California Penal Code § 653m PC makes it a misdemeanor to harass or annoy someone through phone calls or electronic communications that are obscene, threatening, or repeated in nature.1 A conviction carries up to six months in jail and/or a fine of up to $1,000.2
Often 653m PC charges are filed in cases involving:
A phone call, text message, email, or other communication needs to be more than simply annoying to be unlawful. However, California courts are still trying to figure out what crosses the line into criminality.
This means that it may be hard to understand in advance whether what you are doing is a crime.
In this article, our California criminal defense attorneys5 discuss what you need to know about making annoying or obscene phone calls. Click on a topic to jump to that section.
1. Elements of 653m PC
For you to be convicted of making annoying or harassing telephone calls or communications under California Penal Code 653m PC, prosecutors must prove beyond a reasonable doubt the following three elements of the crime:
- You made or permitted a telephone call or electronic communication; and
- It involved obscene language, threats, or repeated calls; and
- You had the intent to harass or annoy.1
We discuss these elements in detail below.
1) Telephone Call or Electronic Communication
The first element of 653m PC is that you made telephone calls to – or made contact using an “electronic communication device” with – the person you were allegedly annoying or harassing.
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.
In cases we see, most of these electronic communications take the form of text messages, DMs, emails, voicemails, or photos sent through 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 653m PC 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.
In other words, you can violate the law 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 does not 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 convicted of making annoying phone calls or messages even if you did not make the 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 message.
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.2
2) Obscene Language, Threats, or Repeated Calls
There are three types of criminally annoying or harassing telephone calls or messages that violate 653m PC:
- Calls or communications that use “obscene language,”
- Calls or communications that involve a threat to injure the recipient, any of their family members, or their property, and
- Repeated calls or communications (regardless of the content).3
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.4 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.” 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.5
Communications violating 653m PC must be obscene, threatening or repeated.
Furthermore, 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.
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 are not a crime. His using the “F” word to express his strong emotions does not make the calls obscene, in part because he is calling a customer service line. The customer service representatives receiving the calls as part of their job do not have the right to privacy that ordinary private citizens do.6
3) 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. You do not violate 653m PC if you make a phone call or send an electronic message in good faith or for some kind of legitimate business purpose.7
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 does not recognize and sending him several emails in which she pretends to be a psychotic person. 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.
Counseling is a typical term of probation for making annoying or obscene phone calls.
2. Penalties
Making annoying phone calls (or sending annoying electronic communications) is a misdemeanor in California.8 The punishment is:
- up to 6 months in county jail and/or
- a fine of up to $1,000.9
In some cases, the judge may grant you misdemeanor probation in lieu of jail. Anger management counseling is a common condition of probation.10
Annoying or harassing phone calls are sometimes charged along with violating a restraining order.
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 California prosecutors and judges at getting 653m PC charges dismissed.
1) 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. 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.11
2) 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.
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.12 If we get the D.A. to recognize our point of view, they may dismiss the annoying phone call charge.
3) You Were 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:
- You were incapable of knowing or understanding your actions at the time the crime was committed, and
- You were incapable of distinguishing right from wrong at the time the crime was committed.
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.13
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.
653m PC victims may be able to get restraining orders against the alleged harasser.
4. Related Offenses
Criminal Threats – 422 PC
California law makes it a crime to make criminal threats against someone else.
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). You cannot be found guilty of violating 422 PC unless all of the following are proven:
- You willfully threatened to commit a crime that would result in someone’s death or great bodily injury,
- You specifically intended your statement to be taken as a threat, and
- The statement was unequivocal and specific enough to cause someone to reasonably fear for their own safety or that of their immediate family members.
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 your criminal history.
Violating a Restraining Order – 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 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.
To be convicted of violating a restraining order, you need to have violated the terms of the order willingly and knowingly. 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.
Stalking and Cyberstalking – 646.9 PC
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).
If you stalk someone using a phone or electronic communication device, it is known as cyberstalking.
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 your criminal history.
Making obscene or repeated phone calls in California can violate 653m PC.
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.
Legal References:
- California Penal Code 653m PC – Telephone calls or contact by electronic communication device with intent to annoy [Annoying phone calls].
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.
See also Penal Code 19 PC. See also: People v. Astalis (Cal. Super. Ct., 2014), 226 Cal. App. 4th Supp. 1; In re Rolando S. (Cal. App. 5th Dist., 2011), 197 Cal. App. 4th 936. Compare People v. Hernandez, (1991) 231 Cal.App.3d 1376 (finding the defendant guilty of annoying phone calls for making multiple calls to his ex-girlfriend’s landlady in which he threatened to harm her), with In re C.C., (2009) 178 Cal.App.4th 915 (finding a high-school-aged defendant not guilty of annoying calls or communication for sending text messages to his ex-girlfriend in which he threatened to kill half the people in their school). - Penal Code 653m PC. See also J.J. v. M.F. (Cal. App. 2d Dist., 2014), 223 Cal. App. 4th 968.
- Same.
- People v. Hernandez, supra at 1384-85:
Here, the trial court instructed the jury as follows: ‘”obscene” [for purposes of California’s annoying phone calls law] means offensive to one’s feelings, or to prevailing notions of modesty or decency; lewd.’ Respondent argues persuasively that this definition is consistent with the clear statutory concern for deterring annoying telephone calls. The purpose of the statute was to protect an individual’s right to privacy from annoying intrusions. Accordingly, language that qualifies as ‘obscene’ under a common or dictionary definition would fall within the meaning of the statute. The Legislature did not intend to deter intentional and annoying telephone calls containing ‘obscene’ language dealing with sex and appealing to the prurient interest under the Miller standard, while exempting equally annoying telephone calls containing language that would be considered ‘obscene’ under a common or dictionary definition. Appellant argues that this court must apply the Miller definition of ‘obscene’ because the term is not defined under statute and the only definition for ‘obscene’ under federal or California decisions is in accord with Miller. FN6 Appellant’s argument is unpersuasive because the federal and California cases applying the Miller definition of obscenity are distinguishable as to the context in which the term ‘obscene’ is defined. Further, this court finds persuasive case authority from other jurisdictions that have applied a common or dictionary definition of obscenity. These factors support the position that the Miller definition is not properly applicable in the context of a telephone harassment statute.
- In re C.C., (2009) 178 Cal.App.4th 915, 922:
Although we are not applying the same definition of obscenity at issue in Price, the point is that the dictionary definitions of words such as ‘fuck’ or ‘cunt’ may not reflect the meaning conveyed by those words as used in contemporary society. Meaning generally hinges on the circumstances in which words are used.
- People v. Powers, (2011) 193 Cal.App.4th 158, 166:
We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.
- Penal Code 653m PC.
- Same.
- Penal Code 19 PC.
- Penal Code 653m PC. See also People v. Prowell (Cal. App. 3d Dist., 2020) Super. Ct. No. CRF170417.
- Same.
- Same.
- Penal Code 25 PC:
(b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.