justices raising the bar for establishing when a statement is a “true threat” not protected by the 1st Amendment.

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a “true threat” not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals’ ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a “true threat” and thus no longer covered by the First Amendment.

“The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements,” she wrote. “We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Counterman was prosecuted under a standard requiring the state to show only that a “reasonable person” would understand the messages as threats. The majority found that violated the First Amendment.

“[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment,” Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority’s decision “unjustifiably grants true threat preferential treatment.”

“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote.

Counterman, she concluded, “communicated true threats” and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

“Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense,” Barrett said. “Nothing in the Constitution compels this result.”

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, “F**k off permanently,” while in another, he wrote, “I’ve tapped phone lines before. What do you fear?” According to court filings, a third read, “You’re not being good for human relations. Die. Don’t need you.”

Whalen believed Counterman’s messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her.

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeatedly making any form of communication with another person” in a manner that would “cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.”

Conviction under the law requires proof that the speaker “knowingly” made repeated communications, and does not require the person to be aware that the acts would cause “a reasonable person to suffer serious emotional distress.”

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not “true threats” and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court’s finding that Counterman’s Facebook messages were “true threats” and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that “inadvertently threatening speech cannot be criminalized.”

“In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received,” said Brian Hauss, senior staff attorney with the organization’s Speech, Privacy, & Technology Project. “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

ACLU Commends Supreme Court Decision to Protect Free Speech in Case Defining True Threats

In Counterman v. Colorado, the court ruled that the First Amendment requires the government to show recklessness in true threats prosecutions.

WASHINGTON – The Supreme Court ruled today in Counterman v. Colorado that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.

Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening. The court holds that a recklessness standard strikes the right balance between free expression and safety, “offering ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

This case involved a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. On appeal, Counterman — who has been diagnosed with a mental illness — argued that his conviction was unconstitutional because the jury was not required to find that he intended to threaten C.W.

The ACLU and its partners filed an amicus brief in the case arguing that a great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening. Without requiring some element of intentional wrongdoing, the ACLU argued, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived.

Counterman v. Colorado is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The amicus brief was filed with the ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship.

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the threatening character of the statement such that making the statement was at least reckless.

Between 2014 and 2016, Billy Counterman persistently sent hundreds of unwelcome messages through Facebook to a local musician, creating new accounts to circumvent her attempts to block them. The musician interpreted many of the messages as indicators that Counterman was surveilling her and intended to harm her. Colorado state prosecutors criminally charged Counterman for his behavior, and the Facebook messages themselves were the only evidence presented at trial. Counterman claimed his messages fell within the protections of the First Amendment because they could not be “true threats” if he did not have a subjective understanding that the messages were threatening. The Colorado trial and appellate courts rejected his argument and ruled that “true threats” were subject only to an objective reasonableness standard.

The Supreme Court reversed. While the Court agreed that “true threats of violence” are not protected speech under the First Amendment, the Court held that a court must apply a subjective test to determine if a statement is in fact a true threat of violence. The Court held that this subjective standard is required to avoid a chilling effect on otherwise protected speech. The Court noted that the “ordinary citizen’s predictable tendency” is to steer very wide of speech that may be considered unlawful. The Court held that a subjective standard was necessary to balance the public interest in avoiding unnecessary chilling of lawful speech and the ability of prosecutors to criminally charge defendants for unlawful speech.

The Court then analyzed what level of subjective knowledge is sufficient to accomplish that balance. The Court compared the law governing other non-protected classes of speech, including defamation, and determined that a reckless state of mind is sufficient—i.e., a defendant who consciously disregards a substantial risk that statements would be understood as a true threat may be prosecuted. The Court also concluded that any mens rea requirement higher than recklessness—like purpose or knowledge—would make prosecution too difficult, and “with diminishing returns for protected expression.” To balance the risk of chilling public speech and the need to be able to prosecute true threats of violence, the Court ruled that prosecutors must prove that defendants recklessly made threatening statements.

Justice Kagan authored the opinion of the Court. Justice Sotomayor authored a concurrence in which Justice Gorsuch joined in part. Justice Thomas authored a dissent. Justice Barrett authored a dissent in which Justice Thomas joined.

This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).

Opinion: Counterman v. Colorado, 22-138

Counterman v. Colorado, 22-138. The Court will clarify the standard for determining whether a statement is a true threat unprotected by the First Amendment. Most federal courts of appeals apply an objective test that asks whether a reasonable person would interpret the statement as a threat of violence. By contrast, the Ninth and Tenth Circuits employ a subjective test that asks whether the speaker intended the recipient to feel threatened. State courts are similarly divided, with some applying a hybrid test that considers both the speaker’s subjective intent and whether a reasonable person would view the statement as a threat. This is the second time that the Court has agreed to address this split. The issue was presented in Elonis v. United States, 575 U.S. 723 (2015), but the Court ultimately resolved that case on a different basis.

The issue here arises in the context of a criminal prosecution for stalking. Over the course of two years, petitioner Billy Raymond Counterman directly messaged a local musician on Facebook without invitation or response. Some of the messages suggested that he was physically surveilling her, while others told her to “Die” and “Fuck off permanently.” Counterman’s messages caused the victim to fear for her safety, so she told her family and police. Relying on 17 messages, Colorado charged him with stalking. Under Colorado law, prosecutors did not need to prove that Counterman intended his statements to be threatening or that he was aware that they could be interpreted that way. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats and thus were protected speech. The trial court denied the motion and a jury found Counterman guilty of stalking. The Colorado Court of Appeals affirmed Counterman’s conviction. 497 P.3d 1039. In holding that Counterman’s statements were true threats subject to criminal prosecution, the Colorado Court of Appeals applied the objective test that asks whether a reasonable person would view the statements as threatening. The court of appeals rejected Counterman’s argument that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat, noting that the Colorado Supreme Court recently rejected that rule absent further guidance from the U.S. Supreme Court. The Colorado Supreme Court later denied Counterman’s petition for review.

