Annoying Phone Calls

What You Can Do About Annoying Phone Calls (and Emails/Texts)

Have you ever received repeated phone calls from an ex-partner or a person with whom you went on one date but never got the hint? You probably have. You also probably wondered what you could do to stop those calls, block the number, change phone numbers, etc. This type of harassment is illegal in California. Under Cal. Penal Code § 653m, if someone repeatedly calls you or makes obscene or threatening remarks in a phone call with the intent to harass or annoy you – then that person can be charged with a misdemeanor offense and get sent to County jail. Penal Code § 653m also includes text messages and emails.

Yes, “annoying phone calls” can be a crime. It sounds like it should be a joke. After all, the prank call has been a tradition for young American for decades. However, these calls are no laughing matter. For some people, it puts them in genuine fear for their safety. For others, it is a constant source of anxiety. California treats these call are a misdemeanor which could put someone in county jail for up to one year.

What Does the Law Say?

The code section is long and overly complicated, but it can be broken down in the following way:

  1. Any person;
  2. With intent to annoy;
  3. Who calls or communicates via other electronic means (i.e. emails, texts, Facebook messenger, DMs, BBMs [for those of you still on Blackberry’s], etc.);
  4. With another person;
  5. And either:
    1. Uses obscene language;
    2. Threatens to cause bodily harm to the other person or family; or
    3. Threatens to damage property;
    4. Alternatively, make repeated phone calls.
  6. Is guilty.

If the following factors are met, then the individual is guilty of violating section 653. The law makes an exception for communications made in good faith. However, another way to put it means that you didn’t have the intent to commit annoy or scare the person. The law also penalizes repeated phone calls, regardless if those calls result in conversations or not.

Section 653m doesn’t merely penalize calls that might become annoying, the individual has to intend for the call to be annoying or frightening. Moreover, the call must involve obscene language, threats, or be a series of repeated calls. Many times, Section 653m is implicated in cases involving stalking or domestic violence.

If you read that language carefully, some alarm bells are probably going off. For example, what is obscene language? What are threats? How can the law tell what I intend? This post will clarify some of these questions below.

If, after reviewing this post, you still have some questions, please do not hesitate to call the Domestic Violence Attorney at 619-393-8588.

How Does the Prosecutor Prove A Criminal Case?

The prosecutor bears the burden of proving the “elements” of the crime. The elements refer to the individual components (i.e. the actions or intentions) that make up the crime. As you can see above, Penal Code § 653m has about five elements.

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Proving “Annoying Phone Calls”– A Person Made the Call Or Calls

The prosecutor must first prove that you are a person, so robocalls do not violate Penal Code Section 653m. However, it is possible (although perhaps, untested) that if a person designed a “bot” to make repeated, harassing calls and controlled the bot directly – it is possible the person controlling the bot could be charged under Penal Code 653m (however, that is getting into arcane areas of criminal law, for most people, that won’t be an issue).

Proving Phone Call or Electronic Communication

This was touched on briefly above, the law requires that the communication be sent via electronic means. For example:

  • Landline telephones;
  • Cellular phones;
  • Text messages;
  • Computers;
  • Laptops;
  • Tablets;
  • iMessages;
  • Emails;
  • Facsimiles;
  • Facebook messenger;
  • DMs;
  • BBMs;
  • Images that are sent via text;
  • Threatening videos; or
    • i.e. a threatening Snapchat video, Instagram video, or some other medium
  • Threatening emojis.

For example, if you call and leave a message on someone’s phone that is innocuous, asking them to call you back and they do after that you start to fling insults and obscenities – you could be convicted of violating Section 653m. It does not matter that they called you back because you induced them to call you with the voicemail and/or missed call.

Yes, you can be convicted if you let someone else use your phone to make an annoying call. For example, if you allow a friend to call their ex-partner from your phone (to disguise who is calling so your friend can insult their ex-partner) and your friend starts to yell obscenities and threaten the other person – you and your friend are violating Section 653m.

However, if your friend asked to borrow your phone and you didn’t know for what purpose and then they begin to hurl insults – you are not guilty of violating Section 653m. Recall, one of the critical elements of this charge is intent; if you didn’t know what your friend was going to do, you have no intent.

Proving Obscenity, Threats, or Repeated Calls

The next element the prosecutor needs to prove is that you made threats or used obscene language. There are three types of violations:

  1. “Obscene language;”
  2. Threats to the individual, their property, or family members; and
  3. Repeated communications – regardless of content.

It sounds like a fungible standard; what is obscene for one person may not be obscene for another – it depends on your relationship and context of the communication. In general, obscene is typically reserved for sexual content that is used inappropriately. However, some California courts have found that any communication which doesn’t follow the typical standards of what is appropriate and decent could be obscene. For example,communications depicting graphic violence or profanity could be obscene.

However, this standard does not exist in a vacuum. The prosecutor will need to consider the relationship you have with the other person. For example, if 50 Cent calls Eminem, and 50 Cent uses profanity – the court is unlikely to find that 50 Cent violated Section 653m. However, if 50 Cent calls Will Smith and uses profanity – it is possible the court could find 50 Cent violated Section 653m.

Another common example, if you call a customer complaint line and use profane or foul language with the recipient is unlikely going to result in a conviction because the recipient is in a public position and it is their job to handle difficult conversations. The person manning the customer service line doesn’t have the same right to privacy as an individual, since they are manning a company line. However, if the caller calls customer service operator at their residence or personal line – that is a violation of Section 653m.

