Former Prosecutor

FIGHTING FOR YOU

California Penal Code 646.9 – Cyberstalking

Simple harassment is a crime that can lead to legal trouble. Making other people fear for their safety by following them around or irritating them in-person, online, or via telephone is a crime. When facing allegations of stalking or cyberstalking, finding a legal defense lawyer to fight on your behalf is highly recommended.

For a more critical understanding of cyberstalking, let’s take a look at how California defines it.

Free Consultation (619) 233-4433

What is the legal definition of cyberstalking?

California outlines the details of what it means to cyberstalk under Penal Code 646.9. This law states it is a crime to:

  • Willfully and maliciously harass or willfully, maliciously, and repeatedly follow another person, and
    • Acting willfully means the defendant acted on purpose.
    • With malicious intent means the defendant committed a wrongful act or acted with unlawful intent to annoy, disturb, or injure another person.
    • Repeatedly means they followed and harassed the person more than once.
    • To harass means the defendant knowingly behaved in such a manner that was directed towards another person and that conduct was done with the intent to annoy, alarm, terrorize, or torment them.
      • This behavior or conduct also had no legitimate purpose.
      • They demonstrated a continued purpose of harassment by conducting themselves in this manner two or more times.
  • Make a credible threat with the intent to place this individual in a reasonable state of fear for their safety or the safety of their immediate family members.
    • A credible threat is one that the defendant may be able to carry out or it reasonably appears that way to the alleged victim.

Associated Offenses

California PC 653(m), annoying phone calls;

It is a crime to make phone calls or send electronic messages that are obscene, threatening, or repeated with the intent to annoy or harass the recipient.

California PC 647(j) – invasion of privacy;

This statute prohibits someone from invading the privacy of another using a peephole, binoculars, video/audio recording device, camera, or similar methods.

California PC 602 – trespassing;

Entering or remaining on someone else’s property without their permission or the right to be there is a crime.

California PC 591 – damaging or tampering with a phone line;

Maliciously disconnecting, removing, injuring, or obstructing a cable, electrical, or telephone line is prohibited under this law.

California PC 422 – criminal threats;

Threatening to physically harm or kill another person with the intent to place the victim in a reasonable and sustained state of fear for their safety or their family’s safety is a crime.

California PC 242 – battery;

Using willful and unlawful force or violence on another individual is a crime under this law.

California PC 240 – assault;

Attempting to use force or violence on another individual is prohibited under this statute.

California PC 207 – kidnapping;

Moving another individual a considerable distance without their consent by employing force or fear is a crime under this law.

What The Prosecution Must Do

There are certain facts of the case the prosecution must prove beyond a reasonable doubt to get a conviction for PC 646.9. These factors are also referred to as:

Elements of the Crime

  • The defendant’s actions were willful and they maliciously chose to harass or purposely, maliciously, and frequently followed another person, and
  • They made credible threats with the intent to place the victim in a reasonable state of fear for their safety or the safety of their immediate family members.

Who Can Face Charges

These are just some examples that illustrate who can be charged with cyberstalking under PC 646.9. If you or someone you know can relate to any of these situations, finding a legal defense lawyer should be a priority.

Example 1:

Simone started talking to Eric on a dating website and made it clear that she wanted to be friends first. He lived in Imperial Beach and she lived in Los Angeles. After two weeks of friendly texting, he told her he would like to meet. She worked a lot and was not ready, so she asked that they take it slow and keep talking via text and email. He expressed his disappointment by constantly bombarding her phone and email with messages. Sometimes, she would only receive the messages in the middle of the night. After a couple of weeks of this behavior, she asked him to stop, that it wasn’t going to work out. One week passes and she doesn’t hear from him. Then, upon checking her mailbox she finds over a dozen letters from Eric. This worried her considering she never gave him her address. He had written her several letters every day since meeting her online and waited to send them until after she had stopped talking to him. She asked him to please stop communicating with her. The letters continued to come for over a month before she reported him.

Eric’s constant bombardment of texts and emails in that two-week timeframe qualifies as cyberstalking. Simone found that some of the letters did not have stamps on them. She suspected he was personally dropping them off. The letters put her in a state of fear because she never revealed her address to him. He will face a PC 646.9 offense for the constant, unwanted messages and unwarranted letters he mailed or delivered to her.

Example 2:

Sergio had a crush on his co-worker Lety and let her know it. She refused his advances, clearly stating she was already in a relationship. He changed his work availability to match her shifts, would regularly follow her around, and offer to do her work for her. She declined and asked that he focus on his department to get his own tasks done. He laughed her off and would randomly or by accident bump into her at work. She reported his behavior to management, stating it was borderline harassment. They agreed his behavior violated their policies and Sergio was fired. He habitually drove by the retail store during her shift just to see her. She was annoyed with his behavior at first but grew fearful when he began slowly driving by her apartment every morning and evening.

