How is PC 653.2 Defined in California?
Penal code 653.2 prohibits indirect harassment with an electronic device or posting harmful information online. For you to be convicted under penal code 653.2, the prosecutor must beyond reasonable doubt prove that:
- You posted harassing information about another individual using an electronic device to hyper-link, publish, disturb, or make it available for people to download,
- Without their consent,
- You intended to cause them any kind of physical contact, injury, or harassment, and
- The intended person noticed the information you published, and they felt incited, disturbed, injured, or harassed. In other words, the information helped you achieve your intentions, and the intended person realized that.
Here are the legal explanation of the above elements:
The Use of an Electronic Device
The prosecution must be able to prove that you indeed used an electronic device to communicate, Pass, or share the harassing information. These electronic devices may include:
- Cell phones
- Video messages
- Text messages
- Websites
- Emails
- Telephone
- Computers, and
- Other electronic devices
Harassment
In this statute, harassment is described as a willful behavior directed to another person that would be said to be annoying, terrorizing, tormenting, alarming, and serious for no specific reason.
Harassment with electronic devices has its elements which include:
- Sending or distributing — Posting or disclosing another person’s information without their consent is a form of harassment that is illegal by law.
- The distributor’s effect — The prosecutor must beyond reasonable doubt prove that you intended to instill fear or make the other person fear for their safety.
- Likely outcome/effect — This would apply when posting the information would cause harassment to a third party.
Without the Other Person’s Consent
When a person is said to have consent, it means they have been authorized or permitted to do something. In this case, the prosecutor must prove that the defendant posted or shared the information without their authorization; there was no agreement between the victim and the defendant. Thus the defendant is said to have violated the victim’s rights.
The Sender’s Intentions
The sender aimed to cause fear to another person by distributing the information. If your information did not cause fear or harm to the intended person, you cannot be convicted under PC 653.2 because your actions would not be considered harmful.
The Targeted Person Acknowledged Your Intention to Cause Fear
For you to be convicted under this statute, the other person must identify your intention to instill fear or cause harm to them through the information you distributed. This can be proved if the targeted person reported the information.
What is the Relationship Between Domestic Violence and Indirect Harassment?
According to California law, Domestic violence is any kind of physical or threat with the intent to cause harm to any person listed on CA, family code 6211. This may be a parent, child, spouse, cohabitant, or someone you have an intimate relationship with. If you post any harmful information that is intended to cause harm to your intimate partner, that is considered domestic violence even though it is punished separately.
PC 653.2 Penalties
California penal code 653.2 is charged as a misdemeanor, and the possible punishments include:
- Detainment in county jail for a year
- Fines of up to $1,000
- Informal probation
Punishment for Misdemeanor Domestic Violence
If you are convicted under PC 1203.097, you are likely to face the following:
- Attend a batterer’s program for 52 weeks
- Pay fines of not less than $500 in addition to penalties and assessments
- Probation for not less than 36 months
- The court may issue protective orders to ensure that there is peaceful contact between the parties involved
If you violate PC 1203.097 through indirect harassment, you will be put on probation. The court will actively review your progress to ensure that you are following all the set rules. If you do not comply with the set rules, you could face additional penalties and jail time.
Possible Legal Defenses for the Violation of Penal code 653.2
It is essential to hire a skilled and experienced attorney capable of employing strong defenses against your charges to have them dismissed or reduced. Your attorney should be able to evaluate your case and build relevant defenses to help you fight your charges. Remember the aim of these defenses is to find any loopholes in the proof presented by the prosecution. Below are some of the legal defenses that our experienced defense attorneys use to fight client’s charges.
Innocence
Innocence is one of the most common defenses that can be applied in almost every prosecution. You can argue that you were not involved in the activity in question. This defense involves you denying that you did not post any harmful information about someone else if you honestly did not do it. The information could have been posted by someone else who put the blame on you or tried to impersonate you.
Lack of Intent
If you decide to use this argument, you have to agree that you posted another person’s information online. But, you need to prove that your information was misunderstood and you did not intend to cause any kind of fear or harm. If you can prove this in court, your charges may be dismissed since your intent is crucial when prosecuting someone for violating PC 653.2.
Withdrawal
When using this defense, you also must accept that you posted harmful information about another person online. But you should prove to the court that you later realized that the information was harassing the intended person and withdrew it immediately. In most cases, people post harmful information online out of anger and later realize that the information is harassing after some time and pull it down.
Lack of Sufficient Evidence
Insufficient evidence can also be a great defense if the prosecution cannot prove that you were involved in the offense. At times the prosecution may have evidence linking you to the crime but insufficient to make you guilty for the crime. Remember, for you to be prosecuted for violating PC 653.2, the prosecutor must beyond reasonable doubt prove all the elements stated above. If some evidence is missing, it makes it hard for you to be convicted for this crime.
