With the increased use of the internet in the United States, malicious online activity has been on the rise. This could be in the form of stalking, cyber harassment, making criminal threats, or posting harmful information on the internet. Trying to harm your spouse, lover, or ex-lover by posting derogatory pictures or information online is illegal.
Such an act could attract criminal charges and severe punishment in California. Fortunately, before the court convicts you for posting derogatory information on the internet, the prosecution must give sufficient evidence that you intended to harm another person. If you, your spouse or relative faces charges for such an offense, it is wise to hire an experienced criminal defense attorney. At the Orange County Criminal Defense Attorney Law Firm, our top notch attorneys will offer you legal counsel and build strong defenses to fight charges against you.
Overview of California Penal Code 653.2
In this new era, where people of all ages commonly use the internet, different individuals have unknowingly involved themselves in different internet crimes. California law has created a statue to fight internet crimes, including putting out information that could be harmful online. Posting information to harm another person through the internet is a serious offense charged under California Penal Code 653.2. Before you get convicted for this offense in California, a prosecutor must establish these elements without a reasonable doubt:
You Used Electronic Devices to Distribute, Avail or Email Harassing Information
Before the prosecutor can prove that you are guilty of posting harmful information, it should be clear that you used an electronic device which includes but not limited to:
- Internet websites
- Fax machine
- Video recorder
Also, the information that you passed through these devices should be aimed at harassing others. For this offense, harassment is considered to be any willful cause of conduct that is directed to someone else. This information should be taken seriously, tormenting, terrorizing, and annoying without a legitimate purpose. Harassment through electronic communication can be considered under these circumstances:
- Distributing or sending information about another person on the internet
- The information distributed was used to harass a third party or incite anger
Lack of Consent From the Alleged Victim
For this offense, consent is defined as an agreement that a person makes to take part in a particular activity. Most personal information is often confidential, but some people may consent to you posting the information online. When a person doesn’t consent to be part of an activity, and you still do it, you could be violating their rights under the law. Before you are found guilty Under California Penal Code Section 653.2, it should be clear that the alleged victim did not consent to your actions.
By Posting the Information on the Internet, you Intended to Cause Unwanted Harassment, Injury or Physical Contact on Another Person
Most people will post harmful material involving another person to cause them fear. Therefore, before getting convicted, the prosecutor must prove that your intentions were solely to instil fear of unwanted harassment to the alleged victim. If the information you put out had no intention to instil fear on the target, then it is not harmful, and the prosecution attempts could be nullified.
You Achieved the Purpose of Fear and Harm on the Alleged Victim
For a prosecutor to successfully charge you under Penal Code 653.2 of California, the intended goal of the information you posted must be met. This would be the case if the person you targeted acknowledged your intended purpose of causing them fear or harm. A target person would acknowledge that they have been a target by raising the alarm on the material you put on the internet.
In most cases, these elements of Penal Code 653.2 are not easy to establish for the prosecutor. Therefore, your criminal defense attorney could find information that creates doubt in the prosecutor’s attempt to prove your guilt.
Relationship between Penal Code 653.2 and California Penal Code 1203 on Domestic Violence
Since harassing another person can be direct or indirect in California. You commit an offense of domestic violence by being a threat to a domestic partner. Since harassment is one of the ways of causing harm, it is reasonable to say that posting harmful information on the internet is related to domestic violence. Under California Penal Code 1203, domestic violence doesn’t only occur when physical harm or abuse is involved. As long as your actions were geared towards harming the victim, you violate domestic violence laws.
Although the offense is charged under a different statue, posting harmful information on the internet to harm a domestic partner is considered domestic violence. For this offense, a domestic partner could be:
- A former or current spouse
- A person with whom you have had a child
- A domestic partner
- A former or current cohabitant
- An individual who you were seriously dating
- Current or former fiancée
Penalties for putting Harmful Material Online
Putting out harmful information to harm another person is charged as a misdemeanor in California. A conviction for this offense attracts the following penalties:
- A one-year jail sentence
- A fine not exceeding $1,000
- Misdemeanor probation.
Indirect cyber harassment is charged under Penal Code 653.2 of California and it attracts summary probation for up to three years. Probation is often an easier alternative to a jail sentence. In most cases, your criminal defense attorney needs to fight and convince the court to allow you probation instead of spending time in jail. If you get sentenced to probation as an alternative to a jail sentence, there are several conditions you need to follow failure to which the judge could reinstate the initial sentence. Some common conditions of misdemeanor probation in California include:
- You will be required to pay court fines and expenses
- Mandatory participation in individual or group therapy
- Complete community service
- A requirement to show up on court dates
- The court may issue the alleged victim with a protective order. This ensures that you stay away from them and avoid any physical or electronic communication.
Legal Defenses against Penal Code 653.2
Since Penal Code 653.2 is considered an act of domestic violence, a conviction will attract severe legal penalties. However, if you are facing criminal charges since the information you posted on the internet was allegedly aimed at harming an intimate person, a conviction is not guaranteed. With guidance from a knowledgeable criminal defense lawyer, you may employ relevant legal defenses to lessen your charges or dismiss the case altogether. The following are some defenses that could be useful for your case:
Lack of Intent to Cause Harm
For you to get convicted for posting harmful information on the internet, the prosecutor needs to prove that you had an intention to harm an intimate partner. As a defense to your case, you can argue that you lacked the intent to harm the alleged victim. However, when using this defense, you must accept that you posted some information, but you did not intend to instil fear. This could be effective if your information were misunderstood. After you establish this fact before the judge, the prosecutor will find it hard to prove you are guilty, and there won’t be a reason to take legal action against you.
Claiming you were not involved in a crime is a legal defense which you can present in almost all types of prosecutions. This involves a total denial of involvement in the criminal activity for which you are accused. If you face charges under California Penal Code 653.2, you can deny posting harmful material about another person. Sometimes a person may post something offensive and try to hold you liable for their actions. With guidance from a knowledgeable criminal defense attorney, you can prove that you weren’t involved in the actions from which you are accused. If this defense is successful, your charges could be dropped.
If you want to use withdrawal as a defense to putting out information that could harm others to the internet, you need to accept that you circulated harmful information about the alleged victim online. However, you need to prove that as soon as you realized the information was causing fear or harm, you withdrew it. Often, you may realize the impact of your post if you posted the information during an anger episode, and when the anger subsides, and you revisit, you understand its intensity.
Lack of Sufficient Evidence
There are elements that a prosecutor needs to prove before you get convicted of successfully posting harmful material online. Sometimes the investigating officers have information against you, but it is not enough to convict you. This often occurs when there is a series of information, but there is reasonable doubt about it.
There are various forms of police misconduct. This includes failing to read you a Miranda during the arrest and unlawful searches. As required by the constitution, the officer who arrests you is required to read you the rights you have under the circumstances. If the officer failed to do this, the information that was gathered against you could be rendered invaluable in court.
When performing a seizure and search, the officers involved should obtain a warrant when looking through your property. All the evidence that is unlawfully collected may get rejected in court. It is crucial to remember that even when the police violated your rights, your case’s dismissal is not guaranteed. The prosecutor might seek a reduction of your penalties. If you are charged with posting harmful information, you can use police misconduct to reduce your charges.
Coercion means being forced to be involved in an activity that you wouldn’t have otherwise done willfully. You could use coercion as a defense to your case if a person with whom you had unresolved issues drove you to post something harmful. A person could coerce you to violate California Penal Code 653.2 using blackmail. If you plan on using this defense for your case, you need to prove the specific element that was used to force your involvement in the crime. Also, guidance from a competent criminal defense attorney could be of great importance when you present this argument.
Duress is a severe form of coercion involving a person in authority, such as the police. A person who has power can force you to post information that could be harmful on your spouse because of bad blood between the two of you. Often, these individuals force you to be involved in the crime by threatening your family.
Sometimes when one is under drug or alcohol influence, they may tend to act without thinking of the consequences of their actions. However, intoxication cannot be used as a legal defense unless it was involuntary. In an instance where you got drugged and as a result, you posted something harmful on the internet. You can use this as a defense. If you were intoxicated, the court might decide that your behavior was not voluntary. In this case, you will be required to establish that the intoxication was against your will.
Offenses Related to Posting Harmful Information on the internet
In California, some offenses are closely related to Penal Code 653.2. Some of these crimes will be charged instead of or together with posting harmful material online. Offenses related to penal Code 653.2 include:
Annoying phone Calls texts or Emails
California law makes it an offense to send messages, emails, or make phone calls aimed at harming another person. If you face criminal charges for harassing someone through calls or texts, the prosecutor must establish the following factors before you get convicted:
- You made a telephone call or contact using an electronic device. It is important to remember that even if you made a call, and the target victim did not receive it, you can still be convicted.
- You used obscene language or threats. Electronic communication is considered annoying if it involves sexual content in an appropriate way or threats.
- You had an intention to annoy or harass. You cannot get convicted for making annoying phone calls or sending messages unless the prosecutor can prove your intention to annoy.