Relying on history, tradition, and U.S. Supreme Court precedent, Counterman argues in his petition that “heightened scienter is necessary to true threats.” He notes that, generally, consciousness of wrongdoing is required for a criminal conviction. A scienter requirement is especially important for a statute that regulates speech, Counterman contends, because convicting “a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.” Counterman submits that a purely objective test for true threats conflicts with the Court’s true threats jurisprudence, including Virginia v. Black, 538 U.S. 343 (2003). There, the Court stated that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Emphasis added.) Counterman relies on this language to argue that the Court has already imposed a heightened scienter requirement for true threats. He also points out that in incitement cases, the Court has required proof that the speaker intended to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam).

Colorado argues that its objective test for true threats is consistent with the Court’s free speech jurisprudence. It compares its “context-driven objective standard” to the Court’s analysis in Watts v. United States, 394 U.S. 705 (1969). There, in holding that the speaker’s comments at a rally were not true threats subject to criminal prosecution, the Court focused on the plain language of the statements, the context in which they were made, and the listeners’ reaction. Colorado’s test similarly examines “the contested expression’s context, including the listeners’ reaction.” In Colorado’s view, the Court in Black did not subsequently adopt a subjective-intent requirement for true threats. It reads Black as simply identifying one circumstance where a speaker makes a true threat, namely when he communicates with the intent to threaten the recipient. Colorado maintains that Black did not “state that true threats were limited to such statements.” Colorado also contends that an objective test is especially important to protect victims of stalking because stalkers may be delusional, thereby making it difficult for prosecutors to prove a subjective intent to threaten. And because its objective test considers the context in which the statements were made, Colorado submits that speakers will be protected from unfair punishment.

US Supreme Court makes decision on Counterman v. Colorado

WASHINGTON, D.C., USA — The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat, including against the president or other elected officials.

The Biden administration had warned that the internet and social media have expanded the number and kinds of threats in recent years, including online harassment, intimidation and stalking. And they warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years.

The high court was ruling in a case that involves a man who was sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The man’s lawyers had argued that he suffers from mental illness and never intended his messages to be threatening.

The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.

Justice Elena Kagan wrote for a majority of the court that prosecutors have to show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” she said.

Seven justices agreed with the outcome. Two conservative justices, Clarence Thomas and Amy Coney Barrett, dissented.

The Biden administration had been among those arguing for the lower “reasonable person” standard.

“Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” the Biden administration had noted, saying the case could affect prosecutions in those cases.

Speech of all kinds is generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case before the justices involved Billy Counterman. He contacted a musician through Facebook in 2010 to ask her whether she would perform in a benefit concert he said he was organizing. The woman, Coles Whalen, responded but nothing ever came of it.

Whalen forgot about the exchange, but four years later, Counterman began sending her Facebook messages again. He ultimately sent hundreds of messages, including ones that were rambling and delusional and others that were quotes and memes. Whalen never responded and blocked Counterman several times, but he would just create a new account and continue sending messages.

Counterman believed Whalen was responding through other websites and Facebook pages. Whalen became concerned after Counterman’s messages — including “You’re not being good for human relations. Die. Don’t need you.” and “Was that you in the white Jeep?” — suggested he was following her in person. Eventually, the messages were reported to law enforcement and Counterman was arrested. He was convicted and lost an appeal.

The justices’ ruling is a victory for Counterman and sends his case back to lower courts for another look. In a statement, his attorney John Elwood said that they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Colorado Attorney General Phil Weiser, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” Weiser said. “In short, this decision will make it more likely that victims of threats— mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”

The case is Counterman v. Colorado, 22-138.

Opinion of the Court Counterman v. Colorado

source 1  source 2  source 3  source 4 source 5 source 6 source 7

CALIFORNIA PENAL CODE § [SECTION] 646.9(A) – STALKING

California Penal Code [CPC] §646.9(a) – Stalking – California’s Stalking law makes it illegal to follow, or harass, and threaten another person. In order to violate the statute, the threat must put the alleged victim in reasonable fear for his or her safety.

If you’re convicted of the Felony form of Stalking, you face up to three years in state prison, a fine of up to $10,000, or both a fine and imprisonment. Note that Stalking is punishable under California’s “Three Strikes” penalty system. Amassing three “strikes” will result in at least twenty-five years in state prison.

WHAT DOES CALIFORNIA PENAL CODE §646.9(A) [STALKING] PROHIBIT?

In sum, to be guilty of Stalking under CPC §646.9(a), the prosecution must prove that:

• You harassed or repeatedly followed another person; AND,
• You made a threat placing the person in fear for his or her safety or for the safety of family.

DEFINING “STALKING” UNDER CPC §646.9(A)

To convict you under CPC §646.9(a), the prosecution must prove the following beyond a reasonable doubt:

• Harassed/Followed: You willfully[1] and maliciously[2] harassed[3] or willfully, maliciously, and repeatedly[4] followed another person; AND,
• Credible Threat/Intent/Fear: You made a credible[5] threat[6] with the intent of placing the person in reasonable fear for his or her safety or for the safety of his or her immediate family.[7]

Note: “A person is not guilty of stalking if his or her conduct is constitutionally protected activity.”[8]

Example: Defendant Deacon is a reporter who writes about Sacramento politics. His favorite target is Victim Veronica, a state senator whom Deacon believes to be corrupt. Deacon follows Veronica every day. Lately he’s taken to tailing her car from six AM until late at night. Veronica, meanwhile, has gone from annoyed to frightened. She complains to a Sheriff that Deacon is being permitted to stalk her and violate her rights. The Sheriff, in turn, has Deacon arrested and charged with violating §646.9(a). Deacon says that he’s the one whose rights are being curtailed. Should Deacon be convicted of the accusation?

