California boasts as one of the states that have complete anti-stalking laws compared with other states. This means that anyone convicted with stalking has a high chance of facing the punishment as provided by the law. California laws define stalking as an action of repeatedly following, harassing, and threatening someone to scare his or her safety or that of the close family. Anyone facing such allegations should consider hiring a professional attorney to help in handling the case that follows. Get in touch with us at the California Criminal Lawyer Group for legal representation in stalking charges.

Definition of Stalking Under California Law

Under the Penal Code 646.9 PC, it is a crime to creep up on another person in California. The California laws recognize a person that persistently engages in behaviors like following, harassing, threatening, and pestering as a stalker and is eligible for prosecution according to Penal Code 646.9 PC.

For an attorney to successfully prosecute the accused of this offense, he or she must prove that:

  • The defendant maliciously harassed someone willfully or has been following another person repeatedly
  • There was a genuine threat made by the defendant, and the intent was to place fear on the safety of another person
  • If the accused faces an accusation of violating a court order against the offense, the prosecutor should prove that the court order was lawful, and the defendant committed the offense while the order was still in effect.

The defendant is innocent of the offense if he or she engaged in the offense in an activity that is constitutionally right. For instance, if the accusation occurred when the defendant was exercising his or her freedom of speech, protesting according to the legal requirements, or is engaging in an organization, the accused is innocent of the allegations.

Elements of Crime

A prosecutor must prove a couple of aspects to prosecute the defendant successfully. These aspects are considered as elements of the crime. The elements of crime in California stalking include:

Willful, Maliciously and in Repetition

In this section of the code, if someone commits something willfully, it means that he or she did it willingly and on purpose. A malicious act is something that one does intentionally and had an unlawful intent to annoy, injure, or disturb the other person.


Harassment means the engagement in a willful and knowing conduct directed to another person to seriously:

  • Terrorize
  • Alarm
  • Annoy
  • Torment

As provided above, the proceedings of the action must not serve any legitimate purpose to satisfy the elements of a kidnapping offense. A course of conduct involves two or three acts that happened over a particular period, which demonstrates a continuous purpose.

Credible Threats

In this section, credible threats define a cause of action that causes reasonable fear to the defendant or close family and a threat that the person making it can manage to carry. A genuine threat is made electronically, written, or orally. It might be implied through statements that are followed by actions.

Reasonable Fear

If the defendant placed reasonable fear to the victim, the court convict the defendant after they analyze the circumstances and facts of the matter. However, if the action fulfilled the intention to cause fear to the victim, the act becomes a genuine threat. True threats exclude exaggerated police statements, a speech that is within the requirements of the constitution, and joking expressions.

Close Family

For the purpose of the Penal Code, close family members include:

  • Spouse, child, or parent
  • Grandchildren, grandparents, siblings or anyone with blood relations or marriage
  • Someone who regularly reside in your household

Electronic Communication Device

For the purpose of the Penal Code, electronic communication devices include, but are not limited to, cellular phones, video recorders, computers, pagers, fax machines, and telephone. Electronic communication holds the same meaning as the term defined in subsection 12 and section 2510 of Title 18 of the United States Code.

Penalties for Stalking

Anyone who has committed a stalking offense risks two kinds of penalties. The two types of penalties that the alleged convict is subject to include:

Criminal Penalties

The violation of Penal Code 6746.9 PC is considered as a wobbler. This means that the offense is either charged as a felony or misdemeanor. If the offense gets a misdemeanor conviction, the offender is subject to:

  • summary probation
  • Imprisonment in a county jail up to a year
  • A fine that can reach to a maximum of $ 1,000

If one gets charged with a felony, he or she is subject to:

  • Felony probation
  • Imprisonment for a maximum of five years in a state prison
  • A fine that can amount up to $1,000
  • The court might also order the offender to register with the state as a sex offender pursuant of California Penal Code 290 as long as one lives, schools, or work within the state. If one fails to register with the state as a sex offender as provided by the court, he or she risks additional penalties such as jail sentencing in a county jail for up to three years.

In both summary and formal probation, the court might impose a mandatory counseling session on the defendant. However, when the defendant shows a good cause, the court might decide on the counseling requirement.

Also, the court might require the defendant to seek treatment under Section 2684. If the court finds this appropriate, the court recommends the Department of Correction and Rehabilitation to certify that the defendant requires treatment as provided in Section 2684. Once the defendant gets certified, he or she gets evaluated and transferred to the appropriate hospital.

Note that stalking is either charged as a felony based on circumstances such as:

  • The stalker has violated a previous court order provided against him or her
  • The defendant has previous stalking charges, even though the victim is different.

Civil Penalties for Stalking

The victim can sue the alleged offender with civil penalties besides the criminal charges. However, the victim should prove three aspects to be successful in the civil allegations. The elements are as follows:

  • The offender participated in a way that had the intention to harass, follow, or alarm the victim. The victim should provide independent evidence other than a testimony to prove this fact
  • Based on the action. The stalking victim should prove that the act created a reasonable fear for his or her safety and that of a close member of the family
  • The stalker either violated a restriction order to stop the behavior or made a genuine threat to the victim’s safety or a close member of the family and did not stop even when asked to.