Police Misconduct
This defense is applicable in two ways. If the police did not read the Miranda rights to you, the second includes being searched unlawfully. In the first case, according to California law, every arresting office should read out the Miranda rights to every arrestee. If the police officer responsible for your arrest failed to read out the Miranda rights, any evidence collected after the arrest might be dismissed by the court.
Additionally, the law requires a police officer to have a search warrant while carrying out a search. If the police officer did not have any search warrant while investigating your property, the court might dismiss any evidence obtained during the illegal search.
Coercion
If another person pushed you to do something unwillingly, the defense of coercion might be applicable. This mainly happens when someone else forces you to post harmful information online because they have something they can use against you. Many people are coerced through blackmailing. However, you must prove to the court that the information you posted was forced.
Duress
This can be explained as severe coercion since it involves people with more power, like the police. If a police officer blackmails you or threatens you to post harmful information about your intimate partner online as a way of getting back to you, you can use this defense to fight your charges.
Involuntary Intoxication
In most cases, the defense of intoxication is not relevant, and the court does not consider it reasonable enough not unless it was a forced intoxication. If you can prove that you were drugged, the court may assume that you were not in your right state of mind and your actions resulted from the intoxication.
Offenses Related to PC 653.2
Several offenses are charged along with or mentioned along with PC 653.2 under California law. These offenses include:
Penal code 646.9 – Cyberstalking
This statute prohibits threatening or harassing another person or their close family member with electronic communication until they feel unsafe. Cyberstalking is a wobbler meaning the prosecution may charge it as a felony or a misdemeanor based on various factors like the severity of the crime and the criminal history of the offender. If you are charged with a misdemeanor for cyberstalking, you are likely to face:
- Detainment in county jail for one year
- Maximum fines of $1,000
However, if you are convicted for a felony cyberstalking, you are likely to face:
- Imprisonment of up to 5 years in state prison
- Maximum fines of $1,000
- The possibility of lifetime registration as a sex offender under PC 290
Regardless of whether you are charged with a misdemeanor or a felony, you may also be subjected to:
- Counseling
- Restraining order to ensure safe contact between the defendant and the victim
- Confinement in a mental illness hospital
If the alleged victim is your domestic partner, you will face domestic violence charges subjecting you to more and harsher penalties.
Penal code 653m – Annoying Phone calls, Messages, and Emails
Penal code 653m makes it illegal to send annoying messages and emails and making obscene calls repeatedly to someone with the intent to harass or annoy them.
Note that this statute does not spare prank calls, and you can be convicted for violating PC 653m even if you intended to prank the recipient.
This offense is prosecuted as a misdemeanor, and the penalties include:
- Six months imprisonment in county jail
- Maximum fines of $1,000
- Informal probation
Penal code 647(J)(4)
PC 647j4 makes it illegal to circulate the sexual images of another individual without their consent. The other person may have given consent to the capturing of the images, but you decided to abuse their privacy and post them online with the intent to cause the respective person emotional distress.
This offense is convicted as a misdemeanor and the penalties include:
- Six months imprisonment in county jail
- Maximum fines of up to $1,000, OR
- Informal probation
Penal Code 422 – Making Criminal Threat
This statute prohibits making a criminal threat to someone else. In this case, criminal threat involves the intent to cause great bodily injury, or kill someone, or making the other person fear for their safety or for the safety of their loved ones.
This violation is considered a wobbler in California, meaning the prosecution can charge it as a felony or a misdemeanor. If you are prosecuted for a misdemeanor under PC 422, you are likely to face the following penalties:
- Detainment in county jail for one year
- Fines of up to $1,000
If convicted of a felony under this statute, you are likely to face:
- Three years detainment in state prison
- Fines of up to$10,000
Penal Code 288.2 – Sharing Harmful Materials With Children
PC 288.2 makes it illegal to share harmful material with minors below 18 years to arouse the child or yourself sexually and have sex with them. This violation is considered a wobbler, and the prosecution can charge it as a misdemeanor or a felony.
Misdemeanor charges for sharing harmful material with minors is punishable by:
- Detainment in county jail for up to one year
- A fine of $1,000
Felony charges under this statute are punishable by:
- Imprisonment in state prison for three years
- A fine of $10,000.
- Possible registration as a sex offender under penal code 290
The charges of posting harmful information online can be complex, with severe penalties. That is why it is advisable to have an experienced attorney by your side to help you fight your charges. We at Long Beach Criminal Attorney are one of the most reputable firms that deal with internet harassment cases and related cases in the Long Beach area. Call us today at 562-308-7807 for expert criminal defense services.
