A common misconception about stalking is that this offense involves a complete invasion of privacy, relentless messaging, and lurking in the shadows. However, the legal criteria that a prosecutor must follow to obtain a conviction against you under Penal Code (PC) 646.9 are less strict than what this popular opinion dictates, catching many people off guard.
A misunderstanding between you and your ex-spouse could have you arrested and charged with a stalking offense. That is why it is critical to retain the services of an attorney if you are under investigation or charged with a stalking offense.
A skilled attorney can help discern and disentangle the legal complexities of your unique case, persistently challenge any inconsistencies, and work to have the charge dismissed or reduced to a lighter offense. At California Criminal Lawyer Group, we proudly stand at the front line of legal defense on criminal charges like these.
If you are under arrest, charged with, or have a pending stalking charge in Bakersfield, our dedicated and knowledgeable attorneys can help you secure a dismissal of your charges or a lighter sentence. We are not only dedicated to helping you achieve a desirable outcome in your case but also committed to ensuring that you have someone to look up to for legal guidance throughout the legal process.
What Stalking Offense Means Under PC 646.9
Allegations that you are stalking someone can attract severe charges and penalties under Penal Code 646.9. According to this statute, it is illegal to threaten, follow, or harass another person to the extent of making him/her fear for the safety of his/her health or life. Below are examples of instances or scenarios that could attract stalking charges under PC 646.9:
- Sending your ex-spouse dead rose flowers every Wednesday with a note that says "you are next."
- Calling your work colleague every night and telling him that "he will eventually become your boyfriend whether he is into it or not."
- Sending a two-day note to your new neighbor that says unequivocally, "Take down your fence as soon as possible or else."
While it is often associated with domestic violence cases, anyone can find himself/herself in trouble with the law as a suspect in a stalking criminal case. However, your penalties upon conviction for a PC 646,9 violation will be harsher if your case is domestic violence-related.
What the Prosecutor Must Prove to Obtain a Conviction Against You Under PC 646.9
When your case reaches the trial stage of the legal justice system, the prosecutor will bear the legal burden of proving to the court that the stalking allegations you are up against are true beyond a reasonable doubt. Some of the elements or facts the prosecution team must prove to the jury or judge to obtain a conviction against you for a PC 646.9 violation include:
- You maliciously and willfully harassed, followed, or threatened another person repeatedly.
- When you threatened, harassed, or followed the person, you had the criminal intent to place him/her in reasonable fear for his/her safety or that of his/her immediate family.
In the legal definition of stalking offense under PC 646.9, several questions often come up on the legal meaning of the following terms:
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Maliciously, Willfully and Repeatedly
For the sake of PC 646.9, you commit an act willfully when you do so willingly or with a purpose. On the other hand, you act "maliciously" if you intentionally perform a wrongful act or commit any act with the criminal intent to annoy, disturb, or injure another person. The term "repeatedly" means more than once.
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Harassment
According to PC 646.9, you harass someone when you knowingly and willfully engage in certain conduct or behavior to terrorize, torment, alarm, or annoy him/her.
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Credible Threats
For the sake of PC 646.9, "a credible threat" is one that:
- Can cause the target “victim” of the threats to have a reasonable fear for his/her life or safety or that of his/her immediate family.
- The defendant or maker of the threats appears likely or able to execute.
It is also worth noting that credible threats can be communicated through various ways, including orally, electronically, or in writing. Your pattern of conduct towards the accuser or the victim can also help the court determine whether your threats qualify as credible threats under PC 646.9.
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Reasonable Fear
The judge will closely review the circumstances and facts of your case to determine whether you intended to place the victim or accuser in reasonable fear for his/her safety. You would be guilty of a PC 646.9 violation if you had the criminal intent to place the accuser in reasonable fear for his/her safety.
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Immediate Family
Not every person qualifies as an immediate family under PC 646.9. According to this statute, immediate family could be any of the following:
- Spouse, child, or parent.
- Grandparent, grandchild, sister, brother, or any other person related to the accuser or victim by marriage or blood.
- An individual who often and regularly lives in the accuser's home.
A PC 646.9 Violation Conviction Sentence
Since stalking is a wobbler offense, the prosecutor can file misdemeanor or felony charges against you, depending on your unique case's specific particulars and facts. Fortunately, if you are guilty of a felony stalking offense, you could qualify to reduce your offense to a misdemeanor once you complete your probation.
If the prosecutor files misdemeanor stalking charges against you, your sentence upon conviction will include the following:
- A fine not exceeding $1,000.
- A jail sentence of not more than one (1) year.
- Informal or misdemeanor probation.
However, if the facts of your stalking case make it a felony, your penalties upon conviction under PC 646.9 will include:
- A fine not exceeding $1,000.
- Formal or felony probation.
- A jail sentence of not more than five (5) years.
It is also worth noting that the prosecution team will file felony charges against you if any of the facts listed below are true:
- You had a restraining order issued against you, which you violated by stalking the accuser or victim.
- You have a past stalking charge conviction, even if the victim in the current case is different from the one in your past stalking case.
In these situations, your conviction for a PC 646.9 violation will attract heightened penalties, including more jail time and hefty fines.
Other Possible Consequences of a PC 646.9 Violation Conviction
A conviction for a PC 646.9 violation can attract other negative consequences in addition to the above legal penalties. Some of these consequences include:
Civil Consequences
In addition to the criminal penalties mentioned above, the victim of the stalking offense can file a lawsuit against you to obtain compensatory damages related to the crime. Some of the facts that the victim's or his/her attorney must prove to obtain damages for this offense include:
- You engaged in a pattern of behavior or conduct with the intent to harass, follow, or annoy the victim.
- Due to your suggestive conduct or behavior, the victim had a reasonable fear for his/her life and safety.
- You did either of the following:
- You threatened or harassed the victim and refused to quit doing so even after he/she asked you to stop the annoying or harassing behavior.
- You violated a restraining order issued against you with your behavior.
If the victim's lawsuit against you is successful, he/she could recover the following:
- Compensatory damages, which cover the victim's mental anguish, emotional distress, and other losses associated with the offense.
- Punitive or exemplary damages.
Negative Immigration Consequences
Unfortunately, if your stalking offense is domestic violence-related, you could face negative immigration repercussions if you are an alien or non-citizen. Some of these consequences include:
- Deportation.
- Inadmissibility after deportation, meaning you cannot re-enter the country again.
Gun Ownership Limitations
Upon a conviction for a felony stalking offense, you could lose your right to possess, carry, or own a firearm. According to PC 29800(a)(1), it is illegal for felons to purchase, carry, own, possess, or receive a firearm.
A PC 29000(a)(1) violation conviction could attract a jail time of up to three years. That means if you are a hunter, a felony stalking charge conviction could negatively affect your life's quality because you will lose your gun ownership rights.
Loss of Your Voting Right
Many people take voting rights for granted, but it is a serious issue you should never assume. In most cases, if you are guilty of a felony offense like a PC 646.9 violation, you will lose your legal right to vote if you are still behind bars.
However, if the court sentences you to probation or mandatory supervision, you can exercise your legal right to vote.
A Permanent Criminal Record
Another severe and detrimental consequence of a PC 646.9 violation conviction is that your offense will remain on your criminal record. That means anyone interested in your criminal history will know you have a stalking charge conviction, which can make it challenging and overwhelming to do the following:
- Receive a professional license.
- Apply for graduate and college programs.
- Qualify for meaningful and reliable employment or receive a promotion if you are already employed.
- Rent a house or an apartment to live in.
Eligibility for Probation Upon a PC 646.9 Violation Conviction
Probation is a sentencing alternative you could qualify for instead of jail time upon a criminal conviction. If you are eligible for this alternative sentence upon a PC 646.9 violation conviction, you will remain out of legal custody for a specified period. However, you must adhere to the court-set terms and conditions during probation. Some of these conditions and requirements include:
- Pay fines and compensation, if necessary.
- Submit to regular drug tests.
- Comply with existing restraining order requirements.
- Enroll in a drug or alcohol treatment program.
Whether you will qualify for probation instead of imprisonment upon a PC 646.9 violation conviction will depend on several factors, including:
- Your criminal record.
- The severity and sophistication of your charges.
- Whether you are a threat to the victim or the public.
- Your attorney's mitigating arguments.
Depending on the facts of your case, you could qualify for misdemeanor or felony probation. Generally speaking, felony probation is more intensive and will require you to comply with stricter requirements than misdemeanor probation, including wearing an electronic monitoring anklet.
Defenses to a PC 646.9 Charge
While being charged or being the center of investigation as a suspect in a stalking case can be a harrowing experience, you have options. A defense attorney can assert various defenses to challenge a stalking charge at a trial. Some common defenses that could work to your advantage to obtain a desirable judgment include:
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There Was No Credible Threat
A credible threat has a clear definition under PC 646.9. The court could drop or reduce your stalking charges if you can prove that you do not have the capacity or ability to execute your threats. For instance, Frank tells a lady who owes him money that "he will summon the weather gods to strike her with lightning."
In this scenario, it would be a viable legal defense for Frank to argue that his/her threats were not credible because he/she had no ability or capability to execute them.
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You Had No Intent to Cause Fear
Like the previous legal defense, your attorney can argue that you threatened the person but did not intend to cause fear. For instance, if you threatened the person jokingly or accidentally, you would not be guilty of a PC 646.9 violation.
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You Engaged in a Constitutionally-Protected Activity
If you engaged in a constitutionally protected activity like a lawful protest, you cannot be guilty of a PC 646.9 violation. The court could drop or reduce your charges to a less severe offense if your defense attorney has the necessary evidence to support this defense.
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The Stalking Accusations are Untrue
The issue of false accusations is not uncommon in domestic violence-related cases. For instance, an ex-wife could falsely accuse you of stalking her with the intent to subsequently gain full custody over your child or children in a family court.