The court does not take into account the content of the conversation if the recipient is subjected to repeated calls. The test isn’t mechanical wherein three calls isn’t a violation but seven is. Rather, the court takes into account the context of the situation.

For instance, John and Sara break-up. John takes the break-up poorly and calls Sarah several times a day, he never speaks but calls. These calls go on for several weeks. John’s behavior could result in a conviction.

In another example, John and Sara break-up. John calls Sara a few times a week for the first week in an attempt to reconcile; he calls fewer times the second following week and even fewer the third week. By the fourth week John only calls once and then gives up in the fifth week. It is possible that John could be convicted but the declining number of calls may not give rise to an offense.

The prosecutor may also argue that the threat against the person, family, or property was credible. These threats are credible if it puts the recipient in a reasonable state of fear for their safety, the safety of their family, or the safety of their property.

For example, if Dan and Carla go on a date and it goes poorly, so Carla tells Dan she doesn’t want to see him again. Dan, however, the following night calls Carla and threatens her personal safety – angry that she did not want to continue the relationship. In this situation, Carla could be put in reasonable fear for her safety.

Proving Intent

Finally, the prosecutor must prove that you intended to harass, intimidate, annoy, or frighten the other caller. Again, the context of the conversation matters.

For example, if Frank and Steve are close friends who prank one another. Steve creates an email address that Frank doesn’t recognize and sends threatening messages to Frank. Steve intends inform Frank of the joke in a few days. Steve didn’t intend to annoy Frank; he was pranking him, so he isn’t guilty.

Also consider a Bill, a small business owner that leaves several messages selling his pool cleaning services on your messaging machine. These calls are annoying because you already have a pool cleaner but they don’t violate Section 653m because the purpose of the calls is to solicit business – not to harass or threaten.

Recall, that the content of the conversations for repeated calls doesn’t matter but intent still does. So, what you say doesn’t matter but if you are calling to annoy or harass – that matters.

What Are the Penalties for A Violation?

Penal Code § 653m is a misdemeanor crime. Violators can face up to six months in county jail – but not a state penitentiary and a fine of $1,000 to $2,000. In some cases, the violator might get probation or a suspended sentence in which they will be required to complete certain requirements to avoid incarceration such as community service, counseling, and checking in with a probation officer.

What Defenses Are Available?

There are quite a few defenses you can raise.

The prosecutor bears the burden of proving that you intended to harass or annoy the other person. The prosecutor will use a variety of evidence to show this, for example, the content of the communication, the number of communications made, and the nature of the relationship between you and the recipient.

You can defend against this charge by showing that you had a good faith reason for the communication. For example, it was a prank, or you had a legitimate reason to call, i.e. to solicit business, inform the recipient of important news, etc

For example, what if you were calling a friend multiple times throughout the day for over a week? These repeated calls could be interpreted as a violation of Section 653m, however, what if you were calling to tell the friend that a mutual friend has passed away and you were passing along details for services? In that case, it would make sense why you would call multiple times; you are trying to share important news that the friend would likely want to know.

You could also argue that the language used was not obscene. Recall, obscenity could be content involving sex or event profanity, however, it also depends on the relationship between the parties. For example, if it is a conversation between two friends or two people who routinely use profanity, it may not qualify as obscene.

Related Offenses

Penal Code § 653m isn’t the only criminal offense for which you can be charged in relation to phone calls or electronic communications.

For example, what if during the call, the other person on the line called you many times and also threatened your safety. That threat, in addition to being a violation of Section 653m, could also be a violation of Penal Code § 422 or criminal threats. Yes, if conduct violates multiple criminal code sections, it could result in multiple charges for substantially similar conduct.

Section 422 penalizes individuals for making electronic communications if the individual (1) willfully threatened to commit a crime that would result in another person’s significant bodily injury or death; (2) the individual intended for the threat to be taken as a threat (meaning, it wasn’t a joke); and (3) the state was clearly intended to put the recipient in fear for their life.

Criminal threats are wobblers meaning that they can be charged as a felony or a misdemeanor. Wobblers provide prosecutors enormous amounts of power because fighting a misdemeanor is vastly different than fighting a felony. The prosecutor can decide based on the circumstances of the case.

If the “repeated calls” violation sounds like a form of stalking – the State of California agrees with you. Under Penal Code § 646.9, you may be convicted if (1) willfully or intentionally harass (2) someone else (3) and make credible threats that (4) are intended to put the other person in reasonable fear for their safety. Section 646.9 includes cyberstalking (i.e. stalking someone via electronic means or through the Internet).

Like criminal threats, the prosecutor may charge an individual under both Sections 653m and 646.9, so the same conduct could result in two convictions and two sets of punishment.

Moreover, stalking is a wobbler offense – so you can be charged as either a misdemeanor or felony; depending on the circumstances of the case.

Many times, but not always, people who are accused of violating Section 653m have long-standing relationships with the person that is being harassed. In these situations, it is common for the recipient to have taken out a restraining order against the person making the calls. If the caller contacts the individual with the restraining order, they can violate the order and suffer additional criminal penalties.

However, to violate the restraining order, the individual must know and intend to violate the terms of the order. This means they must (1) know that an order is in effect and (2) the terms of the order. In general, once a restraining order is affected, it is served upon the restrained individual by the sheriff, so everyone is constructively on notice that a restraining order is in effect. Violations of restraining orders can result in a $1,000 fine and/or incarceration in county jail for up to one year.