Domestic Violence Attorney is a criminal defense firm based in California, specifically in Orange County. We are a seasoned crew of experienced and tough attorneys who are experts at mounting defenses to various domestic violence charges. These include charges of stalking and cyberstalking. We are here to help you prove your innocence and protect your reputation.

What Is Stalking Under California Law?

Stalking is generally considered domestic violence. This is because the crime of stalking usually has a sexual component to it, meaning that the victim and defendant had a prior intimate relationship or the defendant wishes to have an intimate relationship with but was rebuffed by the victim.

As such, the laws against stalking in California are relatively tough and are particularly comprehensive when compared to other states’ laws. Police and prosecutors in the state of California take instances of stalking very seriously, as they do with all domestic violence charges. Stalking is delineated under California Penal 646.9 PC and it holds a person criminally liable if they repeatedly engage in following, threatening, and/or harassing a victim. These are three essential components of the crime of stalking.

Essentially, stalking is legally designated as a pattern of behavior and/or conduct that is repetitive (at least two or more instances) and includes actions of:

    1. Visual or physical proximity that is unwanted, meaning that the defendant is accused of repeatedly coming too close to the victim’s personal space as well as their home, work, or any other place where the victim might be. This also includes scenarios where the defendant is close enough to the victim to watch them but not close enough to make physical contact.
    2. Communicating non-consensually, meaning that the defendant repeatedly tries to directly contact the victim through any variety of means, including via speech, in writing, or even electronically. This also includes instances of indirectly contacting the victim, including conveying messages for them via mutual acquaintances or the victim’s family and/or friends. This also includes harassing the victim via non-consensual communication.
    3. Conveying explicit or implicit threats, meaning that the defendant threatens the victim verbally, in writing, or electronically (including the use of phones, fax machines, email, video messaging, instant messaging, and/or text messages). Furthermore, the threats have to be imminent and substantial.
    4. Any combination of numbers 1) through 3).

Stalking encompasses a wide variety of behaviors. It may also include instances of the defendant leaving and/or sending the victim unwanted gifts or presents (that can range from romantic to menacing), following the victim, waiting in hiding for the victim, damaging the victim’s personal property (or threatening to damage said property), engaging in defamation of the victim’s character, and/or engaging in Internet harassment by posting personal information of the victim (also referred to as “doxing”).

Most frequently stalking is some combination of the three fundamental elements of following, threatening, and/or harassing. Furthermore, the commission of the crime relies on the use of communication tools, meaning that technology like the Internet is used to stalk a victim. Therefore, “cyberstalking” is also a crime and is considered to be a type of stalking. Furthermore, California is steadily strengthening its cyberstalking laws, making it increasingly criminal to use the Internet to harass someone and/or threaten their safety or the safety of their family and friends.

Harassment is legally defined as the act of willfully and knowingly directing behavior and/or conduct at a specific person that gravely annoys, terrorizes, torments, and/or alarms that person. This pattern of behavior serves no legitimate purpose and either makes the victim fear for their safety and/or be unable to lead their life in a normal way. Harassment is also legally considered to be a repetitive behavior (meaning two or more instances) and one in which the defendant demonstrates a consistent purpose.

It is crucial to note that a charge of stalking is not contingent on the defendant contacting the victim. In other words, simply following the victim repeatedly and making them fearful is enough to merit a charge of stalking, even if the defendant never speaks a word or contacts the victim in any way. The key elements here are that the pattern of harassment negatively affected the victim’s life and that the victim felt “reasonable fear”, either for their safety or the safety of their family and/or friends. Reasonable fear is legally defined as the sense that any person of sound mind (a reasonable person) would fear for their life or safety in a given scenario.

Is Stalking a Felony or a Misdemeanor?

California Penal Code 646.9 PC is what is commonly referred to as a “wobbler” offense. This means that it can be charged as either a California misdemeanor crime or a California felony crime. To put it in colloquial terms, the crime of stalking “wobbles” between the two classifications: misdemeanor (a less serious offense) and felony (a more serious offense). This also means that the decision to pursue the charges as either misdemeanor or felony is up to the discretion of the prosecuting agency, which in most cases is the district attorney’s (DA) office. The DA’s decision on which kind of stalking charges to pursue is influenced by the elements of the crime and the defendant’s criminal history.

