The advancement of technology and increased use of the internet have heightened the incidences of cyberbullying and other internet-related crimes. Although California has laws on internet use and the posting of materials online, some people ignore the law and post material that is harmful or offensive to others. Posting harmful content on the internet can result in an arrest and conviction under PC 653.2.
A violation of this statute is a misdemeanor, which can result in incarceration and fines. Depending on the circumstances of your case, the prosecution may introduce other serious charges like revenge porn, child pornography, and cyberstalking to your case. This will result in more serious legal and collateral consequences.
The stakes are high for defendants facing charges for posting harmful content on the internet. Therefore, if you or your loved one faces criminal charges under PC 653.2 in Chula Vista, CA, you will require the expert guidance we offer at Chula Vista Criminal Attorney. Our competent defense lawyers will work hard to protect your rights and secure the best possible outcome in your case.
Understanding California Penal Code 653.2
The internet is filled with stories and content generally meant for entertainment. Unfortunately, some of the communication could be misunderstood and cause harm to another person. If you post material with the intention to harass or cause fear to someone else, you can be held legally responsible for the action.
There are some federal guidelines that you must follow when using the internet in the United States, including:
- Cyberharassment and stalking. You could be arrested and charged with making threatening comments or statements to another person. Since there is freedom of speech, it may be challenging for the court to determine whether or not your threats were credible under the circumstances.
- Hacking and unauthorized access. Gaining access to another person’s computer or electronic device. Hacking could range from high-end coding to discovering a person’s password and logging into their devices.
- Social media posting. It is unlawful to distribute another person’s material without their consent. Especially in cases where the information impacts the other person’s life, you must seek their authorization. Additionally, if your comments on social media are aimed at threatening other people, you can face criminal charges.
Posting harmful content on the internet is domestic violence. This is because most people post derogatory information to harm people close to them. If the victim of your actions is a person with whom you have a personal relationship or a close family member, you will face the long-term consequences of a domestic violence conviction.
Elements of California Penal Code 653.2
You will be found guilty of violating Penal Code 653.2 if the prosecution can prove the following elements of the crime:
You Posted Harmful Content Online
The first element that must be clear to establish your guilt under this statute is that you displayed information that was harmful to another person on the internet. This element brings to light the aspect of displaying information and using an electronic device to transmit information that was harmful to another person on the internet.
This element brings to light the aspect of displaying information and using an electronic device. An electronic device, in this case, could be anything from cell phones to computers and social media platforms.
You are Related to the Alleged Victim
Posting harmful content on the internet falls under domestic violence crimes. Therefore, the prosecution has the burden of establishing that the alleged victim of your crime is a domestic partner, spouse, ex-spouse, or relative.
You Posted Content Without Consent
Posting material on social media in and of itself is not a crime. However, you can be arrested and charged for posting information without the owner’s consent. Consent is the authorization or agreement of another person to act in a way that affects them. You would be guilty of posting harmful information if the victim did not permit you to display the content.
You Intended to Harass the Victim or Cause Fear
The court will find you guilty under California Penal Code 653.2 if you displayed the material with an intention to cause fear to the alleged victim or harass them. Your intent when posting is a critical yet challenging element for the prosecution to prove. Harassing another person means that your conduct was terrorizing or annoying to the person. You inflict fear on someone when you act in a manner that causes them to fear for their safety.
You Caused Fear
The final element that a prosecution must prove under Penal Code 653.2 is that you accomplished your intent of causing fear in another person. The prosecutor will prove this element by obtaining testimony from the victim.
Sentencing and Punishment for Posting Harmful Content on the Internet in California
A violation of PC 653.2 attracts a misdemeanor conviction. The penalties that accompany a guilty verdict under this statute include:
- A one-year jail sentence.
- Fines of up to $1,000.
If you are a first-time offender or you pulled down the posts, the court may sentence you to probation instead of jail. Defendants who face misdemeanor probation spend part of or their entire sentence out of jail and in community service. Misdemeanor probation lasts up to five years, and the following conditions are attached:
- Participate in individual or group therapy. The judge might send you to drug counseling if you posted the materials while intoxicated.
- Community service. Instead of serving a jail sentence, the court mandated that you perform community labor.
- Attend all your court dates.
- Report to the court regularly. Unlike on felony probation, where the court appoints a probation officer to monitor your progress, you will be required to report to court while on misdemeanor probation.
- Restraining order. Posting harmful content on the internet is a crime of domestic violence. Therefore, the court may issue a restraining order to protect the alleged victim of your acts. A restraining order requires you to avoid contact with the victim.
- Pay all court fines associated with your case.
- Avoid engaging in additional criminal acts during probation.
Serving a probation sentence is a way to avoid incarceration. However, if you violate any of the set conditions, you can be taken back to jail following probation revocation.