Conclusion: Deacon willfully followed Veronica on more than one occasion – but these are the only aspects present in these facts. He did not intend on disturbing, annoying, or injuring Veronica, nor did he commit a wrongful act, if he followed Veronica’s vehicle in public. Though Veronica felt annoyed, Deacon, a reporter, was engaged in constitutionally protected activity that serves a legitimate public purpose (reporting on public officials). He made no threat against Veronica or her family, furthermore, and did not pursue Veronica with the intent of making her fear for her safety. This is probably the most important element of the Stalking crime. Deacon, therefore, should be acquitted.

PENALTIES FOR “STALKING” UNDER CPC §646.9(A)

Misdemeanor Stalking is punished by a term of up to one (1) year in a county jail, a fine of up to $1,000 (one-thousand dollars), or both a fine and imprisonment.[9] But Stalking also is punishable as part of California’s “Three Strikes” sentencing regime. If you’re convicted of Felony Stalking, the penalty, without additional enhancement, may be up to three (3) years in a state prison,[10]  a fine of up to $10,000 (ten-thousand dollars), or both a fine and imprisonment.[11]

Note that if you accrue three “strikes” on your record you will serve at least twenty-five (25) years in a state prison.[12]

DEFENSES TO “STALKING” UNDER CPC §646.9(A)

Four common defenses against a charge of Stalking under CPC §646.9(a) are:

YOU WERE ENGAGED IN CONSTITUTIONALLY PROTECTED ACTIVITY

Example: Defendant Dean opposes the international policies of Oil Company and its CEO, Victim Vonn. He stands on the public curb across the street from Oil Company’s Downtown LA offices from noon to one PM each day while holding a sign and chanting “Vonn is a crook! Everybody look!” Vonn feels annoyed and embarrassed. Finally, enraged after a client makes a sarcastic comment about Dean’s protest, Vonn calls police and has Dean arrested for violating CPC §646.9(a). Is Dean guilty of this crime?

Conclusion: Irrespective of whether Dean was trying to annoy or disturb Vonn, he was standing across the street from Oil Company’s offices and conducting a protest on a public curb. He did nothing more than hold a sign and chant. He did this at midday, a perfectly reasonable time to make loud noise in Downtown Los Angeles. Dean’s purpose was expressing negative opinion on matters of public concern; he wasn’t trying to communicate a threat. Finally, the facts don’t state that Dean required a permit. He was thus free to do exactly what he did; it was conduct permitted under the First Amendment to the Constitution. Dean thus should be acquitted. He was engaged in constitutionally protected activity.

THE THREAT WAS NOT CREDIBLE

Example: Victim Vail is getting into her car when she’s harassed by neighbor Defendant Danica. The incident ends with Danica menacing Vail by claiming that Danica knows Boston gangster James ‘Whitey’ Bulger[13] and that Danica “will have ‘Whitey’ bury” her. Vail, who’s originally from the Boston area, is terrified by the threat. She spends a sleepless night barricading herself inside her apartment before calling police. Danica is arrested and charged under CPC §646.9(a). Is Danica guilty on these facts?

Conclusion: Danica made a threat which was meant to put Vail in fear. It succeeded, as evidenced by Vail’s barricading herself inside her home. The fear was also sustained over the course of a whole night. The facts even stipulate that Danica “harassed” Vail. These are the elements of Stalking. While Vail may have heard of Bulger, however, she was apparently unaware that he was killed in prison in 2018. It’s thus impossible for him to visit any untoward act upon Vail or her immediate family. Therefore, since it’s unreasonable to fear the attack of a dead man, Danica should be acquitted. The threat was not credible.

THE ACCUSATION IS FALSE

Example: Victim Van, desiring to force his new neighbor, Defendant Dallas, from the block, reports that Dallas “threatened” him “with death” and that he’s “holding [Van’s] whole family in constant fear.” Van has Dallas arrested and charged with Stalking under CPC §646.9(a). Dallas swears that he has no idea what Van’s talking about and that he’s innocent of the crime. Should Dallas be acquitted?

Conclusion: Van, as the facts state, fabricated a charge in an effort to have Dallas arrested. Dallas never threatened Van, just as he says, and thus he should be acquitted. The accusation against him is false.

You Were The Victim Of Mistaken Identity

Example: Victim Vee has seen Stalker, a man who’s followed her on several occasions and who once threatened to “visit her at home.” Vee reports Stalker to police, who, in turn, arrest Defendant Dan, a man with a criminal record who strongly resembles Stalker. But Dan swears that he has been mistaken for someone else. He is charged anyway under CPC §646.9(a). Should Dan be convicted or acquitted?

Conclusion: Dan and Stalker, while quite similar, are in fact different people. It can also be presumed police believe Dan is guilty because he has a criminal record. But they are incorrect; Dan is not the man stalking Vee. Dan, therefore, should be acquitted of the charge. He was the victim of mistaken identity.

RELATED OFFENSES

Note: The crimes below are described generally as “related” because they are frequently charged with CPC §646.9(a) and/or have common elements that must be proven beyond a reasonable doubt.

Included in the California Penal Code are several offenses related to Stalking: Kidnapping (CPC §207(a)), Criminal Threats (CPC §422(a)), Harmful Matter Sent to Child (CPC §288.2(a)(1)), Annoying Phone Calls (CPC §653m(a)), “Revenge Porn” (CPC §647(j)(4)(A)) and Posting Harmful Things on the Internet (CPC §653.2(a)).

KIDNAPPING

Kidnapping under CPC §207(a) is defined as “forcibly, or by any other means instilling fear, steal[ing] or tak[ing], or hold[ing], detain[ing], or arrest[ing] any person […] and carry[ing] the person into another country, state, or county, or into another part of the same county.”[14] Kidnapping is related to Stalking because, in extreme cases, stalkers have been known to kidnap their victims. This allows the prosecution to charge both in the same trial.

Since Kidnapping is considered a “serious felony”[15] under the California Penal Code, it is punished as part of California’s “Three Strikes” system.[16] You will receive a minimum of twenty-five (25) years in a state prison if you receive three “strikes.”[17]

If you’re convicted of Kidnapping under CPC §207(a), the penalty may be:

• A term of up to eight (8) years in a state prison;[18] OR,
• A fine of up to $10,000 (ten-thousand dollars); OR,
• Both a fine and imprisonment.[19]

Note: While Felony Probation (allowing you to perform at least some of your sentence outside prison) is available, you will have to serve at least twelve (12) months in a county jail before it begins if convicted of Kidnapping.[20]

More information can be found in the Kidnapping section of the Kann California Defense Group’s website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/LA County. Your call will go directly to a lawyer – that’s guaranteed.

CALIFORNIA CRIMINAL JURY INSTRUCTIONS – KIDNAPPING

To convict you of CPC §207(a), the prosecution must prove the following beyond a reasonable doubt:

You took, held, or detained another person by using force or by instilling reasonable fear. Using that force or fear, you moved the other person or made the other person move a substantial distance and the other person did not consent to the movement. Finally, you didn’t actually and reasonably believe that the other person consented to the movement.

Example: Defendant Dale and Victim Verne get into a disagreement. Verne, who has a terrible temper, starts to scream at Dale. Dale, embarrassed that Verne is shouting in public, whispers, “Go inside my house! We’ll talk there!” Verne does so – and calls police as soon as he steps inside the home. He claims that he’s been kidnapped by Dale. Police arrest Dale. Should they charge him under CPC §207(a)?

Conclusion: Dale did not use force or fear to move Verne; he told Verne to go somewhere. Furthermore, while Verne apparently didn’t consent to the movement, there is, under the circumstances, no reason Dale wouldn’t actually and reasonable believe that Verne consented to entering Dale’s home of his own volition. Thus, as there is not a single element of the crime present, Dale should be acquitted.

CRIMINAL THREATS

Criminal Threats (CPC §422(a)) occur whenever anyone threatens another person with a crime that would result in death or great bodily injury. The statement must be taken as a threat in its entirety; it must also be written or verbally communicated. The threat must also be made in a clear and immediate way and, finally, it must create a reasonable fear that the other person or that person’s family will be hurt. The crime is related to Stalking because making a Criminal Threat can be part of Stalking, permitting the prosecution to charge you with both in the same trial.

Since you can be charged with a Felony or a Misdemeanor, depending on the unique facts of your case, Criminal Threats is a “wobbler”[21] under California criminal law. If you’re convicted of the Felony form, the penalty, without additional enhancement, may be:

• A term of up to three (3) years in a state prison;[22] OR,
• A fine of up to $10,000 (ten-thousand dollars); OR,
• Both a fine and imprisonment.[23]

Note: Criminal Threats is punishable as part of California’s “Three Strikes” system.[24] You will serve a minimum of twenty-five years in a state prison if you get three “strikes” on your criminal record.[25]

You can find more information on the Criminal Threats page of the Kann California Defense Group’s website. Feel free to contact the Kann California Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call goes directly to a lawyer. That is guaranteed.

CALIFORNIA CRIMINAL JURY INSTRUCTIONS – CRIMINAL THREATS

To convict you under CPC §422(a), prosecution must prove the following beyond a reasonable doubt:

You threatened to kill or cause great bodily injury to a person or a member of that person’s immediate family. You made the threat orally, in writing, or by electronic communication device. You intended the statement to be taken as a threat and the threat was so clear, immediate, unconditional, and specific that it communicated a serious prospect that the threat would be carried out. The threat caused the person to be in sustained fear and, finally, that person’s fear was reasonable under the circumstances.

Example: Victim Vincent is threatened by Defendant Doug after Doug concludes that Vincent has stolen from him. Doug says that he is “connected” and “will have [Vincent] put in the ground.” Vincent laughs at Doug and goes about his business. But, when Vincent is told that there is a crime called Criminal Threats, Vincent reports Dale and has him charged under CPC §422(a). Is Dale guilty of the accusation?

Conclusion: An element of Criminal Threats is actual fear originating with the threat. Here it’s clear that Vincent wasn’t made afraid by Doug’s threat. Even if the other elements of the crime are present (which they are not, as Doug also made a very vague statement about what he’d do to Vincent), Doug should be acquitted owing to the absence of this one element.

SHOWING OR SENDING HARMFUL MATTER TO SEDUCE A MINOR

Showing Or Sending Harmful Matter To Seduce A Minor (CPC §288.2(a)(1))S occurs whenever anyone “sends, or causes to be sent, exhibits, or offers to distribute or exhibit” material featuring minors engaged in sexual conduct. The material must be “harmful,”[26] it must be sent to sexually arouse the sender or recipient, and some sort of sexual contact must be intended. The crime is related to Stalking because some instances of Stalking involve minors being shown or sent harmful material.

