An Overview of Californias Stalking Laws:

Californias stalking laws are most commonly associated with celebrity stalking cases. The fact, however, is that celebrity stalkers make up only a small percentage of all criminal stalking cases. The crime is frequently seen in connection with California domestic violence cases, cyberstalking, and workplace stalking. That said, celebrity stalking is what prompted the California Legislature to enact anti-stalking laws back in 1990. Legislators passed these laws...and one prohibiting the DMV from releasing addresses to the public...in response to two incidents. The first was the repeated stabbing of actress Theresa Saldana. The second was the murder of actress Rebecca Schaeffer. In both cases, the defendants were obsessed fans who stalked the actresses. As a result of these cases, California enacted Penal Code 646.9 in 1990.2 When this law passed, a first-offense stalking charge was always a misdemeanor and there were no automatic felonies. Under the 1990 legislation, if 1. the perpetrator stalked another person in violation of a court-issued protective order, or 2. was convicted of stalking the same alleged victim within a seven-year period and used violence or made a credible threat involving violence, Prosecutors could charge the defendant with a misdemeanor or a felony. Under the 1990 law, some of the other prerequisites to a stalking prosecution included:

placing the alleged victim in fear for his/her personal safety, harassing the alleged victim to the point where he/she actually suffered emotional distress, and that the prohibited "course of conduct" was a series of acts that evidenced a pattern of stalking.3

Changes in California stalking law Since the initial draft of Penal Code 646.9 PC, California stalking law has evolved into a much more serious offense. A first-time stalking offense is no longer an automatic misdemeanor. Depending on the facts of the case, prosecutors may opt to file either misdemeanor or felony charges.4 This is whats known as a "wobbler". Stalking in violation of a protective order has risen from a wobbler to an automatic felony and the prison sentence increased from 16 months or two or three years to a two to four year sentence.5 Similarly, the Legislature deleted the requirements that a second stalking offense had to be 1

1. against the same person, 2. within a seven year period, and 3. accompanied by violence. It, too, is now an automatic felony to commit a second stalking offense...punishable by two, three, or five years in prison...regardless of the circumstances.6 And, on that note, the law has changed to allow for an increased penalty for a stalking conviction if the defendant also has a prior conviction for

Penal Code 273.5 corporal injury on a spouse/mate7, Penal Code 273.6 violating a protective order8, or Penal Code 422 criminal threats9. The final major differences are

1. that "harassment" no longer requires that the alleged victim suffer "emotional distress" as a result of the stalking10, 2. that the alleged victims fear can be for him/herself or for his/her immediate family11, and 3. that the "course of conduct" has been reduced to only two incidents12. As of now... Californias current anti-stalking laws prohibit 1. following or harassing another person, and 2. threatening that person, with the intent of 3. placing him/her in fear for his/her safety or in fear for the safety of his/her immediate family.13 If you engage in any of these activities under any of the above circumstances...or, for that matter, under any circumstances...prosecutors could charge you with stalking under California Penal Code 646.9 PC. How Do Prosecutors Prove that I Am Guilty of Penal Code 646.9 PC Stalking? In order to prove that you are guilty of stalking under Penal Code 646.9 PC, the prosecutor must prove the following three facts (otherwise known as "elements of the crime"):

1. that you willfully, maliciously, and repeatedly followed; or willfully and maliciously harassed another person, 2. that you made a credible threat against that person, and 3. that you did so with the specific intent to place that individual in reasonable fear for his/her safety or for the safety of his/her immediate family.14 If the alleged victim claims to have had a temporary restraining order, injunction, or other court protective order against you, the prosecutor must additionally prove 4. that a protective order against you was in effect at the time of your alleged illegal conduct, prohibiting you from engaging in such conduct.15 Lets flush out some of these terms to better understand their meaning with respect to California stalking laws. Willfully Willfully means with a purpose or willingness to commit the act. It isnt necessary that you intend to break the law.16 Example: Tim willfully repeatedly follows his ex-girlfriend, believing he is protecting her. His act is willful, even if he doesnt realize that his behavior may qualify as illegal stalking. Knowingly Knowingly means with knowledge of the existence of the facts in question. It isnt necessary that you know that the act is illegal.17 "Knowingly" is very similar to "willfully"...if you are aware of your actions, you will be held legally responsible for those actions...even if you dont know that you are acting unlawfully. Maliciously Maliciously means to intentionally commit a wrongful act or to intentionally anger, disturb, annoy, or injure another person in an unlawful manner.18 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.19 A "course of conduct" means two or more acts occurring over a period of time...however short...that demonstrates a continuous purpose.20 Example: Annoying repeated calls from a solicitor will not qualify as harassment. Charities seeking donations have legitimate business calling potential donors. However, repeated calls from an "admirer" telling you "if he cant have you no one else will" does 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", you must have the apparent ability to carry out the threat...even if you dont actually intend to do so.21 A credible threat may be made 1. verbally, 2. in writing, 3. through the means of an electronic communication device ("electronic communication" devices include, but are not limited to, telephones, cell phones, pagers, text messages, fax machines, and e-mails22), OR 4. in any other manner that communicates the threat to the intended target. Example: If Bob, a waiter, tells one of his co-workers that "unless you go on a date with me, I'm going to have the President of the United States arrest you," that would not qualify as a credible threat. Bob has no apparent ability to make good on the threat. If, however, Bob tells his co-worker that "unless you go on a date with me, I'm going to make your life miserable," that would be a credible threat. Even though the threat is somewhat vague, Bob intends to place the coworker in fear and he appears capable of executing the threat.

