California prosecutors treat stalking charges very seriously. If you’ve been charged with this crime, it means your livelihood, freedom, and rights are at stake. You, therefore, want to hire a skilled, devoted criminal defense lawyer as soon as possible to help you fight the charges. Remember that an expert lawyer may succeed in negotiating a lesser included offense in plea bargaining, reducing your sentence, or even having your charges dismissed altogether.

We, at Darwish Law, understand how local courts operate and have extensive knowledge of California criminal law and the justice system. We can represent you in Santa Ana or the surrounding cities. If you’ve been arrested for or charged with stalking, our lawyers will analyze all the facts surrounding your case and build a defense strategy that’ll help you obtain the best possible outcome. Call us today for a free, confidential consultation and case evaluation.

The Legal Meaning of the California Crime of Stalking

Penal Code (PC) Section 646.9 is the law that prohibits you from stalking another person. The prosecution must demonstrate two things for the judge to find you guilty of this crime. They are:

  • You maliciously, willfully, and repeatedly harassed or followed someone else, and
  • You made/sent credible threats intending to make the other party reasonably fear for their safety or that of their immediate family

Behaviors that may result in stalking charges are broad and vary from one case to another. Provided the supposed conduct makes the victim reasonably fear for their safety, it can result in stalking charges. Examples of actions that can amount to stalking charges include:

  • Frequently sending unwelcome or unwanted cards, gifts, flowers, or notes to a person
  • Habitually driving by someone else’s school, home, office, workplace
  • Regularly crossing paths with a person, constantly running/bumping into them ‘by accident or randomly’
  • Gathering an unreasonable amount of information on someone else, gathering intelligence on where they stay, who they hang out with, or collecting personal information about their private life or the lives of their family members

There are different levels of severity as far as the crime of stalking is concerned. For example, these aggravated stalking instances may carry harsher consequences compared to ordinary stalking alone:

  • Damaging someone else’s property, breaking their items, hurting their pet/pets, or repeatedly vandalizing their home
  • Constantly stealing someone else’s property while committing burglary
  • Repeatedly trespassing on someone else’s property with criminal intent

It is worth remembering that the judge can’t convict you of PC 646.9 violation if the activity you were engaged in is constitutionally protected. For instance, you are innocent of a PC 646.9 violation if you were participating in a gathering, legally protesting, or exercising free speech.

The Legal Meaning of the Elements of the Crime

Elements of the crime are the facts the prosecution must prove for the defendant to be convicted in a given offense. The elements of the crime of stalking and their meaning are as follows:

Maliciously, Willfully, and Repeatedly

Per this law, you willfully act whenever you do an act purposely or willfully. On the other hand, acting maliciously means deliberately doing any wrongful action or acting with the specific intention to hurt, disturb, or annoy another person. And if you do something repeatedly, it means you do it several times.

The Legal Definition of Harassment

Harassing a person means being involved in a deliberate and knowing course of conduct directed at them, and that course of conduct seriously terrorizes, torments, alarms, or annoys them. Additionally, the course of conduct shouldn’t serve any legitimate purpose for you to be guilty.

A course of conduct refers to a pattern of behavior composed of a series of acts happening over a given period, regardless of how short, which shows continuity of purpose.

The Legal Meaning of Reasonable Fear

Regarding whether you intended to make the victim reasonably fear for their safety, the judge will decide this by scrutinizing the facts surrounding your case. But, remember that courts have ruled that whether a person makes a threat with the specific intent of causing fear is reserved for actual threats. Actual threats don’t include constitutionally protected speech, joking utterances/expressions, or exaggerated political statements.

Immediate Family

Per this code, immediate family refers to a child, parent, or spouse. It also refers to grandparents, grandchildren, sisters, or brothers related by marriage or blood or an individual who regularly resides in your home.

The Meaning of Credible Threats

Per this law, credible threats are threats that cause the person who is being threatened to reasonably fear for their safety or that of their immediate family members.  Credible threats are those that are capable of being carried out by the party making the threats. They can be made electronically, orally, or in writing. They could also be inferred by a series of behaviors or a combination of behavior and statements.

Penalties for Stalking

Stalking is considered a wobbler crime. A wobbler crime is an offense the DA can prosecute either as a felony or a misdemeanor based on the facts of the specific case and the defendant’s criminal history. If charged and convicted of a misdemeanor, you will face informal probation, a fine not exceeding $1,000, and a one-year jail term. And if charged and found guilty of a felony, you will face a fine not exceeding $1,000, a five-year prison sentence, and formal or felony probation.

Keep in mind that stalking is always a felony when any of these circumstances apply:

  • You have any prior conviction of a stalking offense (even where the supposed victim in the previous case/cases and the one in the new case isn’t the same person)
  • You committed the crime in violation of a protective/restraining order

Immigration Consequences of a Stalking Conviction

Being convicted of stalking may subject you to negative immigration repercussions. The country’s immigration statute dictates that some criminal convictions may cause an immigrant to be deported, whereas others can make an alien inadmissible. The primary categories of inadmissible or deportable offense are:

  • Crimes involving moral turpitude
  • Drug (controlled substance) offenses
  • Aggravated felonies
  • Domestic violence-related offenses
  • Gun offenses

Based on the circumstances and facts surrounding the case, a felony violation of PC 646.9 may be considered an aggravated felony. And if that’s the case, it may carry detrimental immigration consequences.

The Effect of a Stalking Conviction on Firearm Rights       

A felony stalking conviction will adversely impact your gun rights. Generally, California law prohibits the following parties from possessing or acquiring a firearm:

  • Felons (anyone guilty of a felony in any given jurisdiction)
  • People with more than one conviction under PC 417, California’s statute on brandishing a firearm or weapon
  • Narcotic addicts
  • Mentally ill persons
  • Persons found guilty of given misdemeanors (like a conviction of PC 273.5, the state’s law on corporal injury upon a spouse)
  • People under the age of 18 years (persons below 21 years may not buy a firearm)

Remember that the crime of stalking can be prosecuted either as a felony or misdemeanor. Considering the first point above, if you are charged with stalking as a felony and are eventually convicted, it would mean that you would lose your legal right to own or possess a gun.

Defending Against the Crime of Stalking

You may beat stalking charges with a solid defense strategy that you can develop with the help of an experienced criminal defense attorney. A strong defense strategy can also result in charge reduction or even a dismissal. Your lawyer can help argue the following legal defenses:

It Was a Constitutionally Protected Activity

Remember that according to this law, you are not guilty of a PC 646.9 violation if the activity you carried out is constitutionally protected (for example, legally protesting). By this, it means that it is always a legal defense to show you were engaged in a constitutionally protected act when accused of stalking.

You Did Not Intend to Cause Any Fear

To be convicted of a PC 646.9 violation, your actions must have made the supposed victim reasonably fear for their safety or that of their immediate family members. Thus, as far as this defense is concerned, your lawyer can argue that whereas you may have threatened the supposed victim, you did not mean for the threat to inflict fear. For instance, perhaps you made repeated threats to trick the victim.

It Wasn’t a Credible Threat

Remember that you are guilty of stalking if the threat you made to the alleged victim was credible. Therefore, it is a legal defense for your lawyer to show that whereas you may have threatened the victim, the threat was not credible or serious. For instance, perhaps you threatened the victim jokingly.

False Accusations                                                                               

Whereas stalking is a serious crime, the accusations that alleged victims make are often false or exaggerated. It is not uncommon for victims to make stalking allegations out of spite, jealousy, anger, revenge, or because they are seeking to have the upper hand in divorce or child custody proceedings. It could be that the victim contacted you first wanting to reconcile with you and you responded believing it was in good faith only for them to accuse you of stalking. These kinds of situations often arise during a relationship breakup or divorce.  If your lawyer can prove that the stalking allegations the victim made against you are false, you cannot be convicted.

Mistaken Identity

Your lawyer can also assert the mistaken identity defense. They may argue that even though the stalking occurred, you are not the real culprit, and the supposed victim is mistaking you for someone else. They may do this by questioning the victim’s memory and their perception. For example, perhaps the crime took place in a poorly lit location, which made the victim misidentify you. The lawyer can also support this defense by an alibi. Successfully proving that it was a case of mistaken identity may lead to the charges against you being dismissed.

Expunging a Stalking Conviction

If you have been found guilty of stalking, you can request that your conviction record be expunged. Per PC 1203.4, an expungement excludes you from nearly all penalties that come about due to a conviction. One specific advantage of expunging your conviction record is that you do not have to disclose that record to prospective employers.

