Last Updated on April 8, 2025
Stalking, whether done online or in person, is a crime that can leave someone fearing for their life or the safety of their family. California has enacted many laws to protect citizens from stalking, cyberstalking, cyberbullying, and cyber harassment, all of which are covered by Penal Code sections 646.9 (PC). If you have been accused of any type of in-person or online stalking, please call a criminal defense attorney like Peter M. Liss.
California Penal Code 646 (PC)
Stalking can be done in many ways. It can involve a random stranger, a domestic partner (which is considered a form of domestic violence), a celebrity, a co-worker, or any other victim. It may involve following someone, spying on someone, trespassing on someone’s private property, or cyberbullying someone. It can be done through the mail, in person, or using electronic means such as phones and computers, which is known as cyberstalking.
Ultimately, California law defines it as the intentional, malicious, and repeated following or harassing of another person paired with a credible threat that leaves the victim feeling fearful for their safety or the safety of their immediate family. This definition is important because for an act to be legally considered stalking, it must meet multiple standards. The circumstances must involve:
- Willful and malicious behavior
- Recurrent following or harassing of another individual
- A credible threat
- The victim fearing for their own safety or the safety of their family
While “following” is a reasonably obvious term, California defines “harassing” behavior as willful conduct that seriously alarms, annoys, terrorizes, or torments the intended victim with no legitimate purpose. If you have been accused of stalking in San Diego, please contact attorney Peter M. Liss as soon as possible.
What is Cyberstalking in California?
Cyberstalking falls under the same penal code as other forms of stalking, but these activities are performed through an electronic means of communication, including email, phone calls, faxes, texts, social media, forums, chat rooms, and more. The law was amended during the 1990s to ensure it reflected the increasingly common issues with harassment as the internet became more popular and common.
Cyberstalking may be performed in many ways, including:
- posting humiliating information about the victim
- sharing an individual’s personal information in a doxing attack
- impersonating another person online to damage their reputation
- hacking an individual’s private emails, social media accounts, bank accounts, texts etc.
- swatting another person
- sharing nude photos of the victim without their consent
- using another individual’s personal information to cause them harm
- spying on someone’s email, browsing history, or other personal information by illegally accessing their phone or computer
Many of these activities violate multiple penal codes, which means those who commit these acts may face numerous criminal charges. If you have any questions about the potential cyberstalking charges, please contact a defense attorney to discuss your case. These laws can be very complicated, so never speak to the police without a lawyer at your side, or you may say something that could harm your defense.
Penalties for 646.9 (PC) in California
Stalking is a “wobbler” offense, meaning prosecutors have the discretion to file misdemeanor or felony charges. First-time offenders accused of stalking someone in person will usually be charged based on the severity of the incident; however, first-time cyberstalking charges are typically filed as a misdemeanor.
When filed as a misdemeanor, stalking is punishable by up to one year in county jail. As a felony, the potential sentence includes up to five years in state prison. A felony conviction will also count as a strike on your criminal record, meaning those with a prior strike must serve 85% of their sentence to qualify for parole and those with two prior strikes will face life imprisonment. A defense attorney can sometimes convince a judge to strike a strike, meaning the prior offense will not be counted for sentencing.
Whether filed as a felony or misdemeanor, offenders are often also ordered to complete anger management classes or domestic batterer’s classes if the victim was a romantic partner. Some people convicted of this crime may even be sentenced to spend time in a mental health facility.
If the harassment was for the purposes of sexual gratification or compulsion, a felony offense may even be considered a sex crime, which will result in mandatory registration as a sex offender.
It’s worth noting that anyone who has violated a court-issued stay-away order or a prior conviction for stalking will automatically face felony charges and enhanced sentencing of up to 5 years in prison. Those who have violated a restraining order will also face additional charges for that offense.
Those convicted for felony-level stalking will automatically lose their right to possess a firearm. Anyone convicted of a misdemeanor may temporarily be subjected to a firearm restraining order at the discretion of the judge.
A stalking conviction can also be used as evidence in a civil lawsuit against the offender. It is common for victims to sue their stalkers for damages related to their emotional suffering and any costs the victim incurred trying to escape from the troublesome behavior, such as moving or hotel expenses. When the lawsuit is successful, the court may also award punitive damages.
Defenses Against Stalking Charges
There are many different defenses available to your criminal lawyer if you have been accused of stalking someone. Each case is unique, and it is always advisable to speak with an attorney to avoid saying something that could be interpreted as a confession.
Stalking (and subsequently cyberstalking) is defined under California law as willfully and maliciously harassing another person and making a credible threat intending to cause the individual to fear for their safety or the safety of their family. One common method of fighting the charges is to show that you did not meet all elements of this crime. For example, if you sent a threatening message to a stranger when you meant to send it to a friend (who would recognize the message as a joke), you are not guilty of cyberstalking because the act was not willful or malicious.
Alternatively, if you write that you are going to steal a nuclear warhead from North Korea and blow someone’s entire state off the map, it would not be a criminal act because your threat is unrealistic and, therefore, not credible enough to violate the law.
Another defense can be to claim that the alleged victim is making up the allegations or that you were not the person who committed the offense. For example, if you are accused of cyberstalking, your lawyer may argue that you are not the person who committed the crime and that connecting the evidence to your IP address is not enough to prove your guilt.
Sometimes, your attorney may argue that your behavior is constitutionally protected. For example, this defense may work if you were picketing outside a local politician’s house.
Before attempting any defense, please call a criminal defense attorney, as it can be very easy to say something that may harm your case in these situations.
Contact a Criminal Defense Lawyer Today
If you have been charged with stalking or cyberstalking in California, do not say anything to police or prosecutors before first speaking with your attorney. Please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.
