Stalking

What is Penal Code 646.9 PC Stalking?

Stalking is commonly seen in cases involving domestic violence. In fact, victims are more likely to be stalked by their spouses, boyfriends/girlfriends, or ex-partners than by a stranger. Although most victims of stalking are women, about 1/5 of victims of stalking are men. Because stalking is believed to lead to a range of violent behavior, the government of California has passed laws severely punishing stalkers. These laws are codified in Penal Code 646.9 PC. These laws are designed to prohibit one person from following/harassing and threatening another person with the goal of placing them or their family in fear of their safety.

Let’s examine the legal description of Penal Code 646.9 PC stalking so you can better understand your rights and liabilities.

Legal description of Penal Code 646.9 PC Stalking

In order to be convicted of a Penal Code 646.9 PC stalking violation, the prosecutor in your case must prove all the elements, or facts of the crime. For Penal Code 646.9 PC stalking, there are three elements that the prosecutor must prove. These facts are:

  • You willfully, maliciously, or repeatedly followed the alleged victim OR You willfully and maliciously harassed the supposed victim.
  • You made a credible threat against the supposed victim.
  • You acted with the intent of putting that person in reasonable fear of his or her own safety or the safety of their immediate family.

Note, if the supposed victim had a TRO (or temporary restraining order), injunction, or protective order against you, the district attorney must also prove that these legal equitable remedies were active at the time of your stalking conduct and specifically prohibited you from engaging in such stalking conduct.

Now, let’s examine the individual components of the elements of Penal Code 646.9 PC stalking so that you can get idea of whether or not your particular case fits the definition of the law.

Willfully: A conviction for Penal Code 646.9 PC stalking requires that the prosecutor prove you acted purposefully or willingly when you allegedly committed the stalking conduct. Keep in mind that this doesn’t mean there is a requirement that you intended to break the law. It only means that you must have acted purposefully when committing the acts that were considered to be stalking.

Example: Sheldon is angry that his girlfriend, Amy, spends her lunch breaks with a male co-worker. He decides to take a bus to her office every day and watch them eating lunch. He does this by hiding in the bushes and starring at them with binoculars. In this example, it is clear Sheldon is acting with purpose and/or willfully. For example, he acted intentionally by planning his bus route, or bringing binoculars, or even by moving into the bushes – to name just a few of his willful actions. Therefore, Sheldon could be held criminally liable under Penal Code 646.9 PC stalking. Remember, even though it is clear Sheldon meets the first element of Penal Code 646.9 PC stalking, the prosecutor must prove the other elements as well before Sheldon can be convicted of the crime.

Maliciously: To prove you acted maliciously under Penal Code 646.9 PC stalking, the prosecutor must show that you intended to anger, disturb, annoy, or injure the alleged victim. The main difference between acting maliciously and willfully is that the person acted with the intention of committing what they knew to be wrongful conduct.

Example: Using the example above, let us add in the fact that Sheldon is angry with his girlfriend, Amy, for spending her lunch breaks with a male co-worker because he believes she is putting herself in a dangerous situation. This male co-worker has a history of violence and once hit another person at the office. For this reason, Sheldon spies on her because he wants to make sure she is safe and so he can intervene if there are any problems. In this case, Sheldon’s actions are still considered willful. But they are not considered malicious because he was doing so with the intent or protecting her – not to commit a willful act. However, even though he has good intentions, Sheldon could still be liable under Penal Code 646.9 PC stalking because willfulness is enough to trigger criminal liability.

Harass: To “harass” under Penal Code 646.9 PC stalking means that that the defendant committed a “course of conduct” targeted at the alleged victim which annoyed, tormented, or terrorized them. A “course of conduct” is considered “harassment” only if it serves no legitimate purpose. To be considered a “course of conduct”, it must be shown that you committed two or more acts over a period of time, even if that time is short, which indicates a continuous purpose.

Example: Penny has two ex-boyfriends: Raj and Leonard. One night, after a night of drinking wine, Raj drunk dials Penny and tells her how much he misses her. A week later, Raj sends Penny an email demanding his collection of Harry Potter books he let her borrow when they were together. During this same period of time, Leonard calls, emails, and writes letters to Penny that all warn her that she better get back with him “for her own good.” In these scenarios, it could be argued that Raj did not act with a “course of conduct” or continuous purpose to harass Penny. His drunken phone call and Harry Potter email were unrelated and it could even be argued that his email had a legitimate purpose. Therefore, Raj is probably not liable under Penal Code 646.9 PC stalking. However, Leonard clearly committed a course of action to terrorize, or at the very least annoy, Penny. His actions could be considered “harassment” under Penal Code 646.9 PC stalking laws.

Credible Threat: The second element of Penal Code 646.9 PC stalking requires that, in addition to willful or malicious conduct, that you threatened the alleged victim in such a manner that the threat was credible. A threat is credible if it is one that leads a reasonable person to fear for their safety or the safety of their immediate family. This means that from the perspective of the alleged victim, when you made the threat, you had the apparently ability to carry it out. It does not matter whether or not you actually intended to carry out the threat. It only has to appear like you were able to carry out the threat. Under Penal Code 646.9 PC stalking, threats can be made verbally, in writing, through an electronic device (such as a telephone call, cell phone text, computer email, etc.), or in any method that aims to communicate the threat to the alleged victim. With this in mind, the fact that you may be incarcerated will not necessarily mean that you did not have the capability of carrying out a threat. This is a determination that will be made by the court and depends highly on the specific facts of your case. Also, if you meant the threat as a joke, then you are not liable under Penal Code 646.9 PC stalking laws. This is because the first element of Penal Code 646.9 PC stalking requires that you act willfully or maliciously. Lastly, if the threat was made in a private venue such as a personal diary, even if the intent to harm was real and serious, you cannot be convicted of a Penal Code 646.9 PC stalking violation. You cannot be convicted of a crime simply because you harbored ill feelings towards a person when you were not proactive about those feelings.

Example: Sam is fighting with his wife about their ever-growing credit card debt. After receiving their latest statement, he tells his wife that if she spends more money at the shopping mall, he will destroy her car with a nuclear bomb. The next month, after receiving another huge bill, he tells his wife that he will cut her throat, while holding a knife, if she goes over budget again. The first statement would probably not meet the second element of Penal Code 646.9 PC stalking. A reasonable person would not believe that their husband (unless their husband was the President of the United States) had the capability to attack them with a nuclear weapon. However, for the second statement, a reasonable person would be placed in fear if they were threatened with a knife – especially if one was wielded in front of them. Therefore, under Penal Code 646.9 PC stalking laws, the second statement would satisfy the second element requirement that there be a credible threat.

Penal Code 646.9 PC Stalking in a Domestic Violence Context

Penal Code 646.9 PC stalking applies to most stalking behavior. The law is not triggered just under domestic violence situations. However, most stalking does occur in a domestic violence context. For stalking to trigger California’s domestic violence laws, which trigger increased penalties and punishments, the stalking must be committed against an “intimate partner.” Under Penal Code 646.9 PC stalking, an intimate partner may include any of the following:

  • A fiancé
  • A current or former wife or husband
  • A cohabitating partner or former cohabitating partner
  • The mother or father of your child
  • A person you dated in the past or are currently dating

If convicted under Penal Code 646.9 PC stalking, what are the potential penalties?

Penal Code 646.9 PC stalking is classified as a wobbler in California. This means that the prosecutor has the discretion to charge you with either a felony or a misdemeanor. This decision is made based on the particular facts of your case and your individual criminal record. Still, there are some situations where Penal Code 646.9 PC stalking will be automatically charged as a felony.

Penal Code 646.9 PC stalking will be automatically charged as a felony if the stalking is committed in violation of an existing court protective order. This means that if you are convicted of violating Penal Code 646.9 PC stalking and this was done in violation of an existing restraining order or injunction, you will suffer the consequences of a California felony. Additionally, if you have been previously convicted of Penal Code 646.9 PC stalking, then any subsequent Penal Code 646.9 PC stalking offenses will automatically be charged as a felony. This is the case even if the victims are different on the different occasions. Barring either of these two situations, the prosecutor has the discretion to charge you with a misdemeanor instead of a felony.

It is important to note that whether you are convicted of a felony or a misdemeanor – California state officials are required to notify the victim at least 15 days before your release from prison or jail.

Penal Code 646.9 PC Stalking Penalties for a Misdemeanor

A misdemeanor conviction for Penal Code 646.9 PC stalking could lead to any or all of the following potential punishments: up to a maximum of one year in county jail, summary or informal probation, up to a maximum of $1,000 in fines, and/or mandatory counseling or commitment to a hospital that can treat you for mental illness. In addition to the potential punishments, the judge may subject you to a restraining order banning you from making any contact with the victim.

