phone calls law, even though she didn't make the call herself.

1.2. Obscene language, threats, or repeated calls

A phone call or electronic communication has to qualify as "annoying" or "harassing" to violate Penal Code 653m. There are three (3) types of criminally annoying telephone calls in California:

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

Of all of these, calls using "obscene language" are the hardest to identify.

The word "obscene" is sometimes used to mean dealing with sex and sexual content in an inappropriate way. But California courts have decided that a phone call or electronic message doesn't have to have sexual content in order to be obscene for purposes of California's annoying phone calls law.

Instead, the language just has to have content that is "offensive" or doesn't follow typical standards of what is decent and appropriate.¹⁴ So, for example, profanity, or language describing graphic violence, can be obscene too.

But 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.

Example: Charles and Skylar are high school students who have been in a romantic relationship. In their school, it's common for kids to use profanity to communicate with each other and express strong emotions.

Skylar breaks off the relationship with Chris. So Chris sends her several text messages expressing how angry and sad he is over the break-up. The messages are filled with foul language, but of the sort kids at their school typically use. Chris did not violate Penal Code 653m PC…his text messages weren't actually obscene, because they only used language he and Skylar were already used to using when they were together.¹⁶

In order to qualify as annoying or harassing communications under PC 653m, communications must be either obscene, threatening or repeated.

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

1.3. Intent to harass or annoy

Lastly, you can't 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 Put another way, 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 didn't 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.

Example: Vinny is trying to find new customers for his gardening business. So he calls all the homeowners in his neighborhood multiple times to ask if they need help with their yard work. If he fails to get someone on the phone the first time, he will leave a message and call again and again.

This is certainly annoying…but it's not a crime, because Vinny is making these calls for purposes of his business.

2. What are the penalties for annoying phone calls?

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, a fine of up to one thousand dollars ($1,000), or both.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. How can I fight charges of annoying telephone calls or electronic communication?

3.1. Lack of intent to annoy or harass

One of the best legal defenses you can bring against charges that you made annoying phone calls under Penal Code 653m is that you did not actually intend to annoy or harass the person you contacted.

As we discussed above, you can't be convicted unless the prosecutor can prove —  beyond a reasonable doubt — that this is what you intended.²⁴ And if you had some other good-faith intention or business purpose for making the call or sending the communication, there's a good chance the prosecutor won't be able to prove this and you can fight the annoying phone calls charges on this basis.²⁵

3.2. Language not actually "obscene"

As we also discussed above, you can be convicted under Penal Code 653m PC for calling or contacting someone repeatedly, making threats, OR using obscene language on the phone or in electronic communication.²⁶ If the prosecution's theory in your annoying phone calls case is that you used obscene language, you may be able to fight the PC 653m charge by arguing that the content was not actually obscene at all.

According to Riverside criminal defense attorney Michael Scafiddi²⁷ :

"Laws that make it a crime to express yourself in a certain way run the risk of violating the constitutional right to freedom of speech. Because of this, courts have to be very careful about letting someone be convicted under a law like California's annoying phone calls law. So judges have made sure to keep the definition of 'obscene language' pretty narrow. This means there are many options for defending yourself against charges that you made annoying or harassing phone calls using obscene language."

3.3. Insanity defense

People who use phones or electronic communication devices to annoy, harass, or threaten others are often suffering from some kind mental or emotional trouble. In these cases, the defendant may be able to avoid a Penal Code 653m annoying phone calls conviction by using the insanity defense in California.

The insanity defense means that a defendant must be found not guilty if both of the following are true:

1. S/he was incapable of knowing or understanding his/her actions at the time the crime was committed, AND
2. S/he was incapable of distinguishing right from wrong at the time the crime was committed.²⁸

The defendant has to prove by a preponderance of the evidence that these things are true…in other words, s/he needs to convince the jury that it's more likely than not that these things are true.²⁹

Even if the defendant doesn't manage to prove this, the evidence used to make the case for the insanity defense can be helpful in another way. Evidence that the defendant suffered from mental problems at the time of the annoying phone calls or communications might convince the judge to sentence him/her to probation with counseling instead of time in county jail.

An experienced California criminal defense attorney can help you fight charges of making annoying phone calls with these and other legal defenses.

4. PC 653m and related offenses

4.1. Criminal threats (Penal Code 422 PC)

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

Making a threat in a phone call or electronic communication is one of the ways you can violate Penal Code 653m. Because of this, defendants are sometimes charged with both the crime of making criminal threats and the crime of making annoying phone calls.

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 can't 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 his or her own safety or that of his or her immediate family members.³²

The California crime of making criminal threats is a wobbler. 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 s/he has one).³³

The maximum misdemeanor penalties are up to one (1) year in county jail and/or a maximum $1,000 fine. The maximum felony penalties are up to three (3) years in California state prison and a maximum $10,000 fine.³⁴

4.2. Violating a restraining order (Penal Code 273.6 PC)

Often, defendants accused of making annoying or harassing phone calls in violation of Penal Code 653m have a longstanding, pre-existing relationship with the person they are supposed to be annoying or harassing. Often it is a former spouse, boyfriend, or girlfriend, or a friend or business associate with whom they have had a disagreement.

Annoying or harassing phone calls is sometimes charged along with violating a restraining order.

In some of these cases, the person who is being contacted may have taken out a restraining order (also called a protective order) against the person who is trying to make contact. If you have had a restraining order issued against you that states that you must not contact a certain person…and you contact him/her 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 with the crime of 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, with maximum penalties of up to one (1) year in county jail, a $1,000 fine, or both.³⁷

4.3. Stalking and cyberstalking (Penal Code 646.9 PC)

Another crime that sometimes goes hand-in-hand with annoying phone calls is California stalking laws (Penal Code 646.9).

The California crime of stalking consists of willfully and maliciously harassing another person, and making a credible threat against that person intending to place that him or her in reasonable fear for his or her safety (or that of his or her immediate family members).³⁸ If you stalk someone using a phone or electronic communication device, it is known as cyberstalking.³⁹

So, if an annoying or harassing phone call or electronic communication contains credible threats that make the recipient fear for his or her safety, the person who initiated the call or communication may be charged both under Penal Code 653m PC AND under Penal Code 646.9 PC, which is California's stalking and cyberstalking law.

Stalking is a wobbler offense. 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.⁴⁰ The maximum misdemeanor penalties are up to one (1) year in county jail and/or a maximum $1,000 fine. The maximum felony penalties are up to five (5) years in California state prison (if the defendant has prior convictions for certain offenses).⁴¹

For further help…

Contact us for help.

If you or a loved one is charged with Penal Code 653m PC annoying phone calls and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Also, see our article on Is prank calling illegal?

InColorado? Learn more about harassment (CRS 18-9-111).

InNevada? Learn more about Obscene, Threatening or Annoying Phone Calls (NRS 201.255).

Other Resources:

California Courts, How Criminal Cases Work

California Courts, Respond to a Restraining Order

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Legal References:

What Is The App That Has A Conversation With The Telemarketer

Source: https://www.shouselaw.com/ca/defense/penal-code/653m/

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