California Stalking Law

Penal Code 646.9 PC

California stalking laws, considered the toughest and most comprehensive in the nation, are defined in Penal Code 646.9. Stalking, in its simplest form, is harassing or threatening another person to the point where that individual fears for his/her safety or the safety of his/her family.¹

Although stalking is a very serious offense, it is often filed based on false accusations made out of revenge or other improper motives. A skilled California criminal defense attorney knows how to uncover the truth to ensure that your innocence is vindicated and that bogus stalking charges are dismissed (or at the very least, significantly reduced).

In order to help you better understand California’s stalking laws, our Los Angeles stalking defense lawyers will provide a comprehensive guide to understanding Penal Code 646.9 PC by addressing the following:

An Overview of California’s Stalking Laws

How Do Prosecutors Prove that I Am Guilty of Penal Code 646.9 PC Stalking?

Examples of Stalking

Penalties, Punishment, and Sentencing for Stalking

Registration as a Sex Offender Pursuant to California Penal Code 290 PC

How Do I Fight a Stalking Charge?

California Stalking Laws and Related Offenses

If, after reading this article, you have additional questions, we invite you to contact us.

In addition, you may also find helpful information in our related articles on Cyberstalking, Penal Code 602 Trespass, Penal Code 207 PC Kidnapping, Penal Code 422 PC Criminal Threats, California Domestic Violence Laws, and Registration as a Sex Offender Pursuant to Penal Code 290.

An Overview of California’s Stalking Laws

California’s stalking laws are most commonly associated with celebrity stalking cases. The fact, however, is that celebrity stalkers make up only a small percentage of all criminal stalking cases. The crime is frequently seen in connection with

• California domestic violence cases,



• cyberstalking, and



• workplace stalking.

That said, celebrity stalking is what prompted the California Legislature to enact anti-stalking laws back in 1990. Legislators passed these laws...and one prohibiting the DMV from releasing addresses to the public...in response to two incidents.

The first was the repeated stabbing of actress Theresa Saldana. The second was the murder of actress Rebecca Schaeffer. In both cases, the defendants were obsessed fans who stalked the actresses.

As a result of these cases, California enacted Penal Code 646.9 in 1990.² When this law passed, a first-offense stalking charge was always a misdemeanor and there were no automatic felonies.

Under the 1990 legislation, if

1. the perpetrator stalked another person in violation of a court-issued protective order, or



2. was convicted of stalking the same alleged victim within a seven-year period and used violence or made a credible threat involving violence,

prosecutors could charge the defendant with a misdemeanor or a felony. Under the 1990 law, some of the other prerequisites to a stalking prosecution included:

• placing the alleged victim in fear for his/her personal safety,



• harassing the alleged victim to the point where he/she actually suffered emotional distress, and



• that the prohibited "course of conduct" was a series of acts that evidenced a pattern of stalking.³

Changes in California stalking law

Since the initial draft of Penal Code 646.9 PC, California stalking law has evolved into a much more serious offense. A first-time stalking offense is no longer an automatic misdemeanor. Depending on the facts of the case, prosecutors may opt to file either misdemeanor or felony charges.⁴ This is what’s known as a "wobbler".

Stalking in violation of a protective order has risen from a wobbler to an automatic felony and the prison sentence increased from 16 months or two or three years to a two to four year sentence.⁵

Similarly, the Legislature deleted the requirements that a second stalking offense had to be

1. against the same person,



2. within a seven year period, and



3. accompanied by violence.

It, too, is now an automatic felony to commit a second stalking offense...punishable by two, three, or five years in prison...regardless of the circumstances.⁶

And, on that note, the law has changed to allow for an increased penalty for a stalking conviction if the defendant also has a prior conviction for

• Penal Code 273.5 corporal injury on a spouse/mate⁷,



• Penal Code 273.6 violating a protective order⁸, or



• Penal Code 422 criminal threats⁹.

The final major differences are

1. that "harassment" no longer requires that the alleged victim suffer "emotional distress" as a result of the stalking¹⁰,



2. that the alleged victim’s fear can be for him/herself or for his/her immediate family¹¹, and



3. that the "course of conduct" has been reduced to only two incidents¹². As of now...