Defenses Against California Penal Code 653.2 Charges
A conviction for violating PC 653.2 as domestic violence attracts serious legal and collateral consequences. Even after spending time in jail and paying your fines, the conviction for posting harmful content online will stick on your record. Since criminal convictions are public records, potential employers may find the information and use it against you.
The only way you will be able to avoid the consequences of your conviction is by exploring various forms of post-conviction relief like expungement, a certificate of rehabilitation, and a governor’s pardon. All these options will require you to undergo a tiresome and lengthy legal process. For this reason, it is important that you aggressively fight your charge and avoid a conviction.
With the insight of a reliable lawyer, you can explore the following legal defenses in your case:
Lack of Intent
One of the most critical elements used to prove your guilt under PC 653.2 is your intent to harass or annoy the alleged victim. However, if you did not know that the information you posted was harmful to another person, the prosecution will find it challenging to establish intent.
Your attorney can argue that the alleged victim misunderstood the information. Additionally, you can argue that while you posted the information, it was not directed at the alleged victim but for general purposes.
False Accusations/Mistaken Identity
False accusations are a common basis for criminal cases. A person with whom you have a strained relationship could falsely accuse you of posting information about them out of jealousy, anger, or revenge. Another reason why you could be falsely accused of posting harmful content online is when your identity is mistaken.
For example, a person can easily create an online profile with your name and use it to harass people close to you. In this case, your attorney will help you prove that you are not the person behind the profile. Finding the actual perpetrator of the crime can help you avoid a conviction for the crime.
You Withdrew the Harmful Information
If there is clear evidence that you posted the harmful content, you can argue that you pulled down the post upon realizing that the content was annoying to another person. This evidence shows that you had no intent and did not know that your content was viewed as harassing. Although this defense will not prompt the dismissal of your case, the court may be more lenient and hand you a lesser sentence.
Before you face a criminal conviction in California, the prosecution must prove all the elements of your crime beyond a reasonable doubt. Under Penal Code 653.2, the prosecution must establish that you posted harmful information, knowing that the information was harmful and that you intended to harass, harm, or annoy the alleged victim.
The prosecutor will be required to provide evidence that backs up their claim. If one of the elements is not proven, the prosecutor's case against you will be weakened, and you can avoid a conviction. Attacking every aspect of the prosecutor’s case creates reasonable doubt about their evidence.
You are a Victim of Coercion
If you are coerced to post harmful content about another person, you lack the specific intent and willfulness needed to establish your liability under Penal Code 653.2. Coercion under this statute means that another person threatened to harm you or your family if you failed to post the derogatory information online.
The use of alcohol or drugs is not an excuse to commit crimes or harm others. Therefore, you cannot argue that you posted harmful information while intoxicated. The only instance when intoxicated is an accepted defense in your case is when your intoxication was involuntary. For example, if someone leaves your drink with a drug, you can avoid a conviction for posting harmful information.
California law requires law enforcement officers to uphold their constitutional rights even when suspected of committing a crime. When a person reports that you posted harmful content about them. The police could confiscate your computer and phone in an effort to find evidence in the case. Unfortunately, some officers do not follow the right investigation channels. Common forms of police misconduct include:
- Coerced confessions. Sometimes, law enforcement officers want to hold someone liable for a crime, secure a conviction, and move on to another case. This can prompt them to use illegal measures like forcing or threatening you to confess to the crime.
- Failure to read your Miranda rights. Before you are interrogated on matters relating to a crime, the police officers must inform you of your right to remain silent and your right to secure legal guidance. Failure to inform you of this right can cause you to diverge self-incriminating information.
- Illegal search and seizure. A search of your computer and cellphone may be inevitable when you face charges for cyber harassment or posting harmful information online. A police search is considered illegal when the officers do not have a valid search warrant or search beyond the scope of their warrant.
If you can prove that the law enforcement officers violated your rights, you can petition the court to remove the evidence collected by the officers from your case.
Sealing an Arrest for Harmful Information on the Internet
Offenses Related to Penal Code 653.2
Posting harmful material on the internet is one of the most common forms of cyber harassment that is prosecuted in California. Mostly, prosecutors use the evidence they have against you to file as many criminal charges as possible with the hope that one will result in a conviction. Therefore, if you are charged under PC 653.2, the prosecution may introduce the following charges to your case:
California PC 646.9 seeks to punish individuals who use electronic communication to stalk others through internet anonymity. The crime of stalking entails threatening or harassing another person to the point where they fear for their safety. Before you face a conviction under this statute, the prosecution team must prove that:
- You willfully and maliciously harassed someone else.
- You made credible threats against the alleged victim. A credible threat is one that you have the ability to accomplish.
