Legal Definition of California Penal Code Section 646.9
Under Penal Code Section 646.9, it is illegal for you to stalk somebody else. To convict you of the offense, the prosecutor should prove the following elements of the offense:
- You willfully and maliciously harassed or willfully, maliciously, as well as repeatedly followed somebody else
- You made credible threats with the intention to put the alleged victim in reasonable fear of their safety or that of their immediate family
It is worth noting that you cannot be convicted of Penal Code Section 646.9 if you engage in a constitutionally protected activity. For instance, you are not guilty of breaking the statute in question if you:
- Exercise free speech
- Participate in a meeting
- Lawfully protest
To gain a better understanding of stalking in Long Beach, here are definitions of legal terms and phrases.
Willfully and Maliciously
As far as this code is concerned, you commit conduct willfully when you do it on purpose or willingly.
You act maliciously when you intentionally do wrongful conduct or when you act with the illegal intent to injure, annoy, or disturb another person.
Harassing can be defined as doing a willful and knowingly course of conduct aimed at a person, which seriously terrorizes, alarms, annoys, or torments. The course of conduct should serve no legal purpose.
The term course of conduct can be defined as 2 or more actions happening over time, nevertheless, showing a constant purpose.
Whether you purposed to put the alleged victim in fear is a question determined by the court by evaluating the circumstances and facts of your case.
However, the law states that whether the threats are made to cause fear is set aside for true threats. True threats don't comprise of:
- A political statement which exaggerate
- Speech that is protected constitutionally
- Joking expressions
As far as stalking in California is concerned, a credible threat is one which:
- Causes the victim of a threat to reasonably fear for their safety or that of their immediate family members, and
- One which the person making the threat appears capable of executing
The threat can be made electrically, in writing, or orally.
Additionally, it could be implied by a combination of conduct and statements or a sequence of actions.
The term immediate family in this code section could mean:
- The victim's parent, child or spouse
- The victim's grandparent, grandchild, sister or brother who is related by marriage or blood
- An individual who lived in the victim's household
Penalties, Consequences, and Sentencing
Violation of stalking laws is a California wobbler. That means the prosecutor can choose to charge you with either a felony or a misdemeanor.
A California misdemeanor attracts:
- A maximum of a year in jail
- A maximum of one thousand dollars in fines
- A summary probation
A felony, on the other hand, carries:
- A maximum of five (5) years in California state prison
- A formal or felony probation
- A maximum of one thousand dollars in fines
Please note that stalking will be considered a California felony if one of the following circumstances applies:
- You have a previous stalking conviction even when the victim isn't the same individual you previously stalked, or
- The offense involved breaking of a restraining order
A restraining order could ban you from contacting the victim. It could also prohibit you from entering the victim's school, place of residence, or any other place where the victim spends time frequently.
On top of the criminal consequences, the victim could take legal action against you in a civil court and seek compensation linked to stalking.
To be awarded compensation, the victim should establish the following in civil court proceedings:
- You did a sequence of conduct which was meant to harass, alarm, or follow the alleged victim (The victim requires independent proof apart from their testimony)
- Due to the conduct, the alleged victim rationally feared for their safety or that of their immediate family members
- You either:
- Made credible threats against the victim's safety or that of their loved one and did not stop harassing even after the alleged victim asked you to stop, or
- Broke a protective order with your conduct
If the victim proves the elements mentioned above, you will compensate them for both punitive damages and compensatory damages.
A conviction could also lead to immigration penalties.
Under the U.S. immigration laws, some California convictions can result in an immigrant being deported while others make a non-citizen inadmissible.
Inadmissible and deportable offenses in California include:
- Aggravated felonies
- Firearm crimes
- Domestic violence offenses
- Controlled substances crimes
- Offenses of moral turpitude
Depending on the case's circumstances, felony stalking charges could be an aggravated felony. In this case, the charge could have devastating immigration consequences.
A Conviction Could Affect Your Entitlement to Own a Firearm
Among the individual banned from obtaining or owning a firearm in California are felons (persons found guilty of any felony crime in any jurisdiction).
Remember that violation of Penal Code Section 646.9 PC is a wobbler and can be charged either as a felony or a misdemeanor. Bearing that in mind, you risk losing your right to possess or own a gun.
How to Fight a California Penal Code Section 646.9 PC Charge
Although stalking carries severe penalties, you can beat the charge using legal defenses that can work to either dismiss or reduce the charge. The most common valid defenses include:
No Credible Threat
You can only be found guilty of stalking if you made a credible threat to the victim. Therefore, you could argue that you made a threat that was not credible or serious. For instance, you threatened the alleged victim jokingly.
No Intent to Cause Fear
This defense is identical to the previously-discussed defense. In this case, you could claim that while you could have made the threat, you didn't intend that the threat would cause fear. For instance, you made a frequent threat to tickle somebody else.