California’s current anti-stalking laws prohibit

1. following or harassing another person, and



2. threatening that person, with the intent of



3. placing him/her in fear for his/her safety or in fear for the safety of his/her immediate family.¹³

If you engage in any of these activities under any of the above circumstances...or, for that matter, under any circumstances...prosecutors could charge you with stalking under California Penal Code 646.9 PC.

How Do Prosecutors Prove that I Am Guilty of Penal Code 646.9 PC Stalking?

In order to prove that you are guilty of stalking under Penal Code 646.9 PC, the prosecutor must prove the following three facts (otherwise known as "elements of the crime"):

1. that you willfully, maliciously, and repeatedly followed; or willfully and maliciously harassed another person,



2. that you made a credible threat against that person, and



3. that you did so with the specific intent to place that individual in reasonable fear for his/her safety or for the safety of his/her immediate family.¹⁴



If the alleged victim claims to have had a temporary restraining order, injunction, or other court protective order against you, the prosecutor must additionally prove



4. that a protective order against you was in effect at the time of your alleged illegal conduct, prohibiting you from engaging in such conduct.¹⁵

Let’s flush out some of these terms to better understand their meaning with respect to California stalking laws.

Willfully means with a purpose or willingness to commit the act. It isn’t necessary that you intend to break the law.¹⁶

Example: Tim willfully repeatedly follows his ex-girlfriend, believing he is protecting her. His act is willful, even if he doesn’t realize that his behavior may qualify as illegal stalking.

Knowingly means with knowledge of the existence of the facts in question. It isn’t necessary that you know that the act is illegal.¹⁷ "Knowingly" is very similar to "willfully"...if you are aware of your actions, you will be held legally responsible for those actions...even if you don’t know that you are acting unlawfully.

Maliciously means to intentionally commit a wrongful act or to intentionally anger, disturb, annoy, or injure another person in an unlawful manner.¹⁸

Harassing means to engage in a knowing and willful "course of conduct" directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person. Harassment serves no legitimate purpose.¹⁹

A "course of conduct" means two or more acts occurring over a period of time...however short...that demonstrates a continuous purpose.²⁰

Example: Annoying repeated calls from a solicitor will not qualify as harassment. Charities seeking donations have legitimate business calling potential donors. However, repeated calls from an "admirer" telling you "if he can’t have you no one else will" does qualify as harassment...there is no "legitimate" purpose to those calls.

A credible threat is one that causes the threatened person reasonably to fear for his/her safety or for the safety of his/her immediate family. In order to be "credible", you must have the apparent ability to carry out the threat...even if you don’t actually intend to do so.²¹

A credible threat may be made

1. verbally,



2. in writing,



3. through the means of an electronic communication device ("electronic communication" devices include, but are not limited to, telephones, cell phones, pagers, text messages, fax machines, and e-mails²²),



OR



4. in any other manner that communicates the threat to the intended target.

Example: If Bob, a waiter, tells one of his co-workers that "unless you go on a date with me, I'm going to have the President of the United States arrest you," that would not qualify as a credible threat. Bob has no apparent ability to make good on the threat.

If, however, Bob tells his co-worker that "unless you go on a date with me, I'm going to make your life miserable," that would be a credible threat. Even though the threat is somewhat vague, Bob intends to place the coworker in fear and he appears capable of executing the threat.

Examples of California Penal Code 646.9 PC Stalking

There is no "standard" conduct that qualifies as stalking. Any threatening or harassing behavior that places the alleged victim in fear suffices. That said, there are a variety of behaviors that are commonly associated with stalking. These include (but are by no means limited to):

• following someone (including having frequent "coincidental" contacts),



• making repeated phone calls or sending numerous letters (if the contact is via the Internet...in the form of e-mails, for example...this is what’s referred to as cyberstalking²³),



• gathering an inordinate amount of information about an individual (accessing public records, speaking to friends, co-workers, running on-line searches, in an effort to find out likes/dislikes, what locations the individual frequents, etc.),



• repeatedly sending unwanted gifts or notes (These can be any type of gifts. For example, sending a "living" flower arrangement may be just as criminal as sending "dead" flowers if the gifts are unwanted),



• repeatedly driving by the person’s home or office,



• damaging the other person’s property (for example, hurting a pet or breaking a favorite keepsake), and



• engaging in acts prohibited under Penal Code 602 PC trespassing or Penal Code 459 PC burglary (that is, entering the person’s property intending to engage in a criminal act). Incidentally, trespassing²⁴ or burglarizing²⁵ the individual’s home or business will not only result in stalking charges, but in those additional criminal charges as well.