- Your actions put the alleged victim in reasonable fear for their safety and that of their families.
- The threats were communicated through the internet or another electronic device.
Cyberstalking is a California wobbler. The prosecution can file felony or misdemeanor charges depending on your criminal history and other case specifics. Cyberstalking will be charged under domestic violence laws when the victim of your harassment is:
- Your current or former spouse.
- Someone with whom you have an intimate relationship.
- The other parent of your child.
Misdemeanor cyberstalking will see you spend a year in county jail. A felony conviction, on the other hand, will result in a maximum of five years in state prison and a $1,000 fine. In addition to incarceration, felony cyberstalking requires registering as a sex offender.
Under California law, it is a crime to post sexually explicit videos or images of another person online without their consent. Due to the high level of emotional distress that this type of conduct causes, revenge porn is a serious crime charged under PC 647(j)(4). The prosecution will prove your guilt under this statute by establishing the following elements:
- You possessed an image or video depicting identifiable intimate parts of another person.
- You distributed the image intentionally.
- You had an understanding with the alleged victim to keep eh images or videos private.
- You knew or should have known that distributing the image could cause harm and emotional distress to the alleged victim.
- The victim suffered emotional distress.
Revenge porn is a misdemeanor punishable by a six-month jail sentence and a fine that does not exceed $1,000. However, if the sexual images depict a person under eighteen or you are a repeat offender under the same statute, your sentence could increase to one year in jail.
If you threaten to cause serious bodily injury or cause the death of another person to instill fear in them, you could be arrested and charged with criminal threats. Under California PC 422(a), making criminal threats is a serious crime that has the following elements:
- You willfully threatened to injure or kill another person.
- You made the threats either verbally, orally, or electronically.
- You intended for the victim to understand your statement as a threat
- The threats served their intended purpose of causing fear in the alleged victim. You cannot be charged with making criminal threats if the alleged victim does not fear for their safety after receiving the information.
- The victim’s fear was reasonable.
If you post harmful information on the internet intending to cause fear in another person, you could be charged with criminal threats instead of posting harmful information online. Violating California PC can be a misdemeanor or a felony, depending on the circumstances.
In most cases, the crime is charged as a misdemeanor, and a conviction will result in a one-year jail sentence. However, if you threaten multiple people or on more than one occasion, the prosecutor will file felony charges. A felony conviction under this statute will see you spend up to three years in state prison. The court could also impose a $10,000 fine.
In addition to incarceration and fines, felony Penal Code 422 is a strike under the California Three Strikes Law. This means your subsequent felony convictions may result in 25 years to life in prison. Therefore, if you face charges for making criminal threats in California, you will require expert legal guidance.
Sending Obscene Materials to Seduce a Child
California Penal Code 288.2 makes it a crime to distribute, exhibit, or send harmful material to a person under the age of eighteen. If you post harmful information about a minor on the internet, you could be charged with violating Penal Code 288.2 by posting harmful information online.
When you are charged with sending obscene content to seduce a child, the prosecution must prove the following elements of the crime to obtain a conviction:
- You knowingly distributed harmful content to a minor. A minor, in this case, is any person under the age of eighteen.
- When you acted, you knew or should have known that the recipient of the content was a child.
- When you sent the materials, you intended to arouse sexual desire in yourself or the child.
- You acted with the intent to engage in sexual intercourse, oral copulation, or another sexual act with the child
Under California law, a material is considered harmful when it describes the offensive sexual activity and does not depict artistic or educational value to the child. However, you must understand that evidence of physical contact with a child is not necessary to secure a conviction under this statute.
Sending harmful content to a child is a wobbler. When charged as a misdemeanor, the crime is punishable by a one-year jail sentence. A felony conviction, on the other hand, will result in a prison sentence of sixteen months to three years. Additionally, you may be required to register as a sex offender, which attracts severe collateral consequences.
Find a Reliable Criminal Defense Lawyer Near Me
You can be arrested and charged under California Penal Code 653.2 if you post derogatory or harmful content online to cause unwanted harassment or injury to another person. Posting harmful information online is a domestic violence crime since most people commit it against their intimate partners or close family members.
If the prosecutor can prove your actions and intent, you will be found guilty and convicted of the offense. The consequences of a conviction for posting harmful content online go beyond incarceration, fines, and probation. A conviction for this offense on your record can harm your professional opportunities and personal life.
Fortunately, there is no guarantee that the prosecution will secure a conviction in your case. With the guidance of a seasoned criminal defense lawyer, you can build a solid defense to fight the charges and avoid a conviction. At Chula Vista Criminal Attorney, we have the legal expertise and professional experience you need to fight your charges in Chula Vista, CA. Call us today at 619-877-6894 and allow us to guide you through your case.