California has some of the most comprehensive and strict stalking laws in the United States. Stalking is a severe issue in domestic violence cases, the California Penal Code 646.9 outlines the crime of stalking. Under this statute, it is a crime to follow, harass, or threaten another person to the level they fear for their safety. You could face misdemeanor or felony charges under PC 646.9 depending on the facts of the case, including your criminal history and location. You could also face the charges based on whether or not your actions are a violation of a restraining order.
If you are under investigation or if you have been charged with stalking, you need to contact a criminal defense attorney immediately. The Pasadena Criminal Attorney has successfully defended many clients against stalking charges. With our vast knowledge and experience, we will help you build a strong defense and provide aggressive legal representation.
Stalking Under California Law
Because of the rise in internet use due to the current technological advancement, stalking offenses are much more common in California. Typically, the criminal offenses of stalking are related to domestic violence, but not in every case. However, there are certain elements that the prosecutor must prove if he/she accuses you of stalking. Some of the elements include:
- You willfully and maliciously harassed or followed someone else
- You made credible threats against someone else either verbally, with electronic devices, or by writing
- You made credible threats with the specific intent to place the victim in reasonable fear for their safety or the safety of their immediate family
According to PC 646.9, you would commit an act willfully if you do it on purpose or willingly. Your actions will also be malicious if you intentionally do a wrongful act or act with the illegal intent to injure, disturb, or annoy another person. Harassing involves engaging in a willful and knowing course of conduct directed at a specific individual that seriously torments, annoys, terrorizes, or alarms. The course of conduct refers to two or more acts happening for some time, showing a specific motive.
A credible threat under PC 646.9 makes the victim reasonably fear for their safety. A credible threat also shows that the defendant can execute it. You could make a credible threat electronically, orally, or in writing. A credible threat could also be implied by a combination of statements and a pattern of conduct.
The court will decide whether you intended to subject the alleged victim to a reasonable fear. The court will determine this motive by analyzing the circumstances and facts of the case. Under California law, threats made with the intent to elicit fear are true threats. True threats do not include constitutionally protected speech, political statements, and jokes.
According to California PC 646.9, the victim’s immediate family could be any person who lives in their household; spouse, child, brothers, sisters, grandchildren, grandparents, or other persons related to the victim by marriage or blood.
You would not be guilty of stalking if you engage in a constitutionally protected activity. For instance, you could be innocent of violating PC 646.9 if you participated in an assembly, exercised free speech, or legally protested.
Penalties For PC 646.9 Violations
You could face two typical punishments if you commit a stalking offense in California. The two punishments include:
- Criminal penalties
- Civil penalties
Criminal Penalties
If the court convicts you of stalking, you would be subject to a sentence. It is a wobbler crime in California to violate PC 646.9. You could therefore face misdemeanor or felony charges. If the court charges you with a misdemeanor, you could face the following penalties:
- A fine that does not exceed $1,000
- Misdemeanor or summary probation
- A jail term that does not exceed one year in a county jail
If the court charges you with a felony, you could face the following penalties:
- A fine that does not exceed $1,000
- Felony or formal probation
- A jail term that does not exceed five years in a state prison
Additionally, an offense of stalking will be an automatic felony if the following facts apply:
- You had a previous stalking conviction even if the alleged victim in the current case is not the same individual you previously stalked
- Your stalking was violating a court-issued protective order
Civil Penalties
You could face charges in a civil court if the alleged victim sues you for damages related to the stalking. However, the plaintiff must prove the following to get damages for stalking in a civil court proceeding:
- You violated a restraining order issued by the court
- You engaged in a pattern of conduct that was intended to alarm, harass, or follow the alleged victim. However, the victim requires independent evidence besides their testimony to show this.
- The victim reasonably feared for their safety or the safety of an immediate family member due to your conduct.
If the court convicts you of stalking, you could face negative immigration consequences. The immigration law in the United States outlines that some criminal convictions could lead to the deportation of a non-citizen. In addition, some convictions could also make you inadmissible in the U.S if you are a non-citizen. The major categories of inadmissible or deportable offenses include:
- Firearms offenses
- Controlled substances offenses
- Domestic violence crimes
- Crimes of moral turpitude
- Aggravated felonies
A felony stalking charge could rise to the level of an aggravated felony depending on the facts of a case. It will have detrimental immigrations effects if it does.
If the court charges you with felony stalking in California, your gun rights could be affected. Some of the individuals that are prohibited from possessing or acquiring a gun in California include:
- People under 18 years and people below 21 years
- People with two or more convictions of brandishing a weapon under PC 417 of California law
- Any person charged with any felony crime in any jurisdiction
- People suffering from mental illness
- Narcotic addicts
- Individuals charged with certain misdemeanor crimes such as corporal injury on a spouse outlined by PC 273.5
On the other hand, if you are convicted of stalking, you could seek to get your charges expunged. According to PC 1203.4, an expungement could release you from virtually all disabilities and penalties arising out of the charges. The importance of an expunged conviction is that you do not require to let your potential employers know about it. As a basic rule under California law, PC 1203.4 authorizes an expungement for a felony, or misdemeanor crime, provided the defendant meets the following:
- Is not currently facing charges or a conviction with a criminal offense
- Is not serving a sentence for a crime
- Is not on probation for any criminal offense
Therefore, you could attempt to get your crime expunged if you complete probation or serve a jail term.
Potential Legal Defenses To PC 646.9 Charges
Often, you could beat stalking charges in California with a successful legal defense. A competent criminal defense attorney could work to get your charges dismissed or even reduced to a minor offense. Some of the defenses you could use to fight stalking charges could include:
You Were Engaged In A Constitutionally Protected Activity
Under PC 646.9 of the California law, you would be innocent of stalking if you engage in a constitutionally protected activity like legal protesting. If you behaved in a particular manner while engaging in legal protesting, you could use the fact as a legal defense.
You Did Not Make A Credible Threat
According to PC 646.9, you could only be guilty of stalking if you make credible threats to someone else. Therefore, it is upon you to prove that when you made the threat, it was not credible or serious. For instance, you could have threatened another person jokingly.
No Intent To Cause Fear
You could allege that your threat was not meant to cause fear to the alleged victim when you made the threat. You could have made a repeated threat, for instance, to amuse the victim.
Crimes Related To Stalking
Often, there are other crimes charged along with stalking in California. The related offenses include:
Kidnapping — Penal Code 207
The crime of kidnapping is defined under PC 207 of the California law as moving someone else for a substantial distance without their consent, using fear or force. The elements that the prosecutor must prove to charge you with kidnapping include:
Moving Someone A Substantial Distance
You must move someone for more than a trivial or slight distance for it to qualify as kidnapping under California law. Several factors would determine whether the movement is substantial. Some of the determining factors would include:
- Whether the move reduced the likelihood of the victim being found
- Whether the movement enhanced the chances of the victim getting hurt — for instance, moving the victim from the light in a club to a dark alley
- The actual distance that you moved the victim
The instances involving a slight movement that the court considers substantial and could lead to kidnapping charges include:
- If you order someone at knifepoint to move 40 to 50 feet from his driveway on the street to the inside of a camper in the driveway behind their house
- If you move someone 29 feet from the outside of a motel room door into the bathroom to rape her
However, no set distance under California law qualifies as substantial. The jury or the judges have the final say on whether or not the movement is significant to justify a conviction.
Without The Consent Of The Victim
This element means that the plaintiff put up a fight or protested before you could move them. It also means the victim did not agree voluntarily to go with you. For instance, people who are mentally incapacitated or children do not give legal consent.
Moving The Victim Using Fear, Force, or Fraud
You must have used fraud, threats, force, or sometimes violence to face kidnapping charges. Under California's simple kidnapping laws, it is also unlawful to move another person without their consent, using fear or force. Using fear or force refers to inflicting physical force on someone or threatening to cause imminent physical harm to them. The acts that involve physical force to accomplish a kidnapping include:
- Beating another person to the level that he/she cannot resist
- Physically restraining another person to move them
- Physically dragging another person to a specified location
The acts that involve the use of fear to accomplish a kidnapping include:
- Threats to hurt someone's immediate family if they do not comply with your demand
- Demanding that a victim comply while you hold them at knifepoint or gunpoint
- Threats to abuse someone else sexually or physically if they do not comply with your demands
Moving another person fraudulently does not constitute general kidnapping. Accomplishing kidnapping fraudulently happens under several aggravated circumstances. These circumstances include:
- Fraudulently kidnapping someone in another state and bringing them into your state
- Fraudulently kidnapping a child below 14 years to commit lewd acts with them in violation of PC 288
- Fraudulently kidnapping someone to leave their state to sell them into slavery or involuntary servitude.
Generally, fraud refers to any deliberate deception done to secure personal gain. For example, if you mislead or make false promises to someone and your fraudulent actions convince them, you obtained the consent fraudulently. Fraudulent consent amounts to no consent. Under California law, someone could only consent freely to something if he/she is aware of what that consent is for.
