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California Penal Code § [Section] 653m(a) – Annoying Phone Calls

California Penal Code § [Section] 653m(a) – Annoying Phone Calls

California Penal Code [CPC] §653m(a)Annoying Phone Calls – Penal Code §653m(a) makes it illegal to use any kind of electronic communication device[1] to annoy another person through obscene language or a threat to injure that person or that person's property. The law also applies to threats made against any member of the person's family. However, contacts made in good faith (i.e., honestly) are exempted.

If you're convicted under Section 653m(a), the penalty may be as many as six months in a county jail, a fine of up to $1,000, or both a fine and imprisonment. Probation is possible, in many cases.

What Does California Penal Code §653m(a) [Annoying Phone Calls] Prohibit?

In sum, to be guilty of Annoying Phone Calls under CPC §653m(a), you must:

  • Communicate via electronic device; AND,
  • Annoy another person; AND,
  • Use obscene language; OR,
  • Threaten injury to the person; OR,
  • Threaten the person's property; OR,
  • Threaten to injure a family member of the person; OR,
  • Threaten property of a family member of the person.

Defining “Annoying Phone Calls” Under California Penal Code §653m(a)

To convict you under CPC §653m(a), the prosecutor must prove the following beyond a reasonable doubt:

  • USED…ELECTRONIC DEVICE: You used any sort of communication device to contact another person; AND,
  • INTENDED TO ANNOY: When you acted, you intended to annoy or harass the contacted person; AND,
  • OBSCENE LANGUAGE: You used obscene language to address the person you contacted; OR,
  • THREATENED THE VICTIM: You threatened the victim when you contacted the victim; OR,
  • THREATENED THE VICTIM'S PROPERTY: You threatened the victim's property when you contacted the victim; OR,
  • THREATENED A FAMILY MEMBER: You threatened a family member of the victim when you contacted the victim; OR,
  • THREATENED THE FAMILY MEMBER'S PROPERTY: You threatened a family member's property when you contacted the victim.

Example: Defendant Derrick is infatuated with Victim Vera, his neighbor, but is afraid to talk to her. He gets Vera's phone number from the registry of their apartment. He begins using his cell phone to call her at night. While Vera finds the calls annoying, Derrick also doesn't talk during these calls. He doesn't even breathe aloud. When Vera concludes that it's Derrick, she has him arrested under §653m(a). Is he guilty?

Conclusion: Derrick used an electronic device to contact Vera. This is an element of the crime. However, Derrick didn't use obscene language to address Vera. He didn't say anything. He couldn't even summon the courage to breathe when talking with her. Thus, irrespective of whether Derrick even meant for the calls to annoy Vera, he is not guilty under CPC §653m(a).

Penalties For Annoying Phone Calls Under CPC §653m(a)

Generally, if you're convicted of Annoying Phone Calls, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[2]

As stated previously, if you're convicted of Annoying Phone Calls, the penalty may be up to six (6) months in a county jail, a fine of not more than $1,000 (one-thousand dollars), or both a fine and imprisonment.[3] Note: Probation (which permits you to serve at least part of your time outside state custody) is available in some cases.[4]

Defenses Against California Penal Code §653m(a) – Annoying Phone Calls

Three common defenses against a charge of Annoying Phone Calls under CPC §653m(a) are:

Your Language Wasn't Actually Obscene

Example: Defendant Debra is angry with Victim Vincente. She phones him. They quarrel and Debra tells Vincente to “go to hell.” Vincente, who is very religious, takes offense to this and reports her to police. She is arrested and charged under CPC §653m(a). Debra insists that the term she used is too common, and too mild, to be deemed ‘obscene' for purposes of the law. Should she be convicted, on these facts?

Conclusion: The term “go to hell” is so common that calling it ‘obscene' would result in countless prosecutions based on casual speech acts. On its face, this wasn't the intent of the statute. Furthermore, the term is likely a great deal less offensive than the sort of truly abusive speech the law intended to target when it was drafted. Debra, it follows, should be acquitted. Her language wasn't actually obscene.  

You Didn't Annoy Or Harass The Person You Contacted

Example:  Defendant Dale breaks off his engagement to Victim Valentina. Enraged, she reports Dale to police for a recent phone call in which he used obscene language to her. But Dale says that both he and Valentina were using graphic sexual language during the call. Thus, since Valentina consented, he says he didn't violate the law. Nonetheless, Dale is facing charges under CPC §653m(a). Is Dale correct?

Conclusion: Being graphically sexual, Dale used language which might be sufficiently ‘obscene' to serve as an element of the crime. He used it during a phone call. These are elements of the offense. But Dale had Valentina's consent to speak as he did, which is evidenced by her doing the same thing. He couldn't have harassed or annoyed her. Thus, Dale is correct. He didn't harass or annoy the person he contacted.