Since you can be charged with a Felony or a Misdemeanor, depending on the unique facts of your case, Showing Or Sending Harmful Matter To Seduce A Minor is a “wobbler”[27] under California criminal law. If you’re convicted of the Felony form, the penalty, without additional enhancement, may be:

• A term of up to five (5) years in a state prison;[28] OR,
• A fine of up to $10,000 (ten-thousand dollars); OR,
• Both a fine and imprisonment;[29] AND,
• The duty to register as a Sex Offender.[30]

Note: The depiction of nudity or sexual activity doesn’t necessarily make material harmful. While the prosecution must prove that you knew the character of the material, however, it doesn’t have to prove you knew the material met the definition of “harmful.”[31]

You can find more information on the California Sex Offense Lawyers page of the Kann California Defense Group’s website. Feel free to contact the Kann California Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call goes directly to a lawyer. That’s guaranteed.

CALIFORNIA CRIMINAL JURY INSTRUCTIONS – SHOWING OR SENDING HARMFUL MATTER TO SEDUCE A MINOR

To convict you under CPC §288.2(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You exhibited, sent, distributed or offered to a minor material depicting at least one minor engaging in sex acts. When you acted, you knew the character of the material, and knew, should’ve known, or should’ve believed that the other person was a minor. You intended to gratify the sexual desires of yourself or the other person. Finally, you intended on having sexual intercourse, sodomy, or oral sex, or to have anyone involved with the material touch an intimate body part.

Example: Defendant Dina, aged seventeen, has a boyfriend, Victim Vint, who is her same age. She sends him a photograph of Dina pleasuring herself on the eve of his eighteenth birthday as an invitation to have sex on his birthday. But Vint’s very religious Mother sees the photo when she looks at her son’s unattended phone, becomes furious with Dina, and has Dina arrested and charged with a sex crime (CPC §288.2(a)(1)). Dina insists she can’t be prosecuted for the picture because she’s a minor. Is Dina correct?

Conclusion: Dina sent a picture of herself, a minor, performing a sex act. The facts make it clear that she intended on the photograph resulting in sexual intercourse. It’s also obvious that she knew its character, since she was the subject of the photo, and she knew Vint was a minor at the time because she sent it as a sort of invitation on the eve of Vint’s eighteenth birthday. We can presume that Dina intended on the picture gratifying the sexual desires of herself, Vint, or both Vint and herself. These are the elements of the crime. That Dina was herself a minor doesn’t mean that she’s excused from committing the offense; the law requires only showing some sort of material depicting a minor engaged in a sex act to a minor, not that the perpetrator be an adult as well. Dina is thus incorrect. She should be convicted of the crime.

ANNOYING PHONE CALLS

The Annoying Phone Calls (CPC Section 653m(a)) statute makes it illegal to use any telephone or electronic communication device to call a person and threaten that person, or that person’s property, or to use obscene language to that person. Threats against the family of the recipient of the call are also illegal under this Code section.

If you’re convicted of Annoying Phone Calls, the penalty may be:

• A term of up to six (6) months in a county jail; OR,
• A fine of up to $1,000 (one-thousand dollars); OR,
• Both a fine and imprisonment.[32]

Note: A threat against the recipient of the call, or his or her family, must be one to do physical harm.

You can find more information on the Kann California Defense Group’s website. Feel free to contact the Kann California Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call will go directly to a lawyer. That’s guaranteed.

CALIFORNIA CRIMINAL JURY INSTRUCTIONS – ANNOYING PHONE CALLS

To convict you under CPC §653m(a), the prosecution must prove the following beyond a reasonable doubt:

You intended to annoy someone when you telephoned or used an electronic communication device to contact that person (or to communicate about that person). You also used obscenity or threatened the person with injury to that person, or to her or his property, or to any member of his or her family.

Example: Defendant Danni continues to contact ex-boyfriend, Victim Vinnie, on the telephone and via her Twitter and Facebook accounts. Vinnie doesn’t want to hear from her and is becoming worried that she’s obsessed with him. He asks Danni multiple times to leave him alone. She refuses and continues to send him messages filled with romantic and sexual innuendo. Finally, Vinnie, frustrated and at a loss about what to do, reports Danni to police. She’s charged under §653m(a). Did Danni violate the law?

Conclusion: Danni contacted Vinnie knowing that Vinnie did not want to communicate with her. She repeatedly did this. But Danni didn’t try to annoy Vinnie (as annoying as her conduct may have been); she used the communications to express intimate innuendoes to her former lover. Thus she also didn’t use obscenity or issue a threat of any kind. If Vinnie no longer wishes to communicate with Danni, he should block her phone number and her contact information. Danni is not guilty of the accusation.

“REVENGE PORN”

It is illegal to post “Revenge Porn” (CPC §647(j)(4)(A)), defined as “intentionally distribut[ing] the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participate[d], under circumstances in which the persons agree[d] or [understood] that the image [would] remain private[.]”[33]

If you’re convicted of “Revenge Porn,” the penalty may be:

• A term of up to six (6) months in a county jail; OR,
• A fine of up to $1,000 (one-thousand dollars); OR,
• Both a fine and imprisonment.[34]

Note: You must’ve known (or should’ve known) that distributing the image would’ve caused serious emotional distress and the person depicted had to have suffered serious emotional distress.

You can find more information on the Kann California Defense Group’s website. Feel free to contact the Kann California Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call will go directly to a lawyer. That’s guaranteed.

