Following a jury trial in municipal court, appellant was convicted of making telephone calls with the intent to annoy, in violation of Penal Code section 653m, subdivisions (a) and (b).
The evidence introduced at trial established that between July 26 and August 6, 1989, appellant made approximately 80 telephone calls to Phyllis Mischel. Appellant, whom Ms. Mischel knew by the name "Vivianna," was distraught over the breakup of a relationship with Bob W., a tenant in the apartment building which Ms. Mischel managed. Over a period of months, Ms. Mischel had talked to appellant 20 to 30 times and was familiar with appellant's voice.
Thus, when appellant called Ms. Mischel in the building's business office on July 26, 1989, she recognized his voice immediately, even though appellant did not identify himself. The calls from appellant continued for approximately a two-week period. On a typical day, Ms. Mischel would receive a number of calls several minutes apart. During one sequence, appellant (without identifying himself) called Ms. Mischel a "f____bitch," hung up the phone, called several more times and "played a tune" with the telephone buttons, then called again and said he "wouldn't give up" and "would keep calling until he got what he wanted."
What appellant wanted was to communicate directly with Bob W., something which he could not do because Bob W. had obtained a restraining order. Sometimes appellant referred to Ms. Mischel as a "messenger" (with the idea that she would relay his communications to Bob W.), but at other times appellant was hostile and accused Ms. Mischel of interfering with his and Bob W.'s relationship.
Not all appellant's calls were anonymous. On July 30, for example, appellant left several extended messages on Ms. Mischel's answering machine regarding his relationship with Bob W. These messages were annoying to Ms. Mischel, but were not obscene or threatening.
Ms. Mischel kept a log of all appellant's calls during the period in question. Appellant was traced through a "telephone trap" set up by Pacific Bell, which identified the telephone number from which the calls originated.
Appellant admitted making 15 to 20 calls to Ms. Mischel, some of which were necessitated by the fact that Ms. Mischel hung up on appellant so he had to call back. Appellant stated that he did not intend to annoy Ms. Mischel, but only wanted to communicate indirectly with Bob W. and "handle his aggravation without being put in jail."
As in Broadrick, which upheld a statute restricting the political activities of civil servants, subdivisions (a) and (b) forbid conduct rather than pure speech. They are not directed at particular groups or viewpoints, and are narrowly drawn to prohibit only limited kinds of telephone calls. Subdivision (a) prohibits only telephone calls in which the caller (1) telephones another person with the intent to annoy, and (2) uses obscene language to or about the other person, or threatens "to inflict injury to the person or property of the person addressed or any members of his family." Subdivision (b) prohibits an individual from making phone calls only when motivated by the intent to annoy, and only when the caller does not disclose his or her true identity. Thus, even anonymous calls are permitted provided the caller does
In fact, it is difficult to imagine a situation in which an individual could engage in the specific conduct proscribed in subdivisions (a) and (b) and still enjoy constitutional protection. Appellant offers several hypothetical situations which, he argues, might involve telephone calls which are both annoying and threatening, yet nonetheless constitutionally protected. These include "any type of communications concerning potential litigation," the threat to have a trespasser's car towed away, or a threat to return items to a department store and demand reimbursement (which would be injurious to the store's property rights).
As a practical matter, the likelihood that any of these relatively benign uses of the telephone would result in a criminal prosecution is extremely remote. Assuming such a prosecution was filed, the statute could be attacked as applied to that constitutionally protected conduct. (Broadrick v. Oklahoma, supra, 413 U.S. at p. 609 [37 L.Ed.2d at p. 838].) This still does not make subdivisions (a) and (b) substantially overbroad.
Appellant asserts that several substantial rights are affected by the trial court's instructions. First, he contends, the trial court is required to instruct, sua sponte, on all general principles of law, including what is necessary to prove all elements of the charge, under the constitutional right to a trial by jury. (People v. Garcia (1984) 36 Cal.3d 539, 551 [684 P.2d 826].) Second, the definition of "obscene" is subject to an ambiguous yet technical interpretation, again raising potential prejudicial error. Third, appellant cites Osborne v. Ohio (1990) 495 U.S. 103 [109 L.Ed.2d 98, 110 S.Ct. 1691], in which the United States Supreme Court overturned an obscenity conviction, on due process grounds, because the trial court had not instructed the jury as to the meaning and elements of "obscenity" within the meaning of the state statute. Appellant's contentions properly deserve appellate review as substantial rights of due process and freedom of speech may be affected. Further, an improper instruction of "obscenity" would not be harmless error for these same reasons.