You Were Insane

Example: Defendant Dominica believes a voice inside her head is God telling her to “help ‘bad people' by scaring and killing them.” She calls Victim Vi and tells Vi “how God is telling” her “to help” Vi. Then she threatens to kill Vi. Later, Vi has her charged under §653m(a). Dominica pleads insanity at the time of the call. Should she serve jail time, or should she be in an institution until she's well enough to leave?

Conclusion: California permits pleading insanity when the defendant is incapable of knowing or understanding actions at the time of an offense and is incapable of distinguishing right from wrong.[5] Given that Dominica believed God controlled her actions when she called Vi, and thought ‘helping' was scaring and killing, she could be able to plead these facts. Dominica shouldn't be jailed. She was insane.  

Related Offenses

Note: The crimes below are described generally as “related” because they're frequently charged with CPC §653m(a) and/or have common elements the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes several offenses related to Annoying Phone Calls, such as: Criminal Threats (CPC §422(a)), Violating a Restraining Order (CPC §273.6(a)), Stalking (CPC §646.9(a)), Contacting a Minor with Intent to Commit a Felony (CPC §288.3), Arranging a Meeting w/ a Minor for Lewd Purposes (CPC §288.4(a)(1)) and Corporal Injury on a Spouse (CPC §273.5).

Criminal Threats

Criminal Threats (CPC §422(a)) occur whenever anyone threatens another person with a crime that would result in death or great bodily injury. The statement must be taken as a threat in its entirety; it must also be written or verbally communicated. The threat must also be made in a clear and immediate way and, finally, it must create a reasonable fear that the other person or that person's family will be hurt. The crime is related to Annoying Phone Calls because contacts violating Section 653m(a) may also constitute criminal threats, allowing the prosecution to charge you with both in the same trial.       

Since you can be charged with a Felony or a Misdemeanor, depending on the unique facts of your case, Criminal Threats is a “wobbler”[6] under California criminal law. If you're convicted of the felony form, the penalty, without additional enhancement, may be:

  • A term of up to three (3) years in a state prison;[7] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[8]

Note: Criminal Threats is punishable as part of California's “Three Strikes” system.[9] You will serve a minimum of twenty-five years in a state prison if you get three “strikes” on your criminal record.[10]

You can find more information on the Criminal Threats page of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call goes directly to a lawyer. That is guaranteed.

California Criminal Jury Instructions – Criminal Threats

To convict you under CPC §422(a), the prosecution must prove the following beyond a reasonable doubt:

You threatened to kill or cause great bodily injury to a person or a member of that person's immediate family. You made the threat orally, in writing, or by electronic communication device. You intended the statement to be taken as a threat, and the threat was so clear, immediate, unconditional, and specific that it communicated a serious prospect that the threat would be carried out. The threat caused the person to be in sustained fear, finally, and that person's fear was reasonable under the circumstances.

Example: Defendant Derek is angry with Victim Veronica, his daughter, for taking his car for a drive without asking his permission. He yells, “If you ever do that again, I'll kill you!” He doesn't mean it. Nonetheless, he's facing a charge under CPC §422(a). On these facts, should Derek be convicted?

Conclusion: Derek threatened orally to kill a member of his family. These are elements of the offense. But Derek didn't intend the statement, as the facts make clear. Furthermore, there are no facts to show that Veronica was in real fear. Nor do the facts show her fear to be reasonable under the circumstances. Since elements of the crime can't be proven beyond a reasonable doubt, Derek shouldn't be convicted.

Violation of Court Order

California Penal Code §273.6(a) makes it illegal to violate any “protective order” as defined under one of five sections of state law. Failure to follow the terms of a protective order can result in arrest and prosecution. The crime is related to Annoying Phone Calls because contacts violating Section 653m(a) may also violate Section 273.6, permitting the prosecution to charge you with both in the same trial.

If you're convicted of violating CPC §273.6(a), the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and jail time.[11]

You can find more information on the Violating a Restraining Order page of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call goes directly to a lawyer. That is guaranteed.

California Criminal Jury Instructions – Violation of Court Order

To convict you under CPC §273.6(a), the prosecution must prove the following beyond a reasonable doubt:

A court issued a lawful written order that you do (or refrain from doing) something specified in the order. The order was a protective order, a “stay away” order, or of some kind issued in a pending criminal proceeding involving domestic violence or as a condition of probation after a conviction for domestic violence, elder abuse, or dependent adult abuse. You knew the order existed.Finally, you    had the ability to follow the order, butintentionally violated it.

Example: Judge issues a written “stay away” order in favor of Victim Vida, the ex-wife of Defendant Diego. During the hearing in which the order is granted, Judge says, “Diego, I better not hear of you getting in trouble because of alcohol or I'll charge you with a violation!” Diego is later charged with Public Intoxication. Now Judge has had Diego charged under CPC §273.6(a). Should Diego be convicted?

