Penal Code 646.9 PC - Stalking Laws in California
California Penal Code 646.9 PC stalking law makes it a crime to follow, harass, or threaten someone to the point that they fear for their safety. Stalking is a “wobbler” that can be filed as a misdemeanor or felony, which carries up to five years in prison if convicted.
The filing decision by the prosecutor typically depends on whether the victim had already filed a restraining order, the criminal history of the defendant, and whether the stalking is related to a domestic violence case.
Likewise, cyberstalking laws under the same statute make it a crime to stalk someone using an electronic communication device. It is a form of online harassment through the anonymity of the Internet. An “electronic communication device“ includes the Internet, cell phone, landline, text messages, email, fax machine, or other electronic device.
The Los Angeles District Attorney's Office has a special unit, the “Stalking and Threat Assessment Team (STAT),” which works closely with Los Angeles Police Department detectives to investigate and prosecute cyberstalking cases. With the rise of social media and other internet platforms, cyberstalking cases are occurring more frequently.
PC 646.9 says, “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for their safety, or the safety of their immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than $1,000, or by both that fine and imprisonment or by imprisonment in the state prison.
(b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party shall be punished by imprisonment in the state prison for two, three, or four years.”
What is the Definition of Stalking?
As noted, Penal Code 646.9 PC defines the crime of stalking as harassing, following, or threatening another person to the point where they fear for their safety. To convict someone, however, a prosecutor must prove all the elements of the crime beyond a reasonable doubt, such as the following:
- Defendant willfully and maliciously harassed someone or
- Defendant willfully, maliciously, and repeatedly followed someone and
- Defendant made a credible threat with the intent to place someone in reasonable fear for their safety or their immediate family.
“Willfully” means the act was on purpose. Somebody acts “maliciously” when they intentionally commit a wrongful act or act with the unlawful intent to disturb, annoy, or injure someone else. “Repeatedly” means more than once.
“Harassing” means engaging in knowing and willful conduct directed at a specific person that annoys, alarms, torments, or terrorizes them and serves no legitimate purpose.
Simply put, harassing means you engaged in willful behavior directed at the victim that annoyed or tormented them. The harassing conduct must occur two or more times, even if done quickly, but show a continuous purpose for the behavior.
“Conduct” in the context of PC 646.9 stalking means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.
A “credible threat” under PC 646.9 causes the target of the threat to reasonably fear for their safety or the safety of their immediate family (spouse, parent, child, etc.) and a threat that the defendant appears able to carry out. It must be a true and real threat, not a joking expression.
A credible threat may be made orally, in writing, through electronic communication, implied by a pattern of conduct, or through combining statements and conduct.
“Reasonable fear” in the context of PC 646.9 means whether the defendant intended to place the victim in reasonable fear, which the court determines after reviewing the facts and circumstances of the case.
What are Some Examples of Stalking?
Some examples of conduct that might lead to Penal Code 646.9 PC stalking charges include the following:
- Repeatedly following someone when it's unwanted.
- Repeated unwanted communication with someone.
- Cyberstalking through some electronic communication.
- Defendant gathering inexplicably large amounts of information about someone.
- Unwanted gifts from the defendant to the victim.
What are Related Crimes?
Several California offenses are related to Penal Code 647.6 PC stalking, as discussed below.
- Penal Code 422 PC criminal threats - The crime of criminal threat occurs when someone makes threats to physically harm or kill someone that places the victim in a reasonably sustained fear for their safety and immediate family. The threat must be specific and can be communicated verbally, in writing, or electronically. This law is primarily focused on the nature of the threat.
- Penal Code 653m PC annoying phone calls—This law makes it a crime to make an obscene, threatening, or repeated call intended to harass or annoy the person being called.
- Penal Code 207 PC kidnapping – This crime is defined as forcibly, or by any other means instilling fear, stealing, taking, holding, or detaining someone and moving them a substantial distance.
What is the PC 646.9 Penalties?
Penal Code 646.9 PC stalking wobbler punishments will depend on the specific details of the conviction, such as the following:
If convicted of misdemeanor stalking, it's punishable by the following:
- Up to one year in county jail,
- A fine of up to one year,
- Misdemeanor summary probation.
If convicted of felony stalking, it is punishable by the following:
- Up to five years in state prison,
- A fine of up to $10,000,
- Formal felony probation,
- Loss of the right to own or possess a firearm.
Notably, most stalking cases will be filed as felonies, especially when there are special circumstances, such as prior stalking convictions or if the defendant was under a restraining order when the stalking offense occurred.
Suppose somebody has a reasonable belief that they are being stalked. In that case, they can file an emergency protective or restraining order against the alleged stalker, which is most common in domestic violence cases.
This protection would prohibit an alleged stalker from coming within a certain distance of the alleged victim. If the order is violated, the court can find the stalker in violation of:
- Penal Code 166 PC - contempt of court or
- Penal Code 602 PC - trespassing.
In severe stalking cases, the judge could order a defendant to pay steeper fines and a longer jail sentence. Sometimes, they might be required to register as a sex offender, as defined under Penal Code 290 PC.
Stalking can be aggravated by several factors, including causing great bodily harm to the victim or the use or presence of a weapon during the commission of the offense. If convicted of aggravated stalking, you could face up to five years in prison for the felony stalking charge plus an additional consecutive term of up to five years for the aggravating factor.
Finally, in addition to the criminal penalties listed above, the alleged stalking victim has the option to sue the offender in civil court for damages. They would have to prove a pattern of conduct intended to harass or alarm them. If the lawsuit is successful, the victim could receive compensatory and punitive damages.
What are the Defenses for Stalking?
If you are accused of Penal Code 646.9 PC stalking, our California sex crime defense attorneys can use various strategies, such as the following:
- There was no intent to cause fear,
- There was no credible threat,
- The allegations are false.
Perhaps we can argue that while you did make a threat, there was no intent to cause fear. To convict, a prosecutor must prove there was a credible threat to the alleged victim. Perhaps we can show that the threat was not serious or credible. Maybe it was intended as a joke.
Perhaps we can argue the alleged victim's accusations are false or exaggerated. Maybe we can show that they are directly related to spite or jealousy or are made during divorce proceedings and a child custody battle.
Perhaps we negotiate for reduced charges, case dismissal, or convince the district attorney not to file formal criminal charges. Contact us for a free case evaluation. The Hedding Law Firm is based in Los Angeles, CA.
Related Content: