California’s Stalking Law

California has one of the toughest stalking laws in the country. Basically, stalking is repeatedly following or harassing and threatening someone to the point where they become fearful for their own or their family’s safety.

stalking – long beach ca criminal defense attorney

Stalking under 646.9 PC is considered a wobbler, meaning the defendant can be tried for either a misdemeanor or a felony offense. If the defendant has a prior stalking conviction and/or violated a restraining order at the time of the most recent arrest, they will generally be charged with a felony. If the defendant was carrying a firearm during the commission of the crime, stalking is a felony charge. If convicted, they may receive a sentencing enhancement of an additional one to three years in prison, also to be served consecutively.

According to California Penal Code 646.9, the definition of stalking is willfully, maliciously, and repeatedly following or harassing another person, and making a credible threat with the intention of causing that person to reasonably fear for their safety, or the safety of their family.

More simply, stalking is repeatedly following or harassing and threatening someone to the point where they become fearful for their own or their family’s safety.

California has one of the toughest stalking laws in the country.

Elements of the crime of stalking

In order to obtain a conviction for stalking, the prosecutor must prove all of the following elements:

• The defendant willfully and repeatedly—with malice—followed and/or harassed another person in order to bother, anger, and/or injure the victim.
• The defendant made a credible threat against the victim.
• The threat was made with the specific intent to cause the victim fear.
• The defendant had the apparent ability to carry out the threat.

For the purposes of 646.9 PC, a threat is only considered credible if the threat would make a reasonable person fear for their safety or their family’s safety AND the victim believed that the defendant would carry out the threat AND the threat actually placed the victim in fear.

The “apparent ability” element renders the defendant’s true capability to make good on the threat of limited value as a defense. For example, if a defendant threatens to shoot the victim and the victim believes the threat to be true, it does not matter whether or not the defendant actually had a gun available to them.

Criminal penalties

Stalking under 646.9 PC  is considered a wobbler, meaning the defendant can be tried for either a misdemeanor or a felony offense, depending upon the facts of the case, the circumstances of the offense, and the defendant’s prior criminal history, if any.

For a misdemeanor conviction, penalties may include any or all of:

• Up to one year in county jail.
• A fine of up to $1,000.
• Probation.
• Mandatory psychiatric counseling and/or other type of mental health treatment.
• A restraining order to keep the defendant away from the victim.

If the defendant has a prior stalking conviction and/or violated a restraining order at the time of the most recent arrest, they will generally be charged with a felony.

Felony penalties are the same as those for a misdemeanor except the period of incarceration is increased to up to five years in state prison, and the defendant is frequently required to register as a sex offender.

If the stalking act caused the victim to suffer great bodily harm or other serious injury, then the defendant will be charged with a felony and may be sentenced to an additional three to five years in prison, to be served immediately after (consecutively) the base sentence.

If the defendant was carrying a firearm during the commission of the crime, stalking is a felony charge. If convicted, they may receive a sentencing enhancement of an additional one to three years in prison, also to be served consecutively.

Legal defenses to a charge of stalking

Stalking is a serious crime with severe penalties, particularly when charged as a felony. Anyone accused of a violation of 646.9 PC should seek legal advice which is appropriate to the unique facts of their case from a qualified criminal defense attorney. With that said, there are two common legal defenses to stalking:

Downplaying the threat

As discussed above, for a threat to be credible, the defendant must have had an apparent ability to carry it out, and the victim’s fear must have been a reasonable response to the threat. If the defense can show the threat was implausible and it was not reasonable for the alleged victim to be fearful as a result, the elements required for a conviction do not exist and the defendant should be found not guilty.

False or exaggerated accusations

While stalking is a serious offense that merits considerable attention, scorned lovers sometimes make false accusations or blow innocent situations – like running into an ex-lover in a public place – out of proportion. If the defense can undermine the credibility of the accuser’s testimony through effective cross-examination, the prosecution will have difficulty securing a guilty verdict.