Since false accusations are some of the leading causes of wrongful convictions, a reliable attorney will scrutinize the facts of your case to find out if you are a victim of false accusations. If there are chances that you are a victim of false accusations, he/she can build a defense to help convince the court that the allegations you are up against are untrue for the best possible outcome.
Five Steps for Building Strong Legal Defenses for Your PC 646.9 Charge
If you are under arrest or have pending stalking charges, you should develop defenses that can work in your favor as soon as possible to obtain a desirable outcome. Although being under investigation as a suspect for a severe crime like stalking can be stressful, you are innocent until the prosecutor obtains a conviction against you.
Below are five critical steps that can help you build solid and viable legal defenses to challenge a stalking charge under PC 646.9:
Know Your Legal Rights
Understanding your legal rights if you are under arrest as a suspect in a stalking case is critical. Some of these rights include:
- Right to remain silent.
- Right to humane treatment.
- Right to retain the services of an attorney.
- Right to a speedy trial.
- Right to have a public defender represent your best interest in court if you cannot afford a personal attorney.
- Right to cross-examine eyewitnesses in your case.
You could have your stalking charges dropped or reduced to a lighter charge if the arresting officers or the prosecutor violated your legal rights.
Choose a Reliable Defense Attorney
The best step to ensure you are on the right side of the law when charged with a stalking offense is to hire a defense attorney. Ensure the defense attorney you decide to work with has experience representing clients with similar or related charges for the best possible outcome in your case.
Disclose all the Details of Your Case to Your Attorney
Your defense attorney is the only person you can trust if you are under arrest or charged with a stalking offense. Therefore, you should be honest with him/her when discussing or disclosing the details of your case to him/her.
Only by knowing and understanding your case's facts can your defense attorney craft a viable and effective legal defense to challenge the allegations you are up against for the best possible outcome.
Collect Adequate Evidence and Interview Eyewitnesses
The police will collect the evidence in your case, but that does not mean you cannot present your gathered evidence and eyewitness testimonies in court. Your defense attorney can help you gather all evidence relevant to your case, including eyewitness testimonies, to help you convince the jury or judge to drop or reduce your stalking charges.
Choose Appropriate Defense for Your Unique Case
While there are several defenses to a stalking charge, a reliable attorney understands that every case is unique. Even if you have defenses in mind that could work in your favor, it is wise to trust your defense attorney's legal defenses and defense plan.
A seasoned attorney will leave no stone unturned when preparing defenses to help you challenge your unique charge for the best possible outcome.
Expunging a Stalking Charge Conviction Record
If you are guilty of a 646.9 violation, you can petition the court to expunge your criminal record under PC 1203.4. An expungement under this statute will release you from several negative downsides of a conviction that make it challenging to live optimally even after serving your sentence.
One particular advantage of obtaining expungement is that you have no legal obligation to disclose your expunged record to any person, including prospective landlords and employers. However, to qualify for an expungement of your criminal record, your attorney must prove the following:
- You do not have any pending charges or are on parole for any offense.
- You have successfully served and completed your parole or probation.
- You did not serve your sentence in the state prison, or if you did, you are now eligible to serve your sentence in county jail under Proposition 47.
Stalking Charge and Related Offenses
Under certain circumstances, the prosecutor could file any of the following three charges against you instead or alongside your stalking charges:
Kidnapping
PC 207 makes it a crime to move a person a substantial distance without his/her consent, using fear or force. A simple kidnapping charge can attract up to eight (8) years of jail sentence upon conviction. However, this sentence could rise to life behind bars if the prosecutor can prove the following facts:
- The victim is a child.
- You demanded a ransom, or the kidnapping was part of a PC 215 carjacking.
- The victim sustained severe injuries.
Criminal Threats
According to PC 422, it is unlawful to willfully threaten to harm or kill another person, making him/her experience reasonable fear for his/her safety or life. Like a stalking charge, criminal threats could be orally, in writing, or electronically communicated. Upon a conviction for a PC 422 violation, you could face misdemeanor or felony penalties.
Felony penalties for a conviction under this statute include a fine not exceeding $10,000 and up to three (3) years of jail time. However, if your offense is a misdemeanor, your sentence upon a PC 422 violation conviction could include:
- A fine amounting to up to $1,000.
- Detention in the county jail for not more than one (1) year.
Annoying Phone Calls
PC 653m makes it a crime to make repeated threatening or obscene telephone calls to another person with the intent to annoy or harass him/her. While a stalking charge is similar to this crime, stalking will require the prosecutor to prove that you had the intent to place the victim in reasonable fear for his/her safety, which is not necessary for a PC 653m violation conviction.
Since it is a misdemeanor, a conviction will carry up to six (6) months of jail time and a fine not exceeding $1,000.
Find a Bakersfield Defense Attorney Near Me
We invite you to call our reliable defense attorneys at California Criminal Lawyer Group at 661-750-8230 if you are under arrest or have a pending stalking charge in Bakersfield. With several years of handling domestic violence cases, including stalking, our experienced defense attorneys can help you obtain a desirable outcome if you are behind bars as a suspect in a stalking case.