CALIFORNIA CRIMINAL JURY INSTRUCTIONS – “REVENGE PORN”

To convict you under CPC §647(j)(4)(A), the prosecution must prove the following beyond a reasonable doubt:

You intentionally distributed the image of an intimate body part or parts of another identifiable person, or an image of the person engaged in sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation by the person depicted or in which the person depicted participated. The image was created under circumstances in which it was agreed or understood that it would remain private. You knew or should’ve known that distribution of the image would cause serious emotional distress and, finally, the person depicted suffered that distress.

Example: Defendant Dominic and his ex-wife, Victim Vi, were part of an online community of couples who exchanged pictures of themselves engaged in sex acts. Neither has posted an image since their divorce three months prior but Dominic decides one night to post the last set of photographs that he and Vi agreed to take. Vi is quickly informed that the images have been posted. She immediately accuses Dominic of distributing “revenge porn.” He is charged under CPC §647(j)(4)(A). Is Dominic guilty?

Conclusion: Without considering whether Vi suffered serious emotional distress, “Revenge Porn” is a crime requiring distribution of sexual material understood to be private at the time of its creation. The facts make it clear that Dominic posted images meant to be shared at the time of their making. While Vi no longer wished the images to be shared, the law doesn’t consider sex act imagery to be “revenge porn” when distributed under these circumstances. Vi thus should be acquitted on this basis alone.

CYBERSTALKING [POSTING HARMFUL THINGS ON THE INTERNET] 

Cyberstalking (CPC §653.2(a)) law makes it illegal to “place another person in reasonable fear for his or her safety [ ] or the safety of [that] person’s immediate family” by using an electronic communication device to make “personal identifying information” available to a third party so that he or she will injure, harass, or make unwanted physical contact with the victim. Included are digital images, electronic images “of a harassing nature […] which would be likely to incite or produce [an] unlawful action,” and downloadable material.[35] The crime is related to Stalking because Cyberstalking may qualify as violating a court order, allowing the prosecution to charge you with both in the same trial.

If you’re convicted of Cyberstalking, the penalty may be:

• A term of up to one (1) year in a county jail; OR,
• A fine of up to $1,000 (one-thousand dollars); OR,
• Both a fine and imprisonment.[36]

Note: The identifying material must’ve been made available against the victim’s will.[37]

You can find more information on the Kann California Defense Group’s website. Feel free to contact the Kann California Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles County. Your call will always go directly to a lawyer. That is guaranteed.

CALIFORNIA CRIMINAL JURY INSTRUCTIONS – CYBERSTALKING [POSTING HARMFUL THINGS ON THE INTERNET] 

To convict you under CPC §653.2(a), the prosecution must prove the following beyond a reasonable doubt:

You placed another person, or that person’s immediate family, in reasonable fear by using an electronic communication device. You made personal identifying information available to a third party so that he or she would injure, harass, or make unwanted physical contact with that person. The other person, finally, did not consent to the information being made available.

Example: Defendant Davida is in a ‘Twitter war’ with Victim Val. They exchange hateful messages all day. These messages have grown increasingly personal. The battle has also begun to draw attention. There are social media users who follow the back-and-forth. Davida, as a result, threatens to reveal Val’s address to the public so that her “fans” can “get in [Val’s] face.” Val, defiant, replies, “Do it! Bring ‘em on!” Davida posts the information, a “fan” loudly harasses Val outside her home, and Val, who becomes fearful, reports Davida. Davida is arrested and charged under CPC §653.2(a). Should she be convicted?

Conclusion: Davida posted personal information which allowed a third party to harass Val at Val’s home. This result was intended. Val, furthermore, became fearful, which is reasonable, considering that she was harassed outside her own home. But it appears that Val agreed to the information being posted; in fact, it seems that she dared Davida to post the information. Since lack of consent is required, Davida must be acquitted. Val actually agreed to having her identifying information being made available.

WHAT CAN I DO IF I’M CHARGED WITH STALKING?

The State of California regards Stalking as a serious offense. If you’re charged with Stalking, it’s essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

• Negotiate a lesser charge in a plea bargain;
• Reduce your sentence;
• Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California’s criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested for, or charged with, Stalking, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.

REFERENCES

[1] “Someone commits an act willfully when he or she does it willingly or on purpose.” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[2] “Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, annoy, or injure someone else.” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[3] “Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose. [¶] A course of conduct means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[4] “Repeatedly means more than once.” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[5] “A credible threat is one that causes the target of the threat to reasonably fear for his or her safety or for the safety of his or her immediate family and one that the maker of the threat appears to be able to carry out. [¶] A credible threat may be made orally, in writing, or electronically or may be implied by a pattern of conduct or a combination of statements and conduct.” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[6] “The People do not have to prove that a person who makes a threat intends to actually carry it out. [¶] Someone who makes a threat while in prison or jail may still be guilty of stalking. [¶] A threat may be made electronically by using a telephone, cellular telephone, pager, computer, video recorder, fax machine, or other similar electronic communication device.” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[7] “Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers, and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s [household].” See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[8] See California Criminal Jury Instructions 1301 (CALCRIM) (2017).

[9] See California Penal Code [CPC] §646.9 (a).

[10] See CPC §1170 (h). [Amended (as amended by Stats. 2018, Ch. 36, Sec. 17) by Stats. 2018, Ch. 1001, Sec. 1. (AB 2942) Effective January 1, 2019.] 

[11] See CPC §672.

[12] See CPC §667 (e) (2) (A) (ii). 

[13] See “Whitey Bulger” at The Mob Museum online.

[14] See CPC §207 (a).

[15] See CPC §1192.7 (c) (20).

[16] See Endnote 10.

[17] See Endnote 12.

