Penal Code 646.9 PC - California's Cyberstalking Laws
California Penal Code 646.9 PC makes it illegal to engage in a course of conduct that causes fear, annoyance, or terror. A course of conduct includes any action occurring two or more times over a certain period that is likely to continue, regardless of how brief.
California does not have a separate cyberstalking law. The elements of the crime are the same as those for traditional in-person stalking. The law includes online forms of stalking by having a provision stating that written credible threats include those made through electronic communication, such as cell phones, personal computers, tablets, etc.
PC 646.9, stalking and cyberstalking consist of willful and malicious repetitive following or harassment involving credible threats. Cyberstalking involves using the internet or other electronic means to harass another person.
Communication can take the form of text messages, social media comments, direct messages, email, and other electronic forms. The perpetrator typically engages deliberately and persistently to annoy or harass someone.
While some cyberstalking acts may seem minor and cause only a slight disruption, it's crucial to understand that some cases can be severe and deeply disturbing. They can lead to profound feelings of fear, stress, anxiety, or worry, underlining the seriousness of this offense.
Behavior is considered harassing when it involves repeatedly doing something to someone that causes severe alarm or annoyance, torments, or terrorizes the individual. The conduct has no other reason than to disturb the targeted person.
A threat is "credible" when it reasonably causes the person to fear for their own safety or that of others. Some examples of cyberstalking include leaving threatening comments on social media posts or sending offensive messages through text or direct messages.
California also has an online harassment statute codified in Penal Code 653.2 PC, which prohibits indirect forms of cyber harassment.
This related law makes it a crime for someone to electronically distribute personal information about someone, such as photos or videos, to cause a third party to make unwanted contact, injury, or harassment to the targeted person.
In other words, someone cannot post or send information about someone else to encourage others to engage in malicious behavior toward that individual.
For the conduct to violate the law, the alleged perpetrator of the original communication must have acted to cause the targeted person to fear for their safety reasonably or that of their immediate family.
Cyberstalking - Quick Facts
- The cyberstalking law was enacted in response to the increasing online harassment, a direct result of the 1990s Internet's rapid growth.
- California Penal Code 646.9 PC cyberstalking law criminalizes the act of stalking someone using an "electronic communication device."
- California's cyberstalking laws prohibit someone from using an electronic communication device as anonymous online harassment.
- Cyberstalking includes repeated direct messaging and "doxxing" somebody's personal information.
- Harassment means engaging in willful behavior directed at somebody annoyed or tormented for no legitimate purpose.
- Stalking is defined as a form of harassment or threat that instills fear for one's safety or the safety of one's family.
- An electronic communication device includes the Internet, cell phone, landline phone, e-mail, text messages, video messages, etc.
- The law says a credible threat can be communicated electronically.
- Law enforcement agencies and the Los Angeles District Attorney's Office play a crucial role in fighting cyberstalking, providing a sense of reassurance to the public that these offenses are taken seriously and perpetrators will be held accountable.
- In LA, there is a dedicated unit called the "Stalking and Threat Assessment Team (STAT)" that works with LAPD detectives to investigate cyberstalking cases.
What Factors Must Be Proven to Convict?
To convict you of PC 646.9 cyberstalking, the district attorney must prove that you deliberately and repeatedly sexually harassed someone.
Cyberstalking allegations could include sending unsolicited emails or text messages or posting information or pictures online. The DA district attorney must prove all the elements of the crime beyond a reasonable doubt, such as the following:
- Your actions were "'willful," meaning you deliberately and intentionally chose to harass or purposely and frequently followed another person.
- You 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.
- You communicated through the internet or other electronic devices.
What are the Cyberstalking Penalties?
PC 646.9 cyberstalking is a wobbler that can be filed as a misdemeanor or felony based on the following information:
- If the victim filed a restraining order against you.
- If the stalking case is related to domestic violence.
- Your criminal history.
Suppose you are convicted of cyberstalking. In that case, the penalties can include:
- Up to one year in county jail time and $1,000 in fines for misdemeanors.