If an alleged victim successfully proves these aspects, he or she can recover compensatory and corrective damages.

The Implication of Stalking to Immigrants

A stalking allegation can lead to negative consequences on an immigrant. Under US Immigration Laws, a convicted non-citizen can end being deported after being charged with stalking. Stalking falls under the United States inadmissible convictions. Based on the circumstances surrounding the case, most felony stalking charges rise to aggravated felony charges, which have serious immigration effects.

The Implication of Stalking on The Offender’s Gun rights

An offender convicted with felony stalking has the possibility of having his or her gun right affected. People who fall under the category of people with the prohibition of possessing a firearm in California are:

  • A felon who has a prior felony conviction in a California jurisdiction
  • People with prior allegations provided in Penal Code 417 PC
  • Anyone convicted of particular misdemeanor offenses like allegations under California Penal Code 273.5PC, which is against corporal injuries on a marriage partner
  • Anyone who is mentally ill
  • Anyone under 18 years old. Under United State Laws, anyone under 21 years is not eligible to buy a gun.

Based on the people who are prohibited from owning a gun above, defendants with previous felony stalking charge should give up on their right to possess a firearm.

Possibility of Expungement in California Stalking Offense

Under Penal Code 1203. 4 PC an offender can get released from all disabilities and penalties that arise from a conviction under specific conditions. One of the benefits of expungement is that the sentence does not require disclosure to a potential employer when the defendant is seeking employment.

Based on the rules of Penal Code 1203.4 PC, an offender is eligible for expungement as long as he or she completes the probation and does not have current criminal charges, is not on probation for an offense, or is not serving a criminal sentence. In that case, if the alleged stalker completes the probation imposed on him or her or serves a sentence out of jail, he or she can apply for expungement.

Legal Defenses For Stalking

An alleged stalker should seek professional legal services to build a strong defense against the allegations. If the attorney builds a strong defense, the alleged person can get a reduced charge or have the charges dismissed altogether. Some of the common legal defenses for stalking include:

  1. You Did not Engage in a Genuine Threat

A threat becomes credible if a reasonable person fears for his or her safety. Therefore, if it did not cause any fear to the person, then the charges are not successful and can be a reasonable defense for your case.

  1. You Engaged in a Constitutionally-protected Activity

As indicated earlier, particular circumstances put one innocent of stalking. One of those instances is participating in a constitutionally protected activity, such as lawfully protesting. If your allegations are based on such circumstances, then you have a good defense for your allegations.

  1. Mistaken Identity

In some cases, the victim might receive threats and mistaken the offender with you. In such an instance, you can build a strong defense against the accuser based on such instances. If the accused provides evidence against an alleged stalker who was in another location, it can be a big boost towards the success of the legal defense.

  1. False Accusation

While with no particular widespread, some victims usually use anti-stalking laws to punish people they have issues with. For instance, if a spouse dispute with his or her partner, he or she can accuse the partner of being a stalker to seek revenge on him or her.

  1. You Had No Intention to Cause Fear

This is quite close to the lack of credible threats. In this case, the alleged person can argue that he may have made a threat, but the objective was not to frighten the subject. For instance, if you made a repeated threat to tickle another person, the threat is not credible enough to cause any fear on the defendant.

Crimes Related to Stalking

For a crime to be associated with stalking, it means that it is frequently prosecuted together with stalking offense and has common elements that the prosecutor should prove beyond reasonable doubts. Some of the crimes related to stalking include:


Under Penal Code 207, kidnapping is an act of instilling fear, taking, holding, detaining, arresting, and carrying another person to another place within the same country. The relationship between stalking and kidnapping occurs when, in extreme cases, a stalker kidnaps his or her victim. In that case, the prosecutor charges you with both offenses.

Under California laws, kidnapping is a serious crime. It falls under the three-strike system, which subjects the defendant to a minimum of twenty-five years in state prison in case one receives a three-strikes conviction.

Under Penal Code 207, a convicted kidnapper is subject to:

  • Eight years in state prison
  • A fine that can reach that can amount to $ 10,000
  • Both fine and imprisonment

One can as well get felony probation but has to serve twelve months in a county jail before he or she becomes eligible for the probation.

Annoying Phone Calls

Under Penal Code 653m PC, using any electronic communication device or telephone to call or threaten a person or use obscene language against that person is illegal. It is also unlawful to threaten close family members of the person receiving the call.

If one gets convicted of the Annoying Phone Calls, the penalty that one might face include:

  • Imprisonment in a county jail for six months
  • A fine that can reach that can amount to $ 10,000
  • Serve imprisonment and pay the fine

For the threat against the close family member to be credible, it must have the intention of causing physical harm to the intended person.

Criminal Threats

Under Penal Code 422 (a), criminal threats occur when one threatens the other party with a crime, which results in significant bodily injuries or death. The statement must satisfy all elements of a genuine threat and must be verbally communicated or written. The threat should also be made immediately or clearly and must create reasonable fear for the other person or will hurt the close family of the person. The relationship between criminal threat and stalking is that it can be part of stalking, which permits the prosecutor to persecute you with both crimes at a trial.

A criminal threat is a wobbler since it has unique facts related to the situation. If one gets convicted of a felony offense, the penalties without carrying additional enhancement, are:

  • Three years imprisonment in a state prison or
  • A fine that can reach that can amount to $ 10,000
  • Paying the fine and serving the imprisonment

Criminal threats are part of the three-strike system. If one gets convicted with the three strikes, he or she will end up serving a minimum of twenty-five years in state prison.

Seducing a Minor By Showing or Sending Harmful Matter

Under Penal Code 288.2 (a) (1), enticing a minor by showing or sending harmful matter occurs when one sends, exhibits, or distributes materials featuring minors engaging in sexual conduct. The distributed content must be detrimental and must be sent to arouse the sender or recipient sexually, and must have the intention of some sexual contact. The crime is associated with stalking when the stalker sends harmful material involving children as a form of threatening the victim.

Such a crime is a wobbler and can be considered as a felony or misdemeanor. If one gets felony charges, he or she will face penalties such as:

  • State imprisonment for up to five years
  • A fine that can amount to $10,000
  • Both imprisonment and fines
  • The responsibility to register with the state as a sex offender.

The fact that certain materials depict nudity and sexual activity does not make it harmful. The prosecution must prove that you knew the character of the content. Even so, it does not prove that the material met the actual definition of harmful.

Revenge Porn

Under Penal Code 647(j)(4)(A), revenge porn is an act of intentionally distributing the intimate image of another person, depicting a sexual act which the person participated, under the circumstances which the person did not consent to the distribution and intended the images to remain private.

If one is found guilty of revenge porn, he or she is eligible for the following punishment.

  • Six months imprisonment in a county jail
  • A fine that can reach that can amount to $ 10,000
  • Serve the imprisonment and pay the fine

For the crime to be fully eligible for the punishment, the offender must fully know that distributing the images could have seriously caused emotional distress to the person depicted in the pictures. The person depicted in the photos should also have suffered emotional distress out of the exposure.


Under Penal Code 653.2(a), it is illegal to place another person in fear for his or her safety or that of a close family member through electronic communication devices for a third party to make contact with the person. The statute includes electronic images or digital images that would likely incite an unlawful action as well as downloadable material. The crime identifies with stalking and might allow the prosecution to charge you with both offenses in the same trial.

If one gets convicted with cyberstalking, the possible penalties that one faces include:

  • A fine that can amount to $ 10,000
  • One year imprisonment in a county jail
  • Serving the imprisonment and paying up the fine

For the accusation of being credible against the defendant, the identifying materials must be availed against the will of the victim.


Under Penal Code 602 PC, trespass is defined as entering into another person’s property without permission to do so. As defined under the penal code, there are other situations that explain trespassing, but the underlying factor includes entry into a property without the owner’s permission. Trespass is related to stalking since the alleged stalker might intrude on the property of the person that he or she is stalking without permission.

Trespass carries different penalties depending on whether one gets charged with a misdemeanor, infraction, or in rare circumstances, a felony. If one gets convicted with a misdemeanor, the possible penalties that apply are:

  • Summary probation
  • Imprisonment in a county jail for six months
  • A fine of up to $1,000

If one gets charged with an infraction, the kind of penalties that follow include:

  • $ 75 fine for a first-time offense
  • $250 fine for a second offense in the same property

Finally, an aggravated (felony) trespass is a wobbler, meaning one can get a misdemeanor or a felony charge. Misdemeanor aggravated trespass charges carry a penalty that includes:

  • One year in a county jail
  • A fine of up to $2,000

For an aggravated felony that is charged as a felony, the possible penalties that apply are:

  • Imprisonment for six months, two years or three years in a county jail
  • Felony or formal probation

Statute of Limitations in Stalking Allegation

A statute of limitations is the period that a prosecutor has to charge an alleged offender in a court. The law provides this period to protect the defendant from a prolonged delay of case filing and ensuring that there is enough evidence presented against the accused as well. Generally, the statute of limitations for stalking takes three years. California laws provide an additional two years if one is placed on civil action. There are also possibilities of tolling the statute for the period that a defendant stays out of the country or state.

Hire a San Jose Criminal Attorney Near Me

The State of California considers stalking as a serious crime. Therefore, if you are charged with stalking, you need to seek a professional criminal attorney to safeguard your rights and freedom. An expert attorney should be able to reduce your sentence, negotiate a lesser charge, or even have your charge dismissed. If you are in San Jose, CA, we at the California Criminal Lawyer Group are ready to offer the services that you need. Call us at 408-622-0204 to get a free consultation about your case.