[18] See CPC §208 (a).

[19] See Endnote 11.

[20] See CPC §208 (c).

[21] See “Wobbler” definition at UsLegal.com.

[22] See Endnote 10. 

[23] See Endnote 11.

[24] See  CPC §1192.7 (c) (38).

[25]  See Endnote 12.

[26] See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

[27] See Endnote 21.

[28] See CPC §288.2 (a) (1).

[29] See Endnote 11.

[30] See CPC §290 (c). [Amended (as amended by Stats. 2017, Ch. 541, Sec. 1.5) by Stats. 2018, Ch. 423, Sec. 51. (SB 1494) Effective January 1, 2019.]

[31] See Endnote 26.

[32] See CPC §19.

[33] See CPC §647 (j) (4) (A).

[34] See Endnote 32.

[35] See CPC §653.2 (a).

[36] See above.

[37] See Endnote 35.

source

Penal Code 646.9 PC – California Stalking Laws

Under Penal Code 646.9 PC, stalking becomes a criminal offense in California if you follow, harass, and threaten someone to the point that the person fears for his or her safety. Stalking can be charged as a misdemeanor or a felony. A conviction carries a penalty of up to 5 years in jail or prison.

The language of the statute reads that:

646.9. (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.

Examples

• Calling a co-worker every night, without an invitation to do so, and telling her that “we will eventually be together, like it or not.”
• Sending an ex-friend dead flowers every Tuesday with a note that says “you’re next.”
• Sending neighbor a letter every other day that says, “take down the fence or else.”

Defenses

Defense lawyers can assert a number of legal defenses in a stalking case. These include showing that:

• the threat was not credible,
• the alleged victim is making the story up,
• there was no intent to cause fear, and/or
• the defendant was participating in a constitutionally protected activity.

Penalties

A violation of this section is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by:

• up to one year in county jail, or
• misdemeanor (or summary) probation.

If charged as a felony, the offense is punishable by:

• up to five years in state prison, or
• felony (or formal) probation.

Additional Consequences

In addition to the above criminal penalties, a convicted stalker may be subject to a civil lawsuit brought by the alleged victim.

Note that if a person is convicted of stalking, this conviction may have:

• negative immigration consequences (if applicable), and
• negative consequences on a person’s gun rights.

Also, note that a person convicted of this offense can seek to have it expunged once he successfully completes:

• probation (if imposed), and
• any jail time (if imposed).

1. What is the legal definition of criminal stalking in California?

Penal Code 646.9 PC is the California statute that makes it a crime for a person to stalk another party.¹

A prosecutor must prove two things in order to successfully convict a defendant of this offense. These are:

1. the defendant willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person, and
2. the defendant made a credible threat with the intent to place the other person in reasonable fear for his safety (or for the safety of his immediate family).²

Note that a person is not guilty of stalking if he is engaged in a constitutionally protected activity. For example, an accused is innocent of violating this statute if he was:

• exercising free speech,
• legally protesting, or
• participating in an assembly.³

Please also note that questions often arise under this code section on the meaning of:

1. willfully, maliciously, and repeatedly,
2. harassment,
3. credible threat,
4. reasonable fear, and
5. immediate family.

1.1. Willfully, maliciously, and repeatedly

For purposes of this code section, someone commits an act willfully when he does it willingly or on purpose.⁴

Someone acts maliciously when he intentionally does a wrongful act or when he acts with the unlawful intent to disturb, annoy, or injure someone else.⁵

Repeatedly means more than once.⁶

1.2. Harassment

Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously:

• annoys,
• alarms,
• torments, or
• terrorizes.⁷

The course of conduct must also serve no legitimate purpose.⁸

Note that a “course of conduct” means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.⁹

1.3. Credible threat

Under this statute, a “credible threat” is one that:

1. causes the target of the threat to reasonably fear for his or her safety (or for the safety of his or her immediate family), and
2. one that the maker of the threat appears able to carry out.¹⁰

A credible threat may be made:

• orally,
• in writing, or
• electronically.

It may also be implied by a pattern of conduct or a combination of statements and conduct.¹¹

1.4. Reasonable fear

On the issue of whether a defendant intended to place “the victim” in reasonable fear, the court will decide the issue by analyzing the facts and circumstances of the case.¹²

But, note that the court has stated that whether a threat is made with the intent to cause fear is reserved for “true threats.”¹³

True threats do not include:

• political statements that exaggerate,
• joking expressions, or
• constitutionally protected speech.¹⁴

1.5. Immediate family

According to this code section, “immediate family” means a:

• spouse, parent, or child,
• grandchild, grandparent, brother, or sister related by blood or marriage, and
• person who regularly lives in the household.¹⁵

2. Are there legal defenses to 646.9 PC charges?

A defendant can often beat a stalking charge with a successful legal defense. A good defense can work to reduce or even dismiss a charge.

Three common defenses to PC 646.9 accusations are:

1. no credible threat
2. no intent to cause fear, and/or
3. constitutionally protected activity

2.1. No credible threat

Recall that an accused is only guilty under this code section if he made a “credible threat” to an alleged victim. A defense, therefore, is for a defendant to show that, while he may have made a threat, it was not serious or credible. For example, perhaps an offender threatened a person in a joking manner.

2.2. No intent to cause fear

This is similar to the prior defense. Here, an offender would argue that while he may have made a threat, he did not mean for that threat to cause fear. For example, maybe he made a repeated threat to tickle another person.

2.3. Constitutionally protected activity

Recall that under this statute, a defendant is innocent of stalking if he was engaged in a constitutionally protected activity (such as lawfully protesting). This means it is always a good defense for a defendant to show that he was engaged in such an act when charged with stalking.

