Safety is of utmost importance to everyone, which is why the state of California has laws in place to ensure that its residents are safe at all times. Such acts are those that make it an offense for a person to make another feel unsafe, for instance, by stalking. California laws against stalking are meant to ensure that, in addition to being physically safe, everyone feels safe as they go about their day-to-day life.
If you are under suspicion of stalking a person and you are facing charges, you are likely to face severe penalties. Stalking is among the domestic violence crimes we handle at the Los Angeles Criminal Lawyer. We help residents of Los Angeles who are charged with Stalking, fight for a fair hearing as well as protection of their rights.
Legal Definition of California Stalking
California laws against stalking are under Section 646.9 of the state Penal Code. According to this law, it is illegal for any person to maliciously, repeatedly, and willfully harass or follow another person as well as to make a credible threat to cause the other person to fear for their safety and the safety of their immediate family. In simple terms, California law on stalking makes it unlawful for anyone to follow, threaten or harass another person to the extent that this person is afraid of his/her safety or the safety of his/her family.
To understand the meaning of this law better, let us look at the elements of the crime. There are facts the prosecutor must demonstrate in court beyond a reasonable doubt for the defendant to be found guilty of the crime. These are:
- That the offender maliciously and willfully harassed or continually followed the victim
- That the offender credibly threatened the victim intending to place that person in fear for their safety and the protection of their immediate family
Note that you cannot be found culpable of stalking even if you are involved in a legal activity. A person is, for instance, not liable for stalking if:
- They were exercising their freedom of speech
- They were legally protesting
- They were participating in a legal assembly
To understand this section of the law even better, let us look at some of the terms and phrases used in the definition separately:
- Acting Willfully, Repeatedly and Maliciously
A person is said to have acted willfully if they did so purposely or willingly. An act is said to be malicious if it is done with the intention of annoying, injuring, or disturbing another person. The act has to be done repeatedly for the court to consider it as stalking. What this means is that the defendant must have done the same thing more than one time.
As used in this law, harassment means taking part in a willful and knowing course of behavior and directing it to a particular person. This course of action must be annoying, tormenting, alarming, or terrorizing. The sequence of behavior must also have a legitimate purpose. The course of behavior, in this case, means that two acts or more have occurred over a given period, however short they may have been, all geared towards serving the same purpose.
- A Credible Threat
As used under this law, a credible/reliable threat is the one that makes the other person experience a reasonable fear for their safety and the security of their immediate family. The threat is also the type that the defendant can execute. A credible or dependable threat, in this case, will be executed electronically, in writing, or orally. The defendant could also imply the threat through a sequence of behavior or both conduct and statements combined.
- Reasonable Fear
As mentioned earlier, the court will determine whether or not the defendant planned to put the other person in real fear after analyzing all the evidence and situations of the case at hand. However, whether or not the threat made was intended to cause anxiety, it has to be an actual threat. A real threat, in this case, will lack the following:
- A joking expression
- An exaggerated political statement
- Was a legally protected speech
- The Immediate Family
For the purposes of this law, the threat must have intimidated the safety of the person or the safety of his/her immediate family. The immediate family, in this case, refers to the victims:
- Spouse, child or parent
- Sister, brother, grandparent, grandchild or anyone they are related to by marriage or blood
- A person that frequently lives with the victim in the same house
Penalties for California Stalking
A person afraid for his/her safety or the safety of his/her immediate family will live in high anxiety, not knowing when his/her stalker will strike. Such a person will not be able to go about his/her day-to-day activities. For those reasons, the state of California has stiff penalties for anyone found liable for stalking. It is a way to discourage the behavior and enable would-be victims to a life free of fear, knowing that they can always find justice in case a person stalks them.
There are, basically, two types of penalties such a person would get if he/she is found guilty of the crime of stalking. They are criminal and civil punishments.
Criminal Penalties for Stalking
A person found culpable of stalking in California will face a criminal sentence. The offense is a wobbler, which means that the court can convict it as both a felony and a misdemeanor. If it is a misdemeanor offense, the offender is likely to face the following penalties:
- Misdemeanor probation
- A maximum of twelve months in jail
- A fine of not exceeding $1,000
If, on the other hand, it is a felony conviction, here are the penalties the offender is likely to receive:
- Felony probation
- A maximum of five years of incarceration
- Fines of not more than $1,000
Stalking crime in California will be a felony offense at all times in the following situations:
- That the offense was committed as a violation of the court-ordered restraining order
- That the defendant has a prior conviction of staling, even when a current victim is a different person from the one in the previous case
Civil Penalties for California Stalking
On top of the above-mentioned criminal penalties, a victim of stalking may decide to file a lawsuit against his/her stalker in a civil court. When this happens, the court may compel the defendant to cater for all the damages the victim could have incurred from the stalking. However, there are things the victim must demonstrate in a civil court for the court to order the defendant to pay all the damages he/she has incurred:
- That the defendant was involved in a sequence of behavior that was meant to cause alarm, follow or annoy the alleged victim. The victim may be required to produce his/her independent evidence in the court, alongside his/her demonstration to support these claims
- That as a consequence of the defendant’s behavior, the victim suffered reasonable fear for their protection or the security of their immediate family
- That the defendant did any of the following:
- He/she made credible intimidation against the victim's security or the security of his/her family members. The offender did not stop harassing the victim even after the accuser asked him/her to stop
- He/she violated a protective order through his/her behavior
If the supposed victim successfully proves these, he/she may be able to recover the following:
- All compensatory damages related to stalking
- All punitive damages the court could order against the defendant
Other Consequences of a California Stalking Conviction
In addition to the above penalties, a person found guilty of California stalking may be subject to other serious consequences that could affect different aspects of your life. Some of these are:
- Immigration Consequences
Just like many serious criminal offenses in the state of California, a stalking conviction on your criminal record will have severe effects on your stay or entry into the United States. There are those criminal convictions in California that could cause a person to get deported or make it impossible for them to be admitted into the country. These are, for instance, aggravated felonies, crimes that have moral turpitude, and those that involve controlled substances, domestic violence, and use of firearms.
