Penal Code 653m: Harassing Phone Calls and Texts in California (Elements, Defenses, and Penalties)
The short answer: Penal Code section 653m makes it a misdemeanor to contact someone by phone or electronic device with the intent to annoy or harass them, either by using obscene language or threats in a single contact, or by making repeated calls or messages. The charge shows up constantly in breakups, custody disputes, and restraining order cases across Riverside, San Bernardino, Victorville, and Los Angeles, because texts and voicemails are easy to screenshot and hand to a deputy. The prosecutor must prove your specific intent to annoy or harass, which is where most of these cases are fought. This guide from our criminal defense practice explains the elements, the defenses, the penalties, and what the charge means for a restraining order or custody case.
What Penal Code Section 653m Prohibits
Two separate misdemeanors live in the same section. Subdivision (a) of Penal Code section 653m punishes a person who, with intent to annoy, contacts another person by telephone or electronic communication device and uses obscene language or threatens to inflict injury on the person, their property, or their family. Subdivision (b) punishes a person who, with intent to annoy or harass, makes repeated telephone calls or repeated contact by electronic device, whether or not conversation ensues. The second version does not require any threat or obscenity at all; the volume and the intent are the crime.
Electronic communication device is defined broadly. The statute reaches telephones, cell phones, computers, video recorders, fax machines, pagers, and the messages they carry, which in practice means texts, direct messages, emails, social media messages, and voicemails. Deputies in Hesperia or Moreno Valley do not need a recording of a call; a phone full of screenshots is enough to write the report. Whether those screenshots are complete, in order, and authentic becomes a defense issue, as we discuss in our guide to whether police can use your text messages against you.
Good faith contact is excluded. The statute does not apply to contacts made in good faith or in the ordinary course of business. A parent calling repeatedly because the other parent has the child and is not answering, a landlord calling about rent, or a person calling to retrieve property is not committing a crime simply because the recipient finds the calls unwelcome. The line between persistent and harassing is a fact question, and it is the question a judge or jury in the Riverside Hall of Justice or the Victorville courthouse will ultimately decide.
What the Prosecutor Must Prove Under Section 653m, Subdivision (a)
Elements of the threat or obscenity version. To convict under subdivision (a), the prosecutor must prove beyond a reasonable doubt (1) that you contacted another person by telephone or electronic communication device, (2) that during the contact you used obscene language or threatened to inflict injury on the person, their property, or a member of their family, and (3) that you acted with the specific intent to annoy the person. A single call or message is enough under this subdivision. The threat does not have to be as serious as a criminal threat under Penal Code section 422, which requires a threat of death or great bodily injury that causes sustained fear; a message that would not qualify under section 422 can still be charged under section 653m. Our article on criminal threats under Penal Code 422 explains the difference.
What obscene means here. Profanity alone is generally not enough. Courts have read the obscenity prong narrowly to avoid punishing protected speech, so the prosecutor must show language that is sexually explicit or otherwise patently offensive in the constitutional sense, delivered with intent to annoy. A heated argument with cursing between former partners in Fontana or Pomona is a weak subdivision (a) case; a sexually explicit voicemail left at 2 a.m. after being told to stop is a strong one.
What the Prosecutor Must Prove Under Section 653m, Subdivision (b)
Elements of the repeated contact version. To convict under subdivision (b), the prosecutor must prove (1) that you made repeated telephone calls or repeated contacts by electronic communication device to another person, (2) that you did so with the specific intent to annoy or harass that person, and (3) that the contacts were not made in good faith. Whether a conversation occurred does not matter; forty unanswered calls in a night are the classic case. The statute does not define a number, so prosecutors look at the volume, the time of day, whether the person asked you to stop, and what the messages said.
Intent is usually the whole case. Repeated contact with a former partner is often motivated by something other than a desire to annoy, such as trying to see a child, trying to get an answer about money, or trying to apologize. The defense builds that story from the full message thread, not the curated screenshots the complaining witness provided. That is why the first task in a 653m case in Riverside or San Bernardino County is obtaining the complete records under Penal Code section 1054.1 and from your own phone.
Common Defenses to a Section 653m Charge
No intent to annoy or harass. The most common defense is that the contacts had a legitimate purpose. Co-parents who must communicate about exchanges, people with shared leases or shared accounts, and people trying to recover property have reasons to call that have nothing to do with harassment. A clear timeline showing what each message was about, paired with the other person's own replies, often convinces a prosecutor at the pretrial conference to dismiss or divert the case.
Good faith or ordinary course of business. The statute itself exempts good faith contact, and the defense can present evidence that you believed the contact was necessary and appropriate. Collection calls, scheduling calls, and calls prompted by an emergency fall in this category. Our guide to what makes a criminal case weak describes how this kind of context changes a prosecutor's filing decision.
Not obscene and not a threat. Under subdivision (a), the defense can argue that the language was crude but not obscene, or that an angry statement was not a threat to injure anyone. Statements about calling the police, filing for custody, or telling family members about the other person's conduct are not threats of injury, even if they are unwelcome.
Wrong person or incomplete records. Shared devices, spoofed numbers, and group chats create real doubt about who sent a message. Screenshots can be cropped, reordered, or fabricated, and the defense can demand the native data or subpoena the carrier. Our article on how prosecutors build criminal cases explains how the defense tests this kind of evidence.
Protected speech. Because section 653m regulates communication, it has been challenged on First Amendment grounds, and courts have upheld it by reading its intent and obscenity requirements narrowly. The defense uses that narrowing to argue that political, religious, or otherwise protected speech cannot be criminalized merely because the listener was annoyed.
