The laws that discuss stalking in California are found under PEN 646.9. When you are accused of continually following, harassing, or threatening another person until they are fearful of their safety, you are guilty of stalking. The law states that when you willingly and with malicious intent harass or threaten a person or their family, you can be charged with stalking. If you are accused of this crime, especially where there are aggravating factors, you could face even more severe penalties. Sometimes, you could be wrongly accused of the crime out of malice or mistaken identity.
If not well represented by a criminal lawyer, you can be wrongfully convicted and face harsh penalties you do not deserve. Whatever the case, if you are faced with these allegations, you need to get a criminal lawyer to defend you. The lawyers at The Los Angeles Criminal Defense Attorney are experienced and determined to defend you against the allegations.
When a person is accused of harassment, it means that they willingly alarm, annoy, torment, or terrorize another person. This behavior is typically aimed at causing a specific reaction to the victim, mostly, that of fear. Equally, the victim of this behavior must also find the behavior to be menacing and disturbing.
To commit the offense of stalking, you must intentionally threaten a person. Threats can be delivered in various ways. You can physically and directly threaten the person through the use of emails, telephone calls, written messages, verbal threats, or continuously creepily following a person to cause them to fear. The victim of the harassing behavior must find it obscene or threatening to themselves or their immediate family.
On the other hand, the law does not apply to admirers, fans, or strangers that are persistent in their behavior when it does not threaten the victim or invade their privacy. If you use threatening or obscene language to express your feelings on an activity that is constitutionally protected, you cannot be found guilty of stalking. For instance, you can issue statements that seem threatening when protesting against an action by the government. Although the language may be obscene or threatening, you cannot be accused of violating PEN 646.9.
A jilted lover can send messages that speak of their love and how they would not permit another person to be with their ex may seem innocent at first. However, these kinds of messages may persist and be accompanied by threats. When this happens, the jilted lover can face stalking charges.
Many different people can commit stalking crimes. Some stalkers may be strangers to the victim, while others are family members. For instance, a couple may have gone through a divorce, and the mother was awarded custody of their children. The ex-wife may decide to move to another city or state and start her life anew. This may mean that she meets a new person, and the ex-husband gets jealous or threatened that the affection of his children would be directed at the new man. This can prompt the ex-husband to start sending threatening messages to the ex-wife of her current man. When this happens, the ex-husband can be charged with stalking.
Profiling a Stalker
As earlier stated, a stalker can be an ex-lover, a stranger, a family member, or even a fan. The behavior of the person may seem ordinary at the beginning, but when it is repeated persistently, it becomes a crime. An ex-lover may be obsessed and fantasize about the existence of a delusional relationship when it does not exist. Some stalkers can believe in this fantasy to the point that they feel other forces threaten their relationship with the victim, and they need to protect it. This has led to some stalkers causing harm to the supposed individuals that threaten their relationship with the victim.
Aside from having a mental illness or delusional behavior, the profile of a stalker, according to the law, is that of a person that displays irrational behavior, is obsessive and delusional toward their victim. The behavior starts innocently but soon escalates to serious stalking. Some stalkers, if they don’t get their way, often threaten their victims by causing them harm or killing them as well as their loved ones.
Understanding the Law on Stalking According to PEN 646.9
According to this law, it is a criminal offense to stalk a person. If you are accused of the crime, to get convicted, the prosecutor must prove two elements of the crime. These are:
- You maliciously and willfully harassed or followed the victim repeatedly
- You made reasonable or credible threats intending to cause the victim to be afraid of their safety or that of their family.
On the other hand, you cannot be found guilty of stalking if you exercised your freedom of speech, you were protesting legally, or you participated in a gathering or assembly. Below, we discuss various words as used in this statute and what they mean.
Maliciously, Willfully and Repeatedly
When a person performs an act willingly or purposely, they are said to be acting willfully. A malicious act is when a person intentionally does something wrong and acts unlawfully to annoy, injure, or disturb another person.
You will be accused of harassment if you willfully and knowingly engage in repeated conduct directed at a person that alarms, annoys, terrorizes, or torments them. This behavior must have no legitimate intent or purpose for doing it.
According to the statute on stalking, a credible threat can be defined as that which:
- Causes the targeted victim to have a reason to be afraid for their safety or that of their family
- The person threatening seems capable of carrying it out.
The perpetrator can make this threat verbally, electronically, or in writing. A threat can be implied, as well. This is often through a pattern of behavior that may be combined with certain statements.
When you are accused of stalking, it means you caused the victim reasonable fear. When the case goes before a court, the facts of the offense will be analyzed to ascertain if your actions caused reasonable fear.
There are, however, threats that are not said to cause reasonable fear. Threats can be true or false. True threats will not include:
- Joking expressions against the alleged victim
- Exaggerated political statements
- Speech that is constitutionally protected.