Unfortunately, the crime of stalking can be categorized as one of those offenses. Based on the severity of the crime, a stalking conviction could become an aggravated felony, which could pose severe problems on your immigration status.
- Effects on One’s Gun Rights
Similarly, a stalking conviction in California will affect a defendant's rights to own or acquire a gun. The state of California has clear laws on who may be prohibited from buying or possessing a firearm. These people are, for instance, those who have committed a serious felony offense, those addicted to narcotics, a person who has two or more convictions for brandishing a weapon, and people who have committed such misdemeanor offenses as inflicting a corporal injury on their spouse among others.
Considering that stalking can be convicted as either a felony or a misdemeanor, it means that a conviction could affect your gun rights.
Fortunately, a stalking conviction can be expunged from your criminal record under California Legal Code 1203.4. An expungement will release the defendant from practically all the disabilities and penalties that arise out of that sentence. After the record has been expunged, you do not have to worry that a potential employer will have access to that criminal record. However, this can only be done under certain conditions:
- That the defendant completes their probation
- That the defendant is not presently facing charges for any other criminal offense, or on probation or serving a criminal sentence
What this means is, after completing your probation or your jail term, you can now begin petitioning the court to have the criminal record expunged.
Possible Legal Defenses against California Stalking Charges
The consequences of getting convicted of stalking are many and devastating. For that reason, you need to have a proper legal defense to convince the court to either drop your charges or reduce them to a more lenient charge. It is possible if you have a competent criminal defense attorney working by your side. The good thing is that there are several legal defenses that your attorney can use on your case. Some of these are:
The Threat was not Credible
A threat that can be used to convict a person with stalking in California has to be credible. If the threat was not severe or believable, the accused might not be found guilty of the offense. The court will consider a lot of things before finding the accused guilty of the crime, such as whether or not he/she meant to carry out the threat and if the threat was severe enough to cause the victim to fear for his/her safety. Your attorney could try to convince the court that you did not mean to issue out the threat and that you did not have a way to carry out that threat.
You Did Not Intend to Cause Fear
Fear is the main element of the crime of stalking. A threat has to instill fear in the victim for it to be considered credible. If the offender did not intend to instill fear in the victim, he/she might not be guilty of the offense.
It was a Legal Activity
As mentioned earlier, a constitutionally protected activity will not be considered as stalking. If the defendant's actions were a legitimate protest, for instance, the court would not find you culpable of stalking.
California Stalking and Related Offenses
There are certain offenses in the state of California that can be charged alongside or in place of California Stalking. These are, for instance:
Kidnapping, Under Section 207 of California Penal Code
The offense is defined as moving another person over a significant distance without that person's consent by the use of fear or force. For a person to kidnap another, they may have stalked their victim for some time. However, the crime of kidnapping has to involve the movement of the victim from one place to the other. Both offenses have the aspect of fear or harassment in them. For a person to be found guilty of California kidnapping, they must have used force, fear, or fraud to move their victim from one location to the other.
Penalties for kidnapping vary greatly, depending on the circumstances of the offense committed. What you need to note is that it is a more severe offense when compared to stalking. A simple kidnapping case will be convicted as a felony offense in California, punishable through:
- State imprisonment for a period of 3, 5 or 8 years
- Fines of not more than $10,000
Aggravated kidnapping offense is a more serious offense, which is punishable with a life sentence.
Annoying Phone Calls, Under Section 653m of California Penal Code
According to this section of California law, it is illegal for a person to make a phone call that is threatening, obscene, or to make repeated phone calls, to harass or annoy another person. A person could also be charged with this offense if they send endless texts or emails for the same purpose. The crime is quite similar to stalking, only that in this case, the threats must have been made through an electronic communication device. Again, stalking has an extra element, which is the intent to create reasonable fear in the victim.
The offense of making annoying phone calls is a misdemeanor in California. The potential penalties the offender is likely to get if found guilty of the crime are:
- A maximum of six months in jail
- A maximum fine of $1,000
Issuing Criminal Threats, Under Section 422 of California Penal Code
As defined under this law, a criminal threat is one that threatens to kill or cause harm to another person. The threat is usually particular and precise, communicated electronically, verbally, or in writing, and just like in stalking it is meant to place the victim in reasonable fear for their safety or safety of their immediate family. A person can still be convicted of criminal threats offense even if they did not intend to carry out the threat or have the ability to carry it out.
The offense is a wobbler in California and so, can either be a misdemeanor or a felony offense. How it is convicted is dependent on the circumstances of the crime and the offender's criminal record.
Find a Los Angeles Criminal Defense Lawyer Near Me
Stalking is a serious offense under California domestic violence laws. For that reason, it is highly penalized and can affect many aspects of your life. At the Los Angeles Criminal Lawyer, we have a team of competent attorneys who are ready to help you fight your charges. Call us at 310-502-1314 and let us help influence the court’s decision on your case.
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