California Stalking & Cyberstalking Laws Penal Code 646.9 PC

Stalking is a criminal offense in California that can result in significant legal penalties, including jail or prison time, fines, and restraining orders. Stalking, governed by Penal Code 646.9, involves repeated and unwanted acts of following, harassing, or threatening someone, causing them to feel unsafe or fear for their loved ones’ safety. Stalking allegations can stem from a wide range of behaviors and often lead to serious emotional and legal challenges. You want to consult an experienced attorney who can guide you through the legal process. At the Law Offices of Anna R. Yum, we have lawyers willing to defend your rights and help you build solid defenses.

An Overview of Stalking Offense

According to California Penal Code 646.9(a), stalking is defined as willfully, maliciously, and repeatedly following or harassing another person with a credible threat to cause that person to be in reasonable fear of bodily injury to themselves or a member of their immediate family. While the definition may appear straightforward, each element of the crime carries a specific legal meaning and must be proven beyond a reasonable doubt by the prosecution.

To find a person guilty of stalking, the prosecution has to establish three fundamental aspects:

Willful and Malicious Conduct: You must have pursued or harassed the victim more than once knowingly and with malicious intent.
Credible Threat: You must have made a credible threat that would cause a reasonable person to fear for their safety or that of their immediate family.
Intent to Cause Fear: The threat should be made with the intent of causing fear to the victim or their family.

If the prosecution fails to prove these elements, you cannot be convicted.

The Reasonable Fear Requirement of the Victim

The key element in a stalking case is the so-called reasonable fear of the supposed victim. This entails two things:

Subjective Fear: The victim must have experienced actual fear for their safety.
Objective Fear: A reasonable person would have also feared for their safety under the same circumstances.

While emotional distress is relevant in harassment cases, stalking charges require more than annoyance or subjective perception. They must involve conduct that a reasonable person would find threatening or alarming.

The significance of Legal Representation

Stalking charges are legally complicated and have severe repercussions, such as restraining orders, jail, and damaged reputation. In some cases, a restraining order can temporarily require you to leave your home, but you are entitled to a hearing to present your side.

Obstacles Encountered by the Accused

In many situations, these cases result from acrimonious divorces or conflicts, and the allegations can be inflated or untrue. In cases with limited physical evidence, allegations may hinge on the accuser’s testimony alone, putting you at a significant disadvantage.

Criminal Defense Attorneys’ Role

It is crucial to retain an experienced defense attorney who can:

Analyze the prosecution’s case to identify its weaknesses.
Research neglected evidence
Discredit the accuser
Develop a good defense plan

Elements that the Prosecution Must Prove

To obtain a stalking conviction under California Penal Code 646.9, the prosecution must demonstrate beyond a reasonable doubt that each element of the offense has been met, according to the California Criminal Jury Instructions (CALCRIM 1301). Failure to prove even one of these elements must result in a not-guilty verdict.

Essential Legal Factors That Prosecutors Have to Establish

Willful and Malicious Conduct

“Willfully” refers to the fact that the action was not accidental. Maliciously implies that the act was done with a wrongful motive of disturbing, annoying, or harming somebody. It distinguishes criminal intent from mere poor judgment.

Repeating of Acts

Stalking is not a single occurrence but involves repeated acts. Repeatedly refers to the fact that the action was done more than once. A course of conduct refers to two or more actions that demonstrate a consistent intent or purpose, such as repeatedly focusing attention on the victim over time.

Following or Harassment

The prosecution has to prove that your repeated, willful, and malicious actions were either harassment or stalking.

Harassment refers to a willful and malicious course of conduct directed at a specific person that would cause a reasonable person to feel fear. This aspect could be challenged if you had a valid reason, such as legal co-parenting.

Following involves physically stalking someone or constantly appearing where the person is supposed to be.

Credible Threats

The stalking charge must have a credible threat. The prosecution has to demonstrate:

The threat instilled sensible fear in the victim or their close relatives
The threat appeared capable of being carried out

The law does not require that you intended to carry out the threat, only that you intended to cause the victim to fear for their safety. Threats may be direct or implied and can be communicated through spoken words, written messages, emails, social media posts, or even through behavior.

Implied threats can be hazardous because they are subtle and more difficult to recognize. A sequence of small acts, such as leaving undesired objects or showing up at a person’s house, can be perceived as a threat. Even if you are incarcerated, threats made from jail can still be considered credible under the law.

Intent to Cause Fear

The law also requires that you intended to cause fear by making the threat. It is not solely about how the victim reacted, but also your intentions. A stalking conviction is based on the defendant’s intent and the victim’s reasonable fear.

Behaviors that Demonstrate Stalking

Although the legal definitions of stalking are precise, it is essential to look at the actual behaviors that lead to stalking charges. Individual actions that may seem minor or isolated can add up over time to form a pattern that qualifies as criminal stalking.

Conducts that Result in Stalking Charges

These actions are often used as evidence of a pattern of conduct in stalking cases.

Constant Unwanted Contact

Dozens or hundreds of calls or texts
Sending a lot of messages to someone in their inbox or on social media
Bypassing blocks with alternate accounts

Repetitive Physical Surveillance

Surveillance-type actions are a part of the traditional picture of stalking:

Stalking by car or on foot
Appearing at their usual places (gym, work, school)
Hanging around their place of residence
Accidental encounters in the street

Unwanted Gifts and Intrusion

There can be pressure or threats in gifts:

Sending undesired goods to work or home
Symbolic items (For example, dead flowers)
Continuous giving of gifts even after being asked to stop

Personal Information Collection

The stalking case can be supported by obsessive data gathering:

Monitoring the social media of a person
Contacting the victim’s friends or family members to obtain personal information
Finding personal information using the Internet
Account hacking or account breach

Examples of Aggravated Stalking

Although California does not use the term ‘aggravated stalking,’ certain circumstances, such as violating a protective order, can elevate stalking to a felony offense.

Violations of Protective Order

If stalking occurs in violation of a restraining order, it is typically charged as a felony offense under California law. Likewise, if you have a prior conviction for stalking, domestic violence, or threats, a subsequent stalking offense is automatically filed as a felony.

Other Charges That Amplify Stalking

Stalking can be combined with other criminal offenses to make the case more serious:

Criminal Trespassing

Coming into the territory of a person (home, backyard, workplace) without their consent is another crime and may indicate danger to the victim.

Burglary and Theft

If you enter a place to commit a crime, for example, to commit theft or place a threatening message or surveillance installation, you might be charged with burglary.

Vandalism and Cruelty to Animals

Destroying property (for example, keying a car) or injuring a pet adds the emotional component to the fear and can be used to reinforce a stalking charge.

Case Scenarios that Can Demonstrate Stalking Offense

Some of the scenarios that can demonstrate the application of stalking laws include the following:

Continued Physical and Psychological Harassment

Despite being told to stop, Ed continues to send flowers to his ex after their breakup. He later ‘coincidentally’ runs into her at the grocery store and leaves notes on her car with messages like, ‘We are meant to be.’ Eventually, he sends a text saying, ‘If I cannot have you, then nobody can.

Here, his actions demonstrate a pattern of harassment and culminate in a credible threat to induce fear. These actions could lead to felony stalking charges against Ed.

Obsessive and Unlawful Entry

Frankie becomes obsessed with a neighbor he barely knows. After repeatedly sending her unanswered direct messages and driving by her house daily, he enters her unlocked home at night and leaves a rose on her pillow while she sleeps.

This involves cyberstalking, physical stalking, criminal trespass, and even burglary. The implied threat is substantial because entering her home while she was vulnerable sends an unspoken message of control and potential harm.

Criminal Damage Due to Jealousy

Sarah gets angry when she sees her ex with another woman. She takes his mail, keys his car, and spray-paints “Liar” on it. Then she calls and leaves a voicemail that says, “You will regret this.”

Here, Sarah has committed mail theft, and the vandalism of the car proves malicious behavior. The voicemail may serve as a credible threat that corresponds to the elements of a stalking charge.

Previous Relationships and Legal Interpretation

In stalking cases, context is everything. An action that might seem harmless between strangers can appear highly threatening when a prior romantic, domestic, or personal relationship exists. Prosecutors often consider the following factors when interpreting behavior:

A shared history can make specific actions seem obsessive or threatening
Past conflicts may suggest that the actions were intentional or carried out with malicious intent
Previous relationships, especially those involving conflict or domestic issues, can lead prosecutors to view behaviors as more dangerous or aggressive.

Legal Consequences for a PC 646.9(a) Violation

The consequences of being convicted of stalking in California can be severe and long-term. A conviction extends beyond jail time and fines and can affect your rights, employment, and reputation for a long time. The way the crime is charged significantly influences the punishment.

In California, stalking is a wobbler offense, which means that it can be charged as a misdemeanor or a felony. The prosecutor makes a decision depending on the seriousness of the case and your criminal history. An effective defense attorney will usually make attempts to have the charge reduced or dismissed early.

Criminal History Effect on Sentencing

In certain circumstances, stalking is automatically charged as a felony, particularly when:

If you violate a restraining order or prior convictions, you can be charged with a felony with potential state prison sentences of 2, 3, or 4 years.

You have a previous conviction of stalking or some other related offense, such as domestic violence or criminal threats. If such prior convictions exist, the punishment increases to 2, 3, or 5 years’ imprisonment.

Misdemeanor Penalties

In case the charge remains a misdemeanor, the following penalties are possible:

Fines and Jail Time

You may face up to one year in jail and a fine of up to $1,000.

Probation and Counseling

You can be put under informal probation and be made to undergo counseling programs such as anger management. This is usually a requirement unless there is a good reason why the court can omit it.

Restraining Orders

The court will place a protective order that prevents you from contacting the victim. This may take as long as 10 years.

Felony Penalties

Felony stalking has more severe consequences. They include the following:

Longer Sentences and Increased Fines

A felony stalking conviction could lead to a prison sentence of 16 months, 2 years, or 3 years. However, if you have prior related convictions, the penalty may increase to 2, 3, or 5 years. The fines can reach $10,000.

Mental Health Treatment and Mandatory Counseling

Felony probation is very strict and involves counseling. In case of mental problems, you can be committed to a state hospital.

Sex Offender Registration

Sex offender registration is not required for a stalking conviction unless the offense is also charged under a qualifying sex crime.

Once you have been in prison, you will be under parole with strict rules. Breaking them can lead to your rearrest.

Possible Civil Liability

You may also face a civil lawsuit seeking damages for therapy, lost wages, or emotional distress.

A conviction for stalking can lead to long-term legal consequences, including restraining orders that may last up to 10 years and harsher penalties for future offenses. This is the reason why it is so crucial to fight the first charge.

Legal Defenses to a Charge of Stalking

As seen above, an allegation of stalking could carry significant legal and personal implications. However, a charge is not the same as a conviction. You can still be declared innocent if you build solid defenses and convince the judge that you are not guilty. The prosecution has to establish all the elements of the crime beyond a reasonable doubt. An effective defense aims to find flaws in the prosecution’s case, be it an insufficient credible threat, false allegations, wrong identity, or legally justified actions.

Lack of a Credible Threat

The California statute demands that the supposed stalking contain a credible threat, a declaration or conduct that would make a reasonable person believe that their security or that of their immediate family is in danger. Without this element, no stalking conviction can take place. Your defense attorney could argue that you were:

Joking or Making Hyperbolic Statements: It depends on the context. When a statement was said in sarcasm or plain mockery (For example, I will haunt your dreams forever), and no reasonable person would take it literally, it does not fit the legal definition of a threat.
Making Unrealistic or Implausible Threats: Threats that are physically or logically impossible, such as saying you will have a celebrity or fictional character harm someone, do not demonstrate actual intent or capability to cause harm.
Absence of Intent to Cause Fear: Intent is required under the law. If you were communicating for reasons other than intimidation, like reconciling, explaining yourself, or resolving a misunderstanding, the prosecution must show beyond a reasonable doubt that you did so to intimidate and not merely communicate.