Conclusion: Diego was subject to a written order requiring that he stay away from Vida. The facts do not state that he violated that order. Nonetheless, Judge believes that he can charge Diego simply because he told ­Diego not to get into alcohol-related trouble. But, if it wasn't reduced to writing, the direction wasn't an ongoing court order. Diego could not violate it. Therefore, Diego should be acquitted.

Stalking

California's law against Stalking (CPC §646.9(a)) applies whenever a person follows or harasses another person and makes a threat intending to place that person in fear for his or her safety or the safety of immediate family. The threat must be credible, malicious, and repeated. Stalking is related to Annoying Phone Calls because contacts violating Section 653m(a) may also constitute stalking acts, permitting you to be prosecuted for both crimes in the same trial.

If you're convicted of violating CPC §646.9(a), the penalty may be:

  • A term of one (1) year in a county jail or state prison; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[12]

You can find more information in the Stalking section of the Kann California Law Group's website. Feel free to contact the Kann Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's our guarantee.

California Criminal Jury Instructions – Stalking

To convict you under CPC §646.9(a), the prosecution must prove the following beyond a reasonable doubt:

You maliciously harassed or repeatedly followed another person. You also made a credible threat intending to place that person in reasonable fear for his or her safety or for the safety of his or her immediate family.

Example: While Defendant Danica doesn't know Victim Vika, and has never even spoken to her, she hates Vika. She is secretly planning on hurting Vika. Danica takes begins following Vika around town to determine Vika's daily schedule. Vika sees Danica several times but pays Danica no attention. Later, Vika hears about Danica's plan from Mutual Friend. Vika has Danica charged under §646.9(a). Is she guilty?

Conclusion: Danica repeatedly followed Vika, intending to do Vika harm, but Vika felt no fear from being followed. This makes sense, considering that Danica and Vika didn't know each other. Nor did Danica ever threaten Danica. While Danica intended on hurting Vika, Danica told Mutual Friend about the intention, not Vika. Therefore, while she wanted to harm Vika, Danica isn't guilty under CPC §646.9(a).      

Contacting Minor With Intent To Commit Certain Felonies

Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)) only occurs when an adult contacts a minor with the intent of violating one of the laws listed in the statute, all of which are felonies. You must know or reasonably should know the person you've contacted is a minor to violate Section 288.3(a). The crime is related to Annoying Phone Calls because contacts violating Section 653m(a) may also involve contacting a minor with the intent to commit a felony, allowing the prosecution to charge you with both in the same trial.

All violations of CPC §288.3(a) are punished as attempts[13] at the committing the named felonies. If you're convicted of an attempted violation of one of listed crimes and the statute creating the original offense doesn't create a specific attempt punishment, the penalty may be:

  • A term of up to three (3) years in a state prison;[14] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[15] AND,
  • The duty to register as a sex offender.

More information can be found in the California Sex Offense Lawyers section of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Contacting Minor With Intent To Commit Certain Felonies  

To convict you under CPC §288.3(a), the prosecution must prove the following beyond a reasonable doubt:

You contacted, communicated with, or attempted to contact or communicate with a minor. When you did so, you intended on committing one of the enumerated offenses with that minor. Lastly, you knew or reasonably should've known that the other person was a minor.

Example: Defendant David, 25, has a relationship with Victim Valerie, 16. Valerie's Mother opposes it. They begin maintaining their involvement online. David sends an email detailing what he wants to do sexually to Valerie the next time she “meets with” him, “even though” she's “not old enough to marry” him. Mother reports him. He's arrested.[16] David is facing charges under CPC §288.3(a). Is he guilty?

Conclusion: David sent an email to a person he knew to be a minor at the time. The facts state as much. (Furthermore, Valerie would have to be under eighteen if she weren't old enough to marry in California.) Finally, David stated his desire to commit specific lewd acts with Valerie, a minor, as soon as he could meet with her after the email. This is prohibited under the law. On these facts, David is guilty.    

Arranging Meeting With Minor For Lewd Purpose

Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)) makes it illegal to arrange to meet with a minor in order to expose your genitals, pubic area or your anus, or in order to engage in lewd and lascivious conduct. Unlike similar offenses, CPC §288.4(a)(1) makes it a crime to arrange a meeting with someone you only assume to be a minor. The crime is related to Annoying Phone Calls because contacts violating Section 653m(a) may also involve arranging a meeting with a minor for a criminally lewd purpose, permitting the prosecution to charge you with both in the same trial.

If you're convicted of violating CPC §288.4(a)(1), the penalty may be:

  • A term of up to one (1) year in a state prison; OR,
  • A fine of up to $5,000 (five-thousand dollars); OR,
  • Both a fine and imprisonment;[17] AND,
  • The duty to register as a Sex Offender.

