When compared to other states, California prides itself on having stringent anti-stalking statutes. This shows that there is a high possibility that someone facing stalking charges will receive legal penalties. According to California law, stalking is the act of persistently harassing, following, and threatening somebody to put the concern of their well-being and the security of their immediate family at risk. Anybody facing such accusations should think about retaining a qualified attorney to assist in addressing the charges. Contact the California Criminal Lawyer Group in Anaheim, CA, if you need assistance with fighting stalking allegations.
How Does California Law Define Stalking?
California PC 646.9 is the statute that renders it an offense for an individual to stalk another person. To effectively convict a person of this crime, the prosecutor needs to demonstrate two elements. They include:
- The accused purposefully, maliciously, and repetitively followed someone else, or maliciously and willfully harassed the victim
- The accused made credible threats to put the other individual in reasonable fear for his or her welfare and security (or even for the welfare and security of his or her immediate members of the family)
It should be noted that when a person engages in a legitimately protected act, he or she will not be accused of stalking. For instance, a defendant is not guilty of breaching this law if he or she was exercising their right to free speech, lawfully protesting, or taking part in a gathering.
Please be aware that this code section frequently raises queries regarding the definitions of the following terms:
- Repeatedly, willfully, and with malice
- Credible threat
- Reasonable fear, and
- Immediate members of the family
Repeatedly, Maliciously, and Willfully
For the sake of this provision of the code, someone executes an action willfully when they do it voluntarily or purposely. A defendant acts with malice when he or she willfully commits an unlawful act or when he or she acts with the malicious intent to bother, annoy, or hurt another person. Repeatedly indicates several times an action is performed.
Harassment is defined as participating in a deliberate course of action that is directed towards a particular individual that seriously irritates, terrorizes, torments, or, alarms.
The course of action should also have no valid purpose. Keep in mind that a "course of action" is defined as two or even more actions that take place over a period, no matter how brief, indicating a consistent motive.
A "credible threat" in terms of this law is something that enables the threat's target to have a legitimate fear for their safety (or even the welfare of their immediate family) or something that the threat's maker appears capable of perpetrating.
A credible threat could be made in writing, verbally, or electronically. Additionally, it could be inferred from a pattern of action or a mix of actions and statements.
The courts will evaluate whether the accused meant to put "their victim" in legitimate fear by reviewing the details and facts of the crime. However, keep in mind that the courts have ruled that "real threats" are only those that are uttered to instill fear.
Genuine threats don't include exaggerated political declarations, witty remarks, or, speech that is protected by the constitution, immediate family
This provision of the code defines "immediate family" as partners, parents, children, grandchildren, grandparents, siblings, or any other blood or marriage-related relative, and somebody who regularly resides in the home.
Legal Arguments to Defend Against Penal Code 646.9 Charges
Often, a suspect can fight a stalking allegation using a strong legal defense. A strong defense might help to lessen or perhaps get a charge dropped. Three common responses to claims under PC 646.9 are there was no genuine threat, there was no desire to instill fear, or the act was constitutionally protected.
No Genuine Threat
Remember that to be found guilty by this criminal code, the accused must have made a "genuine threat" to the victim. Consequently, a defendant's argument is to demonstrate that, although he or she might have made threats, it was neither serious nor genuine. For instance, perhaps the perpetrator made a lighthearted threat toward the victim.
No Desire to Instill Fear
No desire to instill fear is comparable to the previous defense. An accused would contend that although he or she might have made threats, he or she didn't intend for it to result in fear. The defendant might have repeatedly threatened to tickle someone else, for instance.
An Act that is Protected Under the Constitution
Remember that an accused is not guilty of stalking under this legislation if they were participating in a protected act under the constitution (for example, legally protesting). This implies that proving that a person was involved in such an activity when accused of stalking is often a strong defense.
Penalties For Stalking
If someone perpetrates the crime of stalking, they will generally face two consequences. The defendant will face the following:
- Civil penalties
- Criminal Penalties
If an accused is found guilty of stalking, they will receive a sentence according to the crimes committed. Penal Code 646.9 violations are wobbler offenses, which means they can be prosecuted as either felonies or misdemeanors.