However, state law specifies that a stalking charge will automatically be charged as a felony (independent of how the prosecutor’s office would like to proceed) if the following conditions are met:

  1. The defendant has a previous stalking conviction, even if the defendant stalked a different victim in the prior case.
  2. The defendant stalked the victim and thereby violated a court-issued protective order. A protective order, otherwise known as a criminal protective order (or CPO), is issued by a judge to protect a victim of a crime from any further harm or harassment from the defendant.

If the prosecutor’s office decides to charge the defendant with a misdemeanor, the punishment and penalties usually include a yearlong term (1 year) of incarceration and a fine of up to one thousand dollars ($1,000). It may also include informal probation (also referred to as summary probation) which is served without supervision from a probation officer. The defendant may also be required to undergo counseling for emotional issues and/or mental illness as well as potential confinement in a state-run mental health facility. Finally, to protect the victim in the future and because the crime of stalking tends to have a high recidivism rate, the judge will issue a restraining order that prohibits the defendant from having any contact whatsoever with the victim.

If the prosecutor’s office decides to charge the defendant with a felony, the punishment and penalties are markedly more severe and usually include sixteen (16) months to five (5) years in a California state correctional facility (prison) as well as a maximum fine of up to one thousand dollars ($1,000). It will likely also include formal probation, which is distinct from informal probation in that it requires that the defendant periodically report to a county probation officer and remain constantly under their supervision. The defendant may also be required to undergo counseling for emotional issues and/or mental illness as well as potential confinement in a state-run mental health facility. The judge will also likely issue a restraining order protecting the victim.

There are also aggravating factors that will likely increase the felony prison sentence. One of the most common aggravating factors is causing the victim “great bodily harm” (serious and substantial physical injury). This is also referred to as “serious bodily injury” and is an extremely common sentencing enhancement for violent crimes in the criminal courts of California. In a stalking case, the enhancement could add three (3) to five (5) years to the state prison sentence. Furthermore, another common enhancement is being armed when committing the crime of stalking which could add an additional one (1) to three (3) years (depending on the type of weapon) to the state prison sentence.

Registration as a Sex Offender and Related Charges

Furthermore, because the crime of stalking frequently has sexual elements and most of the related charges are sex crimes, the DA and judge will examine the defendant’s motives in the commission of the crime. If they determine that the stalking was committed in order to feed the defendant’s sexual compulsion and/or for the defendant to achieve sexual gratification, then the defendant will have to register as a sex offender in accordance with section 290 of the California Penal Code.

Stalking is also frequently committed as a precursor crime to more serious sex crimes, such as rape and/or kidnapping. Consequently, a defendant on parole following a felony stalking conviction will likely be placed on a specialized and intensive program of supervision, managed by the California Department of Corrections, for the entire length of the parole.

Furthermore, stalking has various charges that are related to it. Most of these are sex crimes or crimes of domestic violence and many are violent in nature. Stalking is also frequently considered a precursor crime to more serious and violent offenses. Some studies estimate that over 90% of murders had elements of stalking that led up to the murder itself. Some charges related to stalking include trespassing (California Penal Code 602), burglary (California Penal Code 459), criminal threats (California Penal Code 422), harmful matter sent to a child (California Penal Code 288.2), annoying phone calls (California Penal Code 653m), posting harmful information on the internet (Penal Code 653.2), and kidnapping (California Penal Code 207). Note that kidnapping is an extremely serious crime and is actually a capital offense (meaning that the state can apply the death penalty in certain cases).

What Does the Prosecution Have to Prove for a Stalking Conviction?

A fundamental aspect of any prosecutor’s case is establishing that the defendant acted with what is known as mens rea. This is a formal way of saying that the defendant acted with "criminal intent”. In this context, criminal intent means that deliberate and/or intentional decisions were made by the defendant with the specific and explicit purpose of achieving some criminal result. In the case of stalking, the criminal result may be to threaten and/or harass the victim as well as using the behavior of stalking as a precursor to a more serious crime like sexual assault.

