California Stalking Laws
Penal Code 646.9 PC

California stalking laws, considered among the toughest and most comprehensive in the nation, are defined in Penal Code 646.9. Stalking, in its simplest form, is repeatedly

  • following,
  • harassing and/or
  • threatening

another person to the point where that individual fears for his/her safety or the safety of his/her family.1

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Some examples of behavior that might lead to California stalking charges include:

  • Sending frequent emails to an ex-girlfriend threatening to make her life "a living hell,"
  • Following a coworker home from work every night while also occasionally making menacing statements to him in the office, and
  • Frequently sending flowers to an acquaintance, accompanied by notes saying that she had better agree to go out on a date with the sender "or else."
Penalties

The penalties for the crime of stalking in California are strikingly harsh. The crime is usually a wobblers . . . which means that a prosecutor has discretion to try it as either a misdemeanor or a more serious felony.2 And, when certain special circumstances (like a prior stalking conviction) apply, it must be charged as a felony.3

Maximum penalties for a California felony stalking conviction can include up to five (5) years in state prison...and, in some cases, even a requirement that you register as a sex offender.4

Legal defenses

Although stalking is a very serious offense, it is often filed based on false
accusations made out of revenge or other malicious motives. Several
legal defense may be available to help you beat (or at least significantly reduce) stalking charges as well. Some of these include taking the position that

  • even if there were threats, they were non-credible and
  • the First Amendment protected the accused's rights to free speech.

A skilled California criminal defense attorney knows how to investigate the case, scrutinize the background and credibility of the accuser, and often get stalking charges reduced or dismissed.

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:

1. An Overview of California's Stalking Laws

1.1 History of Penal Code 646.9 PC, California's
Anti-Stalking Law

1.2. The Legal Definition of Stalking in California

1.3. What's Considered Stalking (Examples)

2. Penalties, Punishment, and Sentencing
for Stalking

2.1. Misdemeanor California Stalking Penalties

2.2. Felony California Stalking Penalties

2.3. Aggravating Factors

2.4. California Stalking Civil Lawsuits

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

3. How Do I Fight a Stalking Charge?
4. California Stalking Laws and
Related Offenses

4.1. Kidnapping

4.2. Criminal Threats

4.3. Harmful Matter Sent to a Child

4.4 Annoying Phone Calls

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

In addition, you may also find helpful information in our related articles on California Cyberstalking Stalking Laws; Penal Code 602 PC Trespass; Penal Code 459 PC Burglary; California Domestic Violence Laws; Legal Definition of a "Wobbler" in California Law; California Misdemeanor Charges; California Felony Charges; Registration as a Sex Offender Under Penal Code 290 PC; Failure to Register as a Sex Offender Under Penal Code 290 PC; Common Legal Defenses to California Crimes; Penal Code 207 PC California Kidnapping Laws; Penal Code 422 PC California's Criminal Threats Law; and Penal Code 288.2 PC Harmful Matter Sent with the Intent to Seduce a Minor.

1. An Overview of California's Stalking Laws

1.1. History of Penal Code 646.9 PC, California's Anti-Stalking Law

California's stalking laws are most commonly associated with celebrity cases. In fact, 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 peoples' 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,5 California enacted Penal Code 646.9 in 1990.6

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Celebrity stalking victim Rebecca Schaeffer

The fact, however, is that celebrity stalkers make up only a small percentage of all criminal stalking cases. The crime is more frequently seen in connection with

  • California domestic violence cases,
  • cyberstalking, and
  • workplace stalking.

For example, one study estimates that less than half of alleged stalking victims are stalked by strangers. Instead, the vast majority are stalked by spouses, romantic partners, or exes.7 The majority of stalking victims are female ... but a significant minority (around 20%) of victims are male.8

In 1993, the California legislature amended Penal Code 646.9 PC to make the law significantly harsher.9 The new law expanded the definition of behavior that would qualify as criminal stalking and increased the potential penalties.10

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.11

If you engage in these activities...prosecutors could charge you with stalking under California Penal Code 646.9 PC.

1.2. The Legal Definition of Stalking in California

The legal definition of stalking in California refers to three facts the prosecutor must prove (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.12

  4. 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

  5. that a protective order against you was in effect at the time of your alleged illegal conduct, prohibiting you from engaging in such conduct.13
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Let's flesh out some of these terms to better understand their meaning with respect to the definition of stalking in Penal Code 646.9 PC.

Willfully

Willfully means with a purpose or willingness to commit the act. It isn't necessary that you intend to break the law.14

Example: Tim believes his ex-girlfriend's new boyfriend is abusive. So 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

Knowingly means with knowledge of the existence of the facts in question. It isn't necessary that you know that the act is illegal.15 "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

Maliciously means that you intend to commit a wrongful act or to intentionally anger, disturb, annoy, or injure another person in an unlawful manner.16

Example: Let's return to Tim from our example above. Tim willfully followed his ex-girlfriend...but he did it because he thought he needed to protect her from her new boyfriend. So even though his actions were willful, they were not malicious...he did not intend to injure his ex-girlfriend or to commit a wrongful act.