Examples of California Penal Code 646.9 PC Stalking

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

following someone (including having frequent "coincidental" contacts), making repeated phone calls or sending numerous letters (if the contact is via the Internet...in the form of e-mails, for example...this is whats referred to as cyberstalking23), gathering an inordinate amount of information about an individual (accessing public records, speaking to friends, co-workers, running on-line searches, in an effort to find out likes/dislikes, what locations the individual frequents, etc.),

repeatedly sending unwanted gifts or notes (These can be any type of gifts. For example, sending a "living" flower arrangement may be just as criminal as sending "dead" flowers if the gifts are unwanted), 4

repeatedly driving by the persons home or office, damaging the other persons 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 persons property intending to engage in a criminal act). Incidentally, trespassing24 or burglarizing25 the individuals 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 fianc or fiance, your current or former spouse, someone with whom you live, the parent of your child, or anyone you are or were dating,

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

Penalties, Punishment, and Sentencing for California Stalking

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

Stalking another person in violation of a court-issued protective order, or stalking another person after you have previously been convicted of stalking (even if the alleged victim is not the same person)

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

Informal probation (otherwise known as summary probation), 5

up to one year in a county jail, a maximum $1,000 fine, counseling, and/or possible confinement in a state-run hospital that treats mental illness, and a restraining order prohibiting any contact with the alleged victim.28

Felony California stalking penalties

Formal probation, sixteen months to five years in the California State Prison, a maximum $1,000 fine counseling and/or possible confinement in a state-run hospital that treats mental illness, a restraining order prohibiting any contact with the alleged victim, and possible lifetime registration as a sex offender under Penal Code 290 PC.
29

In addition, if you are released on parole following a felony stalking conviction, the Department of Corrections may place you on an "intensive and specialized" parole supervision program for the duration of your parole. Aggravating factors It should also be noted that "aggravating factors" may increase your felony prison sentence. Aggravating factors that are common to California stalking charges include (but are not limited to):

causing the alleged victim "great bodily injury or harm" (if you inflict great bodily harm...which is a significant or substantial physical injury...you could receive an additional and consecutive three to five years in the state prison30), and being armed at the time of the offense (if you have a weapon at the time you are accused of stalking, you face an additional and consecutive one to three years in the state prison, depending on the type of weapon possessed31).

California civil stalking penalties

In addition to criminal penalties, you may also face penalties if you are found civilly liable for stalking. Civil stalking penalties include civil protective orders and fines. You do not face any additional incarceration or probation for a civil offense. In order to prevail in a civil lawsuit alleging stalking, the alleged victim must prove that he/she unequivocally asked you to stop your alleged "stalking behavior"...unless you were already under court order to do so.

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

As previously stated, if you are convicted of Penal Code 646.9 felony stalking, the judge may order you to register as a sex offender pursuant to Penal Code 290 PC. Even though California stalking isnt a crime that automatically subjects you to sex offender registration, it is one in which the judge can exercise discretion. If the judge finds that you stalked the alleged victim "as a result of sexual compulsion or for sexual gratification", he/she can order you to register. And it should be noted that failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, which subjects you to additional criminal penalties.32

How Do I Fight a Stalking Charge?

Fortunately, there are a variety of defenses that a skilled California criminal defense attorney can present and argue on your behalf. The following is an example of some of the most common defenses to California staking charges: The alleged threat wasnt 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 cant be convicted of stalking. It should be noted that the fact that you are incarcerated at the time you allegedly threaten another person, does not necessarily mean that the threat is incapable of being carried out. As such, incarceration will not necessarily serve as a defense to a stalking threat.33 Similarly, if your alleged threat was meant as a joke (and you didnt therefore intend for anyone to take it seriously or fear for their safety), you arent guilty of this offense. And even if you did harbor an intent to harm another person or place that person in fear...but you kept those feelings to yourself (perhaps wrote them in a private journal)...you must be acquitted of stalking. Privately recording your feelings is not equivalent to threatening another person actively. You were participating in constitutionally protected activity 7

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 Californias anti-stalking laws.34 Labor picketing is an example of a constitutionally protected activity that will exempt you from the harassment element of a stalking charge. Mistaken identity Perhaps you had a bad break-up with someone who is actually being stalked by someone else. Your "ex" simply assumes you are the one who is doing the stalking. This is just one example of how mistaken identity could help acquit you of a stalking charge. False accusations Sometimes you may face false stalking charges based on mistaken identity. Other times you may face false stalking charges based on false accusations. This is why it is so important to consult with a criminal defense lawyer who has mastered California stalking laws. A California stalking defense lawyer knows how critical it is to work with a private investigator who will thoroughly examine any physical evidence. These investigators and other stalking "experts" will

listen to audio recordings, analyze handwriting samples, test for DNA samples on a licked envelope, for example, and view any video recordings

in an effort to prove that you are not guilty of stalking. As San Bernardino criminal defense attorney Robert Little explains35, "Stalking charges can arise out of volatile, highly charged emotional situations. Especially in domestic violence stalking cases, one partner may do whatever it takes to gain control over the other...even if it means falsely accusing the other of stalking. My team of experts and I wont stop until we defend you against these wrongful charges and prove your innocence". 8

