Stalking allegations are not only applied by physically following another, but may also be accomplished electronically – e.g., by text messaging, emailing, or social media. Stalking is categorized as a wobbler and a conviction may require, under certain circumstances, sex offender registration for life.
Codified under Penal Code 646.9 pc, stalking is following someone and placing them in the apprehension of imminent fear of great bodily injury or death.[1] In addition, the fear element can be applied to someone within the alleged victim’s immediate family. Ordinarily, someone charged with stalking also faces charges of violating a restraining order, criminal threats, or other crimes involving harassing or threatening conduct.
What is the Prosecutor Required to Prove?
To prove someone is guilty of stalking under California PC 646.9, the District Attorney must prove:
- Defendant willfully and maliciously harassed, or willfully, maliciously, and repeatedly followed another;
- Defendant made a credible threat harboring the intent to place the other person in reasonable fear for their safety;
- Defendant’s conduct was not constitutionally protected.[2]
Punishment & Sentencing
A misdemeanor conviction carries up to one (1) year in the county jail and up to $1,000 in fines. However, a felony conviction carries a sentencing range of 16 months, 2, or 3 years in state prison.
If certain aggravating circumstances apply, then a person can expect greater punishment. For instance:
- A prior conviction for stalking carries up to five (5) years in prison.[3]
- A violation when there’s an outstanding protective order carries up to four (4) years in prison.[4]
- A prior conviction for criminal threats, corporal injury, or violating a restraining order, is punishable by up to five (5) years in state prison.[5]
- If the conviction was the product of sexual compulsion or sexual gratification, then the court may order you to register as a sex offender for life.[6]
Legal Defenses to Stalking – PC 646.9
- The purported victim is fabricating the circumstances or event.
- You did not repeatedly follow the alleged victim but were incidentally in the same areas.
- You did not have the intent to place the other person in fear for their safety.
- The purported threat was neither credible nor rational.
Contact Us to Schedule a Free Case Evaluation
If you’ve been arrested, charged, or under investigation for stalking under PC 646.9, there’s no question that retaining an experienced Orange County Criminal Defense Lawyer can mean the difference between a jail sentence or getting the case dropped completely. Contact us today to schedule a free case evaluation.
Legal References:
[1] California Penal Code 646.9 – defined (“(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 his or her safety, or the safety of his or her 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.”).
[2] See CALCRIM No. 1301.
[3] California Penal Code 646.9(c)(2) (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years.
[4] (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.
[5] California Penal Code 646.9(c)(1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, commits a violation of 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.
[6] See Penal Code 290.006.
