In California, it is a crime to harass or intimidate an intimate partner. Since domestic violence statutes focus mostly on protecting intimate partners from violence, other types of domestic violence offenses have not been well covered. Legislators have recognized this and enacted laws aimed at safeguarding intimate partners from continuous patterns of harassment, also called stalking. Stalking laws are stringent and have made the offense a serious one punishable by restraining orders for up to ten years, incarceration, and payment of hefty fines.
So, whenever you are accused of stalking, it is imperative to reach out to The LA Criminal Defense Law Firm to avoid the consequences. We understand stalking and domestic violence laws. Using that knowledge, our attorneys have discussed the legal definition of stalking, elements the prosecution must determine, the penalties of the crime, and other related offenses to educate potential clients on the crime.
Legal Definition of Stalking
As per PC 646.9, it is unlawful to follow repeatedly, harass, and make credible threats to another person with the intent of making the person fear for his or her safety or that of his or her immediate family. Stalking applies in cases of domestic violence where after a break-up or a divorce, one partner is unable to stay away from the other partner leading to persistent unwanted contact that involves threats. In a domestic violence case where there is stalking, an estranged partner does some of the following things:
- Makes persistent unwanted phone calls to the other spouse
- Shows up at the other spouse’s place of work or home uninvited
- Following or shadowing a partner
- Vandalizing the other spouse’s property
- Engaging in different patterns of malevolent behavior that makes the other spouse fear for his or her safety.
If you feel like your partner or another person is stalking you, you should report to the authorities so that you can be issued with a restraining order. With a protective order, the person harassing you is forbidden from getting in touch with you in any manner.
There are three main kinds of stalking. These include:
You fall under this stalking if you have a delusional obsession over a person who is out of your reach or celebrity.
2. Simple Obsessional
It happens if you know the person you are stalking. The perpetrators of malicious activity can be ex-lovers, ex-spouses, or co-workers. Domestic violence stalking falls under this category.
3. Love Obsessional
In this kind of stalking, the stalker engages in the malicious act believing that they are in love with the victim.
Prosecution of Stalking Charges
To be convicted of stalking in California, the prosecution must prove certain elements. Some of these elements include:
You Knowingly Followed and Spitefully Harassed or Continually Followed a Person
For the trial to find you guilty, the prosecutor must demonstrate to the court that you acted on purpose or willfully and that your actions were intended to annoy, injure, or disturb someone else unlawfully. They must also show that the malicious acts were done more than once, or they were continuous.
You Made Credible Threats Intended to Invoke Fear in the Victim
When proving this element, the prosecution must show that you caused the victim of the threat to fear for his or her safety or the safety of the immediate family. Further, they must demonstrate that you, as the defendant, possessed the ability to act on the threats. It is up to the prosecution to show that you made the threats orally, in writing, electronically, or through a combination of conduct and contradictory statements.
Aside from that, when proving this element, the prosecution must also demonstrate that credible threats were intended to invoke reasonable fear. But in this case, it is up to the judge to evaluate the facts of the case to find out if the threats were genuine and meant to instill fear on the victim. You would not be guilty if you made the threats jokingly or as an exaggerated political statement. If the threats were real and didn’t invoke fear on the victim, you will still be convicted if the victim felt the safety of his or her immediate family felt threatened. Immediate family includes:
- Spouse, parent or child
- An individual who often lives in your home
- Grandchild, grandparent, or sibling that is related to you by blood or marriage.
Potential Penalties for a Stalking Charge Conviction
Stalking in California is a wobbler. Based on the facts surrounding your case, the prosecutor may charge you with a misdemeanor or felony. If charged and convicted of a misdemeanor, you will be subject to the following criminal penalties:
- Summary probation
- As much as twelve months’ jail sentence
- No more than dollars one thousand fine
- A protective order issued to protect the victim from any contact with you
When charged with a felony, a conviction attracts the following penalties:
- Incarceration for 16, 24, or 36 months
- As much as $1000 fine
It is critical to note that violation of PC 646.9 is punishable under the three strikes. It means that if you are convicted of felony stalking, you are subject to as much as three years’ state incarceration or a fine of up to dollars ten thousand. Also, it is essential to understand that if you accumulate more than three strikes on your criminal record, you might end up serving a sentence of not less than twenty-five years in prison.
Stalking and Immigration Consequences
A conviction for certain crimes can result in the deportation of non-citizens or inadmissibility of immigrants. In this case, stalking is a domestic violence crime, and according to the U.S. immigration laws, it falls under the category of deportable or inadmissible offenses. Therefore, if you have been charged and convicted of felony stalking with aggravating factors, chances are you will face negative immigration consequences.