Sergio is stalking his co-worker and she has every right to pursue charges. He could face PC 646.9, stalking for continually being a nuisance to her in and out of the workplace to the extent that he made her fear for her safety.

Example 3:

Marvin went on three dates with Charly and told her he just wanted to be friends. She said okay, but for several weeks would frequently send him unwanted gifts. When he arrived at work, there would be a bouquet on his desk with a card from her. At home, he would get random food-deliveries with a message from her. After two months of this behavior, he told her he did not want to be friends if she continued her behavior. She stopped, but only after she befriended his family members on social media and told them she and Marvin were in a serious relationship. He was not aware that she was corresponding with his mother and sisters, gathering personal information on him and telling them lies about their supposed romantic connection. She also managed to get them to send an assortment of pictures of him from his childhood. Her behavior freaked him out and his initial annoyance with her grew into fear when he found out just how much information she was able to gather from his immediate family members.

Charly could be charged with cyberstalking under PC 646.9, for the frequent unwanted gifts and for gathering an unreasonable amount of information on him. Communicating with his family members to circumvent his wishes, attaining personal information, and compiling photos of him is enough to face this charge.

Example 4:

After living together for two years, Rick and Jasynia broke up. It was Jasynia’s home before they met and she was the only name on the lease, so she asked that Rick move out. He packed up his things and left within a week without another word. After getting home from work the next day, she finds all of her rose bushes pulled out by the roots. Every week, she would discover some random act of vandalism around her home, from a broken backyard gate to busted bedroom windows. She did not suspect it was Rick until she found a lighter on her kitchen counter. He smoked, she didn’t. She came home from work to find the garden hose was on and someone had broken a window and let the hose run water into the house all day. Still not sure it was him, she placed a discreet camera on her front and back door. Afraid he would cause more property damage, she moved her car into the garage and would catch a ride to work from her friend. The next time she tried to drive her rig, she found all four tires had been slashed.

Jasynia watched the surveillance footage, which clearly showed Rick was vandalizing her home and had been the one to break into her garage. Rick could be charged with PC 646.9 and will face additional offenses for trespassing PC 602, vandalism PC 594, and burglary PC 459. Not only did he unlawfully break into her home, but he did so with the intent to commit a criminal act. 

Legal Defense

Attempting to face cyberstalking charges without proper legal representation could lead to the most undesirable outcomes. A criminal record of any kind will have long-term effects on your life. Not only will a conviction on ones’ record limit your employment choices, but it can also impact your housing opportunities.

Fortunately, experienced criminal defense lawyers are familiar with some of the legal defenses that have been used to oppose a PC 646.9 offense. The following are just a few of the common legal defenses used to dispute charges for cyberstalking.

Lack of credible threats

Remember, the threats made against the alleged victim must be credible. This means the defendant must have been capable of carrying them out. If the accused is physically incapable of following through with any threat, they should not be guilty of PC 646.9.  

Example:

Mona would get threatening social media messages from Ansel, an internet troll. She was an animal rights activist and regularly get hateful messages. She grew fearful when Ansel threatened to steal her cat. She reported him for PC 646.9, cyberstalking.

However, upon further investigation, authorities discovered Ansel was a quadriplegic, confined to a wheelchair, could not breathe on his own, and could not leave his home without his oxygen tank. He was also deathly allergic to cats. None of his threats were credible, because he could not physically carry them out.

His correspondence with other activists revealed much of the same verbiage he used with Mona. Although his behavior was abhorrent, his words were empty threats and he had no intention of following through with any of it. He simply found his trolling methods a comical way to pass the time.

Mistaken Identity or Wrongful Arrests

Anonymous perpetrators are difficult to find. Wrongful arrests can happen in situations where the victim is already in a heightened state of reasonable fear and mistakenly accuses the wrong person of stalking them.

Example:

Mike and James broke up and moved to different parts of town. For weeks, Mike would come home to find dead mice on his doorstep. He assumed the neighbors’ sweet cat was leaving him gifts. However, after two weeks and a handful of dead mice, he would come home to find threatening letters that were slipped under his door. Then, he began to notice the same car follow him home every day, pass him, and make a left turn just three blocks up. He noted the license plate and reported it for stalking him.

The initial investigation revealed the car belonged to a neighbor of his that lived three blocks up. The neighbor worked in the same area as Mike and would take the same route to work. It was later discovered that the letters and mice were being left by Mike’s ex, James.

