Stalking

California’s Stalking Laws

What is considered stalking?

Under California’s stalking laws Penal Code 646.9, it is a crime to constantly follow, harass, or threaten an individual to the extent that they fear for their own safety and/or the safety of their family members.

What does it mean to violate California’s stalking laws?

Put simply, violating Penal Code 646.9 stalking, means one person is repeatedly harassing, following, and threatening another person. If the victim fears for their safety and/or the safety of their family members, then criminal charges can be pressed. The types of behaviors that can lead to stalking charges are vast and vary from case to case. If the alleged behavior places the complaining witness in a state of fear, it can lead to a criminal prosecution of a stalking offense.

Facing charges of stalking is difficult when you aren’t sure how to defend yourself from such allegations. It’s highly recommended that you seek comprehensive legal counsel as soon as possible. Finding the right San Diego criminal defense attorney to fight for your rights can significantly impact the outcome of your case. The following examples illustrate some of the few actions that violate California’s stalking laws.

Examples

  • Constantly calling another person, bombarding them with text messages, repeatedly emailing them, or writing them absurd amounts of letters;
  • Repeatedly crossing paths with someone, following them, or constantly bumping/running into them “randomly or by accident,”;
  • Habitually driving by another person’s workplace, office, home, or school;
  • Frequently sending unwanted gifts, cards, notes, flowers, etc. to an individual;
  • Collecting an unreasonable amount of information on another person, gathering intelligence on their location, who they associate with, or accruing personal information about their private lives and/or their family member’s lives.

There are varying degrees of severity when it comes to the criminal charge of stalking.  For instance, the following aggravated stalking examples may carry heavier consequences than ordinary stalking charges alone:

  • Repeatedly trespassing on another person’s property and trespassing with criminal intent;
  • Constantly stealing another person’s property while committing acts of burglary; and
  • Damaging another person’s property, constantly vandalizing their home, breaking their personal items, or hurting their pet(s)- which can potentially lead to other criminal charges such as animal cruelty. 

Closely Related Offenses:

California’s Cyberstalking Laws;

Cyberstalking falls under Penal Code 646.9 stalking and is commonly referred to as online harassment.  It takes place when one individual constantly harasses or threatens another individual through the use of electronic communication.

California Penal Code 422 Criminal Threats;

A criminal threat is a credible threat to physically injure, harm, or kill another person, placing this person in a reasonable state of imminent fear for their safety or lives and that of their immediate family members.

Similar/Associated Offenses:

California’s Penal Code 602 Criminal Trespass;

An individual is guilty of criminal trespass when he/she unlawfully enters or remains on another person’s property without the person’s express permission.

California Penal Code 240 Assault;

Assault, also referred to as simple assault, is when one person attempts to hurt or cause physical injury to another person.

California’s Domestic Violence Laws;

Violent crimes, such as physical abuse, that is committed against someone’s partner, spouse, father or mother of your child, household member, child, or parent is considered domestic violence.

California’s Penal Code 273.6 Violating a domestic violence restraining order;

You violate a restraining order, otherwise known as a protective order, when you purposely ignore the terms of the legal order issued by the judge.

The Prosecution

To obtain a conviction for stalking, the prosecution must first prove beyond a reasonable doubt that the elements of the crime took place.

The defendant willfully,

They purposely and knowingly committed the acts even if they didn’t intend to violate any law.

Maliciously, and

They intended to commit a wrongful or unlawful act, including intentionally disrupting the life of the alleged victim or annoying them, or intentionally causing them mental and/ or physical pain or suffering.

Repeatedly

There is no standard for the exact frequency, however, the nature of the repeated action must be considered unreasonable.

Followed and/or harassed the alleged victim, 

The defendant also made a credible threat against the alleged victim, and

A credible threat is defined as a threat that causes the alleged victim to reasonably fear for their own safety or the safety of immediate family members. The threat is considered credible if the defendant actually has the ability to follow through with the threat, even if they never intended to.

The defendant committed these acts with the specific intent to place the alleged victim in a state of reasonable and imminent fear for their safety or the safety of their family members.

Who Can Be Charged?