California Stalking Laws and Related Offenses

In addition to Penal Code 602 trespass, Penal Code 459 burglary, and Californias domestic violence laws, there are a number of other offenses that frequently arise in connection with California stalking charges. Some of these include, but are not limited to: Kidnapping Defined in Penal Code 207 PC, California kidnapping laws prohibit "taking, holding, or detaining" an individual by means of force or fear.36 If, for example, if someone believes that his letters or other communication efforts are being ignored, he may try to "kidnap" the targeted person

1. to get that individuals 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 may be charged with kidnapping and stalking. Criminal threats Defined in Penal Code 422 PC, California "criminal threats" law prohibits threats that are intended to place their recipient in fear of immediate harm.37 If your threats are targeted at the same individual...and you make them on more than one occasion...prosecutors could charge you with California stalking and criminal threats. Harmful matter sent to a child Penal Code 288.2 "harmful matter sent with the intent of seducing a minor" prohibits sending or e-mailing "obscene" or "erotic" literature or materials to a minor with the intent of sexually arousing yourself or the recipient.38 This means that if you repeatedly call, e-mail, or send such materials to a minor, prosecutors could charge you with violating Penal Code 288.2 as well as Californias stalking laws.

Legal References:
9

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

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.") 3 See same.
4

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 10

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.")
5

See same. ("(2) Existing law makes the above offense [that is, California stalking] a misdemeanor or a felony where it violates a temporary restraining order or an injunction, or both, in effect prohibiting the same behavior against the same party. This bill, instead, would make a violation when there is a temporary restraining order, as specified, a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years.")
6

See same. ("(3) Existing law makes a 2nd or subsequent conviction under (1) above [California stalking] occurring within 7 years of a prior conviction against the same victim and involving an act of violence or a credible threat of violence, as defined, a misdemeanor or a felony. This bill would delete this provision. Existing law makes a person convicted of a felony under (1) above who commits a 2nd or subsequent violation of that provision against the same victim and involving an act of violence or a "credible threat" of violence, as defined, guilty of a felony, punishable by imprisonment in the state prison for 16 months or 2 or 3 years. This bill would delete the requirements that this offense [that is, Penal Code 646.9 PC stalking] be against the same victim and involve an act of violence or a credible threat of violence. This bill also, instead, would make a violation under this provision, punishable by imprisonment in the state prison for 2, 3, or 4 years.") See also California Assembly Bill 2425, passed 2000. ("(1) Under existing law, a person who willfully, maliciously, and repeatedly follows or harasses another person and makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of either a misdemeanor or a felony [for California Penal Code 646.9 stalking]. A person who commits that offense when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior proscribed by that offense against the same party is guilty of a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years. A person who is convicted a 2nd or subsequent time of violating either of these 2 offenses is punishable by imprisonment in the state prison for 2, 3, or 4 years. This bill would increase the punishment for a 2nd violation of the first offense described above by imprisonment in the state prison for 2, 3, or 5 years.")
7

California Penal Code 273.5 Corporal injury on a spouse/mate. ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.") 8 California Penal Code 273.6 Violation of a protective order. ("(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, 11

or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.")
9

California Penal Code 422 Criminal threats. ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.") See also California Assembly Bill 2425, passed 2000. ("(1) Under existing law, a person who willfully, maliciously, and repeatedly follows or harasses another person and makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of either a misdemeanor or a felony [for California Penal Code 646.9 stalking]. A person who commits that offense when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior proscribed by that offense against the same party is guilty of a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years. A person who is convicted a 2nd or subsequent time of violating either of these 2 offenses is punishable by imprisonment in the state prison for 2, 3, or 4 years. This bill would increase the punishment for a 2nd violation of the first offense described above by imprisonment in the state prison for 2, 3, or 5 years. This bill would also increase the penalty for anyone who is convicted of the first offense described above after having previously been convicted of specified offenses; including the willful infliction of corporal injury, the intentional and knowing violation of a court order, as specified, or making a threat to commit a crime as specified, to imprisonment in a county jail for not more than one year, or by a fine of $1,000, or by both that fine and imprisonment, or by imprisonment in the state prison for 2, 3, or 5 years.")
10

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

12

11

California Senate Bill 1342, passed in 1992. ("(1) Under existing law, it is a misdemeanor or a felony punishable, as specified, for any person to commit the crime of stalking, described as willfully, maliciously, and repeatedly following or harassing, as defined, another person and making a credible threat, as defined, with the intent to place that person in reasonable fear of death or great bodily injury. A "credible threat" is defined to mean a threat made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety. This bill would redefine a "credible threat" to include placing the person in reasonable fear of the death of, or great bodily injury to, the person's immediate family.") 12 See endnote 10, above. ("The bill would redefine course of conduct to mean 2 or more acts...")
13

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

14

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].") 15 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.")
16

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.")
17

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.]") 18 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.") 19 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

13

specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.")
20

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 Californias anti-stalking laws.
21

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 Californias anti-stalking laws.
22

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.")
23

California "cyber stalking" was added to California stalking law Penal Code 646.9 in 1998 via California Senate Bill 1796.
24

California Penal Code 602 PC Trespassing. In its simplest form, "trespassing" takes place when you enter someone elses property without permission or a right to do so. Its an illegal intrusion that interferes with the rights of another person or property.
25

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).
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 14

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 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 Californias 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 Californias 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.")
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See endnote 26, above. See also California Penal Code 646.9 PC Stalking. ("(j) If probation is granted, or the execution or imposition of a sentence is suspended, for any person convicted under this section, it shall be a condition of probation that the person participate in counseling, as designated by the court. However, the court, upon a showing 15

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 whats 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.")
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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.
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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 16

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.")
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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.
33

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 Californias stalking law was added in the Assembly Bill 3730 1994 amendment. 34 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."")
35

San Bernardino stalking attorney Robert Little uses his former inside experience as a San Bernardino District Attorney to defend those accused of California criminal charges, including stalking, in the San Gabriel Valley and Inland Empire.
36

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.")
37

California Penal Code 422 Criminal threats (formerly known as "terrorist threats"). See endnote 9, above.
38

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 17

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.

1. What Is Stalking?

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Stalking refers to harassing or threatening behavior that is engaged in repeatedly. Such harassment can be either physical stalking or cyberstalking. Physical stalking is following someone, appearing at a persons home or place of business, making harassing phone calls, leaving written messages or objects, or vandalizing ones property. Cyberstalking involves using the Internet or other electronic means to harass. A January 2009 U.S. Department of Justice report found that 23% of stalking victims suffered some form of cyberstalking, and 6% suffered electronic monitoring such as spyware, bugging or video surveillance. (Bureau of Stalking Statistics,Stalking Victimization in the United States)

Either type of action may or may not be accompanied by a credible threat of serious harm. But both types can cause psychological damage, and each can potentially lead to an assault or even murder. All states have anti-stalking laws, but the legal definitions vary. Some state laws require that the perpetrator, to qualify as a stalker, make a credible threat of violence against the victim. Others require only that the stalkers conduct constitute an implied threat. The National Institute of Justice's Model Anti-Stalking Code doesnt require stalkers to make a credible threat, but it does require victims to feel a high level of fear. 2. Who Is Affected? In January 2009, the Bureau of Justice Statistics released a Special Report based on a supplement to the National Crime Victimization Survey. 65,270 individuals participated in the 2006 Supplemental Victims Survey (SVS), from which the statistics below were derived.
SVS found that, within a 12-month period, approximately 3.4 million U.S. adults were victims of stalking. Of these victims:

11% of victims were stalked for 5 years or more Approximately 25% experienced some form of cyberstalking such as email or instant messaging 66.2% of stalking victims experienced unwanted phone calls or messages Nearly 75% of stalking victims knew their stalkers in some way

During the 12-month survey period, 14 of every 1,000 adults were victims of stalking. Young adults are the primary targets of stalking; most victims are less than 35 years old. Women are more likely to be the victims of stalking, though stalking incidents are reported to the police by men as often as by women.
Most victims know their stalker. Slightly more than 30% of stalking offenders are a known, intimate partner - a current or former spouse, a co-habiting partner, or a date. Approximately 45% of stalking offenders are acquaintances other than intimate partners. Just under 10% of all stalkers are strangers. In approximately 15% of stalking cases, the victim does not know the identity of the stalker and thus cannot report whether he or she might be an intimate partner, acquaintance or stranger.

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Individuals who are divorced or separated are at the greatest risk (3.4%) for stalking. Financial toll. A stalking victim may need to take time from work to change a phone number, move, replace damaged property, obtain a restraining order or testify in court. Of the 79% of stalking victims who were employed during the 12 months preceding the SVC interview, 1 in 8 lost time from work. 130,000 victims reported that they had been fired from or had been asked to leave their jobs because of stalking. About 16% of victims reported property damage in conjunction with stalking.
Stalkers may also commit identity theft against victims including opening or closing accounts, taking money from accounts, or charging purchases to a victims credit card. Learn more about preventing identity theft by reading PRC Fact Sheet 17: Coping with Identity Theft.

3. Cyberstalking In recent years stalkers have seized on the anonymity of the Internet to commit their crimes. This has added a new dimension because many victims of cyberstalking dont know the identity of the stalkers. That can make the fear more palpable and prosecution more unlikely. It is difficult to define cyberstalking because it can appear in so many forms. As technology evolves, so does the practice of cyberstalking. A web-savvy stalker can wreak havoc on the online life of a victim. This can be incredibly damaging, particularly as more people use the Internet to pay bills, make friends, date, work, share ideas and find jobs. Some examples of tactics a cyberstalker may use include: Sending manipulative, threatening, lewd or harassing emails from an assortment of email accounts. Hacking into a victims online accounts (such as banking or email) and changing the victims settings and passwords. Creating false online accounts on social networking and dating sites, impersonating the victim or attempting to establish contact with the victim by using a false persona. Posting messages to online bulletin boards and discussion groups with the victims personal information, such as home address, phone number or Social Security number. Posts may also be lewd or controversial and result in the victim receiving numerous emails, calls or visits from people who read the post online. Signing up for numerous online mailing lists and services using a victims name and email address.

