How’s Obscene Defined in P. C. § 653m, Harassing Calls?

“Obscene,” as used in 653m, is construed using its common dictionary definition, meaning “offensive to one’s feelings, or to prevailing notions of modesty, or decency; lewd.” People v. Hernandez, supra, 231 Cal. App. 3d at 1383-1386. In Hernandez, the judge found that the U.S. Supreme Court definition of “obscene” as predominantly dealing with sex in a manner appealing to the prurient interest based on contemporary community standards, as used in Miller v. California (1973) 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, is only applicable to crimes involving “obscene matter” such as “materials” or “works” of art, and not properly applicable in the context of a telephone harassment statute such as Penal Code § 653m, which prohibits a form of “conduct.” Id.

That form of conduct is epitomized in People v. Johnson (2015) 61 Cal. 4th 734, 776, 190 Cal. Rptr. 536, 574, wherein defendant made many calls while in custody, stating he would blow up his wife’s workplace and “have something done” to wife’s boyfriend, the judge viewed the “threats” using an objective standard. In Johnson, the wife and the boyfriend testified that they did not take defendant’s threats seriously, but that does not foreclose application of 653m because a victim’s subjective fear is not a required element of the crime.” Id., at 776.

Furthermore, the recipient of the communication may not be offended by the communication, in light of the circumstances surrounding the communication. In re C.C. (2009) 178 Cal. App. 4th 915, 921-922, 100 Cal. Rptr. 3d 746, 749-750, for example, the appellate court reversed the juvenile court’s finding as obscene and threatening two texts sent by a minor to his former girlfriend, explaining that the minor was merely “expressing strong negative feelings about their breakup,” that both the minor and his former girlfriend attended a high school where such language was in common use, and that the messages concerned “intimidate matters between the parties.” Id. at 917, 922.

In the minor’s texts, words such a “fuck,” “bitch,” and “cunt,” stating that his ex-girlfriend would have sex with another boy, and stating he would bring a gun to school, “kill half the school,” and then shoot himself in the head, were not “obscene” since the ex-girlfriend testified she was not subjectively offended. Id. at 921.

We present this article because criminal threats under Penal Code § 422 is a strike offense when brought as a felony, but his is often a poor match for the conduct at issue, which is more misdemeanor in nature and more appropriately characterized as harassing or annoying calls, but it is good for the attorney to understand this crime before suggesting such an amendment to the complaint to resolve the case.

For more information about Penal Code § 653m, please click on the following articles: