Posted on January 18, 2016

“Stalking” Defenses & Punishment │ California Penal Code 646.9 PC

In California, “Stalking” is charged by the government under Penal Code 646.9. You could be charged with stalking by following another in person or via electronic device – e.g., email, text messaging, and within social media. It is a wobbler offense which means the government may elect to charge you with either a felony or misdemeanor. If you’re charged with stalking while having a restraining / protective order against you, then the penalties become even more severe. Furthermore, a conviction for this offense may require you to register as a sex offender. You may find the following article helpful as it outlines 8 important things you should know about the crime of stalking.

1. What is the Legal Definition for Stalking?

PC 646.9(a) provides, “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 stalking…”

2. What Must the Prosecutor Prove for Stalking Charges?

In order to prove that you’re guilty of stalking under PC 646.9, the government holds the burden to prove each of the following elements beyond a reasonable doubt:

1. You maliciously and willfully harassed or willfully, maliciously, and repeatedly followed another;

2. You made a credible threat with the intent to place the other person in reasonable fear for his or her safety or for the safety of his or her immediately family;

3. Your conduct was not constitutionally protected.

3. What is the Punishment for Stalking?

As noted above, stalking is a wobbler offense which means the prosecutor holds the discretion on whether to charge you with either a felony or misdemeanor. Fortunately, if you’re convicted of a felony then you may be eligible to reduce your felony to a misdemeanor upon successful completion of probation.

A felony conviction for stalking carries a sentencing range of 16 months, 2, or 3 years in state prison. In addition to this punishment, the court may also order you to register as a sex offender. A misdemeanor conviction carries up to 1 year in the county jail.

• Under PC 646.9(b), if you commit this offense while there is a protective order, temporary restraining order, or injunction imposed against you, then you face a felony charge carrying 2, 3, or 4 years in state prison.

• If you suffer from a prior felony conviction for PC 422, PC 273.5, or PC 273.6, and you’re arrested, then this charge becomes a wobbler offense. A felony conviction carries 2, 3, or 5 years in state prison.

• If you suffer from a prior felony conviction for this offense and you’re subsequently convicted of this offense as a felony, consequently you face 2, 3, or 5 years in state prison.

4. What are the Stalking Legal Defenses?

I. No Credible Threat

A credible threat is one that places a reasonable person in fear for their safety or safety of their immediate family. Thus, if you have no ability to carry out the threat, then you will not be guilty of this crime. For instance, “I’m going to summon the weather gods to strike you with lightening today.” Furthermore, the threat is measured objectively. If your accuser is too hypersensitive in that a reasonable person would not be in fear for their safety, then that serves as a viable defense. Note however, that the government does not need to prove that you were actually intending to carry out the threat.

II. Lack of Intent

Stalking contains the elements that you “intended to place someone” in fear. Therefore, if you did not intended to place another person in fear for their safety or immediately family, then you are not guilty of this charge. For example, you could have made the alleged threat in jest or on accident – thereby negating the intent element. This also applies to the elements of malicious and willfulness conduct.

III. Personal or Immediate Family Safety

Immediately family are any spouse, parents, and children, grandchildren, grandparents, brothers, sisters related by blood or marriage, or any person who regularly lives in the other person’s household. “Regularly lives” means with the prior six months of this offense. If the government is alleging you conveyed a threat via stalking to someone’s immediate family not listed in this paragraph, then you cannot be found guilty of this offense.

IV. You did Not Follow Repeatedly

“Repeatedly” means that you committed this offense more than once. Therefore, if this was a single isolated instance, then it will be insufficient to warrant this charge. In addition, sporadic conduct may serve as a viable defense (arguably) as long as it does not demonstrate a “continuous purpose.”

V. False Accusations

You could be victimized by false allegations by your accuser for a known or unknown reasons. For instance, you ex-spouse could be fabricating this charge in an effort to subsequently gain full custody of your child in family court.

VI. Miranda Violation

A Miranda violation will result in the suppression of your incriminating statements to police officers. Although it may not dismiss the case outright, it may however make the case more burdensome on the government to prove your guilt. For example, you may have admitted to police that you followed your accuser on a second occasion thereby corroborating your accuser’s allegation(s).

5. What are Examples of Stalking PC 646.9?

• Showing up to your ex-spouses work once a week to discuss court ordered alimony payments after he or she has previously told you to stop.

• Continuously writing emails to your former girlfriend telling her that you want to get back together and if she won’t, you’ll use a gun or weapon on her.

• Sending text message photographs to someone of you holding a knife.

6. Reducing Your Felony to a Misdemeanor

As noted earlier, stalking is a wobbler offense. Therefore, if you were convicted of this offense as a felony, then you may be eligible to reduce your felony to a misdemeanor after successful completion of probation under PC 17(b). A hearing must be held and the judge will consider the following factors prior to reducing your felony:

• Whether you suffered any probation violations

• Whether you’re likely to re-offend

• Your prior criminal record

• Whether you pose a danger to society

• The reason(s) you’re seeking reduction – e.g., military, employment, immigration, etc.

7. Stalking Expungement

If you’ve been convicted of stalking, then you may be eligible to expunge your conviction under PC 1203.4 on condition that you fulfilled all orders from the court and are not on probation for any offense. If the judge grants your petition for expungement, the conviction will be ordered dismissed. This remedy carries considerable benefits, especially if you’re seeking employment in the private sector. For more information about expunging your stalking recording, contact the Law Offices of John D. Rogers.

8. Free Criminal Defense Consultation

If you’re facing allegations of stalking under PC 646.9, contact Stalking Defense Lawyer John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.

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