Prank phone calls aren’t anything new. You know the harmless yet annoying calls that want to know if your refrigerator is running? You hope the caller has gotten their laughs and won’t be bothering you again. Obscene phone calls are vastly different, and California isn’t the only state making it illegal.
So, if you’re using threatening or obscene language, can you go to jail for phone harassment? You’re not going to get a straight yes or no answer. A few factors go into determining punishment if you’re found guilty of making obscene or harassing phone calls in the Golden State.
When Is a Phone Call Considered Harassing?
Nope, the constant spam calls aren’t going to fall into this category. Even though pretty much everyone considered spam calls harassing, they’re not illegal under Cali law.
According to California Penal Code 653m, a phone call is only harassing when the intent is to annoy the receiver using obscene language or making threats. The threats must be against the person answering the phone, their family, or property.
Since technology keeps advancing, Golden State law also needs to keep up. Over the last couple of years, PC 653m has seen a few adjustments:
- Calling the victim on the phone and making obscene remarks or threats
- Leaving obscene remarks or threats on a person's voicemail
- Texting obscenities or threats to the victim
- Emailing obscenities or threats to the victim
- Faxing a letter with obscenities or threats
- Taking disturbing or suggestive photos on a smartphone and sending them to the victim
- Making repeated calls/texts/emails/faxes with the intent to harass
You can also be charged with a violation of PC 653m if you call and leave a generic voicemail or no message at all, then make obscene remarks or threats when the person calls back. You can even be charged if you’re not the one speaking the obscenities but instead, hand your phone to someone else.
How to Know If The Phone Call is Obscene
The law loves using ambiguous terms that have different meanings to various people. The term obscene is one. What you consider obscene may be a normal conversation for someone else.
Previously, obscene was pretty limited to sexual content. This still applies, but the definition has dramatically expanded. Some examples of what can be considered obscene or harassing can include any of the following:
- Using obscene or profane language
- Using sexual innuendo
- Using language that describes graphic violence
- Making threats to the safety of the victim, their family, or their property
- Sending photos or videos of an individual's body parts, such as genitals, buttocks, etc.
- Sending photos or videos of violent acts
Calling and saying nothing. If you call and hang up without speaking, the prosecutor could still argue that you intended to annoy or harass by calling in the first place.
Who receives the harassing phone call can also play a role in figuring out if a state law is broken. Since the statute governing phone harassment is tied to domestic violence laws, prosecutors must establish a relationship between the caller and the receiver.
We’re not saying all harassing phone calls are part of a domestic violence case. Only that the prosecution must show the caller either knows or willfully plucked the victim’s number at random.
Potential Penalties for Phone Harassment in California
If you’re guilty of phone harassment, California looks at it as a misdemeanor. Jail time isn’t really likely, but there’s the threat of possibly spending up to six months locked up. Most first-time offenders are only slapped with a fine. Before you breathe a sigh of relief, the fines tend to run around $1,000.
Things start changing dramatically if your harassing phone call includes making threats. Now, you’ve graduated to a felony charge and potential penalties can be life-changing, and not in a good way. Instead of county jail time, you’re facing up to three years in a state prison. Your fine can also jump up to $10,000.
Harassing Phone Calls Are Often Tied to Other Offenses
Sometimes, a harassing phone call is only the start of the charges. For example, we mentioned domestic violence. Some additional charges that often make their way to court with a phone call harassment case include but aren’t limited to the following:
- Making Criminal Threats (Penal Code 422 PC): Making a threat to kill or seriously injure the alleged victim. If your "annoying" phone call includes such a threat, and the person deems the threat to be credible, you may be charged with this crime as well, which may be prosecuted as a misdemeanor or felony
- Stalking/Cyberstalking (Penal Code 646.9): The act of maliciously harassing or threatening someone else. If you use a phone or smartphone to do so, you could be charged with stalking, as well, either a misdemeanor or felony
- Violating a Restraining Order (Penal Code 273.6): If the alleged victim of your "annoying" phone call was a significant other with a restraining order against you, chances are you violated that order by making the call—another misdemeanor offense.
While sometimes you can get out of misdemeanor charges by claiming the harassing phone call as a mistake, this usually doesn’t work when other code violations apply. To help ensure your legal rights are being protected, it’s a good idea to partner with a San Jose criminal defense attorney.
How Your California Criminal Defense Attorney Can Fight Potential Phone Harassment Charges
Sometimes you can apologize and walk away with a slap on the wrist. This isn’t uncommon when the harassing phone call is an honest mistake. You can even scoot away with a minor punishment for first-time offenses. On the other hand, you may be facing additional charges like stalking or making criminal threats.
Regardless of your charge, it’s pretty much always best to consult with an experienced California criminal defense lawyer. Your attorney can investigate your case and present evidence to the judge. Your attorney may even be able to find mitigating factors that can help reduce your sentence if you’re found guilty.
