In this new age of the internet, many people have involved themselves in different internet crimes without their knowledge. The state of California has established different laws to fight internet crimes. One of these is the fight against indirect harassment on the internet. Also known as posting harmful information on the internet, Penal Code 653.2 charges are usually leveled as misdemeanors. We invite you to get in touch with us at the Los Angeles Criminal Attorney to help build defense strategies that might have your charges dropped or penalties reduced.
Legal Definition of Posting Harmful Information on the Internet
The law against indirect electronic harassment is defined under California Penal Code 653.2. The legal definition of Penal Code 653.2 is as follows:
- You utilized an electronic device to publish, hyperlink, email, distribute, or made the content capable of downloading information that is of harassing nature
- Without the consent of the intended person
- To intentionally place the person in a sensible fear for his or her safety or immediate family
- Imminently causing unwanted contact, harassment, and injury to the other person, and
- The target person identified that the information that you posted, and was likely incited, harassed, injured or produced an unwanted contact
The above-stated aspects are considered as elements of the crime. A prosecutor must prove to prosecute someone in a court of law effectively. Here is a detailed view of the elements of crimes.
You Used an Electronic Communication to Email, Hyperlink, Distribute or Avail Harassing Information
Under this element, two aspects come into place. This includes the use of an electronic device and harassment using electronic communication. When it comes to an electronic device, they include, but not limited to, the following:
- Cell phones
- Internet web pages and websites
- Personal data assistant
- Fax machine
- Video recorder
Harassment is the willful cause of conduct directed to someone else and would be taken as serious, alarming, tormenting, terrorizing, and annoying, without any legitimate purpose.
Harassment through electronic communication can be considered under the following circumstances:
- Distribute or send: It is illegal to distribute, post, email or disclose any other person’s information without his or her consent
- Likely effect, or whom: This applies when the sending or distribution would incite or harass a third party
- The intention of the sender or distributor: In this case, the prosecutor must prove that the defendant had the purpose of placing the other person in a rational fear for his or her safety
Without the Consent of the Person
Consent can be explained as a permit to do something. Therefore, in this context, doing something without the person’s consent violates his or her rights.
Intentions of the Sender or Distributor
The purpose of the distributor or sender is to cause fear to a specific person or a close relative. Therefore, anything else that you could have done contrary to the intention of creating terror to someone else does not count as harmful.
Achieved the Purpose of Causing Fear
Finally, for a prosecutor to successfully charge you under Penal Code 653.2, the intended goal must be met. This means the intended purpose of causing fear to the respective person must be achieved through the acknowledgment of the target person.
Relationship Between Penal Code 653.2 and Domestic Violence
Indirect harassment on the internet is considered as part of domestic violence. Penal Code 1203.097 considers every crime that involves any person listed under California Family Code section 6211as part of domestic violence. This consists of a former cohabitant, a spouse, a child, a parent, or someone who you are currently dating.
Penal Code 1203.097 is not limited to crimes that involve actual physical harm or abuse. It also considers crimes such as vandalism and harassment to a person in a domestic relationship. In that case, violation of Penal Code 653.2 can be charged under the provisions of Penal Code 1203.097.
Penalties for Violating Penal Code 653.2 PC
Violation of Penal Code 653.2 is considered a misdemeanor in California. Therefore, the possible penalties that might follow are:
- A county jail sentence for a maximum of one year
- A maximum fine of $1,000
- Misdemeanor or summary probation
Punishment under Penal Code 1203.097
Penal Code 1203.097 provides aspects that one should consider. These requirements are as follows:
- Probation for a minimum of 36 months
- Compliance with a criminal protective order from further harassment. the court might impose a level protective order that provides peaceful contact between the two parties
- Payment of a minimum fine of $500 plus assessment and penalties
- Completion of a 52-week batterer’s program
Enforcement of Penal Code 1203.097
Typically, anyone who violates a misdemeanor-level domestic violence offense, such as indirect harassment on the internet, should be placed on probation. Therefore, as a way to ensure that the offender complies with the terms provided, the court usually sets progress dates that the defendant can show proof of progress in a batterer’s class or any other conditions provided. If one fails to comply with the terms, one risks additional jail time and penalties.