Here are examples of behavior that can lead to charges of stalking under Penal Code 646.9:

  • Ed told his new co-worker Nancy, if she didn’t go on a date with him she would regret it. Nancy refused and ignored the threat, thinking it held no water. For weeks following his threat, she noticed him everywhere she went. She expected him at the workplace, but she would spot him at her local grocery store and at the parks she jogged at. She started fearing for her safety when gifts from Ed would show up at her home. Boxes of dead roses on her doorstep, a gift box full of dead spiders, and a dead rodent in her mailbox. Ed could potentially be charged with stalking under Penal Code 646.9 if it can be proven that he followed Nancy to grocery stores, parks, and eventually her home. Even if Nancy didn’t fear for her safety with the original threat, it became a credible threat when she began receiving unwanted gifts at her home.
  • Frankie went on one date with Conner and felt they were meant to be. She began texting and calling him, asking how his day went and when they could see each other again. Conner felt she was too clingy and didn’t want to pursue a romantic relationship with her. He told her as much, but she persisted and repeatedly texted, called, and private messaged him on his social media pages. After several weeks of this behavior, he told her this was harassment and she needed to stop. Instead of respecting his wishes, she began collecting information on him. In-depth online searches would yield previously known addresses and she managed to find pictures of him from old social media accounts. She eventually found his current address and would break into his apartment, leaving scrapbooks full of doctored pictures of them as a married couple.
  • Frankie could face charges of stalking because she texted and called Conner to the point of harassment and collected unreasonable amounts of data on him. If it can be proven that she unlawfully broke into Conner’s home, left unwanted scrapbooks inside his apartment, and took some of his personal belongings as mementos, she could face additional charges aside from stalking such as criminal trespass, theft, and burglary.
  • Sarah grew extremely jealous when she found out that her ex-girlfriend met someone new and they were moving in together. She found out where their home was through mutual friends. Sarah would regularly break in and steal old gifts she’d given her ex, keepsakes, and other sentimental items. Feeling that wasn’t enough, she decided to begin damaging and vandalizing their home. She would crush their lawn ornaments, cut their garden hoses, break their windows, and take a hammer to the door knobs. Sarah could face charges of stalking and the prosecution could seek charges of trespass, vandalism, burglary, theft, etc. The prosecution could choose to file the charges separately, and depending upon the severity of the behavior along with the amount in damage, potential felony charges could be filed.

Legal Defenses

Stalking charges carry penalties that will remain on your record for the rest of your life.  Here are several of the most common legal defenses that a skilled criminal defense lawyer can recognize.

Were the defendants’ threats actually credible?

In order for a threat to be considered credible, the person making the threat must be able to at least carry it out. Even if the alleged victim feared for their safety, the threat isn’t credible if the defendant cannot actually carry it out.

False Accusations

There are cases where jealousy, anger, and/or revenge play a factor in making false allegations. Jaded ex-partners motivated by revenge, for instance, can falsely accuse their exes of domestic violence, stalking, or other related crimes that lead to a wrongful arrest.

Wrongful Arrest/Mistaken Identity

Wrongful arrests can result from false accusations as well as mistaken identity. For example, some stalkers remain anonymous to their alleged victims. Because the alleged victim is already in a state of reasonable fear, they can mistakenly accuse the wrong person of stalking them.

Example: 

Christina moved out after she broke up with Paul. For several weeks following the breakup, she would come home to threatening letters left on her doorstep.  She ignored them until she noticed the same truck would follow her from her workplace until she was nearly home. The truck would turn off a couple blocks before her street.  She noted the license plate and reported it for stalking and for leaving the threatening letters on her doorstep.  The person the vehicle was registered to was brought in for questioning by police. It turned out he worked in the same complex as Christina and lived just a few streets over. Upon further investigation, the letters were determined to have originated from a different disgruntled ex-boyfriend.

Were You Exercising Your Constitutionally Protected Rights?

The First Amendment protects your rights to free speech and protest. There are instances where protesters are arrested simply for annoying the business or person(s) they are protesting. However, simple annoyance is not enough to press criminal charges for stalking when the defendant is exercising their right to protest.

Example:

Al, Margaret, and Peter were peacefully protesting outside of a bank with a large group of people. They had the biggest banner with a message that could be seen from blocks away. For days, the group of protesters exercised their rights on the same public corner within full view of the bank. The manager got angry that the banner was so visible. After a week of protests, the manager attempted to have the three of them arrested for stalking and disturbing the peace.

Freedom of speech and the right to assembly are protected constitutional rights under the First Amendment. Al, Margaret, and Peter are well within their rights to protest and are not criminally liable for it.