The following penalties apply if the crime is prosecuted as a misdemeanor:
- Summary or misdemeanor probation
- County jail sentence for a maximum of one year, and/or
- Fines of up to $1,000
If prosecuted as a felony offense, the act carries the following penalties:
- Formal or felony probation
- A state prison sentence of a maximum of five years, or
- A maximum of $1,000 in fines
Keep in mind that when any of the following situations occurs, stalking will certainly be tried as a felony:
- The stalking occurred in breach of a restraining order granted by a court, or
- The accused had already been found guilty of stalking before (even though the purported victim, in this case, isn't the same individual he/she stalked in the past)
A victim of stalking can file a civil lawsuit against the alleged stalker in addition to filing a criminal charge against them. To receive compensation for the stalking offense in a civil court case, the victim of stalking must demonstrate three things. Which are:
- The accused stalker acted in a series of behavior with the specific purpose of following, frightening, or harassing the "victim" (this must be demonstrated with independent proof in addition to the witness' testimony)
- The victim had a legitimate concern for their well-being or the well-being of a close family member due to this behavior, and
- The accused stalker made a legitimate threat against the victim's or a family member's safety and failed to cease bothering the victim when he or she begged him or her to, or acted in a way that disregarded a protective order
If the purported victim succeeds in establishing these, he or she may be entitled to receiving damages and compensatory damages
Consequences of Stalking on Immigration
A stalking charge could have detrimental effects on immigration. According to US immigration law, several California criminal records can result in the deportation of non-citizens. Additionally, certain offenses may render an immigrant to be "inadmissible." Inadmissible or deportable offenses fall mostly into the following categories:
- Aggravated felony convictions
- Offenses involving moral turpitude
- Firearms charges, and
- Crimes involving controlled substances (drugs)
- Domestic abuse offenses
A stalking conviction could become an aggravated felony based on the specifics of the incident. If so, it might harm your immigration status.
Getting the Stalking Conviction Expunged
A defendant guilty of stalking can apply to have the conviction expunged. According to California PC 1203.4, an "expungement" frees a person from almost "all consequences and restrictions" associated with the sentence. One advantage is that a record that has been expunged is not obliged to be revealed to prospective employers or landlords.
As a general rule, Penal Code 1203.4 permits expungement for felonies or minor violations if the applicant:
- Managed to finish the probationary period
- Is not presently facing criminal prosecution, on a probationary period for an offense, or incarcerated for one
This suggests that an offender could start the process of having the offense expunged when he or she has successfully finished the probationary term (if it had been mandated) or the entirety of a jail sentence (if relevant).
Consequences of a Stalking Conviction on a Defendant's Rights to Own a Firearm
A felony stalking charge will have a consequence on the guilty party's firearms rights. In general, California forbids the following individuals from obtaining or owning a firearm:
- Felons (that's, anybody charged with any felony crimes in any state)
- Addicts of narcotics
- For those who have been convicted two or several other times for violating California's anti-weapons law, this is stipulated under California PC 417
- Those who have been found guilty of specific misdemeanor charges (such as those that violate California's PC 273.5 PC, California's legislation outlawing physical violence on a partner)
- Those suffering from mental illnesses, and
- Individuals under the age of 18 (persons under the age of 21 are not allowed to buy a gun)
Remember that a stalking charge can be classified as a felony or a misdemeanor. Considering the first classification above, when a person is accused of felony stalking and is found guilty, his or her rights to possess and carry firearms would be forfeited.
Crimes Related to California Stalking Charges
Several specific offenses are frequently charged in conjunction with stalking. They include:
- Kidnapping under California Penal Code 207
- Criminal threats under California Penal Code 422
- Annoying phone calls under California Penal Code 653m
According to California Penal Code 207(a), kidnapping constitutes "forcefully, or under any means causing fear, taking or stealing, or detaining, holding, or detaining anyone and moving the individual into another state, county, or country, or to another section of the same jurisdiction.
Kidnapping and stalking are related since, in extreme circumstances, stalkers have become known for abducting their victims. As a result, both can be charged in the same court case.
Kidnapping is penalized under the "Three Strikes" law since it's regarded as a "major felony" according to the State Criminal Code. If you obtain three "strikes," you'll be sentenced to at least twenty-five years in state prison.
The prosecutor must establish the elements below beyond a shadow of a doubt to prosecute you under California Penal Code 207(a):
- You used force or caused a legitimate fear in someone else to take, hold, or detain them. You forced the other individual to move or forced them to travel a significant distance using coercion or intimidation, and they did not agree to the move. Last but not least, you didn't genuinely and truly feel the other individual had given their permission for the move
If you have been found guilty of kidnapping as per California Penal Code 207(a), you may be sentenced to:
- An eight-year maximum sentence in the California state prison
- Receive maximum fines of up to ten thousand dollars
- Receive both fines and time behind bars
Annoying Phone Calls
It is against the law to call someone using a telephone or other electronic communication gadget and threaten them, their property, or employ profane language toward them, according to the Annoying Phone Calls under California Penal Code 653m(a) law. Threats made against the victim's family are likewise prohibited within this Code provision.
The prosecutor must establish the elements below beyond a shadow of a doubt to prosecute you under California Penal Code 653m(a):
- You called or contacted someone using an electronic communication gadget with the intent to annoy that individual. Additionally, you used profanity and made threats against the person's safety, their property, and/or any members of their family
If you are found guilty of making annoying telephone calls, you could face the following punishments:
- A maximum sentence of six months in jail
- Maximum fines of one thousand dollars
- Both fines and time behind bars
Remember that a threat must involve the potential for bodily harm to the victim or his or her family.
