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How’s Obscene Defined in P. C. § 653m, Harassing Calls?
In the context of resolving a case for criminal threats made using telephone calls (which is quite common), it is worth considering a disposition instead for making harassing calls, a violation of Penal Code § 653m instead.
In a Nutshell: Making harassing calls under Penal Code § 653m, a misdemeanor, is an alternative plea that should be considered when charged with criminal threats involving the use of a telephone. However, it is good to understand that “obscene” as used in 653m is broader than the U.S. Supreme Court definition of “obscene” in “obscene matter (Miller v. California).
Penal Code § 653m is a misdemeanor. It prohibits telephoning or contacting by means of an electronic communication device, with the intent to annoy, or harass, where the contact involves:
- Obscene language addressed to or about the person receiving the call or contact (Penal Code § 653m(a)); or
- Threats to inflict injury to the person or the person’s property or any member of his or her family (Penal Code § 653m(a)); or
- Any combination of repeated calls or contacts to another person, whether or not conversation ensues (Penal Code § 653m(b)).
Subdivision (a) or (b) is considered violated even when the person making the call or contact requests a return call and performs the prohibited acts on receiving the return call (Penal Code § 653m(d)).
It is not required that the recipient of the call or contact know the identity of the person making the annoying or harassing contact. See People v. Hernandez (1991) 231 Cal. App. 3d 1376, 283 Cal. Rptr. 81 (involving several anonymous calls, such as “hang-up” calls).
Penal Code § 653m has been found to be constitutionally valid , and not a violation of free speech or due process. See People v. Astalis (2014) 226 Cal. App. 4th Supp. 1, 8, 172 Cal. Rptr. 3d 568 (repeated telephone calls and repeated contact by means of electronic communication devices, including sending text message, emails and leaving over 40 posts on the Internet via Facebook). The judge in Astalis determined that the government has a compelling interest in protecting a person’s privacy from unwanted intrusion, including repeated contact through the Internet. Id., at 226 Cal. App. 4th Supp at 8.
Long Beach Courthouse“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:
