In California, the law on stalking makes it a crime to harass, threaten, or follow another person. For you to be found guilty of violating the law, your behavior or actions must have caused the victim to be afraid of their safety and that of their loved ones. The law recognizes stalking can be carried out in various ways. With the advancement of technology, you can be accused of stalking a person by sending them threatening letters or emails, by use of phone calls, or through the internet. Regardless of the method used, allegations of stalking are serious and attract severe penalties if convicted.

If facing stalking allegations, you need to get a criminal lawyer to defend you against the accusations to avoid a wrongful conviction. At Orange County Criminal Lawyer, we have extensive experience in defending our clients from such allegations, and we shall offer you the same.

Defining Stalking According to PEN 646.9

When you are engaged in a behavior that will be described as threatening, harassing, or following a person to cause fear, you can be accused of stalking. However, an accusation does not automatically mean you get convicted. The prosecutor must prove certain elements or facts of the allegations for you to get convicted. These elements include:

  • That you maliciously and willfully harassed or repeatedly followed the alleged victim
  • That your behavior constituted you making credible threats intended to cause the victim to fear for their safety or that of their family

However, if you are engaged in a constitutionally protected activity, you are innocent of this offense. Such activities include protesting within the law, exercising freedom of speech, or being involved in gathering or assembly.

For you to understand this statute, it is essential to look at some keywords used and how they relate to the offense. These are:

Maliciously, Repeatedly and Willfully

According to this statute, you are accused of willfully doing something when you engage in it purposely or willingly. A malicious behavior, on the other hand, is when a person intentionally does something wrong intending to hurt, annoy, or disturb another. Behavior is said to be repeatedly committed when it is not done once, but several times.


According to this statute, this is when a person engages knowingly and willfully in behavior directed towards a particular person to annoy, torment, alarm, or terrorize them seriously. The behavior, according to the law, serves no credible reason or purpose.

Credible Threat

According to stalking laws, a threat is said to be credible when it causes the victim to be reasonably afraid of their safety or that of their immediate family. The person issuing the threat must also have the ability to carry it out for it to be credible. A threat can be issued in writing, orally, through electronic media, or implied when combined with behavior and utterances.

Reasonable Fear

To determine if you intended to cause fear, the court will analyze the alleged victim's reasonable fear, various facts, and the circumstances of the offense. Not every threat is considered an actual or real threat by the court. Any threat that is based or includes the following is not an actual threat:

  • Exaggerated political statements
  • Expressions that are meant to be jokes
  • A speech that is protected by the constitution

Immediate Family

Based on the stalking laws, immediate family includes the following:

  • Your spouse, parents or children
  • Grandparents, grandchildren, brothers or sisters
  • Individuals that live within the household regularly

Legal Defenses for Violating PEN 646.9a – Stalking

As earlier stated, stalking is a severe offense that, when found guilty of it, the repercussions are severe.

For this reason, you need to get a criminal lawyer committed to defending you against these allegations. Your lawyer on investigating the circumstances of the crime as well as the prosecutor’s evidence, he or she will come up with various defenses that will help with your case. Some of the defenses that can be used in a stalking case include:

  1. You were not Stalking but Exercising your Constitutional Right

As earlier stated, some threats are not actual threats, and they include when a person is engaging in an activity that is allowed and protected constitutionally.

For instance, you may be opposed to a real estate developer that has come to your town and seeks to bring down buildings, including the one you live in to make modern ones. You like to maintain your neighborhood, and you feel the new development will change everything and make it worse. You are unhappy with the events and the company’s CEO, James.

You decide to stand at a curb across the offices of the developer with a sign and shouting James is a criminal, creating curiosity and people pointing at him. James gets upset and embarrassed and calls the cops to report that you have been stalking him.

If this was the case, you are not guilty of violating PEN 646.9a. Although your actions annoyed James, you were standing far from him and in broad daylight. You did not threaten but were only chanting and holding up a sign. You were doing this to express an opinion on a matter that is of public concern. The activity you are engaged in is constitutionally protected, meaning you did not commit a stalking offense.

  1. No Credible Threat was Issued

For one to be guilty of stalking, he or she must have issued a threat that caused their victim to be reasonably afraid. For instance, if John likes Vera and harasses her for a date but Vera refuses. John, annoyed by the rejection, may threaten her to send a gang member well known in the neighborhood to rape her.

Vera is terrified of the threat and believes John is capable of doing it. Every day John waits for her and threatens her with the same. She reports the harassment, and John is charged with stalking, according to PEN 646.9a. However, unknown to Vera, that gang member was arrested and died in prison for other crimes. This means that the said person would not have come to rape them when they are dead.

This threat was, therefore, not credible, and John will be acquitted of the offense.