Therefore, one can conclude that the conditions that have been enforced under Penal Code 1203.097 are similar to the ones provided under typical summary probation.
Possible Legal Defenses
Hiring an attorney means that one will employ relevant legal defenses to help in dismissing or reducing your charges. Either way, a reasonable attorney should use appropriate arguments that would help achieve your expectations. The main goal of legal arguments is to find weaknesses in the elements of crime presented by the prosecutor. Here are several legal defenses that your attorney should consider.
Lack of Intent
In this defense, your attorney will accept that you posted content on the intent, but from its context, there was no intent to create fear to the other person. Therefore, your posting would probably have been misunderstood by other people and derived from having been harmful to your domestic partner.
Apart from innocence, you can completely deny that you posted any information that would be considered harmful to the other person. This will work if you have not had wholly posted anything on the internet.
At this point, you have to admit that you had posted something on the internet, but withdrew it as soon as you realized it's harassing nature. In most cases, such instances are realized when one is unaware of the information about to post and comes to learn about its effects later on.
Coercion works out when someone is pushing you to do something that you would not willfully do. However, due to the control of the respective person, you have no otherwise, but to comply with the demands. You can use this legal defense as long as you can prove to the court that whatever you posted was not out of your intent.
Duress is a more significant form of coercion since it involves someone with a higher authority, such as a police officer. Police officers might force you to post something harmful about your spouse or partner as a way to incriminate you and gain in one way or another. This works when you are blackmailed or threatened.
Lack of Sufficient Evidence
Sometimes the investigating officers might have some evidence against you but fail to meet enough sufficiency needed to prosecute someone. This usually occurs when there is a series of information necessary to charge you, but there is a missing link that is necessary to incriminate you.
There are several forms of police misconduct. This usually falls under the Fourth Amendment of the United States constitution. This includes failure to question you, violation of your Miranda rights, and violation of the search and seizure law.
Intoxication does not necessarily work as a reasonable legal defense but can work if the intoxication was involuntary. In this case, you probably became intoxicated without your knowledge, such as being drugged. If that is the case, the court will consider your actions to be unreasonable and influenced by intoxication, which is not of your own doing. This means that you must prove that you were intoxicated to make this legal defense valid.
Crimes Related to Penal Code 653.2 PC
There are specific crimes that are associated with Penal Code 653.2. These crimes are either mentioned along with Penal Code 653.2 or share the same criminal charges. Here are several crimes that are related to Electronic Cyber Harassment.
Penal Code 653m: Annoying Phone Calls, Emails, and Texts
Under Penal Code 653m, one is accused of making an annoying phone call, text, or email, by calling, texting, or emailing someone with the intention of threatening, harassing, or annoying the recipient.
Such an offense is a misdemeanor, and the possible penalties include imprisonment for a maximum of six months in county jail, a maximum of $1,000 of fine, or both. The defendant might also be prosecuted with misdemeanor probation or a suspended sentence under specific situations. If such a situation occurs, the judge might order a mandatory counseling attendance as a condition of the probation.
Penal Code 646.9: California Cyberstalking Law
Under Penal Code 646.9, it is an offense for someone to follow, harass, or threaten another person to the point of making him or her fear for his or her safety. This also applies if the person threatens the family of the target person.
Please note, Penal Code 646.9 is not limited to physical stalking but also applies when one stalks another person on the internet.
Violating this code is a wobbler, meaning that it can be prosecuted as a misdemeanor or a felony. If charged as a felony, the possible punishment that applies include:
- A sentence in a county jail for a maximum of one year
- Summary or misdemeanor probation
If the defendant gets charged with a felony, the possible penalties that apply include:
- Imprisonment in state prison for a maximum of five years
- Formal or felony probation
California Penal Code 422: Making Criminal Threat
Under Penal Code 422, it is an offense to make a criminal threat to another person. Criminal threats involve the intention to kill someone or cause significant bodily injuries and have the intention of creating reasonable fear for the safety of the respective person or family.
