Penal Code 646.9 PC – Electronic Stalking Laws
California cyberstalking laws make it a crime to stalk someone by means of an “electronic communication device“. Stalking is defined in Penal Code 646.9 PC as harassing or threatening another person to the point where that individual fears for his or her safety or the safety of his or her family.
An electronic communication device can include such media as:
- the Internet,
- text messages,
- the phone (either cellular or a landline),
- a fax machine,
- a video message, or
- any other electronic device
In order to understand the specifics of this offense, our California criminal defense attorneys will provide a comprehensive guide to cyberstalking by addressing the following:
1. When does cyberstalking become a crime in California?
“Cyberstalking” was officially prohibited in 1998 when the California Legislature amended Penal Code 646.9 stalking. The amendment changed the definition of “credible threat (one of the elements of the crime of stalking in California)…to include “electronically communicated” threats. 1 2
On-line harassment emerged as a recognized problem in the late 1990s. The anonymity of the Internet allows those who might have otherwise been unable or unwilling to physically confront their victims the ability to communicate without doing so.
As more incidents of Internet stalking were reported, the crime of “cyberstalking” was born. Law enforcement agencies even developed special “task forces” to handle this new phenomenon. The Los Angeles District Attorney, for example, founded STAT (the stalking and threat assessment team). Under this unit, Los Angeles County prosecutors work closely with the LAPD to handle these specialized cases.
One of the first successful cases that the Los Angeles D.A. prosecuted under the then “new” California cyberstalking law had to do with a man who used the Internet to solicit the rape of a woman who rejected his romantic advances. The 50-year old security guard pleaded guilty after several men responded to the messages that he posted…while posing as the victim…claiming that she fantasized about being raped.3
2. What are some examples of cyberstalking?
Obviously, not all instances of cyberstalking are as extreme as the one above. But regardless of how severe the circumstances, Internet stalking cases are still prosecuted aggressively. Some examples of cyberstalking include (but are not limited to):
- unwanted/unsolicited threatening or harassing emails
- unwanted and/or disturbing pages, instant messages, text or “sext” messages (“sexts” or “sexting” refers to sending explicit photos or messages cell phone to cell phone)
- posing as another person in a chat room and writing things on behalf of that individual that are intended to anger other chat room participants
- posting embarrassing, or humiliating information about the alleged victim
- posting personal information (including a phone number, address, workplace, etc.) about another person encouraging others to harass that person (the Los Angeles case referenced above, for example)
- logging into online accounts to empty a person’s bank account or ruin a person’s credit
3. What are the elements of the crime?
In the same way that the prosecutor proves that someone is guilty of violating the “traditional” California anti-stalking law….with the additional requirement that the “credible threat” is communicated via an electronic device.4
In short, the prosecutor must prove that you
- maliciously or willfully harassed another person, and
- made a credible threat against that person,
- placing that individual in reasonable fear for his/her safety or the safety of his/her family,
- which was communicated by means of the Internet or another “electronic communication device”.5
For a comprehensive explanation of the facts that are necessary to prove a cyberstalking charge, please review our article on California Penal Code 646.9 PC stalking.
4. What can happen if a person is convicted of cyberstalking?
Penalties for cyberstalking range a great deal, as the offense is a wobbler. A wobbler is a charge that prosecutors can file as either a misdemeanor or a felony, depending on (1) the specific facts of the case, and (2) your criminal history.
A misdemeanor cyberstalking sentence may include
- up to a year in a county jail,
- fines of up to $1,000.6
A felony cyberstalking sentence may include
- up to five years in the California State Prison,
- fines of up to $1,000, and
- possible lifetime registration as a sex offender under Penal Code 290 PC.7
Both misdemeanor and felony cyberstalking convictions also subject you to (1) counseling and/or possible confinement in a state-run hospital that treats mental illness, and (2) a restraining order prohibiting any contact with the alleged victim.8
It should also be noted that if the alleged victim is
- your fiance(e),
- your current or former spouse,
- someone with whom you live,
- the parent of your child, or
- anyone you are or were dating,
prosecutors will most likely charge you with cyberstalking under California domestic violence law, subjecting you to possible additional penalties.