3. What are the penalties?

There are two basic penalties that a person will face if he commits the offense of stalking. These are that the offender will be subject to:

1. criminal penalties, and
2. civil penalties.

3.1. Criminal Penalties

A defendant that is convicted of stalking will be subject to a sentence.

A violation of PC 646.9 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by:

• misdemeanor (or summary) probation,
• up to one year in county jail, and/or
• a maximum fine of $1,000.¹⁶

If charged as a felony, the offense is punishable by:

• felony (or formal) probation,
• up to five years in state prison, and/or
• a fine of up to $1,000.¹⁷

Note that the crime of stalking will always be charged as a felony if either of the following circumstances apply:

1. the stalking was in violation of a court-issued protective order, or
2. the defendant had been previously convicted of stalking (even if the alleged victim in the new case is not the same person he previously stalked).¹⁸

3.2. Civil Penalties

In addition to criminal penalties, the alleged stalking victim may sue the offender in civil court for damages related to the stalking.¹⁹

A stalking victim must prove three things in order to get damages for the stalking in a civil court proceeding. These are:

1. the defendant stalker engaged in a pattern of conduct that was intended to follow, alarm, or harass the “victim” (s/he needs independent evidence, besides his/her testimony, to show this),
2. as a result of this conduct, the victim reasonably feared for his/her safety or the safety of an immediate family member, and
3. the defendant stalker either:
   1. made a credible threat against the safety of the victim or his/her family member, and failed to stop the harassing behavior after the victim asked him to do so, or
   2. violated a restraining order with his behavior.²⁰

If the alleged victim is successful in proving these, then he may recover both:

• compensatory damages, and
• punitive damages.

4. Are there immigration consequences?

A stalking conviction may result in negative immigration consequences.

United States immigration law says that some California criminal convictions can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”

The major categories of “deportable” or “inadmissible” crimes are:

• crimes of moral turpitude,
• aggravated felonies,
• controlled substances (drug) offenses,
• firearms offenses, and
• domestic violence crimes.²¹

Depending on the facts of a case, a felony stalking charge may rise to the level of an aggravated felony. If it does, then it may have detrimental immigration effects.

5. Can a conviction be expunged?

A person convicted of stalking can seek to get the offense expunged.

An “expungement,” per Penal Code 1203.4, releases an individual from virtually “all penalties and disabilities” arising out of the conviction.²²

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.

As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided the applicant:

1. successfully completed probation, and
2. is not currently charged with a criminal offense, on probation for one, or serving a sentence for a crime.²³

This means that once a defendant has successfully completed probation (if it was imposed) or served out a jail term (if applicable), then he may begin trying to get the crime expunged.

6. Does a stalking conviction affect a person’s gun rights?

A conviction for felony stalking will have an effect on the convicted party’s gun rights.

The following people are generally prohibited from acquiring or possessing a gun in California:

1. felons (that is, anyone convicted of any felony offense in any jurisdiction),
2. narcotic addicts,
3. persons with two or more convictions under Penal Code 417 PC, California’s law against brandishing a weapon,
4. persons convicted of certain misdemeanor offenses (such as convictions of Penal Code 273.5 PC, California’s law against corporal injury on a spouse),
5. persons who suffer from mental illness, and
6. people under 18 (people under 21 may not purchase a gun).

Recall that stalking can get charged as either a misdemeanor or a felony. Given the first category above, if a defendant gets charged with felony stalking, and gets convicted of the same, then that conviction would mean he would have to give up any gun ownership and possession rights.

7. Are there crimes related to stalking?

There are three crimes in particular that often get charged along with stalking. These are:

1. kidnapping – PC 207,
2. annoying phone calls – PC 653m, and
3. criminal threats – PC 422.

7.1. Kidnapping – PC 207

California Penal Code 207 PC prohibits the crime known as kidnapping.

“Kidnapping” is the:

1. moving of a victim a substantial distance, and
2. using force or fear to do so.²⁴

Unlike stalking, the crime of kidnapping requires that a defendant physically handle an alleged victim and move that person.

7.2. Annoying phone calls – PC 653m

Per California Penal Code 653m PC, it is a crime for a person to:

1. make a telephone call that is obscene, threatening or one of a series of repeated calls, and
2. do so with the intent to harass or annoy the person being called.

Note that while stalking is similar to this offense, stalking carries the extra element that any threat must have been made with the intent to place the “victim” in reasonable fear.

7.3 Criminal threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”

A “criminal threat” is when a defendant threatens to kill or physically harm someone and

• that person is thereby placed in a state of reasonably sustained fear for his safety or for the safety of his immediate family,
• the threat is specific and unequivocal, and
• the defendant communicated the threat verbally, in writing, or via an electronically transmitted device.²⁵

Unlike stalking, this offense does not focus on a defendant harassing or following a person. Rather, PC 422 focuses more on the nature of the threat made.

8. What should a person do if he is being stalked?

If a person thinks, or knows, that he or she is being stalked, it is imperative for this person to act. At minimal, the alleged victim should:

• take action before the stalking behavior escalates,
• tell the stalker to stop with the unwanted contact,
• if the contact continues, do not engage with the stalker in any way,
• inform friends, family, and an employer about the stalking,
• call the police and make a report, and
• try to keep and preserve all evidence of the stalking.

Helpful resources available to stalking victims include:

• the Stalking Resource Center,
• the State of California – Office of the Attorney General, 1-800-952-5225, and
• the 1800VICTIMS.org homepage (which includes resources available in most California counties – including Victim Assistance Centers and local law enforcement agencies).

Legal References: