Penal Code 646.9 (Stalking)

What is California Penal Code 646.9 Stalking?

California’s stalking laws are outlined in Penal Code 646.9.  These laws are some of the strongest and toughest in the country.  Penal Code 646.9 prohibits the threatening, harassing, or following of the alleged victim in a manner that causes him or her to worry about his or her safety.

For the purposes of Penal Code 646.9, stalking can occur in a variety of contexts.  Cases have been filed for stalking situations arising out of the work place, college campuses, or even the internet (cyber-stalking).  However, stalking is most often seen in cases involving domestic violence.  In fact, most stalkers are actually someone that the alleged victim knows or with whom he or she is acquainted.  Suspects are usually current or former romantic partners.  Furthermore, roughly 80% of stalking victims are women but it is not uncommon for a man to be a victim of stalking.

The Legal Definition of Penal Code 646.9

In order to convict you of stalking, a prosecutor must prove the three elements (facts of the crime) defined in Penal Code 646.9:

1) You willfully, maliciously, and repeatedly followed or harassed the alleged victim.

2) You made a credible threat against the alleged victim.

3) The threat made the alleged victim fear for their safety or the safety of their immediate family.

Additionally, if the alleged victim has a temporary restraining order (TRO) against you, then the prosecutor must also prove an additional element: that the TRO was valid and effective at the time of your alleged stalking behavior.  Now, let’s examine the separate components of Penal Code 646.9 in more detail:

Willfully: To be convicted of a Penal Code 646.9 violation, it must be proven that you acted in a purposeful or intentional manner when committing the alleged stalking behavior. However, you can be convicted of a Penal Code 646.9 violation even if you did not know or understand that your conduct constituted “stalking.” 

Example: Jennifer is worried that her ex-boyfriend, Brad, is in an abusive relationship with Angelina.  She follows Brad around whenever he is hanging out with Angelina just to make sure he is doing ok.  In this example, Jennifer has good intentions and does not consider her actions to be stalking.  Yet, her behavior could constitute a Penal Code 646.9 violation because of her unwanted tracking of Brad’s movements.

Maliciously: To be guilty of a Penal Code 646.9 charge, you must have intentionally acted to anger, annoy, or injure the alleged victim.

Example: In the example above, Jennifer only followed Brad because she was trying to protect him.  Thus, even though her actions were “willful,” they were not “malicious” because she was not trying to harm Brad.

Harass: Penal Code 646.9 punishes a “course of conduct” that is targeted at a particular person for the purposes of disturbing, annoying, injuring, or scaring them. For the purposes of Penal Code 646.9, a “course of conduct” is defined as two or more acts over a period of time.  The time between acts can be short or long but it must be proven that they were committed because of a desire to fulfill a continuous purpose.

Example: Amy calls her co-worker, Sheldon, many times at night for a period of a couple of weeks. Finally, Sheldon is fed up and complains to their boss.  The calls cease for a month.  Suddenly, one day Sheldon finds Amy creeping through his backyard and staring through his window.  In this example, even though Amy’s actions may have been halted for a period of time, it could be argued that she acted with the continuous purpose of invading Sheldon’s privacy.  As a result, she could be guilty of a Penal Code 646.9 violation.

Credible Threat: Threats are assessed according to an objective standard. This means that a threat is considered “credible” if a reasonable person would have been placed in fear for their life.  Additionally, in order to get a conviction for Penal Code 646.9, the prosecutor must also prove that you had the ability to act on the threat.  For the purposes of Penal Code 646.9, it does not matter if you did not actually intend to carry out the threat.  It only matters that you had the ability to do so if you so wished.  Threats do not need to be made in person in order to be credible.  You can be guilty of Penal Code 646.9 even if the threat was made through another person, text message, or even a letter.

Example: Rey and Finn are classmates in a chemistry class. Rey threatens Finn that she will lower his grade in chemistry unless he goes out with her.  This would not be a credible threat because Rey has no control over Finn’s grade.  However, if Rey threatens to throw chemicals in Finn’s face, then it would be considered a credible threat and a Penal Code 646.9 violation.