  1. You were Falsely Accused

False accusations are common, especially where one is seeking revenge. For instance, if two people share a child but not married, they can often have disagreements if they do not raise their child in agreement. If the child is under the primary care of the mother, she may feel bad when she hears the ex-boyfriend has a new girlfriend. She decides to deny him from seeing their child.

The boyfriend keeps coming to her house, demanding to see their child. He may even go to her place of work or wait for her as she comes back. To get back to him, she accuses him of stalking. With excellent defense, the boyfriend will be acquitted of the charges once it is established that they are based on lies and vengeance.

  1. Mistaken Identity

This mostly happens when the offense is carried out by a stranger to the victim. A person has been receiving threats or is being stalked by another person, but they have never seen them clearly, it is possible to mistake a person for the offense. The alleged victim will report to the police and a description of the perpetrator.

If you happen to be seen around where the victim lives and you match the description, you may be arrested for a crime you never committed. Your lawyer will carry out investigations and interview your friends, family, and colleagues. Through his or her findings, it will be established that you are not the person stalking the victim. If you get accused of the crime of mistaken identity, you will be acquitted of it.

Penalties for Violating PEN 646.9 – Stalking

If you are charged with stalking, a guilty verdict will expose you to two kinds of penalties. You will be subjected to both criminal and civil penalties. To understand these, we shall discuss the penalties in detail below:

Criminal Penalties

Violations of this law can be prosecuted as either a misdemeanor or felony offense. If you are prosecuted on misdemeanor charges, a misdemeanor conviction will result in the following penalties:

  • Summary or misdemeanor probation
  • A county jail sentence of a year or less
  • Paying of fines amounting to $1,000 or less

If there are exceptional circumstances to the offense or your criminal background makes the prosecutor institute felony charges against you, a conviction, in this case, will lead to the following penalties:

  • Formal or felony probation
  • State imprisonment for five years or less
  • Paying a fine of $1,000 or less

In both cases, the judge can decide to charge the defendant with both fine and jail time. Or either of them instead.

Some circumstances will lead to this offense to always be prosecuted as a felony. If the following situations apply in your case, you will face felony charges automatically. These are:

  • You stalked the victim in total disregard of a court order protecting the victim from you or
  • You had a prior stalking conviction even though it was to a different victim

Civil Penalties for Stalking Violations

Aside from the criminal penalties you will face because of this offense, the alleged victim of your stalking can decide to sue for damages suffered due to the stalking. However, for the victim to be awarded damages, he or she must determine the following facts or elements of the offense:

  • That the alleged stalker was involved in a behavioral pattern whose intention was to alarm, harass, or follow the victim. For this, the alleged victim must show independent evidence aside from their testimony
  • Because of this behavior, the alleged victim was fearful of their safety and that of their immediate family and
  • The alleged stalker made credible threats to the victim that became a safety concern to them and their family. Also, the alleged victim had a protective order against the defendant, but he or she violated the court order with their actions

If the victim of stalking can convince the court of these, he or she will be awarded both punitive and compensatory damages.

Immigration Consequences if Convicted of Stalking

A conviction of stalking can negatively affect your immigration status. According to the federal government, there are some crimes when one is convicted that can result in deportation or the person being inadmissible.

Inadmissible or deportable crimes are found in the following major categories:

  • Aggravated felonies
  • Crimes that constitute moral turpitude
  • Crimes involving narcotics or controlled substances
  • Crimes that involve firearms and
  • Crimes involving domestic violence

When you are charged with felony stalking, the circumstances of the offense may categorize it as an aggravated felony. If it is successfully found to fit in this category, then you may be faced with severe and negative consequences as an immigrant.

Expungement of a Stalking Conviction

According to PEN 1203.4, any person convicted of stalking can get their record expunged. An expungement in California releases a person from the disabilities and penalties that arise due to the conviction.

One of the significant benefits of getting your record expunged is that you do not need to disclose your past criminal offense to your potential employer.

Typically, under PEN 1203.4, expungement is possible for any person with a felony or misdemeanor conviction as long as they have fulfilled the following conditions:

  • They completed their probation sentence successfully
  • They are currently not facing any charges for a criminal offense, are not a sentence for another offense; neither are they on probation for another crime

This means, once the defendant has completed their sentence successfully, be it a jail sentence or probation, they have a right to petition the court to expunge their record. Successful completion of their sentence involves adhering to the probation conditions and fulfilling all the sentence requirements. These may include payment of fines and other damages where applicable.

Stalking Conviction and Your Gun Rights

If you are prosecuted on felony charges for stalking, a conviction will negatively affect your gun’s rights. In California, the following people are typically prohibited from having or owning a firearm. These are:

  • Individuals that have been convicted on felony charges in all jurisdictions
  • Persons that are addicted to narcotics
  • Individuals that have at least two convictions of violating PEN 417 that prohibits brandishing a firearm
  • Individuals with specific misdemeanor convictions such as PEN 273.5 that involves inflicting corporal injury to a spouse
  • Mental illness patients
  • Individuals below the age of 18. Subsequently, persons below the age of 21 are also not allowed to buy guns

If you had a gun before you were charged with felony stalking, a conviction of this offense would require you to surrender your weapon and the rights to one.