False Accusations

There are cases when stalking charges are false or overstated because of ulterior motives. With this defense, your defense lawyer is given a chance by the law to discredit the accuser. Your lawyer could argue that there was:

A Motive to Lie: In a controversial case such as divorce, breakup, or custody battle, a party might make false allegations of stalking to obtain an upper hand, such as having a say in the custody, restraining orders, or financial settlement.

Indication of Continued Contact: If the accuser was still making or accepting contact during the supposed stalking period (for example, responding positively to texts or requesting to meet in person), this negates the fear and non-consent arguments.

Inconsistent or Contradictory Testimony: Discrepancies in police reports, court testimony, or witness statements may be utilized to undermine the prosecution’s case and prove the theory of fabrication or exaggeration.

Mistaken Identity

At times, you may become the victim of mistaken identity. Especially if the alleged victim did not personally know the accused, they might be unable to identify them. Your defense attorney could argue that they were

Dire Observation Circumstances: Stalking claims are usually based on glimpses or poor-quality video recordings. Your accuser may have failed to see the perpetrator well because of the poor lighting, distance, or weather conditions.

Stress-Induced Memory Errors: Fear and panic impair the capabilities of the brain to remember events correctly. Emotionally distressed witnesses can mix up details or identify the wrong persons.

Improper Police Practices: Suggestive photo arrays, improper lineups, or biased questioning can lead to a false identification. In case of a violation of constitutional procedures, your defense attorney may argue to suppress this evidence.

Absence of Forensic or Digital Evidence: If there is no concrete evidence (for example, location data, communication records, or fingerprints) that could connect you to the actions, and the identification is based solely on the accuser’s testimony, there may be a reasonable doubt.

Constitutionally Protected Conduct

California’s stalking laws include exceptions for constitutionally protected activity, particularly under the First Amendment. A defense attorney may argue that the accused was engaged in lawful conduct, such as:

Free Speech and Political Protest: Peaceful protests, petitions, and demonstrations, even if directed at individuals or institutions, are generally protected by the First Amendment. However, this protection has limits. If the conduct includes threats or repeated, unwanted contact aimed at a specific person, it may still qualify as stalking despite being seen as an expressive activity.
Labor and Union Activities: Picketing and organizing are legal and constitutional ways of protest. If the alleged victim is a business owner or executive, and your actions were related to organized labor activity, then the stalking laws do not apply.
Lack of Threatening Behavior: Just being in the presence of someone, carrying a sign, or chanting slogans, even when the subject is uncomfortable with it, does not constitute the legal standard for stalking unless a credible threat of harm accompanies it.

Digital Evidence and Context

Stalking cases are frequently concerned with digital records. The prosecution can provide texts, emails, or social media messages as evidence of intent to threaten or harass. Nevertheless, when taken in context, the duplicate records can be used in your defense.

In stalking cases, context is critical. If the alleged victim responded to communication in a friendly, cooperative, or affectionate manner, it may undermine claims of ongoing fear or unwanted attention.

Sometimes, prosecutors can highlight isolated texts or messages to make them seem threatening, but looking at the whole conversation often reveals they were part of a mutual, consensual exchange.

Stalking charges also require more than a single incident; they must be based on a pattern of behavior. This “course of conduct” means there must be at least two or more acts that together suggest ongoing, harassing intent.

Find a Reliable Defense Attorney Near Me

Stalking charges can lead to serious and long-lasting consequences, including potential incarceration, a felony record, and long-term restraining orders. The legal process can move quickly, so you must act early to safeguard your rights. You want to hire the services of a reliable defense attorney. A skilled lawyer can make a significant difference in the handling and resolution of your case. If you or a loved one is facing stalking charges in San Diego, call the Law Offices of Anna R. Yum at 619-493-3461. Our lawyers are ready to protect your rights and build a solid defense for your case.