Understanding Penal Code 646.9 In Real Terms

Penal Code 646.9 takes a broad view of stalking.  As long as the behavior places the victim in fear, then it most likely suffices for the purposes of a Penal Code 646.9 conviction.  Let’s take a look at some of the most common examples of stalking conduct:

  • Following the alleged victim, either on foot or in a vehicle
  • Continuously contacting the alleged victim by calling them on the phone, texting them, emailing them, or even using social media. Such methods are commonly referred to as cyber stalking.
  • Constantly sending the alleged victim undesired gifts or messages. It does not matter if the gifts are objectively beautiful or valuable.  If they are unwanted, then the gift-giving might constitute stalking conduct under Penal Code 646.9.
  • Frequently passing by the alleged victim’s home or workplace.
  • Entering the alleged victim’s property or home. Note, this type of conduct could also leave you liable for other crimes, such as Penal Code 602 PC Trespassing or Penal Code 458 PC Burglary.
  • It is important to know that if the alleged victim is a current or former “intimate partner”, such as a spouse or former spouse, a cohabitating partner, someone you are dating, or the parent of your child, then the stalking is considered “intimate partner stalking.” This means that your case will also likely be addressed under California’ domestic violence laws, which may carry more severe penalties.

What are the penalties for Penal Code 646.9?

Penal Code 646.9 is considered a “wobbler” crime.  This means that the prosecutor has the discretion to charge you with either a misdemeanor or a felony.  Whether you are charged with a misdemeanor or felony under Penal Code 646.9 depends on the specific circumstances of the alleged stalking and your individual criminal history.  Additionally, you will automatically be charged with a felony if the alleged stalking conduct violated a valid restraining order or if you have been previously convicted of a Penal Code 646.9 violation, regardless if the alleged victim is the same or not.

Misdemeanor Punishments for Penal Code 646.9 Convictions

The potential punishments for a Penal code 646.9 misdemeanor conviction include up to one year in county jail, up to $1,000 in fines, summary/informal probation, a restraining order forbidding contact with the victim, and/or state mandated counseling for mental heath treatment.

Felony Punishments for Penal Code 646.9 Convictions

The potential punishments for a Penal Code 646.9 felony conviction include up to 5 years in a California State Prison, up to a $1,000 fine, a restraining order forbidding contact with the victim, and/or state-mandated counseling that might include being committed in a hospital for mental illness.  Importantly, a conviction for a felony under Penal Code 646.9 will require you to register as a sex offender under Penal Code 290 PC.  Additionally, if granted parole, you will be placed into an intensive supervision program for the length of your parole.

“Aggravating factors” could lengthen the sentence you received for the baseline Penal Code 646.9 violation.  For example, if the alleged victim suffered great bodily harm as a result of the stalking activity, then you could receive an additional and consecutive 3-5 years in California state prison.  If you were carrying a firearm during the stalking activity, you could receive an additional and consecutive 1-3 years in California state prison.

Penal Code 646.9 and Sex Offender Registry under Penal Code 290 PC

A felony conviction for Penal code 646.9 may require you to register as a sex offender pursuant to Penal Code 290 PC.  Penal Code 646.9 is not one of the crimes that requires automatic registration, but the judge maintains the discretion to do so if he concludes that the stalking was the result of a sexual compulsion or the need for sexual gratification.  The failure to register pursuant to Penal Code 290 PC will result in a separate felony conviction with additional penalties.

How do you fight a Penal Code 646.9 charge?

False accusations of stalking are not uncommon.  A former spouse or partner may make false accusations out of a need for revenge or a desire to gain an advantage in a divorce hearing.  Whatever the reason, there are fortunately several legal defenses available to help you fight a Penal Code 646.9 charge.  An experienced and diligent attorney can review the specific facts of your case in order to develop an effective legal strategy.  This legal strategy may include, but are not limited to, the following defenses:

The Threat Lacked Credibility.

Penal Code 646.9 only punishes credible threats.  If you could not realistically carry out your threat or if a reasonable person would not have been placed in fear from your threat, then you cannot be found guilty of stalking.  Note, however, that if you make a threat while incarcerated or from a long distance away does not mean you are automatically dissolved of Penal Code 646.9 liability.  Hence, being incarcerated on its own will not serve as a defense to stalking.  Also, if it can be shown that the threat was made in jest or as a joke, then you cannot be found guilty of Penal Code 646.9.  This is because the intent requirement of California’s stalking laws was not met because you did not intend for anyone to take it seriously or be placed in fear. 

Your onduct was protected under the 1st Amendment.

Penal Code 646.9 does not apply to behavior that is constitutionally protected by the 1st Amendment.  Thus, it is not considered “stalking” if your charged conduct can be characterized as free speech, protesting, or free assembly. 

The Police have the wrong guy (Mistaken Identity).

When stalking is suspected, it is not uncommon for the victim and the police to automatically blame former intimate partners.  People like to automatically assume that it must be the “ex.”  However, a smart attorney can develop evidence by building alibis or find holes in the prosecution’s case to protect you from wrongly being convicted of a Penal Code 646.9 violation.

You are being false accused of stalking.

Just like with mistaken identity, you might be facing Penal Code 646.9 charges of stalking based on false accusations.  This is especially common in domestic violence cases where one party attempts to build or strengthen their case against another party by using false accusations of stalking.  In these types of situations, an experienced criminal defense attorney can utilize the services of a private investigator.  Together, they can review the evidential record, such as examining audio records, handwriting samples, or even conducting DNA tests on a nasty letter supposedly sent by you.

Related Crimes to Penal Code 646.9/Stalking

Penal Code 646.9 charges are often brought in conjunction with a series of other offenses related to the underlying stalking activity.  Let’s examine some of these offenses.

Penal Code 207 PC - Kidnapping

In California, kidnapping is defined as the taking, holding, or detaining of another individual through force or fear.  Stalking often takes place before the more serious offense of kidnapping is committed.  Hence, it is not uncommon for a person to be charged with both Penal Code 646.9 and Penal Code 207 PC at the same time.  Kidnapping is considered a felony and is punishable by a minimum of 3 years in California state prison.  However, if the victim is under 14 years of age, you could find yourself sentenced with up to 11 years in California state prison.

Penal Code 422 PC – Criminal Threats

You can be charged with Penal Code 422 PC if you threaten another person such that they are placed in fear of imminent harm.  If you make these types of threats to the same person more than once, then you can be charged with both Penal Code 646.9 Stalking and Penal Code 422 PC Criminal Threats.  Criminal threats is considered a “wobbler” which means that it can be charged as a felony or misdemeanor.  In either case, if convicted of Criminal Threats, you could spend up to 1 year in either county jail or California state prison.

Penal Code 288.2 – Harmful Matter Sent with Intent of Seducing a Minor

If you send obscene material to a minor for the purpose of sexually arousing yourself or the victim, then you might be charged with Penal Code 288.2.  If you do so on multiple occasions, then you also open yourself up to charges of Penal Code 646.9 Stalking.  For a first offense, Penal Code 288.2 is a wobbler which means the prosecutor has the discretion of charging you with a felony or misdemeanor.  However, further offenses are automatically charged as a felony.

Penal Code 653m PC – Harassing Phone Calls

California law forbids sending communications to another person, against their will, that are obscene, threatening or annoyingly repetitious.  This applies to not just phone calls, but also emails, text messages, and social media.  Since it is easier to prove than stalking charges, prosecutors often file Penal code 653M instead.  The punishment for a Penal Code 653m conviction is a misdemeanor and carries a punishment of a maximum of 6 months in county jail.  For this reason, Penal Code 653m is considered an option in plea bargain discussions because of the more severe penalties of a Penal Code 646.9 conviction.

Penal Code 653.2 – Posting Harmful Things on the Internet

Penal Code 653.2 prohibits posting or distributing information online about someone for the purpose of inspiring others to harm or harass that person.  In order to be convicted of Penal Code 653.2, the alleged victim must reasonably be placed in fear for their safety as a result of your online activity.  If convicted, you will be punished with a misdemeanor and a maximum of 1 year in county jail.

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