PC 653m (a) states, “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.”
PC 653m (b) states, “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.”
Is Making a Prank Call Legal in California? What Characteristics of a Prank Call Makes It Illegal?
Making a “prank call” is not always a crime in the state of California. However, there are certain characteristics of electronic messages that can make it an illegal act.
The first element of this crime is that you must have sent a message through a form of electronic communication. While it can be sent through a call or voice message, PC 653m also includes visual forms of electronic communication such as text messages, emails, and faxes. It is required that you knowingly and intentionally acted, but it is important to keep in mind that you did not necessarily have to send the message yourself to be charged with violating PC 653m, as long as it came from your electronic device.
Example: A mother frequently lets her children use her phone to make prank calls to a pizza restaurant for their own amusement. The mother knows that they use her phone for this purpose, and the kids do so repeatedly with the intent to annoy the restaurant workers. The mother could be found in violation of PC 653m even though she didn’t make the calls, because she knowingly let her kids use her device to do so.
The next element regards the content of the calls or messages sent. It is required that they do one of the following:
- Contain obscene, vulgar, or lewd language
- Threatens harm to recipient of the message, or their loved ones/property
- The messages are repeated
Lastly, it must be proven that the messages were sent to harass or annoy the recipient. Even if the messages sound annoying or threatening, it must have been the intent of the sender to do so.
To summarize, the 3 elements of this crime are:
- Electronic message(s) were knowingly and willfully sent from your device
- The message(s) contained obscene/threatening language OR were sent repeatedly
- They were sent with the intent of annoying or harassing the recipient
Punishments for Violating PC 653m
PC 653m is considered a misdemeanor offense in the state of California, meaning that the punishments could include:
- Up to 6 months in a county jail
- A maximum fine of $1,000
While the offense itself does not carry very severe punishments, this is a crime that is commonly associated with others due to the fact that the content of the calls can sometimes lead to more charges. Making a direct threat over the phone would be a violation of PC 653m, for example, but it can also be its own crime (sometimes a felony) as stated in PC 422.
Legal Defenses for PC 653m
There are plenty of defenses that can be used against a false accusation of violating PC 653m. Some of these are:
- Your language was not actually “obscene”
- You didn’t intend to annoy or harass anyone with your messages
- You didn’t willfully send the messages
It may be the case that the language you used was labelled as obscene when it actually was not, but it also may be the case that you used obscene language in an environment where it doesn’t constitute illegal activity. Case law provides protections for people who use obscene language with people who have a history of using such language with each other.
EX: Joe calls his friend, Bill, who doesn’t pick up, so he leaves a voice message for him. Joe and Bill are known to use obscene language with each other, so Joe jokingly includes some obscenities in the message. Bill’s wife, who doesn’t know Joe, listens to the message and is disgusted, so she calls the police on Joe and has him arrested for violating PC 653m. Joe should be found innocent because he has an established history of using vulgar language with Bill.
Your message must have also been sent with the intention of harassing or annoying someone. This does not simply mean that someone was annoyed or felt harassed, but the sender must have meant to annoy or harass. A telemarketer that calls every day may be annoying, however they do not call with that intention, but rather to sell their product.
Lastly, you may not have known that the messages were sent at all, meaning that no crime has been committed. In reference to the earlier example about a mother’s children using her phone to call a pizza restaurant, the mother may not have known that they were using her phone for that purpose, meaning that it would not be a violation of PC 653m.