It should also be noted that if these (or any other "stalking" acts) are committed against your "intimate partner", defined as

• your fiancé or fiancée,



• your current or former spouse,



• someone with whom you live,



• the parent of your child, or



• anyone you are or were dating,

prosecutors will most likely charge you with stalking under California’s domestic violence laws. Stalking, when charged as domestic violence, could subject you to increased penalties and punishment.

Penalties, Punishment, and Sentencing for California Stalking

Penal Code 646.9 stalking is a "wobbler", which means that it may be prosecuted as either a misdemeanor or a felony, depending on (1) the specific facts of your case, and (2) your criminal history.

• Stalking another person in violation of a court-issued protective order, or



• stalking another person after you have previously been convicted of stalking (even if the alleged victim is not the same person)

are now automatic felony offenses.²⁶ Otherwise, the prosecutor has the discretion to determine whether to pursue misdemeanor or felony stalking charges. In either event, the California Department of Corrections, county sheriff, or local jail facility will notify the alleged victim at least 15 days prior to your release (if part of your sentence includes incarceration).²⁷

Misdemeanor California stalking penalties

• Informal probation (otherwise known as summary probation),



• up to one year in a county jail,



• a maximum $1,000 fine,



• counseling, and/or possible confinement in a state-run hospital that treats mental illness, and



• a restraining order prohibiting any contact with the alleged victim.²⁸

Felony California stalking penalties

• Formal probation,



• sixteen months to five years in the California State Prison,



• a maximum $1,000 fine



• counseling and/or possible confinement in a state-run hospital that treats mental illness,



• a restraining order prohibiting any contact with the alleged victim, and



• possible lifetime registration as a sex offender under Penal Code 290 PC.
²⁹

In addition, if you are released on parole following a felony stalking conviction, the Department of Corrections may place you on an "intensive and specialized" parole supervision program for the duration of your parole.

Aggravating factors

It should also be noted that "aggravating factors" may increase your felony prison sentence. Aggravating factors that are common to California stalking charges include (but are not limited to):

• causing the alleged victim "great bodily injury or harm" (if you inflict great bodily harm...which is a significant or substantial physical injury...you could receive an additional and consecutive three to five years in the state prison³⁰), and



• being armed at the time of the offense (if you have a weapon at the time you are accused of stalking, you face an additional and consecutive one to three years in the state prison, depending on the type of weapon possessed³¹).

California civil stalking penalties

In addition to criminal penalties, you may also face penalties if you are found civilly liable for stalking. Civil stalking penalties include civil protective orders and fines. You do not face any additional incarceration or probation for a civil offense.

In order to prevail in a civil lawsuit alleging stalking, the alleged victim must prove that he/she unequivocally asked you to stop your alleged "stalking behavior"...unless you were already under court order to do so.

Registration as a Sex Offender Pursuant to California Penal Code 290 PC

As previously stated, if you are convicted of Penal Code 646.9 felony stalking, the judge may order you to register as a sex offender pursuant to Penal Code 290 PC. Even though California stalking isn’t a crime that automatically subjects you to sex offender registration, it is one in which the judge can exercise discretion.

If the judge finds that you stalked the alleged victim "as a result of sexual compulsion or for sexual gratification", he/she can order you to register. And it should be noted that failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, which subjects you to additional criminal penalties.³²

How Do I Fight a Stalking Charge?