Related Crimes to Stalking

Various crimes can be charged alongside those of stalking or instead of them. Some of these crimes are:

  • Cyberstalking under PEN 653.2a
  • Issuing criminal threats under PEN 422
  • Annoying phone calls under PEN 653
  • Kidnapping under PEN 207

Cyberstalking PEN 653.2a

Cyberstalking is another form of stalking where the perpetrator does not have to come into physical contact with their victim but will use the internet to stalk them. When you use the internet to post materials that will cause the victim to live in fear of their life and that of their family, you will be guilty of stalking or cyberstalking.

Just like in the elements of regular stalking, a person committing cyberstalking has similar intentions. He or she intends to cause harm, harass, or cause fear to their victim by making unwelcome contact with them. The perpetrator may use digital images or recordings aimed at harassing the victim. If the perpetrator is known to the victim, the victim may get a court order restraining the perpetrator from stalking them.

If a perpetrator disobeys the court order and continues to harass or stalk the victim, they can be charged with both stalking and cyberstalking at the same time. A conviction for cyberstalking will carry the following penalties:

  • County jail imprisonment for a year or less
  • Being charged a fine of $1,000 or less
  • Being charged with either or one of the above penalties

Annoying Phone Calls Under PEN 653m

Under this statute, it is illegal for a person to use the phone or any electronic media to threaten or harass another person. The law also prohibits issuing threats against the property of the person or using obscene language against them. Threatening the family of the victim is also illegal, according to this statute.

With relation to stalking, an alleged stalker can make telephone calls to the alleged victim to threaten, harass, or instill fear in them. The stalker can tell the victim that they see them, describe their dressing, or what they are doing, among other things. A stalker can also threaten the victim to do something, and if they refuse, there will be consequences.

For instance, if a stalker claims to be in love with the victim, they may be calling them to speak obscene things to them. They may ask the victim to leave their husbands, and if they do not, their husband will be punished. This is a combination of both threats and stalking.

If this happens, the alleged stalker will be charged with making annoying phone calls and stalking the victim at the same time.

If you are convicted of making annoying calls under PEN653m, you are likely to face the following penalties aside from those of stalking:

  • A county jail time of six months or less
  • Paying of a fine totaling to $1,000 or less
  • Being charged with both the fine and jail time or either.

Criminal Threats as Found Under PEN 422

Issuing criminal threats is closely related to stalking violations. When a person is talking to their victim, sometimes they can make criminal threats by either sending letters of threatening them or emails.

Criminal threats, as defined by the law, are when a person issues warnings to another that would result in causing the victim's injuries or death. When a person issues such a statement, it must be meant to be a threat in totality. A criminal threat must be in writing or communicated verbally. The threat must also be communicated and create fear to the victim or their immediate family. A person that is accused of stalking can also face charges of issuing criminal threats at the same time.

Issuing criminal threats can be prosecuted as either a misdemeanor or a felony offense. This is all dependent on the circumstances of the crime and the criminal background of the defendant. If you are convicted on felony charges, you are likely to face the following penalties:

  • State imprisonment lasting three years or less
  • Paying a fine of $10,000 or less
  • Being ordered to both prison time and a fine or either of them.

What You Need to Do If You are Being Stalked

If you know or believe that you are being stalked, you must act fast. Some of the things you must do include:

  • Taking action against the stalker before their behavior intensifies
  • Confront and tell the stalker to stop the unwanted behavior
  • If the stalker does not stop, avoid them or engaging with them
  • Tell a friend or family members even your employer of the stalking
  • Make a report with the police
  • If the stalker leaves any evidence, preserve it well

What You Need to Do If Facing Stalking Allegations

As earlier stated, stalking is a serious criminal offense in California. When charged with this offense, it is critical to engage a skilled criminal attorney to defend you. A conviction will negatively impact your life, and it is crucial to avoid it as much as possible. With an experienced lawyer, he or she will:

  • Engage the prosecutor in a plea bargain by asking that you are prosecuted on a lesser offense
  • A lawyer will fight for you to get a reduced sentence
  • A lawyer can have a defense strategy that can result in the dismissal of the charges against you.

Find a Criminal Defense Lawyer Near Me

Stalking allegations can alter your life mostly for the worse. Attorneys at Orange County Criminal Lawyer are dedicated and have an unrivaled knowledge of the court system as well as the criminal laws of California. If you are facing allegations of stalking, we can represent you by analyzing the facts of the case and offering you excellent defense. Reach us at 714-262-4833, and we will help you get the best outcome possible.