California Stalking Laws

In California, stalking is the crime of harassing another individual that creates a credible threat of harm against the victim or their immediate family. Stalking may include phone calls, physically following the victim, and cyberstalking.

Stalking is not a one-time event. It is a pattern of intentional, malicious, and willful behavior aimed at instilling fear in the victim. The crime of stalking is similar to simple harassment, but goes beyond by raising a credible threat to the victim’s safety.

In California, stalking can be a felony or misdemeanor offense. Felony stalking occurs when the offender violates a restraining order or has a previous stalking conviction on their record. California’s stalking laws have changed recently to include threats to a victim’s pets. If you’re facing stalking charges in California, it’s a good idea to meet with a criminal defense attorney sooner rather than later.

California Stalking Laws

California Penal Code section 646.9 defines the elements of the crime of stalking. To establish the offense of stalking, a prosecutor must show the defendant placed the victim in reasonable fear of their safety by following, harassing, or making a credible threat against them or their immediate family members.

Prosecuting stalking is less straightforward than it might appear. A single incident, no matter how threatening, may not be enough to qualify. Let’s take a closer look at some of the elements of the crime.

Following or Harassing

Harassment is a course of conduct that “annoys, alarms, or terrorizes,” and objectively serves no legitimate purpose. A “course of conduct” means two or more acts. The prosecutor must prove the defendant had a purposeful intent in their actions. A single action may be threatening or unpleasant, but it is not “harassment” under the law.

Credible Threats

A credible threat is one that the defendant could reasonably carry out under the circumstances and intends to place the victim in fear for their safety. The threat could also involve their immediate family or their pets.

Threats may be any combination of:

• Oral, such as phone calls or spoken
• Written, including letters, texts, or social media
• Implied by actions or other means

Annoying phone calls in which a person calls and hangs up repeatedly may constitute harassment, but the same calls coupled with a text message saying “wouldn’t it be terrible if you couldn’t call 911 in an emergency?” might be a threat.

Reasonable Fear

Reasonable fear depends on the circumstances of the case and the nature of the threat and has both objective and subjective elements. The fear must be one that a reasonable person would feel under similar circumstances. To be considered stalking, the victim must actually experience such fear and be genuinely afraid.

The First Amendment and Stalking Charges

Some actions that appear to be stalking or harassment may be protected by the First Amendment. Political statements that exaggerate or use hyperbole for effect are not “credible threats.” This is why most protests against unpopular politicians are not considered criminal acts. Jokes clearly intended as such are not harassment, as are most forms of constitutionally protected activity.

Examples of Stalking

Stalking requires a pattern of conduct demonstrating an intent to create fear in the alleged victim. For example, consider a reporter who often reports on a popular politician’s nefarious activities. One of the politician’s fans takes it upon themselves to follow the reporter to and from work. The reporter notices the car and calls the police.

As long as the fan limits their activities to following the reporter and obeys all the traffic laws, this is not a stalking offense, although the reporter may have grounds for a harassment charge.

If the fan ups the ante and starts posting on the reporter’s social media account, describing their route to and from work, showing pictures of their family, and then their children’s school, they may have crossed into stalking. The reporter could be genuinely afraid for their own safety and that of their family members.

Cyberstalking and Doxxing

The internet allows stalkers and harassers to send criminal threats to their victims even when they are thousands of miles away. Cyberstalking and doxxing are criminal offenses in California. Victims also have civil recourse against the perpetrator.

Cyberstalking is stalking by use of computers, social media, text messages, and other electronic media. The stalker must intend to create fear in a victim.

Doxxing means publishing someone’s private identifying information with malicious or harmful intent. These include addresses, phone numbers, and other specific information that is not public. Posting someone’s email address online may not be doxxing them, but publishing their children’s names, ages, and school locations would be.

Penalties

Stalking is a “wobbler” in California. Stalking charges are felonies if the offender violates an existing restraining order or has previous stalking convictions. Otherwise, stalking is a misdemeanor offense.

Felony stalking is punishable by between two and four years in state prison, fines, or felony probation. Felony stalking can also result in:

• A strike under California’s three-strikes law
• Loss of your right to own a firearm and other licenses
• A civil lawsuit under California law

Misdemeanor stalking is punishable by up to one year in county jail, fines of up to $1,000, or both.

Stalking often occurs in connection with other offenses such as domestic violence, sex offenses, and workplace violence. If the victim has a temporary restraining order or injunction against the offender, any type of stalking may violate that protective order and result in heavier sentences.

Defenses

Proving a stalking charge depends on the circumstances of the case and the offender’s intent. Aside from constitutionally protected activities, the most common defenses are lack of credible threat and lack of intent.

Lack of Intent

This defense is common for celebrity stalkers. Fans can be unaware that their intense devotion causes extreme anxiety or even terror in the victims. In situations where stalkers have a delusion that their victim is reciprocating their feelings, they may not realize the harm they are doing.

In other cases, the alleged stalker may not have been intentionally stalking the victim. For instance, suppose the fan in our example above had recently switched jobs and now worked in the same building as the reporter. The reporter knew that the fan disliked their reporting and was hypervigilant about the fan’s actions. The fan’s action of “following” them may just be their daily commute to work.

Proving intent is difficult, as the stalking victim may feel genuine fear and alarm that the defendant didn’t mean to inflict. It’s up to a prosecutor to provide the evidence to support criminal charges.

Lack of Credible Threat

A threat must be credible or believable to a reasonable person. Most threats involve a reasonable fear of bodily injury to the victim or their family or pets. The threat can be direct, such as “I’m going to kill you,” or indirect, “I know you love your little Fluffy, and it sure would be terrible if you never saw him again.” What matters is whether a reasonable person would believe the defendant could carry it out. A defense strategy for lack of credible threat must show that to a reasonable person, there was no attempt to cause distress or fear.

A threat to drop a nuclear bomb on someone is not a credible threat, but some threats that seem less likely to a reasonable person are a genuine fear to the victim. In domestic violence and some sex crimes cases, a defendant may claim that they “only sent the victim roses and a poem” and question how that could be considered threatening. When it turns out that the stalker sent the victim black roses and astrological poems describing how they were meant to be together forever over a 12-year period, the menace and intent behind the act becomes more obvious.

Get Legal Advice From a California Defense Attorney

If you’re facing prosecution under California’s stalking laws, it’s critical to have the right representation as early as possible in your case. An experienced criminal defense lawyer can help evaluate the evidence against you and can be your strongest advocate in court. A California defense attorney will examine the details of your case, explain your options, and stand with you throughout the legal process.