Registration as a Sex Offender Pursuant to California Penal Code 290 PC
As previously stated, if you are convicted of felony cyberstalking, the judge may order you to register as a sex offender pursuant to Penal Code 290 PC. The judge will only impose this penalty if he/she believes that you stalked the alleged victim “as a result of sexual compulsion or for sexual gratification”.9
It should additionally be noted that failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, subjecting you to additional criminal penalties.10
5. What defenses are available?
By refuting the elements of the crime. In order to convict you of Penal Code 646.9 PC, the prosecutor must prove each and every element of the offense. If you can demonstrate that even one element isn’t satisfied, you must be acquitted of cyberstalking.
Let’s take, for example, a “credible threat”. If your threat was so ridiculous or grandiose that you couldn’t possibly execute it, you can’t be convicted of cyberstalking. For example, if John threatens “that he will have aliens come down and carry Sue away if she doesn’t marry him”, that wouldn’t qualify as a credible threat.
Similarly, if you didn’t intend to place the recipient of your actions in fear, you must be acquitted of Internet stalking. Repeatedly professing love through a series of e-mails…without some type of accompanying threat…does not amount to cyberstalking.
It should be noted that if you threaten harm to an individual while you are in jail or prison, the fact that you are incarcerated will not by itself serve as a defense to cyberstalking.11
Some other defenses to Internet stalking include (but are not limited to):
This defense is particularly relevant to a cyberstalking charge. Unless an alleged victim is particularly technologically savvy, it may be difficult to pinpoint an Internet stalker. Someone may “suspect” you of stalking him/her…but without actual proof…you can’t be convicted of this offense.
False accusations typically present themselves in two forms: (1) where a person honestly (but mistakenly) believes that the accused is the person responsible for committing a crime, and (2) where an individual knowingly makes false accusations that someone committed a crime. “Mistaken identity” is an example of the first scenario. As for the second…
There are a variety of reasons why someone may falsely accuse another of stalking. As acclaimed San Jose criminal defense lawyer Jim Hammer explains12, “Since very little evidence is needed to accuse someone of cyberstalking, a jealous, angry, or even vengeful individual could accuse someone he/she knows of this stalking offense. I work with a team of experts who conduct their own thorough investigations in an effort to prove your innocence.”
These types of experts
- listen to audio recordings,
- track e-mails, texts, or other electronic communications, and
- view video recordings
in order to authenticate them if you are a victim of false accusations and a wrongful arrest.
6. Related offenses
California Penal Code 422 criminal threats
California Penal Code 422 criminal threats (formerly known as terrorist threats) is a charge that is frequently charged in connection with cyberstalking. This is because criminal threats are threats that are intended to place their recipient in fear of immediate harm.13 If you send criminal threats to the alleged victim on more than one occasion via any electronic communication device, prosecutors could charge you with cyberstalking and criminal threats.
California Penal Code 288.2 harmful matter sent to a child
Penal Code 288.2 “harmful matter sent with the intent of seducing a minor” prohibits sending or e-mailing “obscene” or “erotic” literature or materials to a minor with the intent of sexually arousing yourself or the recipient.14
This means that if you repeatedly call, e-mail, or “sext” message these types of matter to a minor, prosecutors could charge you with Internet stalking as well as this California sex crime.
California Penal Code 653m telephone calls or contact by other electronic communication device with intent to annoy
California Penal Code 653m PC (annoying phone calls) is closely related to cyberstalking in that it prohibits annoying telephone calls or repeated contact by other electronic devices.15 It doesn’t involve the additional element of malice that stalking requires. This is a less serious offense than cyberstalking, subjecting the accused to fewer…and less severe penalties.