- Up to three years in state prison for felonies.
- Up to five years in prison if you have a prior conviction.
- Serve time in a state-run mental illness facility.
- If the judge believes you stalked the victim for sexual compulsion or sexual gratification, you could be ordered to register as a sex offender (PC 290).
- Participate in counseling.
- Restraining order issued against you prohibiting contact with the victim.
- Additional penalties if the cyberstalking is related to domestic violence.
What Are Related Offenses?
Several California crimes are related to PC 646.9 PC cyberstalking, such as the following:
- Cyber harassment (Penal Code 653.2 PC). This law involves posting harmful information online, called "cyberbullying."
- Criminal threats (Penal Code 422 PC ) This involves communicating a threat to somebody that could result in great bodily injury or death.
- Revenge porn (Penal Code 647(j)(4) PC). This law prohibits posting sexually explicit images or videos of somebody online, which causes the victim to suffer severe emotional distress.
- Sending harmful matter to a minor (Penal Code 288.2 PC). This law makes it a crime to send or distribute harmful material of a sexual nature to minors through the Internet, chat rooms, social media, mail, etc.
- Annoying phone calls (Penal Code 653m PC). This law makes it a crime to place obscene or harassing phone calls with the intent to annoy. You must make repeated or harassing phone calls or use profane or threatening language.
- Kidnapping (Penal Code 207 PC). This law makes it a crime to move someone a substantial distance without their consent using force or fear.
Sometimes, anyone charged with cyberstalking might also face allegations related to child pornography, sexual assault, or elderly emotional, physical, or financial abuse.
What are the Defenses Against Cyberstalking?
Suppose you have been accused of cyberstalking. Our California criminal defense lawyers can use different strategies to obtain the best possible outcome, as discussed below.
Perhaps we can argue that your accuser has malicious intent, such as using the accusations in divorce proceedings or a child custody battle. Maybe your accuser is angry and bitter after a relationship breakup.
Perhaps the alleged online harassment was misinterpreted or meant no actual harm to the victim. The DA must prove malicious intent beyond a reasonable doubt and provide evidence of aggressive unlawful behavior. We could create reasonable doubt to avoid a conviction.
We could negotiate with the district attorney for reduced charges or a case dismissal. Perhaps we can convince the prosecutor not to file formal criminal charges before the first court date (DA reject). Contact us for additional information. The Hedding Law Firm is in Los Angeles, CA.
What Does the Cyberstalking Law Say?
The entire text of California Penal Code Section 646.9 PC that covers stalking is below.
"(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 one thousand dollars ($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.
(c) (1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, violates subdivision (a) shall be punished by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or five years.
(2) Every person who, after having been convicted of a felony under subdivision (a), violates this section shall be punished by imprisonment in the state prison for two, three, or five years.
(d) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender under Section 290.006.
(e) For this section, "harasses" means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person and that serves no legitimate purpose.
(f) For this section, "course of conduct" means two or more acts occurring over time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included in the "course of conduct."
(g) For this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.
Proving that the defendant intended to carry out the threat is unnecessary. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included in "credible threat."
(h) For this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
(i) This section shall not apply to conduct during labor picketing.
(j) If probation is granted, or the execution or imposition of a sentence is suspended, for any person convicted under this section, it shall be a condition of probation that the person participates in counseling as designated by the court. However, upon showing good cause, the court may find that the counseling requirement shall not be imposed.
(k) (1) The sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim that may be valid for up to 10 years, as determined by the court. The Legislature intends that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.
(2) The court may issue this protective order whether the defendant is sentenced to state prison or county jail or if the imposition of sentence is suspended and the defendant is placed on probation.
(l) For purposes of this section, "immediate family" means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household or who, within the prior six months, regularly resided in the household.
(m) The court shall consider whether the defendant would benefit from treatment under Section 2684. If deemed appropriate, the court shall recommend that the Department of Corrections and Rehabilitation certify as provided in Section 2684. The defendant shall be evaluated and transferred to the relevant hospital for treatment under Section 2684 upon the certification."
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