Making annoying phone calls and messages is charged under California Penal Code 653m. If you get convicted for this crime, you will face these penalties:
- A six months jail sentence
- Fine not exceeding $1,000
Should you be found guilty under penal Code 653m, you may get sentenced to informal probation. If this happens, you can be subjected to counselling as a condition of probation.
Under Penal Code 646.9 of California, cyber stalking is harassing and threatening another person till they fear for their safety. The elements needed to prove that you violated penal Code 646.9 include:
- The prosecutor must prove that you willfully and maliciously harassed or followed another person. For these offenses, acting maliciously means that you intentionally do a wrong thing to an unlawful intent.
- You made a credible threat. A credible threat is one that causes the target to reasonably fear for their safety and one that could be carried out.
- You had an intention to place the target victim or their family in reasonable fear. Whether or not you intended to cause reasonable fear to another person is determined by the court after analyzing the case’s circumstances.
If you engaged in a constitutionally protected activity that caused fear on another person, you could not get convicted for cyber stalking. If you get convicted for cyber stalking in California, you may face both criminal and civil penalties. When you get a misdemeanor conviction for this offense, the offense is punishable by:
- A one-year jail sentence
- Fines that do not exceed $1,000
- Informal probation
When cyber stalking is charged as a felony, a conviction attracts the following penalties:
- Formal probation
- A five years prison sentence
- Fines that do not exceed $1,000
If the offense is committed while violating a restraining order, you will be charged with a felony. As an addition to the criminal penalties, the alleged victim could sue you for damages related to stalking. However, the victim must prove that you engaged in a pattern of conduct intended to harass them. Also, it should be clear that your conduct caused them to fear for their safety. Some of the damages you may be required to compensate the victim is the punitive damages. If you face criminal charges for cyberstalking, it would be wise to enlist an attorney’s guidance.
Making Criminal Threats
It is an offense to make threats of harming or killing another person. Before a conviction is made under Penal Code 422 of California, the prosecutor must establish these factors:
- You threatened to kill or seriously injure another person. A specific threat is not required for you to get charged with this offense. Simple threatening to cause serious harm or death can get you arrested and convicted.
- You intended your message to be received as a threat by the target victim. For this offense, a threat must be written, verbal, or electronically communicated.
- Your threats conveyed an immediate possibility of execution. Before you get convicted for making criminal threats, the prosecutor must prove that your threats were not empty, and you were capable of accomplishing them.
- The victim reasonably feared for their safety and that of their family. You could not be found guilty under Penal Code 422 unless you placed the victim in reasonable fear.
California Penal Code 422 can be a misdemeanor or a felony, depending on the circumstances of the case and your criminal history. When charged as a misdemeanor, you face a jail sentence of one year and a maximum of $1,000 in fines. When convicted as a felony, you face a three years prison sentence and fines not exceeding $10,000.If you make criminal threats against multiple people or on more than one occasion, you will face penalties for each threat you make.
Sending Obscene Material to a Minor
Penal Code 288.2 of California makes it an offense to relay harmful material to a minor to arouse them or yourself sexually. The elements required to prove your guilt for this offense include:
- You knowingly sent or exhibited harmful information to a person under eighteen years. A material is considered to be harmful if it offensively describes sexual conduct. The material will not be considered harmful if it carries educational content.
- When you sent the material, you knew or had a reason to know that the recipient was a minor
- You acted intending to arouse the minor sexually. You can’t be charged under California Penal Code 288.2 if the prosecutor does not prove your
- When you acted, you intended to engage in sexual activity with the victim.
Sending obscene material to an underage person is a California wobbler offense. When charged as a felony, the offense is punished by a prison sentence not exceeding three years. Also, you may need to pay fines that do not exceed $10,000 (ten thousand Dollars). A felony conviction for sending obscene material to a child will mandates sex offender registration status for a lifetime. As a misdemeanor Penal Code 288.2 attracts a one-year jail sentence and fines amounting to $1,000.
Find a Criminal Defense Attorney Near Me
Something as simple as posting content online may attract criminal charges and a hefty penalty. This happens, especially if the information you posted was meant to harm your lover, spouse, or relative. Fortunately, facing criminal charges will not always result in a criminal conviction. There are legal defenses that can be used to fight the charges against you.
Seeking the guidance of an attorney from the Orange County Criminal Defense Attorney Law Firm is one of the wisest decisions you can make when facing Penal Code 653.2 charges. Our team of top-notch attorneys will work hard to have your criminal case dropped or charges reduced. If you reside in Orange County, CA, you will need us by your side. Call us today at 714-740-7848 and allow us to provide you with the much needed legal guidance and representation.