First Amendment Rights

The first amendment protects everyone’s right to free speech, including the freedom to protest. Unfortunately, there are instances where protestors are arrested for simply annoying or disturbing the people or business they happen to be protesting. Protesting every day at a particular site does not violate California’s stalking laws. No one should face PC 646.9 offenses for simply exercising their right to protest.

Example:

A restaurant was under scrutiny for paying their immigrant workers less than minimum wage and threatening to deport them if they complained. Community organizers, Yvonne, Freddie, and Raul found out and coordinated a protest in front of the business. They held up posters calling the restaurant out on their wage-theft and calling them modern-day slaveholders.

The manager got angry and after three days of protests, he tried to have the three of them arrested for stalking and disturbing the peace. He also wanted to pursue charges for possible slander and libel.

However, Yvonne, Freddie, and Raul were simply exercising their right to protest and their freedom of speech. They would not be guilty of stalking or any crimes the manager is attempting to accuse them of.

Penalties for Cyberstalking

If convicted of PC 646.9, cyberstalking, you face:

Misdemeanor;

Summary (misdemeanor) probation,

As long as one year in county jail, and/or

Fines as high as one thousand dollars.

Felony;

Formal (felony) probation,

A state prison sentence of up to five years, and/or

Fines as high as one thousand dollars.

If the defendant has a previous stalking conviction they will face an automatic felony for subsequent stalking offenses. If the defendant committed cyberstalking or stalking in violation of a protective order, stay-away order, or restraining order, they will face automatic felony penalties.

Enhanced Penalties

In addition to facing the legal penalties for a PC 646.9 conviction, the defendant would also be subject to civil suits. Any alleged victims of stalking are within their rights to sue the perpetrator for further punitive damages. This means the defendant can face more financial consequences, such as paying any medical or legal bills accrued by the victim(s) as a result of the crime(s) committed against them. The defendant could also be responsible for covering any loss-of-wages the victim(s) suffered as it relates to the crime. The victim(s) are also within their rights to sue for compensatory damages, the amount of which can vary.

Penalties for Associated Offenses

California PC 653(m), annoying phone calls;

Misdemeanor;

As long as six months in county jail, and/or

Fines as high as one thousand dollars.

California PC 647(j) – invasion of privacy;

Misdemeanor;

A potential six months in county jail, and/or

Fines as high as one thousand dollars.

Misdemeanor (subsequent offenses or if the victim was a minor);

A possible one-year sentence in county jail, and/or

As much as two thousand dollars in fines.

California PC 602 – trespassing;

Misdemeanor;

Summary (misdemeanor) probation,

As long as six months in county jail, or

A potential one-year in county jail, and/or

Fines as high as one thousand dollars.

California PC 591 – damaging or tampering with a phone line;

Misdemeanor;

Summary (misdemeanor) probation, and/or

A possible one-year in county jail.

Felony;

A potential three years in state prison.

California PC 422 – criminal threats;

Misdemeanor;

A long as one year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

A state prison sentence of up to three years, and/or

Fines as high as ten thousand dollars.

California PC 242 – battery;

Misdemeanor;

Misdemeanor (summary) probation,

A long as six months in county jail, and/or

Up to two thousand dollars in fines.

California PC 240 – assault;

Misdemeanor;

Summary (misdemeanor) probation,

A possible county jail sentence of six months, and/or

Up to one thousand dollars in fines.

California PC 207 – kidnapping;

Felony (simple kidnapping);

A state prison sentence of three, five, or eight years, and

Fines as high as ten thousand dollars.

Felony (aggravated kidnapping);

A state prison sentence of five, eight, or eleven years, or

Life in prison without the possibility of parole.

Additional Penalties

Aside from the misdemeanor or felony penalties one could face for a conviction, there are other long-term consequences. Here are just a few examples of what you can jeopardize if convicted of certain crimes.

Gun Rights

If convicted of a felony, you could lose your gun rights under California’s PC 29800, a felon with a firearm law.

Immigration Status

If the crime you committed is considered one of moral turpitude, you could lose your immigration status. This means you would be deported and denied re-entry back into the U.S.

For instance, one’s immigration status will be negatively impacted if the details of the cyberstalking case involved making criminal threats, trespassing, burglary, or worse.

Let Us Help

Finding trustworthy legal help in San Diego, Los Angeles, or Orange County does not have to be difficult. Consider the Law Office of Anna R. Yum, where you can expect a high level of expertise and an aggressive fight for your rights.

As an award-winning criminal defense lawyer, Attorney Yum understands how life-changing a conviction can be. So, if you or someone you love is facing a PC 646.9 offense or any of the related charges, let us help. To schedule your no-obligation, free consultation give us a call at 619-233-4433 or use our online contact form.