Stalking Conviction and Gun Rights
In the event you are convicted of felony stalking, it is going to impact your right to own a gun. You will join the list below, which contains persons forbidden from obtaining or possessing a firearm. The list includes:
- People convicted with felony charges
- Controlled substance addicts
- People with two or more convictions for violating PC 417
- Individuals found guilty of misdemeanor offenses like corporal injury on a spouse
- Individuals with mental conditions
- Minors or persons under the age of 18
A felony conviction for stalking will result in you being stripped of the right to own, buy or possess a gun.
Legal Defenses for Stalking
With the knowledge of the above penalties of a stalking conviction, there is a need to be concerned whenever you are accused or charged with the offense. However, an allegation doesn’t make you guilty. You are innocent until proven otherwise. So, whenever you are arrested or charged with stalking, it is vital to get in touch with a domestic violence criminal attorney. An experienced defense attorney will come up with a defense strategy that is going to help get the charges dropped or dismissed. Some of the strategies you can use include:
1. The Threat Wasn’t Credible
As said earlier, you can only be guilty of stalking if you made a genuine threat to the victim. Therefore, if you made a threat to the alleged victim jokingly, then that is not serious. Your attorney can argue that even though you made a threat to the victim and succeeded in making him or her afraid or feel unsafe, the threat was not genuine because it was a joke. Besides, you can claim that what you used to threaten the victim with doesn’t exist. Something that is a joke or doesn’t exist does not pose any credible threat to the victim or his or her immediate family, which means you should be acquitted of the charges.
2. Your Conduct was Constitutional
You can also claim that at the time you were stalking the alleged victim, your conduct was protected under the First Amendment, or you were engaging in an activity protected by the constitution. The defense applies especially in cases of protest. If, for instance, you are arrested for holding protests outside a public office every day and charged with stalking, your attorney can use the constitutional activity as your defense. He or she can argue that you didn’t need a permit to hold protests and that you were not communicating any threats. Protesting is conduct protected under the First Amendment, thus constitutional.
3. You Lacked Intent to Cause Fear
An excellent attorney can argue that the conduct that led to the victim sustaining fear was not willful or malicious. It means that when you make the threat, you didn’t intend for the threat to cause panic.
4. You are Falsely Accused
Allegations of stalking amongst ex-spouses are widespread. The majority of these accusations are untrue, and they involve estranged partners who want to force the other partners out of their lives. As a result, one of the partners reported the other to the authorities accusing them of making threats that keep them and their families in constant fear. In such a case, your defense attorney should look for facts that show that your ex-partner is falsely accusing you because they want to force you out of their lives.
5. Mistaken Identity
Victims of stalking are sometimes very scared to the extent that everyone who portrays certain behaviors similar to those of the stalker is perceived to be the stalker. As a result, an innocent person who looks like the stalker might be arrested, whereas he or she is innocent. If you have been arrested in such a situation, your attorney can argue that you look like the person who was stalking the victim, but in the real sense, you are not the stalker. If facts support this argument, the charges against you will be dropped.
Expunging a Stalking Conviction
If you are charged and convicted of stalking an estranged partner or spouse, the conviction is forwarded to the Department of Justice, where the sentence is recorded. The record will negatively affect you, especially when prospective employers do some background checks on your criminal history. If you have been convicted of misdemeanor stalking and completed probation, your criminal record can be cleared. However, certain domestic violence crimes like rape on a minor might not be expunged at all. On the other hand, if you have been convicted of felony stalking, the charge will first be reduced to a misdemeanor then erased. Therefore, if probation was imposed on your sentence and you have completed it, or you have served your jail term after a stalking charge conviction, you qualify to get the crime expunged.
Other Related Offenses
Some offenses are frequently charged alongside PC 646.9 or have common elements the prosecution must prove. Some of these offenses include:
The crime is described under PC 207 as forcibly moving a victim a substantial distance by instilling fear, stealing, holding, or arresting them. The offense is related to stalking because most victims of stalking end up being kidnapped by their stalkers. The two also differ because, in a kidnapping, the defendant must physically handle the victim, which is not the case with stalking. The prosecuting attorney can bring these two charges against you in one trial.
The offense of kidnapping is deemed a severe felony, which makes it punishable under the three strikes. If you get three strikes in your record, you are subject to 25 years or more state imprisonment. A conviction as per PC 667 is subject to the following penalties:
- As much as eight years’ state incarceration
- A fine no more than $10,000
- Both incarceration and fine
- One-year jail sentence if you are granted probation
Remember that although these penalties are harsh, before a conviction, the prosecution is required to prove some aspects to a moral certainty. One of the elements they must prove is that you took or detained a person forcibly or by inflicting fear. Additionally, the prosecutor must demonstrate that using the fear, you as the defendant managed to move the victim a substantial distance without the victim’s permission. They must also show the jury that you didn’t reasonably believe the victim had agreed to be moved.