Harasses

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.17

A "course of conduct" means two or more acts occurring over a period of time...however short...that demonstrate a continuous purpose.18

Example: Charlene receives repeated annoying calls from two sources. One is a charity that keeps asking her for money even though she keeps saying no. Another is a male co-worker who calls her at home and tells her that "if he can't have her, no one else will."

The calls from the charity are not harassment, because charities seeking donations have legitimate business calling potential donors. However, the repeated calls from Charlene's "admirer" do qualify as harassment...there is no "legitimate" purpose to those calls.

A credible threat

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", the person making the threat must have the apparent ability to carry out the threat...even if s/he doesn't actually intend to do so.19

A credible threat may be made

  • verbally,
  • in writing,
  • 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-mails20 ), OR
  • in any other manner that communicates the threat to the intended target.21

    Example: 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.

1.3. What's Considered Stalking (Examples)

What's considered stalking? There is no "standard" conduct that qualifies. 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 running into them frequently "by accident"),
  • 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 California cyberstalking 22 ),
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  • gathering an inordinate amount of information about an individual (for example, accessing public records, speaking to friends and co-workers, running on-line searches, etc., in an effort to find out likes/dislikes, what locations the individual frequents, etc.),
  • repeatedly sending unwanted gifts or notes (of any type ... 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, trespassing23 or burglarizing24 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,

the stalking will be considered "intimate partner stalking" and therefore addressed under California domestic violence laws. This factor could subject you to increased penalties and punishment.

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2. Penalties, Punishment, and Sentencing for Stalking in California

Penal Code 646.9 stalking is a "wobbler" in California law, which means that it may be prosecuted as either a California misdemeanor crime or a California felony crime, depending on

  • the specific facts of your case, and
  • your criminal history.25

However, the California crime of stalking will automatically be charged as a
felony if either of the following circumstances apply:

  1. The stalking is in violation of a court-issued protective order, or
  2. The defendant has previously been convicted of stalking (even if the alleged victim in the new case is not the same person s/he previously stalked).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

2.1. Misdemeanor California Stalking Penalties

If you are charged with California stalking as a misdemeanor, penalties may include any or all of the following:

  • Informal probation (otherwise known as summary probation),
  • up to one year in a county jail,
  • a maximum one thousand dollar ($1,000) fine,
  • counseling, and/or possible confinement in a state-run hospital that treats mental illness, and/or
  • a restraining order prohibiting any contact with the alleged victim.28

2.2. Felony California Stalking Penalties

If you are charged with California stalking as a felony, penalties may include any or all of the following:

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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.30

2.3. 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 harm" (if you inflict great bodily harm...which is a significant or substantial physical injury...you could receive an additional and consecutive three (3) to five (5) years in the state prison31 ), 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 (1) to three (3) years in the state prison, depending on the type of weapon possessed32 ).

2.4. California Stalking & Civil Lawsuits

In addition to criminal penalties, the alleged stalking victim may sue you in civil court for damages related to the stalking.33

In order to get damages, the alleged stalking victim has to prove all of the following:

  1. You engaged in a pattern of conduct that was intended to follow, alarm, or harass the "victim" (s/he needs independent evidence, besides his/her testimony, to show this);
  2. As a result, the "victim" reasonably feared for his/her safety or the safety of an immediate family member, AND
  3. You EITHER a) made a credible threat against the safety of the "victim" or his/her family member , and failed to stop the harassing behavior after the victim asked you to do so, OR b) violated a restraining order with your behavior.34

You will not face any additional incarceration or probation as a result of a stalking civil lawsuit.

2.5. 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.35 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.36

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.37 And it should be noted that failure to register as a sex offender under Penal Code 290 PC is a separate felony offense, which subjects you to additional criminal penalties.38

3. How Do I Fight a Stalking Charge?

Fortunately, there are a variety of legal 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 didn't commit the crime of stalking.39

Example: Edith is an eighty-year-old woman confined to a wheelchair. She is accused of stalking her seventeen-year-old neighbor Aidan. It is alleged that Edith repeatedly told Aidan that she would "beat him to a pulp" if he continued to have his friends over for loud parties. Edith probably can't be convicted of stalking because there was no realistic way she could have carried out her threat.

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 not capable of being carried out. As such, incarceration itself will not necessarily serve as a defense to a stalking threat.40

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 did not commit the crime 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.41

Example: Steve is a member of a union that is protesting unfair labor practices at a hotel. He and his fellow union members stage a picket line outside the hotel and yell accusations at the hotel owner when he enters and leaves the hotel.