Fortunately, there are a variety of defenses that a skilled California criminal defense attorney can present and argue on your behalf. The following is an example of some of the most common defenses to California staking charges:

The alleged threat wasn’t credible

If your alleged threat was so ridiculous or grandiose that

1. there was no realistic way to see it through, and/or



2. a reasonable person would not have been fearful after hearing/receiving the threat,

then you can’t be convicted of stalking. It should be noted that the fact that you are incarcerated at the time you allegedly threaten another person, does not necessarily mean that the threat is incapable of being carried out. As such, incarceration will not necessarily serve as a defense to a stalking threat.³³

Similarly, if your alleged threat was meant as a joke (and you didn’t therefore intend for anyone to take it seriously or fear for their safety), you aren’t guilty of this offense.

And even if you did harbor an intent to harm another person or place that person in fear...but you kept those feelings to yourself (perhaps wrote them in a private journal)...you must be acquitted of stalking. Privately recording your feelings is not equivalent to threatening another person actively.

You were participating in constitutionally protected activity

California stalking laws do not apply to constitutionally protected First Amendment activity. This means that if, for example, you were

• exercising free speech,



• protesting, or



• participating in an assembly,

you are not in violation of California’s anti-stalking laws.³⁴ Labor picketing is an example of a constitutionally protected activity that will exempt you from the harassment element of a stalking charge.

Mistaken identity

Perhaps you had a bad break-up with someone who is actually being stalked by someone else. Your "ex" simply assumes you are the one who is doing the stalking. This is just one example of how mistaken identity could help acquit you of a stalking charge.

False accusations

Sometimes you may face false stalking charges based on mistaken identity. Other times you may face false stalking charges based on false accusations. This is why it is so important to consult with a criminal defense lawyer who has mastered California stalking laws.

A California stalking defense lawyer knows how critical it is to work with a private investigator who will thoroughly examine any physical evidence. These investigators and other stalking "experts" will

• listen to audio recordings,



• analyze handwriting samples,



• test for DNA samples on a licked envelope, for example, and



• view any video recordings

in an effort to prove that you are not guilty of stalking.

As San Bernardino criminal defense attorney Robert Little explains³⁵, "Stalking charges can arise out of volatile, highly charged emotional situations. Especially in domestic violence stalking cases, one partner may do whatever it takes to gain control over the other...even if it means falsely accusing the other of stalking. My team of experts and I won’t stop until we defend you against these wrongful charges and prove your innocence".

California Stalking Laws and Related Offenses

In addition to Penal Code 602 trespass, Penal Code 459 burglary, and California’s domestic violence laws, there are a number of other offenses that frequently arise in connection with California stalking charges. Some of these include, but are not limited to:

Kidnapping

Defined in Penal Code 207 PC, California kidnapping laws prohibit "taking, holding, or detaining" an individual by means of force or fear.³⁶ If, for example, if someone believes that his letters or other communication efforts are being ignored, he may try to "kidnap" the targeted person

1. to get that individual’s undivided attention,



2. to "be" with that person physically, or



3. to engage in some other activity.

Criminal threats

Defined in Penal Code 422 PC, California "criminal threats" law prohibits threats that are intended to place their recipient in fear of immediate harm.³⁷ If your threats are targeted at the same individual...and you make them on more than one occasion...prosecutors could charge you with California stalking and criminal threats.

Harmful matter sent to a child

Penal Code 288.2 "harmful matter sent with the intent of seducing a minor" prohibits sending or e-mailing "obscene" or "erotic" literature or materials to a minor with the intent of sexually arousing yourself or the recipient.³⁸

This means that if you repeatedly call, e-mail, or send such materials to a minor, prosecutors could charge you with violating Penal Code 288.2 as well as California’s stalking laws.

If you have additional questions about California stalking laws, or you would like to discuss your case confidentially with one of our criminal defense attorneys, we invite you to contact us.

We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.

Additional Internet Resources:

National Stalking Resource Center

Resources for stalking and dating violence resources.

Stalking Consultant Rhonda Saunders

Rhonda Saunders consults with stalking victims, police departments and employers regarding precautions and policies.

Legal References:

¹California Penal Code 646.9 – Stalking. ("(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.

