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Garcia Law Group > Stalking

Stalking in California – PC 646.9




Stalking is a predatory behavior that is often seen in individuals who are obsessed with another person or group of people. There are several requirements for a person to be labeled a stalker under California state law in this article we will explore some of those criteria as well as many other aspects of stalker end stalker behaviors.


Stalking is illegal under California penal code 646.9 PC. The penal code states that “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 a reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.”


Stalking can also be established by threatening, harassing, or making a person fear for their physical safety.


Stalking can be charged as a misdemeanor or as a felony. A misdemeanor stalking charge and a felony stalking charge will have different penalties and repercussions from the court. Felony stalking charges are more extreme and have more severe punishments for those who are convicted of the crime.




Examples of stalking are as follows. Calling a co-worker, friend, or family member every night without permission and threatening them with some type of harm, sending an ex-lover a horse’s head every other weekend with a note that says, “this will be you soon,” or even following someone around the mall they shop at every time they go.


Stalking is a very complex yet simple crime. It involves an element of threat to the person being stalked oh, but often there is no physical altercation where a threat is explicitly said orally. Stalkers tend to do their criminal behavior away from their target, so they communicate mainly through notes, following the person, or text messages and calls.


Oftentimes stalking behavior merges into harassment. Harassment is a similar situation to stalking where a person frequently engages with another person over a topic over and over and over again even if the person is saying no or asking them to stop.


Stalking is often thought to be perverted or a crime that is sexual in nature. However, that is not always the case. While many stalkers follow their victims because they have some sort of emotional attachment or sexual fantasy about their victim, many stalkers use stalking as a way to intimidate another person into doing what they want.


Stalking does not always have to be someone loitering around your windows and staring in at night. It can be someone threatening you to do something for their benefit. For example, if you have the best parking spot in the apartment complex’s parking garage and you keep getting notes on your dashboard every day saying “give me the parking spot or else”, this qualifies as stalking.




Whether stalking is charged as a misdemeanor, or a felony depends on the severity of the criminal behavior. The penalty for a misdemeanor stalking charge is up to one year in a county jail or summary probation. If a person is charged with a felony stalking conviction, the convicted party is liable to spend up to five years in a state prison or serve felony or formal probation.


Once convicted of stalking, several other negative consequences follow the penalties and sentencing. If a person is a noncitizen, a stalking conviction can harm their immigration status. Stalking convictions can also affect a person’s right to own a gun.


However, a person convicted of stalking can petition to have the stalking charge expunged from their record after completing probation and serving jail time. This means that people who serve their time and understand the severity of their crime can get their record is clean or expunged and start over again.


In addition to the misdemeanor penalties and the felony penalties, a convicted stalker is liable to a civil lawsuit as pursued by the victim of the stalking. This means that the victim of a stalking crime can bring the stalker back to court in a civil lawsuit and take further action against the stalker.


If a convicted stalker is taken to civil court, then the victim can sue the convicted stalker for damages stemming from or related to the stalking incidents. In a civil court, the stalking victim must prove 3 things.


First, the victim needs to show that the stalker engaged in a pattern of behavior and conduct that was acted out to purposefully harass, intimidate, follow, or otherwise alarm the victim. The victim needs to make sure they have independent evidence besides their verbal or written testimony to prove this to the Court.


Secondly, the victim must prove that they had reasonable suspicion to fear for their safety or the safety of their family as a result of the stalker’s behavior.


The third criteria come in two parts. The stalker must have either violated a restraining order with their stalker’s behavior or made a legitimate threat against the victim or a family member of the victim and did not stop the harassment and stalking behavior after the victim asked the stalker to stop.


If a victim of stalking did not have a restraining order against their stalker before a state court or civil court, they will often have a restraining order after. Many people choose to file for restraining orders after their stalkers get out of jail again out of an abundance of caution.


One of the most powerful ways to prove evidence of stalking is to file for a restraining order and if the stalker breaks the restraining order, then the victim has concrete proof of stalking. Violating a restraining order is another crime that can be reported.


Cyberstalking is another form of stalking a person can bring to court. Cyberstalking is a method of stalking and harassment in which the stalker uses electronic communication such as email, text messaging, or phone calls to “willfully and maliciously” harass another person. They must also make a credible threat that makes the victim fear for their safety or the safety of their family.


Electronic communication devices are not limited to computers and phones. Electronic communication devices in the case of cyberstalking can include cell phones, telephones, fax machines, video and audio recorders, computers, pagers, and more.

The penalties for cyberstalking in the state of California are the same penalties for regular stalking. If you are found guilty of cyberstalking, there are other penalties that you can receive. Additional penalties for cyberstalking in California include counseling, admission into a state mental hospital, and most often, a restraining order preventing you from getting too close to the victim.




Three of the more common defenses to PC 646.9 stalking allegations are:


(1) There was no credible threat. It could be that the defendant made a joke that was taken as a threat or made an exaggeration that was taken as a threat.


(2) There was no intent to cause reasonable fear. It may very well be that the defendant did not intend for the alleged victim to fear the defendant because a reasonable person would not have been in fear.


(3) The defendant was engaged a constitutionally protected activity. Certain activities such as political protest, participating in assembly, and constitutionally protected speech are defenses.




If you or someone you know is being stalked, it is critical to take action. The alleged victim should:


– tell the stalker to stop with the unwanted contact,


– if the contact continues, do not engage with the stalker in any way,


– inform friends, family, and an employer about the stalking,


– call the police and make a report, and


– try to keep and preserve all evidence of the stalking;


– consider filing a domestic violence restraining order (DVRO) or civil harassment restraining order (CHRO).



Helpful resources available to stalking victims include:


Similar offenses include:


Domestic Violence/Corporal injury to spouse or cohabitant PC 273.5

Criminal threats PC 422

Disturbing the Peace PC 415

Dissuading a Witness PC 136.1

Domestic Violence PC 243(e)(1)

Extortion PC 518

Stalking PC 646.9



Appearing in front of a judge by yourself can be an intimidating experience. Additionally, the laws are complicated. If you are facing a criminal case, Garcia Law Group is here to help you. We’ve handled hundreds of cases and represented individuals in your situation. We are here to help you get through this stressful situation.


Call now and speak to attorney Joel Garcia for a FREE CONSULTATION.

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