Cyberstalking is difficult to combat because the stalker could be in another state or sitting three cubicles away from the victim. In the anonymous world of the Internet, it is difficult to verify a stalkers identity, collect the necessary evidence for an arrest and then trace the cyberstalker to a physical location. For a list of state cyberstalking laws, see the National Conference of State Legislatures State Electronic Harassment or "Cyberstalking" Laws .

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If you are a victim of cyberstalking, try to gather as much physical evidence as possible and document each contact. For more information and tips, visit the National Center for Victims of Crimes webpage: If You Are a Victim of Cyberstalking. The fact that cyberstalking doesnt involve physical contact doesnt mean it is any less dangerous than real life stalking. Its not difficult for an experienced Internet user to find enough of the victims personal information, such as phone number or place of business, to establish his or her physical location. Social networking, through websites such as Facebook, Twitter, MySpace, Meetup and LinkedIn, present security issues for victims of stalking. A profile on a social network might include information such as your email address, phone number, general (or even specific) address information, birthday, legal name, names of family members, and even minute-to-minute updates on your location. (Read Stalking Resource Center's Social Networking Sites: A Bonanza for Stalkers?) If a victim has a public profile, a stalker could easily access any information posted to the social networking account. Even with strong privacy settings or a private profile, a stalker might be able to access your account. A few of the ways this can be accomplished include: 1. Hacking your account 2. Creating a false profile and sending a "friend request" or "follow request." The request may even appear to be from a known friend or family member. Verify with your friends and family members that they own the account before accepting the request. 3. Gaining access to the accounts of your already-established connections (such as Facebook friends or Twitter followers). If you are a victim of stalking, consider suspending your social networking accounts until the stalking has been resolved. If you decide to continue to use social networking sites, here are a few tips to help keep you safe: Set your profile to "Private." With some social networking sites, this might entail just checking a box. With others, such as Facebook, this can be a complex, multi-step process. Read Ars Technica's Updated Guide to Facebook Privacy for a step-by-step guide to heightening security on your Facebook profile.

Limit how much personal information you post to your account. For example, you may not want to include contact information, your birth date, the city you were born in or names of family members.

Do not accept "friend requests" (or "follow requests") from strangers. If you recognize the individual sending the request, contact him or her off-line to verify he or she sent the request.

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Warn your friends and acquaintances not to post personal information about you, especially your contact information and location.

Avoid online polls or quizzes, particularly those that ask for personal information.

Don't post photographs of your home that might indicate its location. For example, don't post photographs showing a house number or an identifying landmark in the background.

Use caution when joining online organizations, groups or "fan pages." Never publicly RSVP to events shown online.

Use caution when connecting your cell phone to your social networking account. If you do decide to connect your cell phone to your online account, use extreme caution in providing live updates on your location or activities.

Avoid posting information about your current or future locations, or providing information a stalker may later use to hone in on your location, such as a review of a restaurant near your house.

Always use a strong, unique password for every social networking site. Read our 10 Rules for Creating a Hacker-Resistant Password.

Final tip: remember, you most likely will not know if your stalker has accessed your online social networking account. Only post information that would not expose you to harm if your stalker should read it.

The reality is that both cyberstalking and physical stalking can lead to a physical attack. Always get help quickly, document all stalking incidents and take precautions to protect yourself. 4. California Law California was the first state to pass an anti-stalking law in 1990 in response to the stalking and murder of actress Rebecca Schaeffer. Now, all states have an anti-stalking law. In California, both criminal and civil laws address stalking. According to the criminal laws, a stalker is someone who willfully, maliciously and repeatedly follows or harasses another (victim) and who makes a credible threat with the intent to place the victim or victim's immediate family in fear for their safety. The victim does not have to prove that the stalker had the intent to carry out the threat. (California Penal Code 646.9, www.leginfo.ca.gov) The criminal penalty for stalking is imprisonment up to a year and/or a fine of up to 22

$1,000. There are more severe penalties when the stalker pursues the same person in violation of a court restraining order, with a sentencing range of two to four years imprisonment. Persons convicted of felony stalking also face stricter penalties if they continue to stalk their victim(s). Courts may issue restraining orders to prohibit stalking. (California Family Code 6320) A victim, family member or witness may request that the California Department of Corrections, county sheriff or the director of the local department of corrections notify them by phone or mail 15 days before a convicted stalker is released from jail or prison. The victim, family member or witness must keep these departments notified of their most current mailing address and telephone number. The information relating to persons who receive notice must be kept confidential and not released to the convicted stalker. (California Penal Code 646.92) The court may order a person convicted of felony stalking to register with local law enforcement officials within 14 days of moving to a city and/or county. (California Penal Code 646.9) A victim of stalking may bring a civil lawsuit against the stalker and recover money damages. (See Civil Code 1708.7 for the elements and remedies of the tort of stalking.) Victims may also request that the California Department of Motor Vehicles (DMV) suppress their automobile registration and driver's license records from being released to persons other than court and law enforcement officials, other governmental agencies or specified financial institutions, insurers and attorneys. (California Vehicle Code 1808.21, 1808.22) When stalking occurs in the workplace, an employer can request a temporary restraining order or an injunction on behalf of the employee who is a victim of stalking. (California Code of Civil Procedure 527.8) 5. Federal law Stalking first received widespread public focus in 1980 with the murder of John Lennon, and again in 1981 with John Hinckley Jr.s assassination attempt on President Reagan. But it was not until the 1989 death of Rebecca Schaeffer, a rising young actress killed by an obsessed fan whod stalked her for two years, that laws were enacted. Such high-profile cases raised the public's awareness of this crime. But the majority of stalking victims are ordinary people, mostly women, who are being pursued and threatened by someone with whom they have had a prior relationship. Federal laws that deal with stalking: Full Faith and Credit (1994; 2000). This federal law mandates nationwide enforcement of orders of protection, including injunctions against harassment and stalking, in states, tribes, and U.S. territories. (18 U.S.C. Section 2265)

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Interstate Stalking (1996; 2000). Section 2261A(1) makes it a federal crime to travel across state, tribal or international lines to stalk another person with " the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person." Furthermore, the travel must result in reasonable fear of death, serious bodily injury or substantial emotional distress either to a victim or a victim's family member, spouse or intimate partner. Section 2261A(2) makes it a federal crime to stalk another person across state, tribal or international lines, using regular mail, email, or the Internet. The stalker must have the intent to kill, injure, harass, intimidate or cause substantial emotional distress, or to place a victim or a victim's family member, spouse or intimate partner in fear of death or serious bodily injury. (18 U.S.C. Section 2261A) Interstate Domestic Violence (1994; 2000). Section 2261(a)(1) makes it a federal crime to travel across state, tribal, or international lines with the intent to kill, injure, harass, or intimidate a spouse or intimate partner and to commit, or attempt to commit, a crime of violence against that spouse or intimate partner. 2261(a)(2) makes it a federal crime to cause a spouse or intimate partner to cross state, tribal, international lines, by force, coercion, duress, or fraud, and to commit, or attempt to commit, a crime of violence against that spouse or intimate partner. (18 U.S.C. Section 2261) Interstate Violation of a Protection Order (1994; 2000). Section 2262(a) (1) makes it a federal crime to travel across state, tribal, or international lines with the intent to violate a protection order and to subsequently engage in conduct that violates that order. Section 2262(a)(2) makes it a federal crime to compel another person to cross state, tribal, or international lines by force, coercion, duress, or fraud and to subsequently engage in conduct that violates a protection order. (18 U.S.C. Section 2262) Federal Domestic Violence Firearm Prohibitions (1994; 1996). Section (g) (8) makes it a federal crime to possess a firearm or ammunition if subject to a "qualifying" protection order issued on behalf of a spouse or intimate partner. Section (g)(9) makes it a federal crime, punishable by up to 10 years in prison, to possess a firearm or ammunition if convicted in any state or federal court of a "qualifying" misdemeanor crime of domestic violence. (18 U.S.C. Section 922) Interstate Communications. This statute makes it a federal crime to transmit in interstate or foreign communications any threat to kidnap or injure another person. (18 U.S.C. Section 875(c)) Harassing Telephone Calls in Interstate Communications. This statute makes it a federal crime to use a telephone or other telecommunications device to annoy, abuse, harass, or threaten another person at the called number. (47 U.S.C. Section 223(a)(1)(C)) For more information about federal and state laws on stalking and harassment, visit the National Center for Victims of Crime website

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California Cyberstalking Stalking Laws

Simply put, "cyberstalking" or "on-line harassment" is stalking that takes place via an "electronic communication device". Cyberstalking is simply one way to commit a stalking violation under Penal Code 646.9 PC | California stalking laws. California stalking laws prohibit harassing or threatening another person to the point where that individual fears for his/her safety or the safety of his/her family.1 When those threats or harassment are communicated via

the Internet, e-mail, text messages, the phone (either cellular or a landline), a fax machine, a video message, or any other electronic device

the crime is commonly referred to as "cyberstalking". In order to understand the specifics of this offense, our California criminal defense attorneys will provide a comprehensive guide to cyberstalking by addressing the following:

An Overview of California Cyberstalking Law How Does the Prosecutor Prove that I am Guilty of Cyberstalking? Examples of Cyberstalking Penalties, Punishment, and Sentencing for Cyberstalking How Do I Fight a Cyberstalking Charge? Cyberstalking and Related Offenses
If, after reading this article, you have additional questions, we invite you to contact us. You may also find helpful information in our related articles on California Penal Code 646.9 PC Stalking, Penal Code 422 PC Criminal Threats, Penal Code 288.2 PC Harmful Matter Sent to a Child, and California Domestic Violence Laws.

An Overview of California Cyberstalking Law

"Cyberstalking" was officially prohibited in 1998 when the California Legislatureamended Penal Code 646.9 stalking. The amendment changed the definition of "credible threat (one of the elements of the crime of stalking in California)...to include "electronically communicated" threats.2

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On-line harassment emerged as a recognized problem in the late 1990s. The anonymity of the Internet allows those who might have otherwise been unable or unwilling to physically confront their victims the ability to communicate without doing so. As more incidents of Internet stalking were reported, the crime of "cyberstalking" was born. Law enforcement agencies even developed special "task forces" to handle this new phenomenon. The Los Angeles District Attorney, for example, founded STAT (the stalking and threat assessment team). Under this unit, Los Angeles County prosecutors work closely with the LAPD to handle these specialized cases. One of the first successful cases that the Los Angeles D.A. prosecuted under the then "new" California cyberstalking law had to do with a man who used the Internet to solicit the rape of a woman who rejected his romantic advances. The 50-year old security guard pleaded guilty after several men responded to the messages that he posted...while posing as the victim...claiming that she fantasized about being raped.3

Examples of Cyberstalking
Obviously not all instances of cyberstalking are as extreme as the one above. But regardless of how severe the circumstances, Internet stalking cases are still prosecuted aggressively. Some examples of cyberstalking include (but are not limited to):

unwanted/unsolicited threatening or harassing emails unwanted and/or disturbing pages, instant messages, text or sext messages ("sexts" or "sexting"

refers to sending explicit photos or messages cell phone to cell phone)

posing as another person in a chat room and writing things on behalf of that individual that are

intended to anger other chat room participants

posting embarrassing, or humiliating information about the alleged victim

posting personal information (including a phone number, address, workplace, etc.) about another

person encouraging others to harass that person (the Los Angeles case referenced above, for example)

logging into on-line accounts to empty a persons bank account or ruin a persons credit

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How Does the Prosecutor Prove that I am Guilty of Cyberstalking?

In the same way that the prosecutor proves that someone is guilty of violating the "traditional" California antistalking law....with the additional requirement that the "credible threat" is communicated via an electronic device.4 In short, the prosecutor must prove that you

1.
2. 3.

maliciously or willfully harassed another person, and made a credible threat against that person, placing that individual in reasonable fear for his/her safety or the safety of his/her family, which was communicated by means of the Internet or another "electronic communication

4.

device".5

For a comprehensive explanation of the facts that are necessary to prove a cyberstalking charge, please review our article on California Penal Code 646.9 PC stalking.

Penalties, Punishment, and Sentencing for California Penal Code 646.9 Cyberstalking
Penalties for cyberstalking range a great deal, as the offense is a wobbler. A wobbler is a charge that prosecutors can file as either a misdemeanor or a felony, depending on (1) the specific facts of the case, and (2) your criminal history.

A misdemeanor cyberstalking sentence may include

up to a year in a county jail,

fines of up to $1,000.6

A felony cyberstalking sentence may include

up to five years in the California State Prison,

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fines of up to $1,000, and

possible lifetime registration as a sex offender under Penal Code 290 PC.7

Both misdemeanor and felony cyberstalking convictions also subject you to (1) counseling and/or possible confinement in a state-run hospital that treats mental illness, and (2) a restraining order prohibiting any contact with the alleged victim.8 It should also be noted that if the alleged victim is

your fianc or fiance,

your current or former spouse,

someone with whom you live,

the parent of your child, or

anyone you are or were dating,

prosecutors will most likely charge you with cyberstalking under California domestic violence law, subjecting you to possible additional penalties.

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

As previously stated, if you are convicted of felony cyberstalking, the judge may order you to register as a sex offender pursuant to Penal Code 290 PC. The judge will only impose this penalty if he/she believes that you stalked the alleged victim "as a result of sexual compulsion or for sexual gratification".9 It should additionally be noted that failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, subjecting you to additional criminal penalties.10

How Do I Fight a Cyberstalking Charge?

By refuting the elements of the crime. In order to convict you of Penal Code 646.9 PC, the prosecutor must prove each and every element of the offense. If you can demonstrate that even one element isnt satisfied, you must be acquitted of cyberstalking.

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Lets take, for example, a "credible threat". If your threat was so ridiculous or grandiose that you couldnt possibly execute it, you cant be convicted of cyberstalking. For example, if John threatens "that he will have aliens come down and carry Sue away if she doesnt marry him", that wouldnt qualify as a credible threat. Similarly, if you didnt intend to place the recipient of your actions in fear, you must be acquitted of Internet stalking. Repeatedly professing love through a series of e-mails...without some type of accompanying threat...does not amount to cyberstalking. It should be noted that if you threaten harm to an individual while you are in jail or prison, the fact that you are incarcerated will not by itself serve as a defense to cyberstalking.11

Some other defenses to Internet stalking include (but are not limited to): Mistaken identity This defense is particularly relevant to a cyberstalking charge. Unless an alleged victim is particularly technologically savvy, it may be difficult to pinpoint an Internet stalker. Someone may "suspect" you of stalking him/her...but without actual proof...you cant be convicted of this offense.