²California Senate Bill 2184, passed in 1990. ("SECTION 1. [Penal Code] Section 646.9 [stalking] is added to the Penal Code, to read: 646.9. (a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear of death or great bodily injury 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. (b) Any person who violates subdivision (a) when there is a temporary restraining order or an injunction, or both, in effect prohibiting the behavior described in subdivision (a) against the same party, is 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. (c) A second or subsequent [California stalking] conviction occurring within seven years of a prior conviction under subdivision (a) against the same victim, and involving an act of violence or "a credible threat" of violence, as defined in subdivision (e), is 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. (d) For the purposes of this section, "harasses" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." (e) For the purposes of this section [that is, California stalking law], "a credible threat" means a threat made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause great bodily injury to, a person as defined in Section 12022.7. This section shall not apply to conduct which occurs during labor picketing.")

³See same.

⁴California Assembly Bill 1178, passed in 1993. ("(1) Existing law prohibits a person from stalking, defined as willfully, maliciously, and repeatedly following or harassing, as defined, another person and making a credible threat, as defined, with the intent to place that person in reasonable fear of death or great bodily injury or place that person in reasonable fear of the death or great bodily injury of his or her immediate family, punishable as a misdemeanor. This bill would, instead, require that the person act with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, as defined. This bill also would, instead, make the first offense [California Penal Code 646.9 PC stalking charge] a felony or a misdemeanor.")

⁵See same. ("(2) Existing law makes the above offense [that is, California stalking] a misdemeanor or a felony where it violates a temporary restraining order or an injunction, or both, in effect prohibiting the same behavior against the same party. This bill, instead, would make a violation when there is a temporary restraining order, as specified, a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years.")

⁶See same. ("(3) Existing law makes a 2nd or subsequent conviction under (1) above [California stalking] occurring within 7 years of a prior conviction against the same victim and involving an act of violence or a credible threat of violence, as defined, a misdemeanor or a felony. This bill would delete this provision. Existing law makes a person convicted of a felony under (1) above who commits a 2nd or subsequent violation of that provision against the same victim and involving an act of violence or a "credible threat" of violence, as defined, guilty of a felony, punishable by imprisonment in the state prison for 16 months or 2 or 3 years. This bill would delete the requirements that this offense [that is, Penal Code 646.9 PC stalking] be against the same victim and involve an act of violence or a credible threat of violence. This bill also, instead, would make a violation under this provision, punishable by imprisonment in the state prison for 2, 3, or 4 years.")

See also California Assembly Bill 2425, passed 2000. ("(1) Under existing law, a person who 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 his or her safety, or the safety of his or her immediate family is guilty of either a misdemeanor or a felony [for California Penal Code 646.9 stalking]. A person who commits that offense when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior proscribed by that offense against the same party is guilty of a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years. A person who is convicted a 2nd or subsequent time of violating either of these 2 offenses is punishable by imprisonment in the state prison for 2, 3, or 4 years. This bill would increase the punishment for a 2nd violation of the first offense described above by imprisonment in the state prison for 2, 3, or 5 years.")

⁸California Penal Code 273.6 – Violation of a protective order. ("(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.")

⁹California Penal Code 422 – Criminal threats. ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.")

See also California Assembly Bill 2425, passed 2000. ("(1) Under existing law, a person who 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 his or her safety, or the safety of his or her immediate family is guilty of either a misdemeanor or a felony [for California Penal Code 646.9 stalking]. A person who commits that offense when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior proscribed by that offense against the same party is guilty of a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years. A person who is convicted a 2nd or subsequent time of violating either of these 2 offenses is punishable by imprisonment in the state prison for 2, 3, or 4 years. This bill would increase the punishment for a 2nd violation of the first offense described above by imprisonment in the state prison for 2, 3, or 5 years. This bill would also increase the penalty for anyone who is convicted of the first offense described above after having previously been convicted of specified offenses; including the willful infliction of corporal injury, the intentional and knowing violation of a court order, as specified, or making a threat to commit a crime as specified, to imprisonment in a county jail for not more than one year, or by a fine of $1,000, or by both that fine and imprisonment, or by imprisonment in the state prison for 2, 3, or 5 years.")

¹⁰California Senate Bill 1320, passed 2002. ("Under existing law, "harasses" refers to a course of conduct that would cause a reasonable person to suffer substantial emotional distress, and that actually causes such distress, as specified. Existing law provides that, for these purposes, a "course of conduct" is a pattern of conduct composed of a series of acts, as specified. This bill would revise the definition of the crime of stalking [under California Penal Code 646.9 PC] to require willful, malicious, and repeated following or willful and malicious harassment. The bill would redefine course of conduct to mean 2 or more acts, as specified, would eliminate the requirement that the conduct be such as would cause a reasonable person substantial emotional distress to be considered harassment, and would eliminate the requirement that the conduct in fact cause substantial emotional distress to be deemed harassment under these provisions.")

¹¹California Senate Bill 1342, passed in 1992. ("(1) Under existing law, it is a misdemeanor or a felony punishable, as specified, for any person to commit the crime of stalking, described as willfully, maliciously, and repeatedly following or harassing, as defined, another person and making a credible threat, as defined, with the intent to place that person in reasonable fear of death or great bodily injury. A "credible threat" is defined to mean a threat made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety. This bill would redefine a "credible threat" to include placing the person in reasonable fear of the death of, or great bodily injury to, the person's immediate family.")

¹²See endnote 10, above. ("The bill would redefine course of conduct to mean 2 or more acts...")

¹³See California Penal Code 646.9 PC stalking, endnote 1, above.

¹⁴California Jury Instructions – Criminal. CALJIC 9.16.11 – Stalking. ("In order to prove this crime, each of the following elements must be proved: [1] A person willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person; [2] The person following or harassing made a credible threat; and [3] The person who made the threat did so with the specific intent to place the other person in reasonable fear for his or her safety or the safety of the immediate family of such person[s].")

¹⁵CALJIC 9.16.20 – California Stalking following a court order. ("In order to prove this crime, each of the following elements must be proved: [1] A person willfully, maliciously, and repeatedly followed or harassed another person; [2] The person following or harassing made a credible threat; [3] The person who made the threat did so with the specific intent to place the other person in reasonable fear for his or her safety or the safety of the immediate family of such person[s]; [4] A court had previously issued a temporary restraining order, injunction, or any other order prohibiting that behavior against the same other person; and [5] The temporary restraining order, injunction, other court order [was] [were] in effect at the time of the conduct described in elements 1, 2 and 3.")

¹⁶CALJIC 1.20 – Willfully, defined. ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act [in this case, stalking] or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")

¹⁷CALJIC 1.21 – Knowingly, defined. ("The word "knowingly," means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required. [A requirement of knowledge does not mean that the act [that is, Penal Code 646.9 stalking] must be done with any specific intent.]")

¹⁸CALJIC 1.22 – Maliciously, defined. ("The words "malice" and "maliciously" mean a wish to vex, [defraud,] annoy or injure another person, or an intent to do a wrongful act.")

¹⁹California Penal Code 646.9 PC – Stalking. ("(e) For the purposes of this section, "harasses" means engages 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.")

²⁰California Penal Code 646.9 PC – Stalking. ("(f) For the purposes of this section, "course of conduct" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct.") As a result, constitutionally protected activity does not violate California’s anti-stalking laws.

²¹California Penal Code 646.9 PC – Stalking. ("(g) For the purposes of 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 so as 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. It is not necessary to prove that the defendant had the intent to actually carry out the threat. 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 within the meaning of "credible threat.") Again, constitutionally protected activity does not violate California’s anti-stalking laws.

²²California Penal Code 646.9 PC – Stalking. ("(h) For purposes of 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.")

²³California "cyber stalking" was added to California stalking law Penal Code 646.9 in 1998 via California Senate Bill 1796.

²⁴California Penal Code 602 PC – Trespassing. In its simplest form, "trespassing" takes place when you enter someone else’s property without permission or a right to do so. It’s an illegal intrusion that interferes with the rights of another person or property.

²⁵California Penal Code 459 PC – Burglary. California law defines burglary under Penal Code 459 PC as "entering a structure with the intent to commit a felony (or a petty theft) once inside". Although burglary is often referred to as "breaking and entering," prosecutors can charge you with this offense even if there is no forced entry of the structure. All that is currently required is that you enter a building (or other specified enclosure) with the intent to commit a theft or felony once inside (which includes the type of behavior that gives rise to Penal Code 646.9 California stalking charges).