Section 653m does not provide a specific definition for "obscene" nor is there any legislative history behind this statute which provides guidance. In the absence of an established definition of "obscene" within the meaning of section 653m, a court may properly define a term consistent with the legislative purpose. Here, the trial court instructed the jury as follows: "`obscene' means offensive to one's feelings, or to prevailing notions of modesty or decency; lewd."
Respondent argues persuasively that this definition is consistent with the clear statutory concern for deterring annoying telephone calls. The purpose of the statute was to protect an individual's right to privacy from annoying intrusions. Accordingly, language that qualifies as "obscene" under a common or dictionary definition would fall within the meaning of the statute. The Legislature did not intend to deter intentional and annoying telephone calls containing "obscene" language dealing with sex and appealing to the prurient interest under the Miller standard, while exempting equally annoying telephone calls containing language that would be considered "obscene" under a common or dictionary definition.
Appellant argues that this court must apply the Miller definition of "obscene" because the term is not defined under statute and the only definition for "obscene" under federal or California decisions is in accord with Miller.
The United States Supreme Court set forth the definition of obscenity in Miller for application to "obscene material" or "works" that required First Amendment scrutiny.
However, conduct under section 653m
Appellant cites a number of federal and California cases that apply the Miller definition of obscenity. However, none of the cited authority applies
In accordance with the foregoing analysis, other jurisdictions have invoked a common or dictionary definition of "obscene" when applying a telephone harassment statute. For instance, the Nebraska Supreme Court rejected the Miller standard of obscenity, stating, "a telephone harassment statute deals with different concerns than do statutes which seek to control literary or artistic content." (State v. Kipf (1990) 234 Neb. 227 [450 N.W.2d 397, 405].) Similarly, the South Dakota Supreme Court in upholding a common or dictionary definition of "obscene" as applied to a telephone harassment statute stated: "Certainly the State has a legitimate interest in providing its citizenry with protection from perverse telephone calls. With the passage of [the South Dakota version of a telephone harassment statute], our Legislature intended to ban the type of unreasonable conduct which, by its very nature, erodes the peace of mind and solitude of an unsuspecting individual. Conduct of this nature is obviously not protected by the guarantees of free speech provided for in the First Amendment." (State v. Crelly (S.D. 1981) 313 N.W.2d 455, 457.) Further, a number of other states have upheld telephone harassment statutes by focussing on intrusive conduct of the caller rather than the slight expressions of protective speech. (See State v. Keaton (Fla. 1979) 371 So.2d 86; State v. Jaeger (Iowa 1977) 249 N.W.2d 688; Baker v. State (1977) 16 Ariz.App. 463 [494 P.2d 68].)
Even if appellant's words were not obscene under subdivision (a) of the statute, appellant's conduct still violated subdivision (a) since there was
The judgment of conviction is affirmed.
Turner, P.J., and Ashby, J., concurred.
A petition for a rehearing was denied July 16, 1991, and appellant's petition for review by the Supreme Court was denied October 3, 1991.
Section 653m, subdivision (b) (hereinafter subdivision (b)) provides: "Every person who makes a telephone call with intent to annoy another and without disclosing his true identity to the person answering the telephone is, whether or not conversation ensues from making the telephone call, guilty of a misdemeanor."
[*] Reporter's Note: Opinion (B035233) deleted upon direction of the Supreme Court by order dated January 5, 1989.
Subdivision (b) defines "matter" as "any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. `Matter' also means live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction."
Subdivision (g) defines "obscene live conduct" as "any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming, taken as a whole, which to the average person, applying contemporary statewide standards [appeals] to the prurient interest and is conduct which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value."