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Stalking – Penal Code Section 646.9

What is Stalking?

“Stalking” is delineated under Penal Code Section 646.9 which prohibits a person from following or harassing someone and threatening that person with the intent of placing them or their immediate family in fear for their safety. The statute spells out the particulars of the crime in more detail, but the prosecution must prove the following facts (“elements”) in order to convict a person for the crime of stalking:

  • That you willfully, maliciously and repeatedly followed or willfully and maliciously harassed another person, and:
  • That you made a credible threat against that person, and;
  • Intended to place that person or his immediate family in reasonable fear for their safety.

What is the History and Purpose of the Stalking Law in California?

The California Stalking law was enacted in 1990 after 2 notorious stalking cases involving obsessed fans that happened earlier in the 1980s. One was a celebrity stabbed multiple times; another was a celebrity who was actually killed. The legislature intended to protect all persons from the harassment and danger of being stalked by passing this legislation. If the stalking is perpetrated against anyone you were dating, the parent of your child, your current or former spouse, or a fiancé, it is likely to be charged under one of the “Domestic Violence” statutes because of the nature of the relationship. (See “Domestic Violence” under “Practice Areas” herein.)

How do Stalking Charges Arise?

Stalking is not limited to obsessed fans following celebrities. Often the motivation is one party seeking to “get even” with another for some type of dispute or slight. This can consist of harassment such as making excessive phone calls or sending threatening letters or interfering with that person’s work. If the harassment takes the form of using the internet, such as excessive text messages or emails, it can be charged as “Cyberstalking” (Penal Code Section 653.2). Many times this can be charged as “Criminal Threats” (Penal Code Section 422).

What are the Penalties for Stalking?

Stalking is considered a “wobbler”, i.e. a crime that can be charged as either a misdemeanor or felony depending upon the facts of the case (including any criminal history you may have) and how the prosecutor decides to file it. The penalties are as follows:

  • Misdemeanor – Up to one year in the county jail; up to a $1,000.00 fine; counseling, summary (i.e. informal) probation and a restraining order keeping you from contacting the victim.
  • Felony – Up to five years in the state prison; up to a $1,000.00 fine, counseling, possible sex registration under Penal Code Section 290 and a restraining order.
  • If the stalking occurs after a previous stalking conviction, or where it is in violation of a court-ordered protective order, it will automatically be charged as a felony.
  • If there was a weapon involved you can face an additional 1 to 3 years in state prison.
  • If there was a great bodily injury to the victim you can face an additional 3 to 5 years in state prison.

How Do I Fight a Criminal Threats Charge?

  • The first defense is that the allegation is simply made-up and false. A trial may be necessary to prove it and an experienced criminal defense attorney is an absolute must.
  • If there is a lack of evidence such as no way to trace the emails or text messages back to you.
  • If there is a case of mistaken identity where the victim thinks it is you but in reality, it is someone else such as an ex-girlfriend who is the actual stalker.
  • If the threat was simply not credible there is no stalking, such as a threat to have Putin blow the victim up.
  • If the threat was constitutionally protected free speech, such as picketing at a political event.
  • If the person making the threat was incarcerated at the time.

What Can a Good Attorney do for Me?

You need to hire an attorney experienced with the law, cases, and procedures concerning criminal stalking immediately after you are arrested. A good criminal attorney can thoroughly investigate the case, make certain all defenses are explored, explain the procedures involved and leave no stone unturned in trying to obtain and keeping your freedom. Call Kenneth H. Lewis now for help with any criminal threats charge

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