PC 653m (a), (b)

PC 653m (a), (b)

Offense

Electronic contact with

(a) obscenity or threats of injury with intent to annoy; or

(b) repeated annoying or harassing calls.

Aggravated Felony (AF)

Not AF.

(only a 6-month maximum sentence.)

Crime Involving Moral Turpitude (CIMT)

(a) should not be CIMT b/c minimum conduct (intent to annoy) is not CIMT. 1Section 653m(a) should not be a CIMT because the minimum conduct to commit the offense is an intent to annoy, and may be committed by using obscene language, which has been defined as “offensive to one’s feelings, or to prevailing notions of modesty or decency; lewd.” People v. Hernandez (1991) 231 Cal.App.3d 1376. The statute should not be divisible as a CIMT because even if the offense involved a threat of injury, the mens rea required is an intent to annoy. Id. at 1381.

For (b), to avoid possible CIMT charge plead to making calls with intent to annoy.

Other Removal Grounds

To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

See Advice for how to use this to avoid other DV deportation grounds.

Advice and Comments

Good plea in a DV context.

Deportable DV crime: If DV-type victim, plead under (a) to obscene call with intent to annoy, or (b) two phone calls intent to annoy. State on the record that calls did not involve any threat of injury. Or if possible plead to non-protected victim, e.g., repeat calls to the ex-girlfriend’s new girlfriend (no threats; intent to annoy).

Deportable violation of DV protective order. Do not admit to violating a stay-away order in this or any other manner. Plead to new 653m offense rather than violation of an order. See discussion at PC 237.6, above.

Deportable stalking: Stalking requires a threat, although it does not require a DV relationship. Plead to conduct described above. See also 591 and 646.9, above.

2020-05-19T19:18:48+00:00Updated January 29th, 2020|