What is Stalking?

California Penal Code § 646.9 governs criminal behavior described as “stalking.” Enacted after several notable murders, Penal Code § 646.9 punishes stalking, which occurs when someone “willfully, maliciously, and repeatedly, follows or…harasses…and makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or…of his or her immediate family.”

What is Harassment?

Harassment includes willfully alarming, annoying, tormenting, or terrorizing another person. The harasser must intend to  cause these reactions in the victim, and the victim must reasonably perceive the harassment as menacing.

In other words, one commits the crime of stalking when he or she intentionally threatens, verbally or in writing (including text messaging or emailing) the safety of another to whom those messages reasonably appear as threatening or obscene. The reasonable belief, together with evidence of harassment, substantiates the credibility of a threat.

What Isn’t Stalking?

The statute does not apply to persistent fans, admirers, or strangers, who pose no reasonable threat or privacy invasion.  Barring criminally obscene or threatening language, constitutionally-protected activity, such as political communications in protest of government actions do not fall under the purview of the statute California Penal Code § 646.9.

Two or more text messages from a jilted lover such as, “I love you, and I won’t let anyone else have you, no matter what it takes” suggests a pattern of malicious behavior amounting to stalking under California law. However, the statute covers more than jilted lovers. Family members and complete strangers commit stalking crimes too. 

Legislative History

In fact, the California statute (the first anti-stalking law and toughest of all fifty states) was created to address a series of stalker-murder cases against celebrities, Rebecca Schaeffer, and before her Theresa Saldana, as well as several restraining-order violations resulting in murders. After these cases and the crazed fan of late-night talk show host David Letterman threatened the star’s privacy and safety, the legislature enacted Penal Code § 646.9 in 1990.

Although those accused of stalking historically challenged the law’s intent component the law’s revisions over the years addressed the specific intent required for the crime.

The Profile of a Stalker

Distinct from spurned lovers who aggressively pursue lost love–but do reasonably back off when police talk to them–the law more aptly targets the obsessed lover, stranger, family member, or fan, who fantasizes delusional relationships that do not exist. In the case of Rebecca Schaeffer, the murdering fan, John Bardo, believed he had a relationship with the actress when he had never even met her. He murdered her in a jealous rage after he saw her perform a love scene on a television show.

However, delusional behavior and mental illness aside, the law anticipates that the stalker’s profile includes obsessive, delusional, and irrational behavior toward the intended victim that frequently begins as mere harassment but escalates into full-blown stalking. Think of types like actor Michael J. Foxx’s stalker, who sent him 5,000 letters, some containing death threats, before police arrested her. 

Penalties for Stalking

Per California’s anti-stalking law, courts regularly sentence violators to a combination of all or some of the following: probation (often with treatment), jail, prison, or fines. In a first offense case, the District Attorney decides whether to charge a violator with a misdemeanor or felony stalking since a first offense “wobbles” as either. The statute mandates one year in county jail or state prison, or up to $1,000.00 in fines, or both. Courts give longer and more severe sentences to repeat offenders.

Depending on the parties and circumstances, courts often require offenders to register as sex offenders or undergo evaluation for further treatment, or both. Restraining orders (stay-away orders of up to ten years) typically accompany a stalking charge, and offenders who violate a restraining order by coming within the prohibited range (say, within 100 feet of the victim) specified in the restraining order get stiffer penalties—longer sentences and higher fines.

Remedies Before California’s Anti-Stalking Statute

Before anti-stalking statutes, victims of serious harassment relied upon California laws in place, such as temporary restraining orders (TRO’s) that still play an integral part in protecting victims. A TRO requires the victim to file papers in court. At the hearing, the victim must prove both the perpetrator’s behavior amounted to harassment that a reasonable person would perceive as such, and the emotional distress caused by said harassment.

While victims still commonly file TRO’s first to stop a stalker, the other two statutes proved too restrictive. The court must examine the narrowed intent of the specific telephone calls or threats, not a series or pattern of behavior. California’s stalking law, however, alleviates the necessity to prove each incident of harassment.

What Happens Under a TRO?

A TRO can prohibit the accused from taking specified actions, like calling, texting, emailing, or showing up where the victim lives or works. If the restrained person violates the TRO order, the violator subjects him or herself to TRO violation penalties and stalking charges which can result in imprisonment, fines, and a requirement to register as a sex offender.

Call a trusted Criminal Defense Attorney

If you have been charged with stalking the best first step you can take to defend yourself is to contact criminal defense attorney Vikas Bajaj today for a free consultation.  With over 15 years of criminal defense experience, Vikas Bajaj will strategize with you and ensure you get the representation you deserve.  


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