Penalties

Stalking is considered a “wobbler” in California, meaning it can be charged as either a misdemeanor or a felony. The outcome depends on the specifics of the case and the defendant’s criminal history. If charged with Penal Code 646.9 stalking, the penalties are:

Misdemeanor penalties include some or all of following;

  • Summary (informal) probation,
  • Up to one thousand dollars in fines,
  • Up to 1 year in a county jail,
  • Regular counseling and/or short-term or long-term confinement in a state-run mental institution, and
  • A restraining order may be issued which prohibits any contact with the alleged victim.  

Felony penalties include some or all of the following;

  • Formal (felony) probation,
  • A maximum fine of one thousand dollars,
  • 16 months to 5 years in a state penitentiary,
  • Regular counseling and/or short-term to long-term confinement in a state-run mental institution/hospital,
  • A restraining order will be issued which prohibits contact with the alleged victim, and
  • The defendant may have to register as a sex offender under California’s Penal Code 290 PC if the judge determines that the stalking was motivated by sexual compulsion or sexual gratification.

After a felony conviction, if the defendant is released on parole, the department of corrections may place him/her in a parole supervision program until parole comes to an end. If sentenced to jail or prison time, the county sheriff’s office or the local jail will notify the victim at least 15 days before the defendant’s release.

If the alleged victim decides to sue you for separate damages, you could face civil lawsuits with steeper fines. This could include covering any personal injury, medical bills, property damage, and loss of wages that resulted from your criminal acts. If the alleged victim needs counseling as a result of your actions you could be ordered to cover those costs as well.

Penalties for Related Offenses

California’s Cyberstalking under Penal Code 646.9;

Misdemeanor:

  • Up to one thousand dollars in fines, and
  • Up to one year in the county jail.  

Felony:

  • Fines up to one thousand dollars,
  • Up to five years in a state penitentiary, and
  • Possible lifetime registration as a sex offender under Penal Code 290 PC.

California Penal Code 422 PC Criminal Threats;

Misdemeanor:

  • Up to one thousand dollars in fines, and
  • Up to one year in the county jail.

Felony:

  • A maximum fine of ten thousand dollars, and
  • Up to three years in a California state penitentiary.

California’s Penal Code 602 PC Criminal Trespass;

Infraction:

  • 1stoffense, a seventy-five dollar fine,
  • 2ndoffense, a two-hundred fifty dollar fine.

Misdemeanor:

  • Informal (summary) probation,
  • Up to six months in the county jail, and/or
  • Fines up to one thousand dollars.

Felony; (aggravated trespass)

  • Formal (felony) probation,
  • 16 months, 2, or 3 years in county jail.

California Penal Code 240 PC Assault;

Misdemeanor:

  • Summary (informal) probation,
  • Fines up to one thousand dollars, and/or
  • Up to six months in county jail.

California’s Domestic Violence Laws;

Penalties differ depending on the specifics of each case.  However, misdemeanor charges most often result in a minimum thirty-day sentence in the county jail. The alleged victim is within their rights to ask for a temporary restraining order. If felony charges are filed, the judge may issue a protective order on behalf of the victim. Regardless of misdemeanor or felony charges, the defendant, if convicted, will be required to enroll in a domestic batterers program for a year or more.

California’s Penal Code 273.6 PC Violating a domestic violence restraining order;

Misdemeanor:

  • Up to one thousand dollars in fines, 
  • Up to one year in the county jail, and

Possible probationary terms including, but not limited to:

  • Restitution to the alleged victim, and/or
  • Payments to a battered women’s shelter, and/or
  • Required counseling program for anger management/domestic violence.  

We Can Help

If you or someone you know is facing charges for misdemeanor or felony Penal Code 646.9 stalking, do not hesitate to contact a San Diego criminal defense lawyer today. Retaining legal counsel as soon as possible can help increase your chances of a favorable outcome. Stalking offenses can stay on your record for the rest of your life and should not be taken lightly.

If you are located in the greater San Diego area, Orange County or Los Angeles call the Law Offices of Anna R. Yum. As a former prosecutor, you can expect an aggressive and effective fight for your rights. Attorney Yum has successfully represented hundreds of clients facing criminal charges ranging from DUI’s and domestic violence to assault and battery

For more information about California’s Stalking Laws or a free consultation, contact us online or by calling 619-233-4433.

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