Furthermore, in order to get a conviction for a stalking charge, then the prosecutor’s office must also prove, beyond a reasonable doubt, the following elements:

  1. The harassment committed by the defendant was willful and/or malicious and that the act of following the victim was repetitive as well as willful and/or malicious.
  2. The threats made by the defendant were imminent, substantial, and credible. That is to say that the threats could be carried out at any time, were serious, and were realistic (not fanciful or impossible). These threats must have also put the victim in reasonable fear for their life or safety as well as the life or safety of their friends and family.
  3. If the stalking allegedly occurred in violation of a court order (resulting in automatic felony charges and more severe penalties), then the prosecutor’s office must prove that a judge issued a lawful court order that prohibited the defendant from stalking and that said order was in effect at the time of the alleged stalking.

One of the key components of a stalking case is the concept of fear on the part of the victim. Because many instances of stalking do not actually consist of any physical contact (for example, cyberstalking is always done remotely), then the burden of proof on the part of the prosecutor’s office is less proving that the behavior occurred and more focusing on how the behavior negatively affected the victim.

Therefore, the act of stalking has to put the victim in a state of reasonable fear. Fear is not easily defined, but there are three fundamental elements that the prosecutor’s office must establish: the victim was actually in a state of fear, this state of fear was a reasonable response for any person of sound mind, and that the state of fear was sustained. This is why the stalking statute explicitly states that criminal harassment “terrorizes” the victim; in this legal context, “to terrorize” means to put the victim in a state of perpetual fear.

Furthermore, if there are elements of cyberstalking, then the prosecution will focus on the negative ramifications of the defendant’s behavior. For example, if the defendant engages in doxing online, thereby endangering the victim’s safety, then the prosecution’s case will be made that much stronger. It is crucial to remember that the defendant can be found guilty of the crime of stalking through both direct and indirect actions (for example, making explicit threats or defaming the victim online, respectively).

Additionally, the prosecution may point to the defendant’s criminal history or pattern of obsessive behavior and make the case that the current crime of stalking is a precursor to a much more serious offense in the future. The prosecutor’s office will also do a thorough investigation and then combine as many charges as possible to maximize the strength of their case. This means that the defendant needs skilled and experienced legal defense.

Possible Legal Defenses to a Charge of Stalking

A strong and skillful criminal defense lawyer may use several potential defense strategies to beat a stalking charge. One of the surest is to argue that the threat was not credible as the DA will surely argue that the defendant’s behavior either explicitly or implicitly made the victim feel like an imminent and realistic threat was inevitable. As a result, the defense can argue that the threat was too ridiculous, grandiose, or fanciful to actually engender reasonable fear. This also means that the attorney will argue that no person of sound mind would reasonably be afraid given the circumstances.

They may also argue that the defendant had no means to carry out said threats, thereby rendering the behavior harmless and the accusations without merit. If the threat could not actually be executed, or if any statements made were not remotely reasonable, then the defendant’s attorney can argue that the defendant was just venting or exercising their First Amendment rights. A free speech argument is particularly strong as many potential members of a jury will consider it to be a fundamental, inalienable right as Americans. The defense can make the argument that it is not a crime to simply vent one’s frustrations or speak negatively of someone else.

Furthermore, the prosecution is most vulnerable when trying to prove a state of reasonable fear. There is no objective scale for measuring levels of fear, meaning that the sensation and expression of fear is entirely subjective. What one reasonable person may find terrifying is not the least bit scary to another. A well-executed legal defense can effectively question whether the alleged victim exaggerated their sense of fear or if they even felt reasonable fear in the first place. The defense attorney could also make the argument that the alleged victim is hypersensitive or acting unreasonably.

Find a Defense Law Firm Near Me

When you are in need of top-notch criminal defense in the California state (specifically Orange County) area, call 714-888-4833 today and speak to one of our legal experts. Domestic Violence Attorney is the right team for you. We will get the job done!