Constitutionally Protected Conduct
As previously mentioned, you cannot be convicted of stalking if you were engaging in a constitutionally protected activity like legally protesting. That said, it's a valid defense for you to prove you were participating in such conduct when arrested for stalking.
Another applicable defense involves a case of mistaken identity. With stalking, the victim may fail to know who was threatening them or committing the conduct. Since this could take place while people are keeping a distance or at night, chances are the wrong individual is arrested. With an experienced criminal defense lawyer, proving your alibi this legal defense could beat the stalking charges.
Moreover, a victim may be stalked, and they assume it is due to a previous relationship.
Although not common, some people may maliciously misuse the protection offered by anti-stalking laws to punish others. For instance, a scorned ex-wife could accuse their ex-spouse of stalking while, in reality, no such conduct took place. It could be a way of seeking vengeance.
Related Offenses to Stalking
Discussed below are offenses that are most common charged together with PC 646.9. They include:
Kidnapping (Penal Code Section 207 PC)
Under PC 207, kidnapping is defined as:
- Moving the alleged victim to a considerable distance, and
- Achieving this through the use of fear or force
Kidnapping is different from stalking in that kidnapping requires the accused to handle the victim as well as move the victim physically.
Annoying Phone Calls (Penal Code Section 653m)
According to PC 653m, it is illegal for you to:
- Make a threatening, obscene phone call or one of a sequence of repeated phone calls, and
- Act so to annoy or harass the individual you are calling.
Stalking is almost similar to Penal Code Section 653m PC. However, stalking has an additional element that the threat should have been made to threaten the alleged victim.
Criminal Threats (Penal Code Section 422 PC)
A criminal threat occurs when:
- You threaten to injure or kill another person and
- The victim is as a result put in a condition of reasonably suffering fear for their lives or the lives of their immediate family members
- The threat is definite and specific
- You communicated your threat in writing, through an electrically transmitted gadget, or verbally.
Criminal threats offense is different from stalking in that the defendant does not follow or harass the intended target. Instead, the code section pays more attention to the threats' made nature.
Stalking Conviction Expungement
Under California Penal Code Section 1203.4, an individual convicted of stalking can get the conviction expunged. An expungement releases you from almost every penalty and consequence that originate from your sentence.
Significant advantages of expungement include:
- You will not be required to reveal the conviction to your potential employers
- It is easier to acquire state professional licenses
- The expunged conviction cannot be used to impeach your credibility as a witness in court
- Helps you avoid immigration consequences like deportation
You qualify for expungement provided you:
- Are not charged with a crime at the moment, on probation, or serving a sentence for an offense
- Completed probation
That means after you have completed probation (if it was enacted) or served your jail sentence, then you can start attempting to have the offense expunged.
It is worth noting that expungement does not restore firearm ownership rights.
Why You Need a Defense Attorney
You might be asking yourself whether you should engage a defense lawyer or not. The main concern is the costs related to hiring the attorney. However, these costs are negligible compared to the life-changing consequences that are due to not consulting the best defense. Here are the reasons why it is essential to have a qualified criminal defense counsel.
Your Attorney Understands the Judicial System
One of the main reasons you need a defense lawyer is because they know how the California judicial system works. California's legal system is confusing, but a knowledgeable attorney understands the complicated workings of the system and can guide you throughout the process.
They Have a Good Relationship with the Prosecutor
After many years of practicing law, defense lawyers start developing relationships with prosecutors. While it might appear odd to have a good relationship with a foe, the relationship can prove instrumental in your case's outcome. It could permit them to negotiate a pocket-friendly bond or plea deal.
Your Attorney Can Protect Your Future
Any experienced lawyer should be in a position to get the penalties lessened, stalking charges reduced, or get the case dismissed as a result of police mistakes while unlawfully acquiring evidence. By reducing the charge, you can keep a California felony off a criminal record that can jeopardize your profession. By having the case dismissed, the attorney saves you from negative consequences that come with a stalking conviction.
Your Attorney Can Save You a lot of Money
A skilled attorney can assist you in getting the least possible sentencing for the case that could aid you in maintaining your employment and professional license. It will save you many years of earning capacity that will be ruined if you lose your professional license or job. Additionally, missing work for many court hearings or jail could result in a financial strain that can be avoided.
Get Legal Representation Near Me
Stalking is often prosecuted aggressively in Long Beach. Sometimes, it is charged alongside domestic violence charges. Also, it could make people think that you are a violent person hence prevent you from keeping or securing a job. The experienced lawyers at Long Beach Criminal Attorney can offer you legal guidance on what to do after being accused of violating PC 646.9. We can also tell what not do while providing you with an aggressive defense. Call us today at 562-308-7807 for a free consultation to discuss your charges.