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Home » Violent Crimes Lawyer » Stalking Lawyer

California Stalking Attorney – Penal Code 646.9 PC

Are You Being Falsely Accused Of Stalking?

The consequences of a stalking conviction can vary and be extremely serious, following you for the rest of your life, primarily if you lack skilled representation. An experienced violent crimes defense lawyer will defend and protect your rights. My Rights Law has a proven track record of success. Call us at (888) 702-8882 or contact us through our secure web form to schedule a free, confidential consultation.

According to Stalkingawareness.org, approximately 13.5 million people are stalked in one year in the United States. Sixty-nine percent of female stalking victims and eighty percent of male stalking victims are threatened with physical harm each year. In California, there are two types of stalking.

  1. Stalking, which under California law is defined as following, harassing, and threatening someone to the point they fear for their safety.
  2. Cyberstalking, under California law, is defined as stalking through an electronic communications device. An electronic device includes media such as:
    1. Internet
    2. Email
    3. Text Messages
    4. Phone Calls
    5. Fax Machines
    6. Video Messages, or
    7. Any other electronic device

As of 2022, more than twice as many victims are stalked with technology than without technology.

Elements Of Stalking

In a stalking case under Penal Code 646.9, the prosecution must prove the following elements beyond a reasonable doubt: [1]

  1. The defendant willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person, and
  2. The defendant made credible threats with the intent to place the other person in reasonable fear for his safety.[2]

Willfully, Maliciously, And Repeatedly

Willfully, maliciously, and repeatedly following or contacting an individual is an element that the prosecution must prove for a stalking conviction to occur. [3] Someone must act intentionally and do something they know is wrong with the intent to disturb, annoy, or injure someone. [4] For example, if you get a celebrity’s number and continuously call them and tell them you are going to find them and make them marry you, this element will be satisfied.


Harassment means the defendant engaged in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes them.[5] The course of conduct may not serve a legitimate purpose. If it does, it will not constitute harassment. For example, a toll-free number calling about your car warranty non-stop while annoying does not rise to the level of harassment. They have a specific purpose of making money from people wanting additional warranties for their car (no, their purpose is not to annoy you).

Credible Threat

Under California law, a credible threat is one that causes the victim to reasonably fear for their safety or that of their immediate family and one that the defendant was capable of carrying out.[6] So, for example, if your ex-partner is stalking you and threatening to kill you in your sleep if they know where you live, it is a threat that could be carried out and is intended to cause fear.

Reasonable Fear

Under California law, reasonable fear is fear that is reasonable to a person in such circumstances. Therefore, to determine if the fear was reasonable, the court will analyze the facts and circumstances of each case. However, it is essential to understand that a defendant may not be convicted if the threat is not true, regardless of the circumstances. For example, if the defendant jokingly said they would punch someone in the throat, that does not constitute a genuine threat and cannot result in a stalking conviction.

Related offense: Kidnapping

What Are The Penalties For Stalking PC 646.9?

Stalking charges can result in two types of penalties – criminal and civil. Criminal penalties result from criminal charges brought by the state and will result in heavy fines to the state of California or imprisonment. In contrast, civil penalties result when the victim sues the defendant for monetary damages.

1. Criminal Penalties

Stalking is what is known as a “wobbler.” A wobbler crime allows the prosecutor to use their discretion in charging someone with either a misdemeanor or felony.

If the defendant is convicted of misdemeanor stalking, they may receive up to one year in county jail, a fine of $1,000, or both, and probation. However, if the defendant is convicted of felony stalking, they may receive up to five years in prison, a fine of $1,000, or both, and probation.

Stalking will always be charged as a felony if the following circumstances apply:

  • The stalking occurred in violation of a protective order, or
  • The defendant was previously convicted of stalking, regardless of if the victims were different.

2. Civil Penalties

Even if the defendant is convicted on criminal charges, the victim may sue the defendant civilly for damages caused by the stalking. In order to be awarded damages for stalking, a victim must prove the following:

  • The defendant engaged in a pattern of conduct with the intent to follow, alarm, or harass the victim,
  • Consequently, the victim reasonably feared for their safety or the safety of an immediate family member, and
  • The defendant either:
    • Made a credible threat and failed to stop harassing the victim after the victim requested the behavior stop, or
    • The defendant violated a protective order.

If the victim proves the above, they may receive compensatory damages.

Compensatory Damages

Compensatory damages include both economic and non-economic damages.

Economic Damages

Economic damages include medical expenses, lost wages, and the cost of repairing or replacing your possessions. These are considered objective because a number can easily be calculated by looking at your medical bills and salary compared to the days you missed work.

Medical expenses can become slightly more complicated if the injuries require future treatment and rehabilitation because then you must estimate the cost of treatment that has not occurred. To prove future medical expenses, you will generally need an expert witness who can speak to your future medical requirements and the cost. Outside of potential future medical expenses, proving economic damages is relatively straightforward. Problems arise when you begin to discuss non-economic damages.

Non-Economic Damages

Non-economic damages can include pain and suffering, loss of companionship, and loss of enjoyment of life. However, damages such as pain and suffering are complicated to prove because they are subjective and can differ for every person since people react to circumstances differently.

Defenses To A Stalking Charge

Three common defenses to stalking charges are that there was no credible threat made to the victim, no intent to cause fear, or the conduct was constitutionally protected. Although additionally, one may plead not guilty because of insanity, to be successful with an insanity defense, the defendant must prove that they either did not understand the nature of the act or could not distinguish between right or wrong.

My Rights Law California Stalking Lawyer

Misdemeanor stalking, which typically consists of mere harassment by the alleged stalker, is punishable by up to a year in prison. The more serious felony offense of stalking can result in imprisonment of a year or more, fines, and/or penalties under CA’s stalking law.

Stalking may carry consequences beyond jail time, penalties, and fines. For example, a judge could issue a restraining order prohibiting the stalker from any contact with the victim, including any internet stalking. The restraining order can apply while the stalker is imprisoned in Los Angeles, as well as when the stalker is released and is serving a term of probation in Los Angeles. If the stalking is of a sexual nature, the stalker may be required to register as a sex offender on a state sexual offender registry.

All criminal defendants are entitled to a presumption of innocence. These rights include the presumption of innocence until guilt is proven. Due process also requires that the prosecution establish each element of the crime beyond a reasonable doubt. Contact us today for a free consultation to learn how you may defend yourself against a Los Angeles stalking charge.

Call My Rights Law’s Stalking Lawyer Today

The consequences of a stalking conviction are severe. If you have been wrongly accused, you must hire an attorney who understands the legal system and how to protect your rights. My Rights Law is full of highly experienced criminal defense attorneys that have a track record of success. Call (888) 702-8882 or reach out on our secure web form to schedule a free, confidential consultation.

[1] California Penal Code 646.9 PC.
[2] CALCRIM No. 1301.
[3] CALCRIM No. 1301.
[4] CALCRIM No. 1301.
[5] CALCRIM No. 1301.
[6] CALCRIM No. 1301.

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