²⁶California Penal Code 646.9 PC – Stalking. ("(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)(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.")

²⁷California Penal Code 646.92 – Notification to victim or witness of California stalking case. ("(a) The Department of Corrections, county sheriff, or director of the local department of corrections shall give notice not less than 15 days prior to the release from the state prison or a county jail of any person who is convicted of violating Penal Code Section 646.9 [PC stalking] or convicted of a felony offense involving domestic violence, as defined in Section 6211 of the Family Code, or any change in the parole status or relevant change in the parole location of the convicted person, or if the convicted person absconds from supervision while on parole, to any person the court identifies as a victim of the offense, a family member of the victim, or a witness to the offense by telephone and certified mail at his or her last known address, upon request.") This section was added to California’s stalking laws in the California Assembly Bill 3730 "stalking" 1994 amendment.

²⁸California Penal Code 646.9 PC – Stalking. ("("(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...(c)(1) Every person who, after having been convicted of a felony under Penal Code Section 273.5, 273.6, or 422, commits a violation of subdivision (a) [stalking] 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...(j) If probation is granted, or the execution or imposition of a sentence is suspended, for any person convicted under this section [for violating California’s stalking laws], it shall be a condition of probation that the person participate in counseling, as designated by the court. However, the court, upon a showing of good cause, may find that the counseling requirement shall not be imposed. (k)(1) The sentencing court also shall 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. It is the intent of the Legislature 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...(m) The court shall consider whether the defendant would benefit from treatment pursuant to Section 2684.")

²⁹See endnote 26, above. See also California Penal Code 646.9 PC – Stalking. ("(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 participate in counseling, as designated by the court. However, the court, upon a showing of good cause, may find that the counseling requirement shall not be imposed. (k)(1) The sentencing court also shall 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. It is the intent of the Legislature 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.") See also California Penal Code 646.9 PC – Stalking. ("(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 pursuant to Section 290.006.") See also California Penal Code 290.006 is part of what’s known as the "Sex Offender Registration Act". It states that ("Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290 [such as stalking under Penal Code 646.9 PC], shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.")

³⁰California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [including Penal Code 646.9 stalking] shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.") These sections apply to all California felonies, including California Penal Code 646.9 stalking.

³¹California Penal Code 12022 -- Terms of imprisonment for committing or attempting felony or violation while armed with firearm or using deadly or dangerous weapon. ("(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony [including Penal Code 646.9 stalking] shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm. (2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Penal Code Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200 PC, or a .50 BMG rifle, as defined in Section 12278 PC, the additional and consecutive term described in this subdivision shall be three years whether or not the arming is an element of the offense of which the person was convicted. The additional term provided in this paragraph shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with an assault weapon or machinegun, or a .50 BMG rifle, whether or not the person is personally armed with an assault weapon or machinegun, or a .50 BMG rifle. (b)(1) Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony [including California Penal Code 646.9 PC stalking] shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.")

³²When an individual fails to register as a sex offender pursuant to California Penal Code 290, he/she faces up to one year in county jail or up to three years in the state prison. Failing to register is a "continuing" offense, which means that each time you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.

³³CALJIC 9.16.11 – Stalking. ("The fact, if it be a fact, that the person who allegedly made the threat was incarcerated at the time the threat was made, is not a defense.") This part of California’s stalking law was added in the Assembly Bill 3730 1994 amendment.

³⁴California Penal Code 646.9 PC – Stalking. ("(f)...Constitutionally protected activity is not included within the meaning of "course of conduct." (g) ...Constitutionally protected activity is not included within the meaning of "credible threat."")

³⁵San Bernardino stalking attorney Robert Little uses his former inside experience as a San Bernardino District Attorney to defend those accused of California criminal charges, including stalking, in the San Gabriel Valley and Inland Empire.

³⁶California Penal Code 207 PC – Kidnapping. ("(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.")

³⁷California Penal Code 422 – Criminal threats (formerly known as "terrorist threats"). See endnote 9, above.

³⁸California Penal Code 288.2 – Harmful matter sent with the intent of seducing a minor. ("(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Penal Code Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.") Repeatedly doing so may additionally give rise to a California stalking charge under Penal Code 646.9 PC.

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