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F 18.67 n1 Stalking/Annoying Calls & Threats: Electronic Communication Not Applicable To Communications Made In Good Faith.
PC 653m states that: “Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.” At least two issues arise because of this language: 1) Is good faith an affirmative defense or is lack of good faith an element of the offense? Since the language states that the statute doesn’t apply to good faith, and since the statutory language does not show an “express legislative choice” to place the burden on the defendant, it may be argued that lack of good faith must be proven by the prosecution. (See FORECITE PG VII(G).) 2) What is “good faith”? In the context of mistake of fact, the phrase “good faith” has a well-defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, faithfulness to one’s duty or obligation. (Mueller v. MacBan (76) 62 CA3d 258, 282 [132 CR 222].)