Penal Code 646.9 PC - Stalking Law in California
California Penal Code 646.9 PC defines stalking as a serious offense, involving harassing, following, or threatening someone to the point where they fear for their safety. This crime is a wobbler that the district attorney can file as a misdemeanor or felony, underscoring its severity.
Some of the main factors regarding how stalking will be filed include the location of the stalking, whether the victim has already filed a restraining order, the criminal history of the defendant, and whether it's related to domestic violence.
Some common examples of stalking include unwanted or unexplained following of the victim, cyberstalking, evidence that a defendant was gathering large amounts of information about the victim, unwanted communication, and gifts.
Simply put, Penal Code 646.9 PC makes stalking a crime. The district attorney must prove all the elements of the crime to convict.
First, they must prove that you willfully and maliciously harassed or willfully, maliciously, and repeatedly followed someone.
They must also prove that they made a credible threat with the intent to place the victim in reasonable fear for their safety or for the safety of their immediate family. Notably, if you engaged in a constitutionally protected activity, such as exercising free speech, you cannot be guilty of stalking. Other examples of constitutionally protected activities include peaceful assembly and petitioning the government.
What Does the Law Say?
The full text of California Penal Code 646.9 PC 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 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 it is deemed appropriate, the court shall recommend that the Department of Corrections and Rehabilitation make a certification as provided in Section 2684. Upon the certification, the defendant shall be evaluated and transferred to the appropriate hospital for treatment under Section 2684."
Staking - Quick Facts
- "Harassing" means you engaged in willful behavior directed at the victim that annoyed or tormented them for no legitimate purpose.
- Harassing is engaging in a knowing and willful course of conduct directed at someone that seriously annoys, alarms, torments, or terrorizes.
- The harassing conduct must occur two or more times, even if done quickly, but show a continuous purpose for the behavior.
- The intent to place the victim in "reasonable fear" is a common issue determined by a review of the circumstances of the case.
- To convict, the prosecutor must prove that you followed or harassed someone maliciously and willfully, materially threatened them, placing them in fear for their safety.
- A "credible threat" causes the victim to fear for their safety reasonably and that you appear able to carry out.
- A credible threat may be made orally, in writing, or electronically. It may also be implied by a pattern of conduct or a combination of statements and conduct.
What Are Related Crimes?
Several California laws are related to Penal Code 646.9 PC stalking, including the following:
- Penal Code 422 PC criminal threats. A "criminal threat" is when you threaten to kill or physically harm someone, and they are placed in a state of reasonably sustained fear for their safety. The threat must be specific and can be communicated verbally, in writing, or electronically.
- Penal Code 653m PC annoying phone calls. This law makes it a crime to make a telephone call that is obscene, threatening, or a series of repeated calls with the intent to harass or annoy someone.
- Penal Code 207 PC kidnapping. The crime of kidnapping is defined as physically moving a victim a substantial distance by the use of force or fear against their will.
What are the PC 646.9 Penalties?
The penalties for violating PC 646.9 stalking can vary significantly depending on the case's specifics. If convicted of a stalking crime as a misdemeanor, it's punishable by the following:
- Up to one year in county jail.
- A fine of up to $1,000.
- Summary probation.
If convicted of a stalking crime as a felony, the punishments include:
- Up to five years in state prison.
- A fine of up to $1,000.
- Formal probation.
Other considerations and punishments in stalling cases include the following:
- Stalking will always be filed as a felony if it violates a court-issued protective order or you have a prior stalking conviction.
- The alleged stalking victim can sue you in civil court for damages related to the stalking.
- In more severe situations, you can face more significant fines, more jail time, and even a requirement to register as a sex offender defined under Penal Code 290 PC.
- A felony stalking conviction might result in negative immigration consequences for non-citizens.
- A conviction for felony stalking will affect your gun rights.
- If someone believes you are stalking them, they can request a protection or restraining order against you.
- If a person is a victim of domestic violence or spousal abuse, they can seek an emergency protection order.
- The language in a restraining order can prohibit you from coming within a certain distance from the alleged victim.
- If you violate the parameters of the restraining order, the court might find you contempt of court (PC 166) or trespassing (PC 602).
What Are the Common Defenses?
Stalking is often a complicated crime to litigate in court. Our California criminal defense lawyers will review the details to develop a strategy for the best outcome.
Perhaps the victim's accusations are false, exaggerated, or challenging to prove. We can show the allegations result from a tense situation such as divorce proceedings, spite or jealousy, breakup, or child custody fights.
Perhaps we can argue that you were completing a protected activity at the time of alleged stalking or that the threat associated with the stalking crime was not credible. We have extensive experience defending those charged with stalking crimes and other domestic violence-related offenses.
We can negotiate with the prosecutor to reduce or dismiss the charges against you. We might persuade the prosecutor not to file formal criminal charges through prefiling intervention. Contact us for more information. The Hedding Law Firm is based in Los Angeles, CA.
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