Steve and a smaller group of protesters also stand on the street where the hotel owner lives in the evening, holding signs complaining about the treatment of workers at the hotel. Steve and his fellow union members are exercising their free speech rights and so should not be convicted of stalking the hotel owner.
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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 wrongful 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 thoroughly examines 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,
  • view any video recordings,

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

As Palm Springs criminal defense attorney Michael Scafiddi explains42,

"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."
4. 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:

4.1. Kidnapping

Defined in Penal Code 207 PC, California kidnapping laws prohibit "taking, holding, or detaining" an individual by means of force or fear.43 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.

If this type of situation...or one similar...occurs, the defendant may be charged with both kidnapping and stalking.

California kidnapping is a felony. The minimum penalty is three (3) years in state prison . . . but the maximum sentence can be as much as eleven (11) years if the victim is under fourteen (14) years of age.44

4.2. 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.45 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.

The California crime of criminal threats is a wobbler and can lead to up to one (1) year in county jail OR time in state prison, depending on whether it's tried as a misdemeanor or a felony.46

4.3. 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.47

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.

A first violation of Penal Code 288.2 PC is a wobbler, but a second and any subsequent violations will be a felony.48

4.4 Annoying Phone Calls

The crime of making annoying or harassing phone calls (Penal Code 653m PC) prohibits sending any communications (including text messages and emails) that are

  • obscene
  • threatening
  • repeatedly made against the will of the recipient.

Penal Code 653m is easier for the prosecutor to prove than stalking, and often gets filed in lieu of a stalking charge. Penal Code 653m is a misdemeanor and a conviction can trigger up to six months of county jail.

Call us for help...
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If you or loved one is charged with Penal Code 646.9 PC stalking and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additional Internet Resources:

National Stalking Resource Center

Resources for stalking and dating violence victims.

Stalking Consultant Rhonda Saunders

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

Legal References:

1 California 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.")

2 See same.

3 California 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.")

4 Same. 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.")

5 Privacy Rights Clearinghouse, Fact Sheet 14: Are You Being Stalked?

6 California 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.")

7 See Facts page, on Lovemenot.org (website of California stalking resources created by Los Angeles County District Attorney's office).

8 See same.

9 California 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.")

10 See same.

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

12 California 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].")

13 CALJIC 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.")

14 CALJIC 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.")

15 CALJIC 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.]")

16 CALJIC 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.")

17 California 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.")

18 California 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.

19 California 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.

20 California 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.")

21 See California Penal Code 646.9 PC stalking, subsection (g), endnote 28, above.

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

23 California 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 their property.

24 California 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).

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

26 California 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.")

27 California Penal Code 646.92 PC - 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.

28 California 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.")

29 See endnote 1, 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.")

30 California Penal Code 646.94 PC - Parolee convicted of stalking; specialized parole supervision program; specialized services. ("(a) Contingent upon a Budget Act appropriation, the Department of Corrections shall ensure that any parolee convicted of violating Section 646.9 on or after January 1, 2002, who is deemed to pose a high risk of committing a repeat stalking offense be placed on an intensive and specialized parole supervision program for a period not to exceed the period of parole. (b)(1) The program shall include referral to specialized services, for example substance abuse treatment, for offenders needing those specialized services. (2) Parolees participating in this program shall be required to participate in relapse prevention classes as a condition of parole. (3) Parole agents may conduct group counseling sessions as part of the program. (4) The department may include other appropriate offenders in the treatment program if doing so facilitates the effectiveness of the treatment program.")

31 California 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.

32 California 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.")

33 California Civil Code 1708.7 - Stalking; tort action; damages and equitable remedies. ("(a) A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort: (1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence. (2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member. For purposes of this paragraph, "immediate family" means a spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides, or, within the six months preceding any portion of the pattern of conduct, regularly resided, in the plaintiff's household. (3) One of the following: (A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member and, on at least one occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct. (B) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to Section 527.6 of the Code of Civil Procedure, prohibiting any act described in subdivision (a).")

34 See same.

35 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.")

36 See same.

37 California Penal Code 290.006 - Court order of registration for offenses committed out of sexual compulsion or for sexual gratification. ("Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, 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.")

38 When 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.

1 California 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."")

40 CALJIC 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.

41 California 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."")

42 Palm Springs criminal defense attorney Michael Scafiddi uses his former inside experience as an officer with the Ontario Police Department and the Banning Police Department to defend those accused of California criminal charges, including stalking, across the Inland Empire.

43 California 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.")

44 California Penal Code 208 PC - Punishment for kidnapping; victim under 14 years of age; probation. ("(a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years. (b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order.")

45 California Penal Code 422 PC - 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.")

46 See same.

47 California 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.

48 See same.

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