PC 422 makes it illegal for a person to threaten another individual with a crime that would result in serious bodily injury or fatality. The threat must be specific and not ambiguous. Also, it must be communicated by the defendant verbally, in writing or electronically and must instill reasonable fear that the victim or his or her immediate family will be hurt. The crime is charged alongside stalking because, at times, stalking involves making criminal threats. But unlike PC 646.9, PC 422 focuses on the nature of the threat made and not on the defendant harassing or following the victim repeatedly.
A criminal threat is a wobbler. If you are found guilty of a felony, the penalties you will face include:
- As much as thirty-six months in prison
- No more than $10,000 fine
Keep in mind that a felony criminal threat is punished under three strikes regime, and you might get a minimum of 25 years in prison for a third strike.
If you are to be convicted of this crime, the prosecution must prove that you, as the defendant, threatened to kill or cause significant bodily injuries to the victim or the victim’s immediate family. Also, they must show that the threat was made orally, put in writing, or transmitted electronically to the victim. And when you made the statement, you intended for it to be clear, immediate, and straightforward that the alleged victim reasonably believed that the threat would be carried out. Finally, the prosecution must also show that the victim felt unsafe, and the fear was reasonable based on the situation.
Showing or Sending Harmful Material to Seduce a Minor
The offense is codified under California PC 288.2(a)(1). The crime occurs when a person sends, distributes, or offers to distribute or display materials featuring underage engaging in sexual conduct. The content must also be intended to arouse or cause sexual contact to the sender or recipient. The crime is similar to stalking in a way because stalking involves sending or showing harmful materials to minors.
The offense is also a wobbler. A felony conviction for this offense is subject to:
- As much as five years in prison
- As much as ten-thousand-dollar fine
- Registering as a sex offender
Materials that show sexual conduct or nudity do not necessarily add up to being harmful. The prosecution, however, needs to prove that you knew the character of the material, so they don’t have to prove that it is dangerous. The prosecuting party must demonstrate that you displayed, distributed, or offered materials containing sexual conduct to minors when you knew or ought to have known that the person is a minor. Also, they must demonstrate that when you acted, you intended to have sexual intercourse, oral sex, sodomy, or have the sender or recipient touch an intimate body part.
Annoying Phone Calls
As per PC 653m, it is unlawful for an individual to make a phone call that is lewd, threatening, or repeated phone calls to harass or annoy the recipient. Note that making threats against the immediate family of the recipient is also criminalized under this law. PC 653m and stalking are similar, but stalking carries the extra element that is, the threat must be made with the intent to instill fear on the victim.
If you are found guilty of annoying phone calls, the potential penalties include:
- As much as one hundred and eighty days’ jail incarceration
- No more than dollars ten thousand in fine
You will be convicted of this crime if the prosecution can demonstrate that you intended to annoy the recipient of a phone call you made by using obscene language or threats. The threats to injure might be directed to the recipient directly, his or her property, or the immediate family.
PC 647(j)(4)(a) makes it a crime to deliberately distribute a picture of an intimate body part of an identifiable person. Further, it is illegal to distribute any material containing images of a person engaging in sexual conduct under circumstances where the person had agreed to the pictures as long as they would not be shared with the public.
A conviction for revenge porn attract the following penalties:
- As much as one-thousand-dollar fine
- No more than six months in jail
For the prosecution to convict you of this crime, they must prove that you were aware that distributing the images would result in emotional distress to the person displayed in them.
The crime is codified under PC 653.2, and it is related to stalking in that it violates protective court orders. You can be charged with both cyberstalking and stalking at the same time. Being convicted for violating PC 653.2 attracts the following penalties:
- A fine not exceeding one thousand dollars
- Three hundred and sixty-four days in jail
You will be subject to these penalties if the prosecution can demonstrate that you placed another person or their immediate family in fear using an electronic communication device. Also, they must show you availed personal identifying information to a third party with the intent of injuring or harassing the victim against their will.
Steps to Take When Being Stalked
If you think or you are sure someone is stalking you, you should act immediately. Below are some of the actions you should take:
- Articulate to the stalker to drop the unwanted contact
- If the unwanted contact goes on, don’t engage with the stalker again
- Make sure you inform friends, family, and colleagues about the stalking
- Reach out to the law enforcers and file a report
- Begin gathering all the evidence of stalking
Find a Los Angeles Criminal Defense Attorney Near Me
California takes stalking charges seriously, which is why you need the services of The LA Criminal Defense Law Firm whenever you are charged or accused of this offense. Our attorneys understand that your rights and freedom are at stake. As a result, we will put up the best defense to ensure that the charges against you are dropped completely, reduced, or negotiate a lesser charge in a plea deal. Contact us today at 310-935-1675 for a free consultation on stalking or any other type of domestic violence crime. We will evaluate the circumstances of your case and create a defense strategy that will ensure your interests are protected.