Generally, Penal Code 1203.4 allows you to remove your felony or misdemeanor conviction record provided you are not currently facing criminal charges, serving time for a criminal offense or on probation for one, and have completed probation.

By this, it implies that once you have completed your probation sentence (if applicable) or served a jail sentence (also if applicable), you may start trying to have your criminal record expunged. 

Related Crimes to Stalking

There are particularly five offenses that prosecutors often charge along with or instead of stalking. They are:

PC 653.2(a) - Cyberstalking

Cyberstalking is prosecuted under PC 653.2(a). This crime is commonly known as online or electronic cyber harassment. It occurs when one person constantly threatens or harasses another through an electronic medium like e-mail, the internet, telephone, or text messages, intending to place that person in reasonable fear for their safety or that of their immediate family. Examples of cyberstalking include:

  • Constantly calling someone else, repeatedly sending them unwanted emails, writing them absurd letters, or bombarding them with threatening text messages
  • Deliberately posting explicit, humiliating, or embarrassing information about a person online without their consent

Cyberstalking is a misdemeanor offense. A conviction is punishable by a fine that doesn’t exceed $1,000 and a year in jail. And based on your criminal history and the facts of your case, you may also be subject to domestic violence-related charges or be ordered to register as a sex offender.

PC 422- Criminal Threats

PC 422 is the state’s law that describes the ‘criminal threats’ offense. You make criminal threats when you threaten to physically harm or kill another person and:

  • The person therefore reasonably fears for their safety or that of their immediate family
  • Your threats are specific and unequivocal
  • You conveyed the threats in writing, verbally, or through an electronic device

Unlike the crime of stalking, this crime does not focus on an accused following or harassing a person. Instead, it focuses primarily on the kind of threat made.

Making criminal threats is a wobbler offense. If you’re guilty of a misdemeanor, you will be subject to a year in jail and up to $1,000 in fines. And if you are guilty of a felony, you’ll face a maximum of three years in prison and up to $10,000 in fines. A felony ‘criminal threats’ conviction is also a strike per the California Three Strikes law.

PC 653m - Annoying Phone Calls

Per PC 653m, it is an offense for you to make a threatening or obscene phone call or a series of repeated threatening/obscene phone calls intending to annoy or harass the person you are calling. Note that whereas stalking and annoying phone calls are similar offenses, stalking has the additional element requiring that any threat must have been made with the intent to place the alleged victim in reasonable fear.

Violating PC 653m is a misdemeanor offense. A conviction carries a maximum of six months in jail, up to $1000 in fines, or both. Sometimes, the defendant convicted of a PC 653m violation may be sentenced to informal probation or granted a suspended sentence. If this is the case, the judge may direct the accused to participate in counseling as a condition of probation.

PC 207 - Kidnapping

PC 207 is the California law against kidnapping. Kidnapping means moving a victim a significant distance using fear or force. Unlike stalking, kidnapping necessitates that you physically handle the supposed victim and move them.

Kidnapping is prosecuted as a felony. A conviction is punishable by up to $10,000 in fines and 3, 5, or 8 years in prison. You would face harsher consequences if there were aggravating factors in your case.

PC 288.2(a)(1)- Sending or Showing Harmful Matter to Seduce a Minor

You violate PC 288.2(a)(1) when you send, cause to be sent, exhibit, or offer to distribute or exhibit material featuring children engaged in sexual behavior. The material has to be harmful, it must be sent to arouse you (the sender) or recipient sexually, and some kind of sexual contact has to be intended. This crime is related to stalking since some stalking instances involve children being sent or shown harmful material.

PC 288.2(a)(1) violation is a wobbler. A felony conviction carries a maximum of 5 years in prison, a fine that doesn’t exceed $10.000, or both, and the requirement to register as a sex offender.

Find an Experienced Criminal Defense Attorney Near Me

Facing stalking charges is challenging when you are unsure how to defend yourself from the allegations. Therefore, we highly recommend that you seek comprehensive legal counsel as soon as you are arrested. Reaching out to the right lawyer to defend your rights may significantly impact the outcome of your case. At Darwish Law, we will thoroughly assess your specific situation before embarking on developing a solid defense strategy that may include arguing that you were mistaken for the real culprit. In today’s world, it is all too easy for a simple misunderstanding or disagreement to lead to severe criminal charges against an innocent person. If you have been accused of stalking in Santa Ana, do not hesitate to call us today at 714-887-4810 to discuss your case.