Stalking occurs when a person willfully, maliciously, and repeatedly follows or harasses another person and makes a credible threat with the intent to place that person in reasonable fear for their safety or the safety of their immediate family. Stalking is a serious crime in California, and it can have a lasting impact on your life if you are convicted.
A stalking conviction can lead to jail time, probation, and a restraining order. If you have been charged with stalking, you can contact our experienced criminal defense attorneys at Chula Vista Criminal Attorney to help defend you.
The Legal Definition of Stalking
There are four crucial elements that the prosecutor must prove for you to be convicted of stalking in California:
- The defendant willfully and maliciously engaged in a course of conduct;
- The course of conduct was a credible threat or a form of harassment;
- The course of conduct was directed at a specific person;
- The threat was intended to cause a reasonable person to feel fear;
- The defendant caused the victim reasonable fear for their safety and that of their immediate family.
The term “willfully” is defined in Penal Code 646.9 PC as “the intentional commission of the act prohibited without lawful excuse or justification.” “Maliciously” means the intentional commission of the act prohibited because of a “spite or ill will toward the victim.” And “repeatedly” means two or more times.
The meaning of “harassment” depends on the specific facts of each case. In general, it is conduct that is intended to annoy, torment, or terrorize another person and that does so. A “credible threat” means a threat of violence made with the intent and ability to carry it out. To be credible, the threat must be against someone or something the person can reasonably expect to achieve.
A “reasonable fear” means a reasonable belief that the person making the threat can and will carry it out. “Immediate family” means a 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.
Examples of Stalking Offenses
Some examples of actions on the part of the defendant that could lead the victim to file stalking charges could include:
- Traditional stalking ⏤ involves following, observing, and/or contacting the victim. Traditional stalking is often motivated by an obsessive attraction to the victim and is characterized by repeated unwanted contact.
- Cyberstalking ⏤ involves the use of technology, such as computers and cell phones, to stalk a person. For example, the stalker may send threatening or obscene emails or text messages, post derogatory or threatening information about the victim on the internet, or use GPS tracking devices to track the victim's location.
- Sexual stalking ⏤ involves repeated, unwanted sexual advances, such as propositions, kissing, groping, or fondling. The stalker may also make threats of sexual violence or rape.
There are several behaviors that can constitute stalking, including:
- Following or spying on the victim
- Showing up at the victim's home, workplace, or school
- Making repeated phone calls, text messages, or emails
- Sending unwanted gifts to the victim - Making threats against the victim or the victim's family or friends
- Posting information or rumors about the victim on the internet
- Damaging the victim's property
- Physically assaulting the victim.
The Emergence of Cyber Stalking in California
Cyberstalking is a relatively new phenomenon that has only recently become a problem in California. Cyberstalking is defined as the use of electronic communications to repeatedly harass or threaten someone. This behavior can include sending threatening or obscene messages, making unwanted phone calls, or posting derogatory information about the victim online.
Cyberstalking is a serious problem because it can cause the victim to feel isolated, frightened, and even threatened. In some cases, cyberstalking can lead to physical violence. If you believe you are being cyberstalked, it is important to contact the police and an experienced California criminal defense attorney.
Penalties for Penal Code 646.9
The penalties for stalking in California depend on the specific facts of each case but can range from a misdemeanor to a felony charge. If convicted of stalking, a person could face up to one year in county jail, informal probation, and/or a fine of up to $1,000 for a misdemeanor charge. If convicted of stalking as a felony, a person could face up to five years in state prison, formal probation, and/or a fine of up to $1,000. Note that When the victim does not sustain an injury, and the conduct does not involve a credible threat, stalking is charged as a misdemeanor. However, if the stalking behavior causes the victim to fear for their life or safety or cause injury to the victim, the offense is charged as a felony.
Restraining Orders
Additionally, the civil courts may grant a victim of stalking restraining order against the perpetrator. A restraining order is a court order that protects a person from being physically or sexually abused, threatened, stalked, or harassed by another person. A restraining order can also protect a person's family or household members.
There are two types of restraining orders in California:
- A domestic violence restraining order ⏤ is issued when there is a relationship between the victim and the abuser. The relationship can be a current or former marriage, cohabitation, or dating.
- Civil harassment restraining ⏤ This order is issued when the victim is being harassed, stalked, or threatened by someone who is not a family or household member. If you are the victim of stalking or harassment, you can file for a restraining order. The process for obtaining a restraining order varies from state to state, but generally includes the following steps:
- The victim files a petition with the court
- The court reviews the petition and decides whether to issue a temporary restraining order
- A hearing is held to determine whether to issue a permanent restraining order
- If a permanent restraining order is issued, it is served on the abuser
- The abuser must obey the terms of the restraining order or face penalties, such as arrest or jail time.