California Penal Code 653.2 posting harmful information on the internet
Penal Code 653.2 PC posting harmful information on the internet is also known as “indirect electronic harassment.” This offense occurs when someone posts personal information or a harmful message about a victim on the internet, with the intent to incite third parties to harass that person.16
In other words, while cyberstalking is the act of using the internet to personally and directly harass someone, indirect electronic harassment amounts to doing the same thing indirectly–by using the internet to persuade someone else to harass a victim.
Posting harmful things on the internet carries only misdemeanor penalties.17
California Penal Code 647(j)(4) “revenge porn”
“Revenge porn” in California was made a crime in 2013, under Penal Code 647(j)(4) PC. This crime consists of intentionally distributing sexual images of another person that s/he expected would be kept private, with the intent to cause him/her emotional distress.18
Revenge porn is a misdemeanor and carries a maximum six-month jail sentence for a first offense.19
- California Penal Code 646.9 PC stalking. (“(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking…”)
- California Senate Bill 1796, passed in 1998. (“(3) Existing law prohibits stalking, which is defined as the willful, malicious, and repeated following or harassing of another, where a credible threat, as defined, has been communicated to the victim with the intent of placing the victim in reasonable fear for his or her safety. This bill would expand the definition of “credible threat” to include threats communicated through the use of an electronic communication device, including telephones, cellular phones, computers, video recorders, fax machines, and pagers [in effect, calling this type of stalking California cyberstalking]. This bill would also incorporate the definition of “electronic communication” used in a specified provision of federal law.”)
- 1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry. A Report from the Attorney General to the Vice President (August 1999). (“In the first successful prosecution under California’s new cyberstalking law, prosecutors in the Los Angeles District Attorney’s Office obtained a guilty plea from a 50-year-old former security guard who used the Internet to solicit the rape of a woman who rejected his romantic advances. The defendant terrorized his 28-year-old victim by impersonating her in various Internet chat rooms and online bulletin boards, where he posted, along with her telephone number and address, messages that she fantasized of being raped. On at least six occasions, sometimes in the middle of the night, men knocked on the woman’s door saying they wanted to rape her. The former security guard pleaded guilty in April 1999 to one count of stalking and three counts of solicitation of sexual assault. He faces up to six years in prison.”)
- California Jury Instructions – CALCRIM 1301 – Stalking.
- See same.
- California Penal Code 646.9 PC – Stalking. (“(“(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.”) This law applies to “traditional” stalking as well as Internet stalking.
- Same. (“(b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years….(c)(2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years. (d) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender pursuant to Section 290.006.”)See also California Penal Code 290.006 is part of what’s known as the “Sex Offender Registration Act”. It states that (“Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.”) Again, these penalties apply to “traditional” stalking as well as cyberstalking.
- Same. (“(j) If probation is granted, or the execution or imposition of a sentence is suspended, for any person convicted under this section, it shall be a condition of probation that the person participate in counseling, as designated by the court. However, the court, upon a showing of good cause, may find that the counseling requirement shall not be imposed. (k)(1) The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family…(m) The court shall consider whether the defendant would benefit from treatment pursuant to Section 2684. If it is determined to be appropriate, the court shall recommend that the Department of Corrections and Rehabilitation make a certification as provided in Section 2684. Upon the certification, the defendant shall be evaluated and transferred to the appropriate hospital for treatment pursuant to Section 2684.”)
- See endnote 7, above.
- When an individual fails to register as a sex offender pursuant to California Penal Code 290, he/she faces up to one year in county jail or up to three years in the state prison. Failing to register is a “continuing” offense, which means that each time you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.
- CALCRIM 1301 – Stalking.
- San Jose criminal defense lawyer Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients accused of DUI, theft, and more serious charges. Mr. Hammer represents clients throughout the Bay Area, including San Francisco, Oakland, Berkeley, Marin County and San Jose
- California Penal Code 422 – Criminal threats (formerly known as “terrorist threats”).
- California Penal Code 288.2 – Harmful matter sent with the intent of seducing a minor.
- California Penal Code 653m – Telephone calls or contact by electronic communication device with intent to annoy.
- California Penal Code 653.2 – Indirect electronic harassment.
- California Penal Code 647(j)(4) – Revenge porn.