CA Penal Code 646.9

Stalking

What is a Stalking charge

Stalking is defined as when you, “Willfully, maliciously, and repeatedly follow 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” [1].

In order to be convicted of the crime the prosecutor has to prove each element of the crime beyond a reasonable doubt. The elements of the crime are:

  1. That you willfully, maliciously, and repeated followed or harassed another person
  2. That you made a credible threat against that person
  3. The threat was specific and reasonable

Stalking is a wobbler, meaning the case can be tried as either a misdemeanor or a felony depending on your criminal history and the details of the case.

If you are convicted of stalking as a misdemeanor you will face:

  • Informal probation
  • Up to one year in county jail
  • Up to $1,000 in fines
  • Mandatory counseling
  • A restraining order placed against you
  • Possible treatment at a state-run mental health facility

There are two ways that stalking becomes in immediate felony.

  1. If you had a prior stalking conviction, or
  2. If you violated a restraining order while being arrested for stalking

If you are convicted of stalking as a felony, you will face:

  • Formal probation
  • Up to five years in state prison
  • Up to $1,000 in fines
  • Mandatory counseling
  • A restraining order placed against you
  • Possible treatment at a state-run mental health facility
  • Forced to register as a sex offender in accordance to CA Penal Code 290

If while stalking you cause the victim great bodily harm then you will receive an additional 3 to 5 years state prison sentence in succession to the sentencing mentioned above.

If while stalking you are in possession of a gun then you will receive an additional 1 to 3 year state prison sentence in succession to the sentencing mentioned above.

Prosecuting Stalking – CA Penal Code 646.9

As previously noted, in order to be convicted of stalking the prosecutor has to prove the following three elements of the crime:

  1. That you willfully, maliciously, and repeated followed or harassed another person
  2. That you made a credible threat against that person
  3. The threat was specific and reasonable

If the prosecutor cannot prove these elements of the crime beyond a reasonable doubt then you will not be convicted of the crime.

The first element of the crime that the prosecutor has to prove is that you willfully followed or harassed another person. California defines willfully as deliberately, or on purpose. This means that the prosecution has to prove that your actions were deliberate and not an accident, or by chance. This element also states that the act has to be malicious, meaning that you had the intention to act wrongfully in order to anger, disturb, annoy or injure the victim in an unlawful manner.

The second element of the crime requires that you made a credible threat towards the victim or the victim’s immediate family. In order for a threat to be credible you need to have the apparent ability to carry out the threat. The threat can be made verbally, in writing, or electronically through a text or over the telephone.

The third element of the crime requires that the threat is specific enough to evoke reasonable fear in the victim. If the threat is outlandish and not possible to achieve then it is likely that a conviction will not take place. For a full understanding of what makes a threat reasonable and specific read our article on Criminal Threats.

If the prosecutor cannot prove these elements of the crime then you will not be charged with stalking.

Defending Stalking – CA Penal Code 646.9

There are several legal defenses that your criminal defense attorney can utilize in order to prove your innocence. The first and most practiced legal defense is to attack the threat that you made. As stated above, in order for a threat to be considered criminal it has to considered possible for you to perform. In other words, you can’t claim that you are going to bomb someone and then be convicted of stalking because you likely do not have a bomb that you can drop on someone. If the threat you made was outlandish then it’s likely that you will not be convicted of stalking; however, it will be up to your criminal defense attorney to make the jury, judge and prosecutor agree that the threat was not a real threat.

Another possible legal defense to stalking is that you are the victim of mistaken identity. It is not entirely uncommon for jealous ex-wives or former lovers to make up phony claims about their former lovers in order to get them in trouble. Your attorney will attack the “victim’s” credibility and try to show the jury, if the matter goes to court, that you are indeed the victim and have not done anything wrong.

These are only two very common defense strategies that a criminal defense attorney can exercise when representing you in court. Every case is different and each case must be evaluated independently from the next. If you or a loved one is facing stalking charges then it’s imperative to contact a criminal defense attorney immediately. A stalking conviction can be a red-flag for potential employers and can possibly require you to register as a sex offender for life.

 

References

[1] http://law.onecle.com/california/penal/646.9.html

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