Penal Code § 646.9 PC – California Stalking Laws

Under Penal Code § 646.9 PC, stalking becomes a criminal offense in California if you follow, harass, and threaten someone to the point that the person fears for their safety. Stalking can be charged as a misdemeanor or a felony. A conviction carries a penalty of up to 5 years in jail or prison.

The language of the statute reads that:

646.9. (a) 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 the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.

Examples

• Calling a co-worker every night, without an invitation to do so, and telling her that “we will eventually be together, like it or not.”
• Sending an ex-friend dead flowers every Tuesday with a note that says “you’re next.”
• Sending neighbor a letter every other day that says, “take down the fence or else.”

Defenses

Defense lawyers can assert a number of legal defenses in a stalking case. These include showing that:

• the threat was not credible,
• the alleged victim is making the story up,
• there was no intent to cause fear, and/or
• you were participating in a constitutionally protected activity.

Penalties

A violation of this section is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony. This chart shows the penalties for each.

Stalking Crime	California Penalties
Misdemeanor stalking	up to one year in county jail, or misdemeanor (or summary) probation.
Felony stalking	up to five years in California State Prison, or felony (or formal) probation.

In addition to the above criminal penalties, you may be subject to a civil lawsuit brought by the alleged victim.

Note that if you are convicted of stalking, this conviction may have:

• negative immigration consequences (if applicable), and
• negative consequences on your gun rights.

Also, note that you can seek to have it expunged once you successfully complete:

• probation (if imposed), and
• any jail time (if imposed).

Below, our California criminal defense attorneys will address the following topics:

• 1. What is stalking?
• 2. Defenses
• 3. Penalties
• 4. Immigration consequences
• 5. Expungements
• 6. Gun rights
• 7. Related offenses
• 8. Help for victims
• Additional Reading

1. What is stalking?

Penal Code 646.9 PC is the California statute that makes it a crime to stalk another party.¹

A prosecutor must prove these two elements of the jury instructions in order to convict you of this offense:

1. you willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person, and
2. you made a credible threat with the intent to place the other person in reasonable fear for his safety (or for the safety of his immediate family).²

Note that you are not guilty of stalking if you engaged in a constitutionally protected activity. For example, you are innocent of violating this statute if you were:

• exercising free speech,
• legally protesting, or
• participating in an assembly.³

Below we discuss the meaning of:

1. willfully, maliciously, and repeatedly,
2. harassment,
3. credible threat,
4. reasonable fear, and
5. immediate family.

Willfully, Maliciously, and Repeatedly

For purposes of this code section, you commit an act willfully when you do it willingly or on purpose.⁴

You act maliciously when you intentionally do a wrongful act or when you act with the unlawful intent to disturb, annoy, or injure someone else.⁵

Repeatedly means more than once.⁶

Harassment

Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously:

• annoys,
• alarms,
• torments, or
• terrorizes.⁷

The course of conduct must also serve no legitimate purpose.⁸

Note that a “course of conduct” means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.⁹

Credible Threat

Under this statute, a “credible threat” is one that:

1. causes the target of the threat to reasonably fear for their safety (or for the safety of their immediate family), and
2. one that you appear able to carry out.¹⁰

A credible threat may be made:

• orally,
• in writing, or
• electronically.

It may also be implied by a pattern of conduct or a combination of statements and conduct.¹¹

Reasonable Fear

On the issue of whether you intended to place “the victim” in reasonable fear, the court will decide the issue by analyzing the facts and circumstances of the case.¹²

Note that the court has stated that whether a threat is made with the intent to cause fear is reserved for “true threats.”¹³

True threats do not include:

• political statements that exaggerate,
• joking expressions, or
• constitutionally protected speech.¹⁴

Immediate Family

According to this code section, “immediate family” means a:

• spouse, parent, or child,
• grandchild, grandparent, brother, or sister related by blood or marriage, and
• person who regularly lives in the household.¹⁵

2. Defenses

You can often beat a stalking charge with a successful legal defense. A good defense can work to reduce or even dismiss a charge.

Three common defenses to PC 646.9 accusations are:

1. no credible threat
2. no intent to cause fear, and/or
3. constitutionally protected activity

There Was No Credible Threat

Recall that you are only guilty under this code section if you made a “credible threat” to an alleged victim. A defense, therefore, is for you to show that, while you may have made a threat, it was not serious or credible. For example, perhaps you threatened a person in a joking manner.

There Was No Intent to Cause Fear

This is similar to the prior defense. Here, you would argue that while you may have made a threat, you did not mean for that threat to cause fear. For example, maybe you made a repeated threat to tickle another person.

Your Actions Were A Constitutionally Protected Activity

Recall that under this statute, you are innocent of stalking if you were engaged in a constitutionally protected activity (such as lawfully protesting). This means it is always a good defense to show that you were engaged in such an act when charged with stalking.

3. Penalties

There are two basic penalties that you will face if you commit the offense of stalking. These are that you will be subject to:

1. criminal penalties, and
2. civil penalties.