Penal Code 646.9 PC stalking Penalties for a Felony

If convicted of a Penal Code 646.9 PC stalking felony, then you could face any of the following potential punishments: anywhere between 16 months to 5 years in a California State prison, up to $1,000 in fines, formal probation, and/or mandatory counseling or commitment to a state hospital that treats mental health illnesses. The judge may also order an injunction, restraining order, or protective order that would prohibit you from having any contact with the victim. Furthermore, depending on the age of the victim and the circumstances of your case, you could also be subject to California’s sex offender registry laws dictated by Penal Code 290 PC. Lastly, once you are released from prison and if you are placed on parole, California’s Department of Corrections has the discretion of placing you on a more intense, specialized form of supervision program that could last the entire duration of your parole.

Penal Code 646.9 PC Stalking Aggravating Factors

California will increase the severity of your felony sentence if the circumstances of your crime meet certain “aggravating factors.” For Penal Code 646.9 PC stalking, some common aggravating factors include:

Great Bodily Harm: If in the course of your Penal Code 646.9 PC stalking violation, the victim suffers great bodily harm, then the judge could hand you anywhere from 3 to 5 years additional and consecutive time in state prison. Under Penal Code 646.9 PC stalking, great bodily harm occurs when the victim suffers significant physical injury due to your act of stalking.

Weapon Enhancement: If, during the course of your Penal Code 646.9 PC stalking violation, you were carrying a weapon, then the judge could sentence you to an additional consecutive 1 to 3 years in a California state prison. The determination of additional prison time is based on the type of weapon you were carrying during the commission of the Penal Code 646.9 PC stalking violation.

What are the legal defenses to a Penal Code 646.9 PC Stalking Charge?

The potential punishments for a Penal Code 646.9 PC stalking conviction can be harsh and life-changing. Fortunately, there are a variety of legal defenses to a Penal Code 646.9 PC stalking charge. A skilled and diligent criminal defense attorney, who is versed in California’s domestic violence laws and procedures, can review the specific circumstances of your case and design a strategy that utilizes all possible legal defenses so as to achieve the best possible outcome in your situation. The following are some of the legal defenses available to fight a Penal Code 646.9 PC stalking charge:

The Threat Made Against the Alleged Victim was Not Credible: As discussed above, a credible threat has to appear so to a reasonable person. This means that if the threat was ridiculous or grandiose, the threat was probably not credible. For that matter, if the threat could not be realistically carried out, the threat is not credible. If a reasonable person would not be placed in fear of their safety or the safety of their family, then it’s not credible. An experienced criminal defense attorney can build and utilize the evidentiary record to reflect that a threat was not credible. By doing so, they can make it very difficult for a prosecutor to prove the second element of Penal Code 646.9 PC stalking. If the prosecutor cannot prove any element, the court must drop the Penal Code 646.9 PC stalking charge.

You are falsely accused of stalking: It is not uncommon for an alleged victim to fabricate stalking charges. Given that stalking charges usually occur in emotionally charged situations, there are many reasons why this could happen. An angry former lover may be trying to get a leg up in a divorce proceeding or child custody hearing. Or a jealous ex-partner may be upset that you cheated or broke up with them and are now seeking a way to get revenge. Regardless of the reason, it is important to have an experienced criminal defense attorney, versed in domestic violence laws that can advocate on your behalf and bring the truth to light. They can do this by hiring a private investigator so that the judge and jury simply do not rely on the police and prosecutors’ version of events. Also, a savvy criminal defense attorney can review phone call records, interview witnesses, analyze handwriting samples, test DNA samples, etc. to help poke holes in the story of the alleged victim. By doing this, you can potentially be absolved of wrongful Penal Code 646.9 PC stalking charges.

Mistaken Identity: A former intimate partner may actually be stalked by another person and think you are the culprit. In this situation, a skilled criminal defense attorney can utilize many of the tools listed above to help build your alibi and bring the true culprit to light. The earlier you hire a criminal defense attorney, the more time a criminal defense attorney has to build the evidentiary record in your favor while leads are still available and memories are still fresh.

What to do if you are charged with Penal Code 646.9 PC Stalking?

Stalking is a serious offense. The earlier you call a domestic violence attorney, the better.

Feel free to call Domestic Violence Attorney anytime of the day or night at 424-276-6060. Domestic Violence Attorney will gladly review the specific circumstances of your case and provide you with a free legal consultation.

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