Penalties For Kidnapping
You could face lengthy prison sentences or life imprisonment if the court convicts you of kidnapping. Kidnapping under California law is considered a continuing crime. This is because so long as you detain someone, the crime continues. The prosecutor could only convict and punish you for one instance of kidnapping if you move the alleged victim from one place to another. Kidnapping penalties vary a bit depending on the circumstances of the crime. If the court finds you guilty of simple kidnapping, you could face felony charges, which are punishable by:
- A maximum fine of $10,000
- A jail term of three, five, or eight years in the California prison
You could face the following penalties if you are charged with aggravated kidnapping:
- A jail term of five, eight, or eleven years in state prison if the victim was below 14 years at the time of the crime
- A jail term for life in the state prison with parole if you kidnap someone for a reward or ransom
Under California law, aggravated and simple kidnapping amount to violent and serious felonies. If the court convicts you for violating California kidnapping law, it counts as a strike under California's Three Strikes Law. If you have a prior strike on your record and are subsequently charged with any felony, you would be a second striker. Therefore, you could face a sentence twice the term otherwise required by law. If you have two prior strikes and the court changes you with a third felony, you would be a third striker. Therefore, you could serve a compulsory jail term of 25 years to life in the state prison.
Defenses To Kidnapping Charges
- Parents’ rights to travel with their children
- You were merely present, not the kidnapper
- False accusations or insufficient evidence
- Voluntary consent to be moved
- An insufficient movement to qualify as kidnapping
Criminal Threats — Penal Code 422
The California PC 422 defines the offense of criminal threats. This statute is different from stalking because it focuses more on the nature of the threat. Under this statute, you could exhibit a criminal threat if you threaten to harm or kill another person. If the prosecutor accuses you of criminal threats, he/she must prove the following elements:
- You willfully threatened to cause significant bodily injury or illegally kill another person.
- You made the threat by an electronic device, writing, or orally
- You intended to make your statement understood as a threat and intended the message to reach the victim
- Your threat was specific, immediate, and unconditional, given that it communicated an intention that you would carry out the threat. Your threat made the victim fear for their safety or the safety of their immediate family.
- The victim exhibited reasonable fear under the circumstances
Penalties For Violating PC 422
It is a wobbler crime in California if the court finds you guilty of violating PC 422. You could face misdemeanor or felony charges depending on your criminal history and the circumstances of the offense. If the court charges you with a misdemeanor, you could face the following penalties:
- A fine that does not exceed $1,000
- A jail term that does not exceed one year in a county jail
If the court charges you with a felony, you could face the following penalties:
- A fine that does not exceed $10,000
- A jail term that does not exceed three years in a California state prison
If you use a dangerous or deadly weapon to make your threats known, you could face an enhanced and consecutive year in state prison. In addition, if you frequently threaten or against many people, or according to different objectives, the court could punish you with the above penalties for each threat you make.
The conviction of felony criminal threats is a strike according to Three Strikes Law in California. If you have a prior strike on your record and are subsequently charged with any felony, you would be termed a second striker. As a result, you would face a sentence twice the term otherwise required by law.
It is also worth noting that since PC 422 is a strike, a defendant must serve at least 85% of their jail term before qualifying for release on parole.
Annoying Phone Calls — Penal Code 653(m)
It is an offense under PC 653 m in California to:
- Make a call that is threatening, repeated in nature, or obscene
- Make a call that intends to annoy or harass someone you are calling
If the prosecutor accuses you of making annoying phone calls, he/she must prove the following elements:
- You made a phone call using an electronic communication device
- You intended to annoy or harass another person
- You made repeated calls, made threats, and used obscene language
Penalties For Violating PC 653(m)
It is a misdemeanor crime in California to make annoying calls. You could face the following penalties if the court finds you guilty of this crime:
- A fine that does not exceed $1,000
- A jail term that does not exceed six months in a county jail
At times, if the court finds you guilty of annoying phone calls, you could face misdemeanor probation or receive a suspended sentence. In addition, the judge could order you to participate in counseling as a probation condition if this happens.
Defenses For Fighting PC 653 m Charges
- Insanity defenses
- No intent to harass or annoy
- You did not use obscene language
Why You Should Hire An Attorney
You should not try to fight stalking charges without the help of an experienced attorney, even if you believe that you are innocent. During the trial, the prosecutor will do everything possible to present evidence against you to prove that you are guilty. Below are some of the benefits you will reap from working with an experienced attorney:
- An attorney will investigate your case and gather ample evidence to fight your charges
- An attorney will face the prosecutor on your behalf and also be with you during trial
- Since your attorney has probably handled numerous stalking cases before, they will understand the best strategies to fight your charges
- An attorney will protect your rights and ensure that the prosecutor does not take advantage of your
- Negotiate for the best outcome of your case, including a plea bargain
Find Pasadena Criminal Attorney Near Me
Stalking charges are severe, and they need aggressive and effective representation. If you are under investigation for stalking or convicted of stalking, you need an attorney to walk with you. Your best course of action is to call the criminal defense attorney regardless of the specific circumstances leading to stalking charges. Pasadena Criminal Attorney believes that taking a proactive approach could mean the difference between no charges being filed and facing misdemeanor or felony charges. Our firm will thoroughly review all the details and begin investigating and constructing an effective defense strategy on your behalf. Contact us at 626-689-2277 and talk to one of our attorneys.