More information can be found in the Arranging Meeting With Minor For Lewd Purpose page of the Kann California Law Group's website. If you have questions, contact any of the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Arranging Meeting With Minor For Lewd Purpose

To convict you under CPC §288.4(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You arranged a meeting with a minor or a person you believed to be a minor. You were motivated by an unnatural or abnormal sexual interest in children when you arranged the meeting. Finally, you intended to expose your genitals, or your pubic or rectal area, or to have the minor expose these, or you intended to engage in lewd or lascivious behavior at the meeting.

Example: Defendant Dmitri, 50, admits that he contacted Victim Verne online. He admits that he believed Verne was fourteen. He admits that he arranged to meet with Verne. He even admits that he offered to perform oral sex on Verne. Nonetheless, Dmitri says he's innocent of charges under CPC §288.4(a)(1) because ‘Verne' was in fact a 60-year-old woman who reported him to police. Is he correct?

Conclusion: Dmitri contacted a person he thought to be a minor. He arranged to meet. He intended on committing a sex act with a person he thought to be a minor, and, of course, this meeting was motivated by Dmitri's sexual interest in minors. These are the elements of the crime. It's irrelevant that Verne wasn't a minor male. The law only requires believing that the victim is a minor. Dmitri is incorrect.   

 Corporal Injury On Spouse, Cohabitant, Or Significant Other

California's law regarding Corporal Injury On Spouse, Cohabitant Or Significant Other (CPC §§273.5(a) and (b)) applies whenever anyone “willfully inflicts corporal injury resulting in a traumatic condition upon a”[18] person listed in the statute, which includes spouses, cohabitants and significant others.

Since a violation under CPC §§273.5(a) and (b) can be charged as either a Misdemeanor or a Felony,   depending on the facts of your case, Corporal Injury On A Spouse, Cohabitant, Or Significant Other is a “wobbler”[19] crime in California. The crime is related to Annoying Phone Calls because contacts violating Section 653m(a) may also ultimately involve acts of corporal injury on another, allowing the prosecution to charge you with both in the same trial.

If you're convicted of violating CPC §§273.5(a) and (b), the penalty may be:

  • A term of up to four (4) years in state prison; OR,
  • A fine of up to $6,000 (six-thousand dollars); OR,
  • Both a fine and imprisonment.[20]

You can always find more information in the Battery section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer. It's always guaranteed.

California Criminal Jury Instructions – Corporal Injury On A Spouse, Cohabitant, Or Significant Other

To convict you under CPC §§273.5(a) and (b), the prosecution must prove the following beyond a reasonable doubt:

You willfully and unlawfully inflicted a physical injury on your spouse (or former spouse), or on a cohabitant (or former cohabitant), or on the mother or father of your child, or someone to whom you were engaged, or someone you were dating. The injury resulted in a traumatic condition. Finally, you didn't act in self-defense or in defense of someone else.

Example: Defendant Dale has been accused of violating CPC §§273.5(a), (b)(1). He shot Victim Victor, Girlfriend's ex-husband, when Victor barged into Girlfriend's house and tried to kill her with a knife. Dale defends himself by pointing out that Girlfriend is no longer married to Victor. Should he be acquitted?

Conclusion: The fact that Victor and Girlfriend are no longer married should cause Victor to be charged instead of Dale. He, as a former spouse, is covered by the statute. For this reason alone, Dale should be acquitted. But Dale also shot Victor while protecting Girlfriend from a potentially lethal attack. This is a form of defense of another. It should justify using force. Dale should be acquitted for multiple reasons.

What Can I Do If I'm Charged With Annoying Phone Calls?

The State of California treats Annoying Phone Calls as a serious offense. If you're charged with Annoying Phone Calls, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Annoying Phone Calls, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Law Group today to schedule your free and confidential consultation.

References

[1] “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.” See California Penal Code [CPC] §653m (a).

[2] See CPC §19.

[3] See above.

[4] See CPC §653m (f).

[5] See CPC §25 (b).

[6] See “Wobbler Law and Legal Definition” definition at UsLegal.com. 

[7] See CPC §18 (a).

[8] See CPC §672.

[9] See  CPC §1192.7 (c) (38).

[10]  See CPC §667 (e) (2) (A) (ii).

[11] See Endnote 2.

[12] See CPC §646.9 (a).

[13] See CPC §21a.

[14] See Endnote 7.

[15] See Endnote 8.

[16] Fact pattern based on Steven M. Sheerer's relationship with Dakota O'Donnell, daughter of comedian Rosie O'Donnell. See “Judge maintains bail for man found with Rosie O'Donnell's missing daughter” by Alex Napoliello. NJ.com, January 17, 2019.

[17] See CPC §288.4(a)(1).

[18] See CPC §273.5 (a).

[19] See Endnote 6.

[20] See Endnote 18.

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