Penalties and Collateral Consequences
It is a misdemeanor. A conviction under section 653m is a misdemeanor punishable by county jail and a fine, with informal probation as the usual outcome for a first offense in the Inland Empire and Los Angeles County. Judges commonly add a criminal protective order, a counseling requirement, and a no-contact condition. The case is frequently charged alongside, or instead of, Penal Code section 646.9 stalking, which is a wobbler that carries far more exposure; our guide to stalking under Penal Code 646.9 explains when prosecutors escalate.
Criminal protective orders and the DVRO. When the complaining witness is a current or former partner, the court will typically issue a criminal protective order under Penal Code section 136.2 on form CR-160 at arraignment, and the complaining witness often files for a domestic violence restraining order in family court at the same time. Repeated contact after that order is a new crime under Penal Code section 273.6. We explain both in our guides to the criminal protective order and to violating a restraining order, and our family law side handles the domestic violence restraining order hearing.
Custody consequences. A 653m conviction involving a co-parent can be treated as abuse under the Family Code, and a finding of domestic violence triggers a presumption against custody under Family Code section 3044. Harassing messages are also the most common exhibit in a custody hearing. Our articles on how a domestic violence arrest affects child custody and our child custody practice page explain how the criminal case and the family case affect each other.
Diversion and record cleanup. Misdemeanor diversion under Penal Code section 1001.95 is available for many 653m charges because the statute's exclusions cover domestic battery, corporal injury, stalking, and a few other offenses rather than section 653m itself, although a judge may decline diversion where the facts look like domestic violence. A conviction that ends in probation can later be dismissed under Penal Code section 1203.4 with form CR-180. See our guides to misdemeanor diversion and expungement.
How a Section 653m Case Moves Through Court
Arrest, citation, or a filing letter. Many 653m cases begin with a report rather than an arrest; the complaining witness brings screenshots to the Riverside County Sheriff or the San Bernardino Police Department, and weeks later a letter arrives with a court date at the Riverside Hall of Justice, the San Bernardino Justice Center, or the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles. If a detective calls first, read our article on what to do when a detective calls and do not explain the messages. Our guide to what prosecutors look at before filing charges describes the decision the District Attorney is making during that gap.
Arraignment and the protective order. At arraignment under Penal Code section 988, the court will take your plea and usually impose a no-contact order. Your lawyer can generally appear for you under Penal Code section 977, subdivision (a), although courts in domestic violence cases often require personal appearance for the protective order. Our guide to what happens at arraignment in Riverside County walks through the hearing.
Pretrial resolution. Most 653m cases resolve at the pretrial conference through dismissal, diversion, or a plea to a reduced charge such as disturbing the peace under Penal Code section 415, which we cover in our Penal Code 415 guide. Whether to accept an offer depends on the immigration, custody, and firearm consequences, which we discuss in our article on whether to take a plea deal.
Mistakes to Avoid After a Harassment Accusation
Sending one more message. The single worst thing a person can do after being accused under section 653m is contact the complaining witness to explain, apologize, or argue. Every new message is a new count, and if a protective order exists it is a new crime. Route all contact through counsel or, for co-parents, through a court-approved co-parenting app.
Deleting the thread. Deleting messages does not remove them from the other person's phone, and it destroys the context that supports your defense. Preserve everything, including the other person's messages to you, and give the full export to your lawyer.
Talking to police without a lawyer. Officers in Hesperia, Corona, or Santa Ana may frame the interview as a chance to tell your side, but the statements become the intent evidence the prosecutor needs. Our article on what not to say to police explains why silence is the right answer.
Frequently Asked Questions
Is Penal Code 653m a felony or a misdemeanor?
It is a misdemeanor. Both the threat or obscenity version in subdivision (a) and the repeated contact version in subdivision (b) are misdemeanors. Prosecutors sometimes pair the charge with stalking under section 646.9 or criminal threats under section 422, which can be felonies, so the whole complaint matters.
How many calls or texts count as harassment under section 653m?
The statute sets no number. Subdivision (b) requires repeated contact with intent to annoy or harass, and prosecutors look at the volume, timing, whether you were told to stop, and the content. A handful of calls about a legitimate issue is a weak case; dozens of late-night messages after a request to stop is a strong one.
Can I be charged under 653m for texting my ex about our kids?
Not if the contact was in good faith. The statute excludes good faith contact, and communication about custody exchanges, school, or medical care is the classic example. The problem arises when the messages drift from logistics to insults or threats, or when a protective order already bars contact.
Will a 653m charge affect my custody case?
It can. A conviction involving a co-parent can support a domestic violence finding and the presumption against custody under Family Code section 3044, and the messages themselves become exhibits at the custody hearing. Coordinating the criminal defense and the family case is essential, and our child custody practice handles both sides.
Can a 653m charge be dismissed or diverted?
Often, yes. Many cases are dismissed once the full message thread shows a legitimate purpose, and misdemeanor diversion under section 1001.95 is frequently available. Daniel Gramling, Esq. offers flat-fee criminal defense so you know the cost before the first hearing.
Gramling Law Group defends harassment, criminal threats, stalking, and domestic violence cases at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center, and the Central Justice Center in Santa Ana, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options and handles the related restraining order and custody matters in family court. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Facing a harassment or domestic violence charge in the Inland Empire? See our Riverside criminal defense attorney page, our Victorville criminal defense attorney page, our Los Angeles criminal defense attorney page, our Inland Empire criminal defense landing page, and our domestic violence restraining order page.
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