According to the statute, the immediate family to the victim of stalking includes:
- Parents, spouse or children of the alleged victim
- Grandparents, grandchildren, sisters, brothers related through blood or marriage
- Any person that lives with the alleged victim in the same house.
Legal Defenses to Stalking Allegations
When you are charged with stalking, it is possible to beat these accusations and dismiss or reduce the charges against you. However, to successfully do this, you will need the services of an experienced criminal lawyer to defend you.
Your lawyer will analyze the circumstances or facts of the alleged offense and come up with credible defense strategies for your sake. Your lawyer will also go further to find out about the accuser by interviewing their colleagues, going through their social media profiles, or talking to their family and friends.
This is typically done to establish the character of the alleged victim. And whether he or she has done the same to others before. Your lawyer will then come up with strategies that will be used in your defense and are likely to persuade the judge to rule in your favor. Some of these strategies include:
You Issued or Posed no threat that can be termed as credible
Based on the elements of the offense, the prosecution must prove, you will be found guilty of the offense if you issued credible threats against the alleged victim. Your lawyer will attempt to show the court that the threat you are accused of issuing was not credible or severe. For instance, if a colleague always takes your favorite parking spot at your office building, you may jokingly tell them to stop parking there, or you will beat them up. The fact that you meet at the parking lot as you come to work and he or she repeats that but lightly does not mean they are stalking you. Your lawyer can defend you using this as a valid defense.
Your lawyer will bring witnesses that will testify to your character that may show you like joking, you are harmless and are of good moral standing. If there is no evidence that the threat was reasonable or credible, you are not guilty of stalking.
You had no Intention of Causing Fear
This is similar to the defense discussed above. It may be true that you made repeated threats, as discussed above. However, you had no intention of causing fear. Your lawyer can show that you had no intention of causing fear, or you did not know the threats that were innocent to you caused fear. The lawyer may question the alleged victim if they expressed that they did not like how you talked to them.
The alleged victim’s family or colleagues can also be interviewed to see if any of them was told of the alleged threats that caused the victim to be afraid. If the alleged victim never told you that your threats were unwelcome or confided in another person, it may mean that they knew they were empty threats and was not scared. If the alleged threats did not cause the victim to fear, then you cannot be found guilty of stalking.
Protected Activity by the Constitution
Sometimes you can be charged with stalking if you were involved in an activity that is constitutionally protected. For instance, if you engage in a lawful protest against a government statement, the official that issued the statement may claim to be stalked. This may happen if every day the public official comes to their office, they find you outside holding a placard alone or in the company of others.
You may do this demanding to have your voice heard by being persistent and sometimes directly engaging the public official orally. The public officer may feel offended and accuse you of stalking. However, you were involved in an activity that is protected by the constitution. This means you cannot be found guilty of stalking if these are the circumstances of your offense.
Penalties for Stalking
Charges on stalking are prosecuted as either a misdemeanor or felony offense. When you get convicted of stalking, you are likely to face two types of penalties. These include:
As mentioned above, when you violate PEN 646.9, you can be charged on felony or misdemeanor charges. A misdemeanor conviction you will face:
- Summary or misdemeanor probation
- A county jail sentence not exceeding a year
- Paying a fine of $1,000 in addition or instead of the jail sentence
A felony conviction will typically carry more severe penalties. If you are convicted on felony charges, the penalties you would face include:
- Being sentenced to formal or felony probation
- Facing state incarceration that will not exceed five years
- Being asked to pay a fine of $1,000 alongside the jail term or instead of it.
Some factors may serve to aggravate the offense and lead to it being prosecuted as a felony. These circumstances are:
- When you violate a protective order issued by the court to protect the victim against the stalking
- If you have a prior record where you were accused of stalking another person or the same victim
Civil Penalties for Stalking
Besides the criminal penalties, a victim of stalking may decide to raise a civil petition against the defendant for the damages incurred due to the stalking. In order to be awarded damages in a civil court, the alleged victim must prove three elements to be true. These elements are:
- The alleged stalker was engaged in behavior that intended to alarm, harass, or follow the alleged victim. This means that the victim must produce more evidence of the offense aside from their personal statement.
- Because of the behavior, the alleged victim lived in fear of their safety or that of a member of their immediate family
- The alleged stalker issued credible threats towards the safety of the alleged victim and their family, and they continued with the behavior even after the victim told them to stop. The victim also had a restraining order against the alleged stalker, and he or she violated it.
If a stalking victim can prove the above elements, they may be awarded punitive and compensatory damages.
Remedies for Stalking in California
Before the statute of anti-stalking was enacted, victims of harassment or stalking relied on other laws to get protected from stalkers. One of the most common remedies to stalking was obtaining a temporary restraining order against the victim. Today, most victims continue to rely on the temporary restraining order as a way to protect themselves against their stalkers.
