The initial domestic violence (DV) laws focused on fighting violence against spouses, co-habitants, estranged spouses, and partners. However, legislators have recognized that domestic violence consists of different forms of criminal offenses that do not necessarily involve violence but can make the victim feel unsafe. One of these offenses is stalking, which is constant harassment through a pattern of malicious conduct that causes credible threats of harm to the victim or their immediate family.
California PEN 646.9 was enacted to hold individuals who engage in this repeated harassment conduct criminally liable. A violation of this statute is a felony, and a conviction could result in severe consequences. Therefore, when alleged to be stalking or faced with a stalking charge, you should not hesitate to reach out for help from a professional. The Los Angeles Criminal Attorney is here to ensure a fair trial and protect your rights.
PC 646.9 is the statute that outlines the offense of stalking. Per the statute, it is a crime to repeatedly harass, threaten, or follow a person creating a genuine threat of harm to the targeted person. Additionally, if you cause the victim real fear for their close family's well-being, your behavior amounts to stalking. The keyword you should understand under this statute is repeated. Your actions must be characterized by a pattern of malicious, willful conduct instead of a one-time event. For the prosecutor to successfully demonstrate that you contravened PEN 646.9, they must illustrate the following:
- You, the defendant, engaged in a pattern of malicious and deliberate conduct of harassing, pestering, or following another party.
- You made a credible or genuine threat to the victim to make them fear for their security or that of their immediate family.
Usually, victims of DV seek protection or stay-away orders to keep the offenders at bay. If the victim has a protective order and you engage in stalking, the prosecutor should prove that the order was valid. The defendant committed the violation while the court order was still active.
The common fallacy is that stalking only happens when you follow your victim from one place to another. Although physically trailing another person amounts to stalking, this is just one of the ways of accomplishing the crime. Sending repeated undesired messages, texts, and emails amounts to a PC 646.9 violation.
You cannot be guilty of stalking by engaging in legal conduct or activity. For example, when stalking allegations arise while exercising free speech, legally protesting, or participating in an assembly, you are not guilty.
Cyber Stalking Emergence
Before, stalking was only possible with physical interaction. Nonetheless, nowadays, you can easily stalk someone online. This is possible through the use of electronic communication or means. The electronic communication modes commonly used by stalkers today include social media, spyware, email, text messages, and instant messages.
Activities that qualify as internet stalking are:
- Transmission of explicit or intimidating messages
- Posting inaccurate information on the internet
- Ordering for products or services using someone else's name
- Posting on the internet information to spur crime
- Social media, chat rooms, or online message board bullying
The essential aspect of internet stalking is for the offense to be achieved electronically.
Stalking Under the Federal Statutes
Sometimes, the prosecutor can pursue your stalking charge under the federal interstate stalking laws. The statute was enacted in 1996 and made it a felony to harass or follow an individual from one state to another, causing fear, harm, or death. It is also a felony to stalk someone on U.S. territorial lands or military property.
For a successful prosecution, the prosecutor must illustrate the crime's facts beyond a reasonable doubt. The aspects the prosecutor must prove are:
- You Acted Maliciously, Intentionally, and Repeatedly
You are deemed to have acted willfully when you do something intentionally or on purpose. Furthermore, you behave maliciously when you deliberately engage in a wrongful act with the criminal motivation of causing harm, annoying or disturbing someone else. Besides, the prosecutor must show you participated in the behavior repeatedly by demonstrating you engaged in the conduct more than once.
- You Participated in Harassment
Harassment refers to participating in a malicious and knowing behavior directed to someone else to:
Also, the order of your behavior must not serve a legitimate purpose to satisfy the facts of a kidnapping crime. A sequence of behavior or conduct for purposes of this statute means at least two acts unfolding over a period, regardless of how short it is, all geared to a common goal.
- You Made a Credible or Sincere Threat
The threat you make to the victim of your crime must be credible or reliable for you to be guilty. A genuine threat causes the target to fear for their security and the safety of their loved ones. Additionally, at the time of threats, you must have possessed the current capability to execute them. Under these circumstances, the danger can be communicated orally, in writing, electronically, or implied by repeated malicious conduct or both statements coupled with actions.
- You Caused the Victim Reasonable Fear
Another aspect of the case that the prosecutor must demonstrate is that you put the victim under reasonable fear. The courts must evaluate your case's facts and circumstances and illustrate that you planned to cause the accuser's natural anxiety. A genuine or actual threat fulfills its intended purpose of making the victim fear. Nevertheless, it does not include joking expressions, lawfully protected speech, or exaggerated police statements.
- Your Victim is an Immediate or Close Family
Lastly, your threats must have made the victim afraid of their security or the security of their immediate family. Your child, spouse, or parent falls into this category of family. Immediate family includes your siblings, grandparents, anyone related to you by blood or marriage, and people who sleep at your house regularly. If the prosecutor can show you engaged in repeated harassment of any of these individuals, you will be guilty of stalking charges.