Violating Penal Code 422 is a wobbler, meaning that one can be prosecuted as a misdemeanor or a felony. If convicted as a misdemeanor, the possible penalties that follow include:
- A maximum of one year in a county jail
- A maximum fine of $1,000
If one is convicted with a felony one can end up facing the following penalties:
- Imprisonment in the California state prison for a maximum of three years
- A maximum fine of $10,000
There are additional punishments that might apply, which are as follows:
- Use of a deadly weapon to communicate your threat might lead to an addition of one year in state prison
- If you made the threats on more than one occasion, against several people and had different objectives, you might face additional penalties for each threat.
Penal Code 647j4: Revenge Porn
Under Penal Code 647j4, it is an offense to distribute sexual images of a person without his or her consent. This means that the person would have given consent to the recording of the sexual image, but the other person decided to violate their privacy by posting them on the internet.
In California, committing revenge porn is a misdemeanor. This attracts the following penalty:
- A sentence in a county jail for a maximum of six months
- A maximum fine of $1,000
- Summary or misdemeanor probation
What to Expect from an Attorney During Your Case
There are several ways that an attorney can help you in your case. It is necessary to learn about these expectations to be sure of the services that you are about to get. Here is a detailed view of what to expect from an attorney during your case.
Communication is vital in every relationship. If your attorney does not communicate regularly, there are chances that you have an incompetent professional at your disposal. A reasonable attorney should communicate vital aspects, such as:
- An explanation of your legal matters
- A detailed view of your discussion strategy
- Timeline for essential events
Besides what the attorney should communicate, one should be in a position of answering your phone calls and answering any questions that you might pose. Please note, your attorney might fail to respond as per your expectations, but you expect him or her to have someone who can respond on his or her behalf and keep you posted about your case.
Your Attorney’s Competency
It is a big shock that there is no guarantee that a particular attorney will do a good job. That’s why bar associations are tasked with the role of checking whether attorney’s within their jurisdiction maintain the ethics that they have put in place.
Ideally, you expect an attorney to provide all relevant documents that indicate his or her competency, rather than have you ask for them. Such consideration is necessary since it avoids any mistakes that might lead to malpractice. You can sue your attorney for misconduct, but the process is quite intensive and not worth the struggle.
Ethical Considerations in Your Relationship
Every attorney is supposed to consider certain ethical aspects in his or her practice. Common ethical considerations that every attorney should consider are:
- Keep confidentiality with their clients’ information
- Represent you with undivided loyalty
- Put your interest upfront rather than theirs
- Represent you within the bounds of the law
You expect the attorney to consider these rules and enforce them through their firms and third-party authorities. Such authorities can force the attorney to repay your fees, suspend the attorney’s practice certificate, and disbar the attorney.
It is necessary to have your fees agreement made in writing and ensure that it is understandable. This is suitable for avoiding common cause for contention with the clients. In California, the attorney should maintain a written retainer agreement that discloses all the charges and billing systems. The agreement must be specific to how your bills are itemized and the frequency of your billing.
In summary, attorneys have an obligation to:
- Consider that you are in charge
- Keep you posted with every expectation
- Estimate the cost of the legal services
- Prepare for your disposition
- Prepare for your trial
Find a Los Angeles Criminal Lawyer Near Me
Dealing with a criminal case can be a tough task, especially when it involves complex charges like posting harmful information on the internet. Hiring an experienced criminal defense attorney can make you focus on winning your case with a more competitive edge. If you are looking for an excellent criminal defense attorney in the Los Angeles area, we invite you to get in touch with the Los Angeles Criminal Attorney at 423-333-0943. We understand that the state treats cases of domestic violence seriously, and we are here to offer you the best legal services.