Stalking

Repeatedly and intentionally following or harassing another person in a way that causes fear to that person may be considered criminal "stalking" under California Penal Code section 646.9. "Repeatedly" might sound as if the stalking behavior must occur many times, but the law in California defines "repeatedly" in the context of stalking as "on more than one occasion." The harassing or following must be done with the intent to harass or follow or with the intent to disturb, annoy or injure the stalked person.

Stalking can be charged as a misdemeanor or a felony in California. Because the charge of stalking often depends upon vague, sometimes even false, allegations, a criminal defense attorney with experience defending stalking charges can make the difference between a conviction or a dismissal. In Orange County, prosecutors are often quick to charge stalking on nothing more than the alleged victim’s allegations. A diligent defense may succeed in dismantling the allegations when the victim, for example, has another motive such as retaliation or an attempt to manipulate the alleged stalker.

Stalking is often alleged during a bitter divorce or child custody battle or as a result of a misguided romantic attachment, but it is not unusual for stalking to occur in other settings. Disputes between neighbors, bullying, and obsessive romantic interests are situations where stalking may occur. When the stalking is alleged to target a person with whom the stalker has or had an intimate or domestic relationship (as defined under the domestic violence statutes), the stalking will be charged under the California Domestic Violence statute.

A modern version of stalking, which is in the news a lot these days, is Internet stalking, or cyber-stalking, where repeated contact is made with someone over the Internet— on Facebook for example—causing that person reasonable fear, is a crime under the California Penal code (section 646.9(g)) and carries the same punishment as physically stalking someone. Stalking can also take the form of other written communications, for example, sending two or more letters to someone in which the content of those letters causes the person to be in reasonable fear.

By the way, it does not matter whether the stalker actually intends to carry out his or her words or even whether he or she utters or writes any words at all; it is enough that the person stalked is reasonably in fear. Examples of this might be when someone repeatedly follows another person on purpose, without ever saying a word, or leaves items, intended to be interpreted as messages, on someone's doorstep, such as a person, who after a heated dispute with his neighbor, leaves a single bullet on his neighbor’s doorstep on several separate occasions. An experienced stalking defense attorney can determine whether the stalking law applies in any particular circumstance.

Stalking does not require that the immediate target of the stalker be in fear for his or her personal safety; it is also stalking when reasonable fear is created regarding the target's family. For instance, telephoning someone on more than one occasion and telling that person that his or her child is going to be harmed is stalking under the statute even though there was no threat to directly harm the receiver of the phone call.

Almost any conduct can be considered stalking if it is done purposely and that puts the person stalked in reasonable fear for his or her safety or the safety of his or her immediate family. A stalker might consider his or her behavior harmless but the prosecution might think otherwise. Consider the man who keeps calling a love interest, who has shown no interest in him. He continually calls her, telling her that she must go out with him or she’ll regret it. This type of behavior could be charged as stalking if these calls cause the former girlfriend to be in reasonable fear for her safety. But the girlfriend’s fear must be reasonable. Let’s say the boyfriend is making statements like, “You are missing so much in your life by refusing to go out with me” and “Your life is empty without me; go out with me, I’ll make your life worth living.” Would a reasonable person fear for her life because of these statements? On the other hand, say the man making statements to his love interests such as, “You will regret refusing to go out with me” and “Your life is empty without me; it’s not a life worth living.” The man may mean the same thing by the different statements but the latter statements may be construed as statements that would cause a reasonable person to fear for her safety while the former statements may not. This is a good example of where a good defense can make a difference between a conviction and a dismissal.

It is not uncommon for someone to allege they are being stalked as a scheme to hurt the person against whom the allegation is made. Even if the charge is untrue and alleged for ulterior motives, the charge must be defended; it is a criminal charge with potentially serious repercussions. To prove stalking, the prosecutor must establish very specific facts in evidence. A skilled criminal defense attorney understands what the prosecution must prove in order to sustain the charge and knows how to defeat or mitigate the prosecution's case.

Stalking is a "wobbler" meaning that it can be charged as either a misdemeanor or a felony depending upon the circumstances of the crime and the criminal background of the alleged stalker. If charged and sentenced as a misdemeanor, the punishment is a maximum one year in county jail and/or probation, fines, and potential restitution. A conviction will also likely result in a restraining order prohibiting the stalker from any contact with his or her victim. If charged as a felony, the punishment is imprisonment for 16 months, two, or three years.

When stalking is charged against a person who already had a restraining order (or injunction), restraining contact with the person allegedly stalked, the offense will be charged as a felony with a potential penalty of imprisonment for two, three or four years. The crime of stalking will also be charged as a felony if the stalker already has a prior stalking conviction or if the stalker has been convicted of certain prior crimes of domestic violence or criminal threats. This felony charge carries a potential sentence of two, three, or five years imprisonment. An experienced stalking defense lawyer in Orange County will endeavor to avoid or mitigate the potentially severe sentencing exposure.

Whether you have been charged with stalking under the domestic violence laws or the Penal Code, William Weinberg invites you to contact him for a free consultation regarding your matter. He can be reached by phoning (949) 474-8008 or by email at bill@williamweinberg.com.