The court typically issues a temporary restraining order. However, for the alleged victim of stalking to get the order, there must be a hearing to determine if the order is necessary. During the hearing, there must be evidence to show the behavior of the perpetrator resulted in harassment, and a reasonable person will take it as such. The alleged victim must prove how the harassment caused them emotional distress as well.
If the temporary restraining order against the alleged stalker is granted, he or she is served and given the conditions of the restraining order. If the suspected stalker violates the restraining order, they will be prosecuted for it, and it acts as an aggravating factor in the court. This means that instead of facing misdemeanor stalking charges, the defendant will be prosecuted on felony charges.
The behavior of the alleged stalker is analyzed before issuing a TRO. This is to see the intention of their calls or threats against the victim, and if they were threatening. The restraining order acts to prohibit the defendant from texting, calling, emailing, following, or coming to the victim’s workplace or home. A violation of the restraining order, as stated earlier, will result in possible imprisonment and fines on the defendant.
Immigration Consequences of Stalking
A conviction on stalking charges may result in significant immigration consequences. According to the immigration laws of the United States, certain criminal convictions can result in the deportation of non-citizens. Some convictions will also lead to an immigrant being inadmissible to the country again. Inadmissible or deportable crimes fall in the following categories:
- Felonies with aggravated factors or aggravated felonies
- Crimes of moral turpitude
- Drug-related offenses
- Domestic violence offenses and
- Firearm-related offenses
Based on the circumstances or facts of the offense, felony stalking may quickly be elevated to an aggravated felony. If this happens, the consequences to the defendant’s immigration status are greatly affected.
Expunging a Stalking Conviction
Expungement, as found under PEN 1203.4, releases the defendant from disabilities and penalties that arise due to a conviction. A defendant that has been convicted of stalking can seek to have their record expunged.
Expungement from any criminal record is essential to defendants because their record will not be public, and they will not receive discrimination based on it. Many defendants find it hard to start again with a criminal record because potential employers or landlords look at their criminal records. However, expungement enables a defendant to have a clean slate and avoid any discrimination based on this.
According to PEN 1203.4, a defendant can petition to have their record expunged as long as:
- Complete their probation successfully
- You are not facing other criminal charges, are not on probation or serving a penalty for another offense.
What this means is that upon the successful completion of your sentence, whether a jail sentence or probation, you can apply to get your record expunged.
Stalking Conviction and Gun Rights
If you get a felony conviction for stalking, it will negatively affect your rights to guns. In California, certain people are prohibited from owning or having a weapon. These are:
- Anyone that holds a criminal felony conviction
- Addicts of controlled substances
- A person that has two prior convictions for brandishing a firearm according to PEN 417
- A person with a previous misdemeanor conviction on causing corporal injury to a spouse as found under PEN 273.5, among other misdemeanor convictions
- Individuals that have mental illness issues
- Persons below the age of 18
If the defendant had a gun before the felony charges were brought against them, they would have to surrender their firearms and the rights to own it.
Related Crimes to Stalking
There are various crimes that a defendant can be charged with alongside stalking charges. These include:
Kidnapping under PEN 207
A kidnapping charge is a severe offense prosecuted as a felony. The crime involves moving the victim a significant distance without their consent while using fear or force. The difference between kidnapping and stalking is that the former requires direct contact with the victim and moving them from one place to another.
Kidnapping charges can be standard or aggravated. Some of the factors that a kidnapping offense an aggravated one involves:
- The use of fear, fraud or force on a victim below the age of 14
- Accompanying the offense of kidnapping with a ransom demand
- Inflicting significant injuries to the victim or death
These, among other factors, can make an otherwise simple kidnapping charge to become an aggravated offense. If convicted of it, the defendant is likely to face life imprisonment for it.
PEN 653 – Annoying Telephone Calls
According to this statute, it is a crime for a person to make threatening or obscene calls to another person repeatedly. The law recognizes that if the caller intends to annoy, harass or threaten the recipient, then they are guilty of violating this law.
PEN 422- Criminal Threats
This is another offense that can be charged alongside stalking offense. According to the statute, a threat is considered criminal when the perpetrator issues threats of physical harm or death to a victim. The victim of the threats is, therefore, placed under fear for their safety and that of their loved ones. Criminal threats must also be unequivocal and specific and must be clearly communicated in writing, verbally, or electronically.
Most stalkers will issue criminal threats against their victims. This makes the prosecutor institute two criminal proceedings against the defendant. One of the proceedings will be that of stalking while the other will be on criminal threats. If convicted of this offense, the defendant will face severe penalties with jail time being one of them.
Find a Criminal Defense Lawyer Near Me
Stalking allegations are significant and can result in severe penalties. However, with an experienced lawyer, an accused person can fight against the claims and get acquitted or charged with a lesser offense. Getting in touch with The Los Angeles Criminal Defense Attorney and we will help you fight against the allegations you are facing. Call us at 310-564-2605, and let us defend you against these accusations.