If you are the victim of stalking or harassment, it is important to keep a record of all incidents. This can be done by keeping a journal, saving text messages and emails, and taking pictures of any injuries. This evidence can be used to support your case if you decide to file for a restraining order
Stalking as a Federal Crime
The U.S. Department of Justice defines stalking as a crime in which someone repeatedly harasses or threatens another person, making that person feel scared, nervous, or in danger. According to the National Center for Victims of Crime, 8 percent of women and 2 percent of men in the United States will be stalked at some point in their lives. Federal stalking laws prohibit the use of interstate commerce to stalk another person. This includes using the Internet, mail service, or phone service to stalk someone in another state.
Penalties for Stalking as a Federal Offense
The penalties for stalking vary depending on the severity of the offense. In general, stalking is punishable by up to five years in prison and a fine of up to $250,000. A stalking offense that involves a credible threat of death or serious bodily harm to the victim or a member of the victim's family is punishable by up to ten years in prison. In addition to the criminal penalties, stalking victims can file a civil lawsuit against their stalkers. A civil stalking lawsuit may result in an order of protection against the stalker, as well as monetary damages for the victim.
Legal Defenses
There are several legal defenses to charges of stalking under California Penal Code 646.9. These defenses include:
- You were falsely accused ⏤ Sometimes when a person is being stalked the only person they think of is their ex-partners. You can use the help of your attorney and a private investigator to prove your innocence.
- No credible threat ⏤ You can only be convicted of stalking if you caused a credible threat to the alleged victim. Therefore even if you made a threat, you cannot be convicted if it was not credible or serious.
- Mistaken identity ⏤ Your identity could be mistaken especially if your appearance resembles that of the stalker. You could use the help of your attorney to prove your innocence.
- The victim consented to the communications. This defense is often used in cases where the victim and the defendant are in a relationship or where the victim and the defendant are friends;
- You had a legitimate purpose for the contact; or
- You were merely exercising your right to free speech. This defense is often used in cases where the defendant was expressing an opinion or making a statement.
- Another defense is that you did not have the intent to threaten or harass the victim. This defense is often used in cases where the defendant was merely sending a message or making a statement.
California Stalking Laws FAQs
We have compiled a list of questions below to help you understand stalking better.
Does a Stalking Conviction have any Immigration consequences?
Being convicted for stalking can at times affect your immigration status. Several crimes are listed under the U.S immigration law that can make an immigrant be deported or marked inadmissible. Some of these offenses include:
- Domestic violence offenses (For example, stalking)
- Firearm crimes
- Drug offenses
- Aggravated felonies
- Moral turpitude crimes
Can a stalking conviction be expunged?
Yes. If you have been convicted of stalking you can have the offense expunged. Under PC 1203.4, when a defendant gets their offense expunged, it means that they are released from any disabilities or penalties that may arise from the conviction. Having your conviction expunged means that the offense will not be disclosed to your potential employers as scholars. However, for this to happen you must:
- Have completed your probation period
- And not have a current criminal offense
Note that you can only seek to have your conviction expunged after completing your jail term and probation. You can not get a conviction expungement if you were serving a prison sentence.
Can a stalking conviction affect my gun rights?
No. Being convicted for stalking does not affect your gun rights.
What is considered a course of conduct under California law?
A course of conduct is defined as two or more acts that are directed at another person, and that would cause a reasonable person to suffer emotional distress or to fear for his or her safety or the safety of his or her immediate family.
What do you say when asking for a restraining order?
First, you should state your name and address, then the name and address of the person you are filing against. You should also state why you are requesting the restraining order, and include any relevant physical evidence you may have.
Can I be charged with stalking if I only sent one text message or made one phone call?
No. The law requires a course of conduct, which is defined as two or more acts.
Can I be charged with stalking if I only followed someone once?
It depends. If you only followed the person once and there is no other evidence of a course of conduct, then it is unlikely that you will be charged with stalking. However, if you followed the person more than once, or if you engaged in other conduct that would cause a reasonable person to fear for his or her safety, then you could be charged with stalking.
I didn’t mean to stalk someone. Can I still be charged with stalking?
Yes. The law does not require that you intend to stalk someone. It is only necessary that a reasonable person would have been placed in fear for his or her safety by your actions.
Can a person be charged with stalking if the victim does not actually suffer any emotional distress?
Yes, a person can be charged with stalking even if the victim does not actually suffer any emotional distress, as long as a reasonable person in the same situation would have suffered substantial emotional distress.
What are the signs that someone may be stalking me?
- There are several signs that may indicate that someone is stalking you, which include: · Repeated, unwanted communication from the person
- Showing up at your home or work without your permission
- Watching or following you
- Sending you unwanted gifts
- Making unwanted phone calls or texts
- Posting information about you online without your permission
- Threatening you or your family members
- Physically assaulting you
Related Offenses
There are several offenses that are charged alongside or together with stalking. These offenses include:
Annoying phone calls in California – PC 653m
This statute covers annoying phone calls with the intent to harass or annoy the recipient. This can include:
- Repeated phone calls without the intent to communicate Phone calls with the intent to annoy, threaten, or harass
- Phone calls with the intent to damage equipment Phone calls with the intention to steal information or money
- Phone calls that are obscene, vulgar, or profane Phone calls made as a prank
Phone calls with the intention to cause emotional distress Annoying phone calls in California are punishable as a misdemeanor. The punishment can include informal probation, a fine of up to $1,000, and/or up to six months in county jail.
Kidnapping
Kidnapping is defined as the unlawful taking and carrying away of a person by force or fraud. Kidnapping can also be committed when a person takes, entices, decoys, conceals, or by force, fraud, or deceit takes away a child (under 14 years old) to keep or conceal the child from a lawful custodian.
The crime of kidnapping is a felony and is punishable by formal probation, incarceration for 3, 5, or 8 years in the state prison, and a fine not exceeding $10,000.
The crime of false imprisonment is defined as the unlawful violation of the personal liberty of another. False imprisonment can be committed when a person violates the personal liberty of another by false arrest or by false imprisonment, which may be accomplished by physical force, intimidation, or persuasion. The crime of false imprisonment is a misdemeanor and is punishable by imprisonment in the county jail for up to one year.
Criminal Threats – PC 422
You can face criminal charges if you threaten another person with great bodily harm or death. Penal Code 422 PC is the California statute that makes it a crime for a person to threaten another with great bodily harm or death. A criminal threat can be verbal, written, or electronic. The threat should be made with an intention to place the victim in fear of death or great bodily harm. However, in California, you cannot be charged with making a criminal threat if the victim has no reasonable fear of death or great bodily harm. Penal Code 422 PC is a “wobbler” offense, meaning it can be charged as either a misdemeanor or a felony in California. A misdemeanor criminal threat is punishable by up to one year in county jail and informal probation. A felony criminal threat is punishable by 16 months, two, or three years in the county jail, and a formal probationl. Examples: Saying to your friend, “I will kill you”. Sending a friend a text message saying, “I will kill you”. Posting on social media that you are planning to kill a person.
Penal Code 288.2 – Harmful Matter Sent with Intent of Seducing a Minor
Penal Code 288.2 is a crime in California that involves sending harmful material to a minor with the intent of seducing the minor. The crime is a wobbler, which means it can be charged as either a misdemeanor or a felony. If the prosecution charges the crime as a misdemeanor, then the maximum sentence that can be imposed is up to one year in county jail. If the prosecution charges the crime as a felony, then the maximum sentence that can be imposed is up to three years in state prison.
What is The Role of a Defense Attorney?
There are a number of reasons you need a stalking defense attorney on your side. First, a skilled and experienced attorney is the best defense you can have against false allegations. It is important to remember that when someone is accused of stalking, there is a lot at stake. If convicted, a stalking charge can result in a prison sentence and a lifetime of probation. A stalking conviction can also negatively impact your career and your ability to obtain employment in the future.
Another reason you need a stalking defense attorney is because of the serious nature of this crime. A stalking conviction can have a number of serious consequences. If you are convicted of stalking, you could face a number of serious penalties, including fines, jail time, and a criminal record. You could also be ordered to stay away from the victim, which could make it difficult to go to work or school. Stalking is a serious crime and it should not be taken lightly.
Lastly, a stalking defense attorney can help you understand the charges against you. Many times, stalking charges are based on false allegations. In some cases, the victim may have been harassed by someone else, but the charges against you may be based on the victim’s statements. An experienced attorney can help you understand the charges and fight for your rights.
Find a Chula Vista Criminal Defense Attorney Near Me
If you are being charged with stalking, it is important to reach out to an experienced defense attorney immediately. Our legal team at Chula Vista Criminal Attorney is ready to help fight your charges and protect your rights. We offer both online and in-person legal services to our clients in Chula Vista. Call us today at 619-877-6894 for a free and confidential consultation.