Cyberstalking or the Act of Posting Harmful Content Online
The law against cyberstalking under the California Penal Code 653.2(a) makes it unlawful to "put someone else in genuine concern for his/her safety or even the security of the recipient's immediate family members" by utilizing a piece of electronic communication equipment to disclose "personal identifying material" accessible to another party for him or her to harm, threaten, or make inappropriate physical interaction with their victim.
This can include digital photos, electronic photographs "of a menacing type which is likely to inspire or cause an illegal act," and downloadable content. The prosecutor must establish the following elements beyond a shadow of a doubt to prosecute you under California Penal Code 653.2(a):
- You used an electronic communication gadget in a manner that reasonably caused another individual, or that individual's immediate members of the family, to be concerned for their safety. You provided a third entity with personally identifiable information on that individual for them to harm, threaten, or make inappropriate physical interactions with that individual. Finally, the other individual objected to the material being disclosed
The offense is related to the offense of stalking since cyberstalking might constitute a violation of a court order, enabling the prosecutors to bring both charges in the same proceeding. The following are possible punishments for cyberstalking convictions:
- An imprisonment sentence of up to 1 year in jail
- Maximum fines of one thousand dollars
- Both fines and time behind bars
Remember that the plaintiff must not have given consent for the disclosure of the identifying information.
When someone threatens another individual with an act that could lead to death or significant bodily harm, this constitutes a criminal threat under California Penal Code 422(a). The entire sentence should be interpreted as a threat, and it should be delivered either orally or in writing.
Finally, the threat should cause a plausible concern that the other individual or that individual's family will suffer harm. The threat should be delivered plainly and immediately. The offense is associated with stalking since making criminal threats could be included in stalking, allowing the prosecutors to accuse you with both counts in the same proceeding.
The prosecutor must establish the following elements beyond a shadow of a doubt to charge you under California Penal Code 422(a):
- You made threats to murder or inflict serious bodily harm on another individual or that person's members of the immediate family. You used verbal, written, or electronic communication means to make the threat. Your statement was meant to be interpreted as a threat, and because it was so plain, direct, and unconditional, it gave rise to considerable concerns that it might be implemented. The threat kept the victim in a state of constant worry, and eventually, that individual's fear was justified given the situation
Criminal Threats is prosecuted as a "wobbler'' under California criminal laws because, based on the particular circumstances of your situation, you could be charged with a Misdemeanor or a Felony. If you are found guilty of a felony, the following sentences could be imposed without further enhancement:
- A sentence that might last up to 3 years in California state prison
- Maximum fines of up to ten thousand dollars
- Both fines and jail time
Criminal Threats are penalized under the "Three Strikes" law. If you receive three "strikes" on your record, you must spend at least 25 years in California state prison.
Sending or Showing Dangerous Material to Seduce a Child
When someone "sends, or allows to be transmitted, shows, or proposes to share, or shows," material showing children engaging in sexual activity, they are "showing or distributing harmful materials to try seducing a child" according to California Penal Code 288.2(a)(1). The content should be "dangerous," be meant to stimulate the receiver or sender's sexual desires, and be conveyed to engage in sexual activity. Since some stalking incidents involve sending or showing harmful materials to children, the felony is seen to be related to the offense of stalking.
Sending or showing Harmful Matter To try and Seduce A Child is considered a "wobbler" according to California criminal laws because it can result in either a Misdemeanor or a Felony charge, based on the particular circumstances of your situation.
If you are found guilty of a Felony, in this case, the following sentences could be imposed without further enhancement:
- A maximum state prison sentence of five years
- Maximum fines of ten thousand dollars
- both fines and jail time
- Registration as a Sex Offender is mandatory
It should be noted that the representation of sexual activity or nudity does not inevitably render something harmful. Although the prosecution needs to show that you were aware of the nature of the content, it need not show that you were aware the materials fit the criterion of "harmful."
The following has to be proven beyond a shadow of a doubt for the prosecution to succeed in convicting you under California Penal Code 288.2(a)(1):
- You showed, emailed, distributed, or made available to a child any materials that showed at least a single child performing sexual activities. When you did that, you were aware of the type of the content and were aware, should have been aware, or should have suspected that the other party was a child. Your goal was to fulfill either your own or the other individual's sexual fantasies. And last, you meant to engage in sexual activity, engage in oral sex, sodomy, or have someone else touch a private area of your body
Find an Anaheim Criminal Defense Lawyer Near Me
Stalking is considered a serious felony in California. So, if you've been accused of stalking, you should hire a qualified criminal defense lawyer to safeguard your freedoms and rights. An experienced criminal defense attorney could be capable of having your charges lessened, negotiating a reduced charge, or possibly having your charges dismissed. If you're in Anaheim, CA, the California Criminal Lawyer Group is here to assist you. To receive a free evaluation of your case, contact us at 714-766-0965.