False accusations False accusations typically present themselves in two forms: (1) where a person honestly (but mistakenly) believes that the accused is the person responsible for committing a crime, and (2) where an individual knowingly makes false accusations that someone committed a crime. "Mistaken identity" is an example of the first scenario. As for the second... There are a variety of reasons why someone may falsely accuse another of stalking. As acclaimed San Jose criminal defense lawyer Jim Hammer explains12, "Since very little evidence is needed to accuse someone of cyberstalking, a jealous, angry, or even vengeful individual could accuse someone he/she knows of this stalking offense. I work with a team of experts who conduct their own thorough investigations in an effort to prove your innocence." These types of experts

listen to audio recordings,

track e-mails, texts, or other electronic communications, and

view video recordings

in order to authenticate them if you are a victim of false accusations and a wrongful arrest.

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Cyberstalking and Related Offenses

California Penal Code 422 criminal threats

California Penal Code 422 criminal threats (formerly known as terrorist threats) is a charge that is frequently charged in connection with cyberstalking. This is because criminal threats are threats that are intended to place their recipient in fear of immediate harm.13 If you send criminal threats to the alleged victim on more than one occasion via any electronic communication device, prosecutors could charge you with cyberstalking and criminal threats.

California Penal Code 288.2 harmful matter sent to a child

Penal Code 288.2 "harmful matter sent with the intent of seducing a minor"prohibits sending or emailing "obscene" or "erotic" literature or materials to a minor with the intent of sexually arousing yourself or the recipient.14 This means that if you repeatedly call, e-mail, or "sext" message these types of matter to a minor, prosecutors could charge you with Internet stalking as well as this California sex crime.

California Penal Code 653m telephone calls or contact by other electronic communication device with intent to annoy

Penal Code 653 is closely related to cyberstalking in that it prohibits annoying telephone calls or repeated contact by other electronic devices.15 It doesnt involve the additional element of malice that stalking requires. This is a less serious offense than cyberstalking, subjecting the accused to fewer...and less severe penalties. If you have additional questions about California cyberstalking laws, or you would like to discuss your case confidentially with one of our criminal defense attorneys, we invite you to contact us. We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.

Legal References:
1

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...")
2

California Senate Bill 1796, passed in 1998. ("(3) Existing law prohibits stalking, which is defined as the willful, malicious, and repeated following or harassing of another, where a credible threat, as defined, has

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been communicated to the victim with the intent of placing the victim in reasonable fear for his or her safety. This bill would expand the definition of "credible threat" to include threats communicated through the use of an electronic communication device, including telephones, cellular phones, computers, video recorders, fax machines, and pagers [in effect, calling this type of stalking California cyberstalking]. This bill would also incorporate the definition of "electronic communication" used in a specified provision of federal law.") Cyberstalking (as it currently reads under Penal Code 646.9 Californias stalking law) states ("(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." (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.")
3

1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry. A Report from the Attorney General to the Vice President (August 1999). ("In the first successful prosecution under California's new cyberstalking law, prosecutors in the Los Angeles District Attorney's Office obtained a guilty plea from a 50-year-old former security guard who used the Internet to solicit the rape of a woman who rejected his romantic advances. The defendant terrorized his 28-year-old victim by impersonating her in various Internet chat rooms and online bulletin boards, where he posted, along with her telephone number and address, messages that she fantasized of being raped. On at least six occasions, sometimes in the middle of the night, men knocked on the woman's door saying they wanted to rape her. The former security guard pleaded guilty in April 1999 to one count of stalking and three counts of solicitation of sexual assault. He faces up to six years in prison.")
4

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]...[With respect to California cyberstalking] A "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. [For purposes of this crime, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video receivers, 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.]]")
5

See same.

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

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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.") This law applies to "traditional" stalking as well as Internet stalking.
7

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. (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 whats 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.") Again, these penalties apply to "traditional" stalking as well as cyberstalking.
8

California Penal Code 646.9 Stalking. ("(j) If probation is granted [in a California cyberstalking case], 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...(m) The court shall consider whether the defendant would benefit from treatment pursuant to Section 2684. If it is determined to be appropriate, the court shall recommend that the Department of Corrections and Rehabilitation make a certification as provided in Section 2684. Upon the certification, the defendant shall be evaluated and transferred to the appropriate hospital for treatment pursuant to Section 2684.")
9

See endnote 7, above.

10

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.
11

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 [to Cyberstalking].")
12

San Jose criminal defense lawyer Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients accused of DUI, theft, and more serious charges. Mr. Hammer represents clients throughout the Bay Area, including San Francisco, Oakland, Berkeley, Marin County and San Jose
13

California Penal Code 422 Criminal threats (formerly known as "terrorist threats"). ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with

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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.") This offense is frequently charged in connection with California Internet stalking cases.
14

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 cyberstalking charge under Penal Code 646.9 PC.
15

California Penal Code 653m Telephone calls or contact by electronic communication device with intent to annoy. ("(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith. (b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.") This, too, may be charged in connection with California cyberstalking under Penal Code 646.9 PC.

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