Criminal Penalties

A violation of PC 646.9 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by:

• misdemeanor (or summary) probation,
• up to one year in county jail, and/or
• a maximum fine of $1,000.¹⁶

If charged as a felony, the offense is punishable by:

• felony (or formal) probation,
• up to five years in state prison, and/or
• a fine of up to $1,000.¹⁷

Note that the crime of stalking will always be charged as a felony if either of the following circumstances apply:

1. the stalking was in violation of a court-issued protective order, or
2. you had been previously convicted of stalking (even if the alleged victim in the new case is not the same person you previously stalked).¹⁸

Civil Penalties

In addition to criminal penalties, the alleged stalking victim may sue you in civil court for damages related to the stalking.¹⁹

A stalking victim must prove three things in order to get damages for the stalking in a civil court proceeding. These are:

1. you engaged in a pattern of conduct that was intended to follow, alarm, or harass the “victim” (they need independent evidence, besides their testimony, to show this),
2. as a result of this conduct, the victim reasonably feared for their safety or the safety of an immediate family member, and
3. you either:
   1. made a credible threat against the safety of the victim or their family member, and failed to stop the harassing behavior after the victim asked you to do so, or
   2. violated a restraining order with your behavior.²⁰

If the alleged victim is successful in proving these, then they may recover both:

• compensatory damages, and
• punitive damages.

4. Immigration Consequences

A stalking conviction may result in negative immigration consequences.

United States immigration law says that some California criminal convictions can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”

The major categories of “deportable” or “inadmissible” crimes are:

• crimes of moral turpitude,
• aggravated felonies,
• controlled substances (drug) offenses,
• firearms offenses, and
• domestic violence crimes.²¹

Depending on the facts of a case, a felony stalking charge may rise to the level of an aggravated felony. If it does, then it may have detrimental immigration effects.

5. Expungements

If you are convicted of stalking, you can seek to get the offense expunged.

An “expungement,” per Penal Code 1203.4, releases you from virtually “all penalties and disabilities” arising out of the conviction.²²

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.

As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided you:

1. successfully completed probation, and
2. are not currently charged with a criminal offense, on probation for one, or serving a sentence for a crime.²³

This means that once you have successfully completed probation (if it was imposed) or served out a jail term (if applicable), then you may begin trying to get the crime expunged.

6. Gun Rights

A conviction for felony stalking will have an effect on your gun rights.

The following people are generally prohibited from acquiring or possessing a gun in California:

1. felons (that is, anyone convicted of any felony offense in any jurisdiction),
2. narcotic addicts,
3. persons with two or more convictions under Penal Code 417 PC, California’s law against brandishing a weapon,
4. persons convicted of certain misdemeanor offenses (such as convictions of Penal Code 273.5 PC, California’s law against corporal injury on a spouse),
5. persons who suffer from mental illness, and
6. people under 18 (people under 21 may not purchase a gun).

Recall that stalking can get charged as either a misdemeanor or a felony. Given the first category above, if you get charged with felony stalking, and get convicted of the same, then that conviction would mean you would have to give up any gun ownership and possession rights.

7. Related Offenses

There are three crimes in particular that often get charged along with stalking. These are:

1. kidnapping – PC 207,
2. annoying phone calls – PC 653m, and
3. criminal threats – PC 422.

Kidnapping – PC 207

California Penal Code 207 PC prohibits the crime known as kidnapping.

“Kidnapping” is the:

1. moving of a victim a substantial distance, and
2. using force or fear to do so.²⁴

Unlike stalking, the crime of kidnapping requires that you physically handle an alleged victim and move that person.

Annoying Phone Calls – PC 653m

Per California Penal Code 653m PC, it is a crime to:

1. make a telephone call that is obscene, threatening or one of a series of repeated calls, and
2. do so with the intent to harass or annoy the person being called.

Note that while stalking is similar to this offense, stalking carries the extra element that any threat must have been made with the intent to place the “victim” in reasonable fear.

Criminal Threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”

A “criminal threat” is when you threaten to kill or physically harm someone and

• that person is thereby placed in a state of reasonably sustained fear for their safety or for the safety of their immediate family,
• the threat is specific and unequivocal, and
• you communicated the threat verbally, in writing, or via an electronically transmitted device.²⁵

Unlike stalking, this offense does not focus on you harassing or following a person. Rather, PC 422 focuses more on the nature of the threat made.

8. Help for Victims

If a person thinks, or knows, that they are being stalked, it is imperative to act. At minimal, they should:

• take action before the stalking behavior escalates,
• 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.

Helpful resources available to stalking victims include:

• the Stalking Resource Center,
• the State of California – Office of the Attorney General, 1-800-952-5225, and
• the 1800VICTIMS.org homepage (which includes resources available in most California counties – including Victim Assistance Centers and local law enforcement agencies).

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Efficacy, of the California Stalking Law: Surveying Its Evolution, Extracting Insights from Domestic Violence Cases – Hastings Women’s Law Journal.
• Anti-Stalking Laws: Do They Adequately Protect Stalking Victims – Harvard Women’s Law Journal.
• Stalking Laws: In Pursuit of a Remedy – Rutgers Law Journal.
• What is stalking? The match between legislation and public perception – Legal and Criminological Psychology.
• Stopping Stalking – Georgetown Law Journal.

---

Legal References: