Stalking Law & Defense
Penal Code 646.9(a) PC
Information on the crime of Stalking is found at California penal code section 646.9(a).
A defendant is charged with stalking if the district attorney reasonably believes that the defendant did all of the following:
Willfully and maliciously harassed another person repeatedly, and
The defendant made a credible threat with the intent to place the otter person in reasonable fear for his or her safety or the safety of his or her family
According to PC 646.9(a), a credible threat is a threat that causes another person to reasonably fear for his or her safety and where the defendant appears to be able to carry out the threat. A credible threat may be made orally, in writing, or electronically. The threat may also be implied by a pattern of conduct or a combination of statements and conduct.
Also, according to PC 646.9, to harass someone means to engage in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose.
As stated, stalking is a repeated offense that is carried out over time. How many times a victim must be harassed or threatened in order for the defendant to properly be charged with the crime of stalking depends on the circumstances of the case.
Also, the amount of time between harassing or threatening conduct sufficient to charge stalking charges depends on the circumstances of the case; however, it is not inconceivable to be charged with stalking under PC 646.9(a) after only a few minutes of contact between the defendant and the alleged victim. For example, after a heated debate and argument between sports fans at a baseball game the defendant follows the victim to the victim's car while threatening to kill the victim. This conduct could be charged as a one-time criminal threats under PC 422(a) or under a stalking allegation (PC 646.9(a) even though the time between repeated threats is minimal.
Note: Generally, a repeated course of harassment or threats will be over a period of time greater than a day in stalking cases, but every stalking case is different.
Incarceration: Stalking charges may be filed as misdemeanors or as felonies (wobbler). When stalking is charged as a misdemeanor the defendant may face up to a year in the county jail. If stalking charges are filed as a felony the defendant may face up to three (3) years in prison.
Note: It might be possible for a criminal defense attorneys to reduce a felony stalking charge to a misdemeanor stalking charge despite the district attorney's objection to the reduction in classification.
Probation Sentence: A probation sentence is period of supervision instead of a jail or prison sentence. A probation sentence may be available upon a conviction for stalking, but there is no guarantee of a probation sentence. Whether or probation sentence will be ranted in a PC 649.9(a) case depends on many factors, including the defendant's criminal history, the egregiousness of the case, and the terms of a plea bargain, if any.
CIMT: Stalking is considered a crime involving moral turpitude, which means that the crime is considered to be inherently wrong. Crimes that involve moral turpitude carry collateral punishment for non US citizens and persons who hold a professional license (i.e. doctor, dentist, lawyer, therapist, teacher, etc.). Non US citizens may be deported after a conviction for stalking and licensed professional might lose a professional license.
Three Strikes Law: PC 649.9(a) is not considered a strike offense under California's Three Strikes Law; therefore, if found guilty of of stalking, the defendant may have his or her jail, prison, or work release sentence reduced by up to fifty percent 50%) for good behavior while serving that sentence.
In addition to a possible jail or prison sentences, if found guilty of the crime of stalking (PC 646.9(a)), the defendant may be ordered to pay fines and restitution, lose his or her professional license, lose his or her immigration status (for non-U.S. citizens), be ordered to attend anger management classes, be ordered to stay away from the victim (criminal protective order), be placed on probation or parole, and more.
Possible defenses against a criminal charge of stalking per PC 646.9 include, but are not limited to: Self-defense, defense of other persons, mistake of fact, alibi defense, police misconduct (coerced confessions or illegal search and seizure violations), insufficient evidence, statute of limitations, insanity defense, and more.
Important: If you are charged with a crime, or if you are a suspect in a criminal allegation, you should contact a criminal defense attorney before discussing any part of your case with anyone, especially law enforcement.
If you have been charged with stalking per California penal code 646.9 or 646.9(a), contact our experienced and successful criminal defense attorneys without delay for a free consultation. Our attorneys are available seven days a week to answer your questions. Call today!
PC 646.9(c)(2) Stalking with prior felony conviction
PC 646.9(b) Stalking in violation of court order
Quick Legal Reference
Code: PC 646.9(a) (CalCrim No. 1301)
Wobbler: Yes. PC 646.9(a) is a wobbler crime. This means that PC 646.9(a) is charged as a felony or as a misdemeanor.
Incarceration: Felony PC 646.9(a) prison sentence range: 16 months, 2 or 3 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation is allowed in felony and misdemeanor PC 646.9(a) cases (assuming other crimes or enhancements that bar probation are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): No. PC 646.9(a) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a conviction, that is not part of a probation sentence, be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 646.9(a) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 646.9(a) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony PC 646.9(a) convictions prohibit defendant from owning or possessing a firearm.
Bail: $150,000 (San Bernardino County)
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