When someone is worried about their safety or that of their immediate family because you have repeatedly been trailing or harassing them, they develop anxiety, preventing them from performing their routines. As a result, the law heavily punishes individuals accused of stalking upon conviction to deject the conduct and allow victims to obtain justice.
Staking is both criminally and civilly punished. Therefore, you will face two sets of penalties that are further discussed below:
A PEN 646.9 violation is a wobbler, meaning you can face misdemeanor or felony penalties. The decision by the prosecutor hinges on your criminal history and the severity of your stalking behavior. If sentenced for a misdemeanor, the penalties are:
- No more than twelve months in jail
- Monetary court fines of upwards of $1,000
- Misdemeanor probation
When charged and convicted of a felony, the punishment is as follows:
- Formal probation
- Upwards of six months incarceration in state prison
- At most $1,000
Although a felony charge attracts harsher penalties, not everyone faces it. You would face a felony charge if the victim of your stalking had a restraining order against you. Another way you can meet a felony charge is if you have a prior sentence for stalking, even when the recent victim is a different individual than the previous one.
Apart from the criminal penalties, your victim can choose to pursue justice in the civil court by filing a lawsuit to obtain damages. However, the burden of proof shifts in these cases. The victim must prove with a preponderance of the evidence that:
- You engaged in repeated conduct intended to harm, trail, or alarm the accuser
- Your conduct placed the victim under reasonable fear of harm
- You made credible threats and did not stop even after the victim asked you to do so or violated a protective order.
When illustrating that your continuous malicious conduct was aimed at harassing or annoying the victim, you need more than their statement. They must present independent evidence to back up their testimony.
The court will order you to pay compensatory damages if the criteria are met. Additionally, the victim can pursue punitive damages to punish you and discourage other individuals from engaging in the same conduct.
Other Stalking Conviction Consequences
Aside from paying hefty court fines and serving jail or prison time, a conviction may have other consequences in your life. These consequences are:
- Immigration Consequences
A sentence for a PC 646.9 violation will adversely affect your immigration status. A criminal conviction could lead to deportation if you are an alien or deemed inadmissible. The crimes that could make you inadmissible or deportable are:
- Moral turpitude offenses
- Firearm crimes
- Aggravated felonies
- Drug crimes
- Domestic violence crimes
You will face immigration consequences if your felony stalking charge is elevated to an aggravated felony. The decision to upgrade the counts depends on the nature of your case.
- Implications on your Firearm Ownership Rights
A sentence for felony stalking will adversely affect your firearm ownership rights. Apart from felons, other individuals prohibited from owning or possessing guns in California are:
- Drug addicts
- Individuals with mental illnesses
- Person below 18
- Individuals convicted of particular misdemeanor crimes like corporal injury to a spouse
- Persons with over two priors for PEN 417 brandishing a weapon
A stalking charge is a serious one regarding gun rights because the offense is a wobbler, which gives the prosecutor the discretion to charge it as a felony or misdemeanor. A conviction will affect your firearm rights if charged as a felony.
Stalking Offense Expunction
When you have a stalking conviction on your criminal record, you can seek to clear this record through an expunction. PEN 1203.4 defines expungement or expunction as releasing you from all the consequences or disabilities stemming from a conviction. A stalking sentence is a black mark on your record, making it an uphill task to secure a gainful job, promotion, or government security clearance. One crucial benefit of expunging your stalking conviction is that it will no longer be necessary to disclose that you have a criminal record to a prospective employer.
You are eligible for an expunction if you have completed probation, are not presently charged with a crime, are on probation, or serve jail time for a separate offense. Therefore, you can apply for expungement if you were sentenced to probation and completed the probationary period or your jail sentence.
Stalking Offense Legal Defenses
A conviction for a misdemeanor or felony stalking can have severe consequences for your life. These ramifications range from incarceration to having a criminal record. You end up miserable and missing many life opportunities. Sometimes, a conviction could have your name appear on the sex offender register, which would be an egregious injustice if you were wrongfully convicted. You can avoid all these problems by talking to an experienced criminal defense attorney.
Our attorneys will evaluate your case and build a solid legal defense that will convince the jury or judge to reduce or dismiss the charges. Our attorneys have various defense strategies they can apply in the case for a positive outcome. Nonetheless, your case's nature determines the defense strategy involved in it. The legal defenses you can use in your situation are:
The Threat You Made Was Not Credible
One of the defenses your attorney can use to contest the charges is arguing that the threat was not genuine or credible. Intimidating someone does not make you a stalker. Also, even if you made the threats, the court will consider if they were severe enough or if you intended to act on them to convict you. In your defense, your attorney can argue that you did not intend to issue the threats. Instead, you made the threats in the heat of the moment, and there is no possibility you could have carried out your threats. Again, you could argue that there is no way your intimidation could have caused the victim reasonable or actual fear.
You Participated in a Legal Activity
California's stalking statutes do not apply to Fourth Amendment-protected activities like freedom of speech. Our legal team will assert that you made the threats while lawfully protesting, which means you were exercising your fourth amendment right of free speech. If these circumstances were the basis for your allegations, stalking statutes are not applicable, making you not guilty.
You Never Planned to Cause Actual Fear
A significant aspect of stalking is fear. If you, the defendant, never envisioned causing the victim any fear, you are not guilty. Your attorney will claim that even though you made threats, you never planned on causing the victim anxiety. An excellent example is when you repeatedly threaten to tickle someone. The threats are not genuine enough to cause fear.
You could face stalking charges when the victim mistakes you for the perpetrator. In these incidents, if you are not careful, you could end up behind bars even if you are innocent. To feel better the alleged victim could be victimized and pin the stalking on you, especially if you resemble the stalker, to feel better. If you were not in the vicinity when the offense occurred, our attorneys will swing into action and prove that you were elsewhere. You could not have maliciously and intentionally trailed or harassed the accuser.
Most victims of stalking are ex-spouses or partners. These accusers are not usually genuine and can use the law to punish their partners for revenge or out of spite. Therefore, when you are in a situation where you have been accused of stalking a partner out of revenge or of punishing you, a defense attorney can help prove the allegations against you are made up. For example, if you are fighting for custody with your ex-spouse, they can seek revenge or try to gain an advantage in the case by alleging you are a stalker. Your attorney will furnish the court with evidence of the actual events that led to the charges to have the case dismissed.
Other defenses against stalking crimes include claiming that your actions do not fit the definition of harassment. So, if you never harassed the alleged victim, the case will be thrown out. Illustrating to the court that your course of conduct does not amount to harassment is the tricky part, making an attorney critical in your defense. Alternatively, you can assert that your behavior was not willful and malicious and, therefore, does not meet the definition of stalking statutes.
You can explore several other defenses depending on the nature of your case. However, for the attorney to develop the proper defenses for your case, you must hire one on time to give them time to analyze your charges or even conduct an independent investigation to understand the facts of the case. That way, developing solid defenses that apply to your exceptional circumstances will be easy.
Stalking Related Charges
Particular California offenses are filed with or in place of stalking. These are:
- California Kidnapping
Per PC 207, kidnapping is defined as carrying someone over a distance without their consent by introducing fear, arresting, holding, or detaining. In some cases, before a kidnapping incident occurs, the kidnapper stalks their target repeatedly to learn their patterns. Nonetheless, a kidnapping can only happen when you move your target over a particular distance without their consent. Both crimes involve harassment and instill fear in the victim.
The prosecutor will charge you with stalking and kidnapping offenses when you stalk a person before the kidnapping. To prove you are guilty, the prosecutor must show you utilized fear, intimidation, force, or fraud to carry the target from one point to another. If found guilty, you will face the following penalties based on your case's circumstances:
- Monetary court-imposed fines not exceeding $10,000
- State incarceration for 36, 60, or 96 months
Also, the court can impose probation in place of prison incarceration but only after serving a one-year jail sentence. You should know that if there are aggravating circumstances in your case, you will face aggravated kidnapping charges, whose conviction attracts a possible life sentence.
- Criminal Threats
PEN 422(a) criminalizes any threats directed towards another person resulting in death or significant bodily harm. The threat must be credible and communicated verbally or in writing. Additionally, the intimidation must be immediate, precise and cause genuine fear in the victim or their immediate family. You could be convicted of this infringement even if you did not intend to make the threats or could not execute them. Because a criminal threat is a wobbler, the prosecutor has the discretion to charge you with a misdemeanor or felony based on your record or case circumstances. When convicted of a felony, the penalties include the following:
- Thirty-six months of state incarceration
- Court-imposed fines not exceeding $10,000
- Both court fines and incarceration
The violation of PEN 422(a) is related to stalking because criminal threats are usually part of stalking, which explains why the prosecutor can charge you with both offenses.
- Annoying Phone Calls
California Penal Code 653(m) makes making repeated intimidating or obscene phone calls with the intent of annoying or harassing another person a crime. Besides, sending endless unwanted messages or emails to a person to annoy or harass them qualifies as a PEN 653(m) violation. The crime is very similar to stalking, which must be accomplished by electronic means. Furthermore, annoying phone calls lack the crucial element of intent to make the victim fear for their security or that of their immediate family.
A PC 653(m) violation is a misdemeanor punishable by a jail sentence of at most six months or court fines of at most $1,000.
Find an Experienced Criminal Defense Attorney Me
Are you facing a stalking charge?
California considers stalking a severe offense that is heavily penalized and could affect almost all aspects of your life. The ramifications of a criminal record are also extremely painful. Nonetheless, with the help of a competent team, you can defeat the charges. At the Los Angeles Criminal Attorney, we are ready to influence the judge's decision in your favor and protect your rights. Contact us today at 424-333-0943 to schedule a meeting.