Although stalking is often associated with domestic violence cases, anyone can be a victim. Every year, several individuals across the state find themselves caught up in circumstances where another person's behavior or conduct goes far beyond mere curiosity or annoyance.

While many people believe stalking involves following another person repeatedly, several behaviors could qualify as stalking under Penal Code (PC) 646.9. If you are facing an allegation for a stalking offense, you should consult with an attorney immediately to know what you are up against. In addition to being your legal advisor, your attorney will be your legal voice in every stage of the court process to stand a chance of securing a favorable outcome.

Our seasoned defense attorneys at Monterey Criminal Attorney are here to help if you are under arrest or charged with stalking.

What Stalking Means Under PC 646.9

According to PC 646.9, stalking becomes a crime when you maliciously, willfully, and repeatedly harass, threaten, or follow someone with the criminal intent to place him/her in reasonable fear for his/her safety or life or that of his/her immediate family.

The victim's immediate family could include his/her wife, children, parents, grandparents, and siblings. The legal definition of stalking includes two critical aspects: intentional, ongoing behavior and a credible threat causing the victim to fear for their safety.

How Stalking Differs From the Crime of Disturbing the Peace and Harassment

While stalking is closely related to the crime of disturbing the peace and harassment, which also involve unwanted behavior, these crimes are different under the Penal Code. Harassment involves one or a few incidents of bothering another person without intimidation or causing fear.

On the other hand, disturbing the peace involves causing a public nuisance or making excessive noise, but it does not involve any threats to another person. While these two crimes differ from stalking, the prosecutor could file them against you if he/she lacks enough evidence to secure a stalking conviction against you under PC 646.9.

If you are under investigation or charged with a PC 646.9 charge, hiring an attorney to help you understand what you are up against should be your first step.

What to Expect At Your Arraignment After an Arrest as a Suspect in a Stalking Case

While the criminal process begins with an arrest, the arraignment hearing will be your first time to meet a judge. However, your attorney can attend this hearing if you are already out of jail on bail and do not have time to attend your court hearing.

Nonetheless, the arraignment will occur within forty-eight hours after an arrest, excluding weekends and holidays, regardless of whether or not you are out on bail. During this hearing, the judge will read the charges you are up against and ask you to enter a plea, including guilty, not guilty, and no contest.

Before entering any plea, you should seek your attorney's guidance, as each option has consequences. If you enter a guilty plea, the court will schedule your case for sentencing, meaning you will not go through a jury trial.

However, when you choose a “not guilty” plea, like most defendants, your case will progress to other stages of the criminal court process, including the pretrial and possibly a trial. On the other hand, a no-contest plea is like a guilty plea, but this plea cannot be applied against you in court if there is a civil case arising from your case.

The prosecutor will ask the judge to set your bail at your arraignment hearing. The money you put down with the court clerk as security for your pretrial release before a verdict on the alleged offense is known as bail. The court will consider the following when determining your bail amount:

  • The sophistication of your case

  • Your assets and ability to pay

  • Your criminal history

  • Whether you are a flight risk

  • Whether you have communities

Unfortunately, when you fail to post bail after an arrest for an alleged stalking offense, you will remain behind bars as your case continues unless the court offers you an Own Recognizance (O.R.) release. If you are an excellent candidate for an O.R. release, you will receive your pretrial release from jail without bail after signing an agreement to appear in court later.

Working with a bail bondsman is another option worth considering if your bail amount is high or unaffordable. A bail bondsman can offer quick bail bond services to secure your pretrial freedom without delay. In exchange, you will pay the bail bondsman ten percent of your bail as his/her fee, which is affordable for most arrestees.

Pretrial Motions That Could Work in Your Favor at the Pretrial Hearing When You Have a Charge Under 646.9

When you have an aggressive defense attorney, pretrial motions could be critical in your defense strategy when you have pending stalking charges. A pretrial motion is a legal request that the prosecutor or your attorney makes at the pretrial hearing before your case's trial begins.

These motions are very crucial because they help resolve several legal issues inherent in your case and streamline the legal process. In a nutshell, your defense attorney can use pretrial motions to do the following:

  • Present legal arguments

  • Ask the court to dismiss the alleged stalking charges

  • Ask the court to change the venue

  • Address any violations of your constitutional rights

  • Challenge the evidence the prosecutor has against you

A skilled defense attorney can use pretrial motions to strengthen your defense or achieve outcomes such as suppressing certain evidence. Below are common pretrial motions your attorney could file at the pretrial hearing when charged with a stalking offense:

  1. Motion to Dismiss

According to PC 995, you can ask the court to dismiss your charges by filing a motion to dismiss. Usually, the attorney will file this motion when he/she believes the evidence presented by the prosecutor lacks probable cause.

  1. Motion to Suppress Evidence

PC 1538.5 allows you, the defendant, or your attorney to ask the court to suppress any unlawfully obtained evidence the prosecutor has against you, particularly the evidence obtained through illegal search and seizure.

  1. Motion for Continuance

Your attorney can file a motion for continuance requesting the court to reschedule the trial to a later date or postpone it if there is a conflict about its date. That would be possible if unexpected circumstances or extra time are needed to prepare for the trial.

  1. Pitchess Motion

A Pitchess motion is a request for the arresting officer's file. One of the primary reasons for doing this is to determine if the arresting officer has a history of police misconduct or complaints. If so, your attorney can use that evidence to attack the credibility of the officer's evidence against you and convince the prosecutor to dismiss your stalking case.

Your attorney must investigate your case thoroughly to know which specific motion will be relevant for your unique charge to secure a favorable outcome.

Elements The Prosecutor Must Prove at Trial for the Court to Convict You of a Stalking Charge

To secure a conviction against you under PC 646.9, the judge will expect the prosecution team to prove certain facts beyond a reasonable doubt. That means the prosecutor bears the legal burden to provide sufficient and clear evidence to convince the court that the allegations against you are true.

Below are the elements the prosecution team must satisfactorily prove at trial for the court to secure a conviction against you under 646.9:

  1. You Maliciously, Willfully, and Repeatedly Followed or Harassed Another Person

Harassment under PC 646.9 means you engaged in a willful and knowing course of conduct directed at someone that caused him/her to feel terrorized, alarmed, or annoyed. It is worth noting that “course of conduct” means you engaged in two or more conduct over a specific period, showing you had a continuous purpose.

  1. You Made Credible Threats Against the Victim With the intent to Make Him/Her for His/Her Safety

Credible threats are any cause of conduct that you have the physical and mental ability to execute and that causes another person to fear and worry for his/her safety. The court could convict you of a criminal stalking charge under PC 646.9 regardless of whether you communicated the threats orally, in writing, or electronically.

The court will analyze the specific facts and circumstances of your unique stalking case to decide whether you had the criminal intent to make the victim fear for their safety. Joking expressions or exaggerated political statements do not count as a “true threat” enough to make another person fear or worry about his/her safety.

It is worth noting that the court will not convict you of a stalking offense if either of the facts listed below is true:

  • You were legally protesting

  • Exercising your free speech

  • Participating in an assembly

Legal Penalties of a Stalking Charge Conviction

A stalking charge conviction can result in misdemeanor or felony penalties because it is a wobbler. When the prosecution team secures a misdemeanor conviction against you under PC 646.9, the penalties you will receive could include:

  • Up to $1,000 maximum fine

  • Up to one year of jail time

  • Summary probation

However, when the prosecutor files a felony stalking charge against you, your sentence after conviction could include:

  • Detention in the state prison for not more than five years

  • Felony or formal probation

  • A fine amounting to up to $1,000

Below are examples of factors that could make the prosecutor file your stalking offense as a felony:

  • You violated a restraining or protective order that the victim obtained against you

  • You have a criminal record

  • You have a history of stalking convictions, even though the victim is a different person

If your attorney manages to convince the court to award you probation instead of jail, you must adhere to all the set terms and conditions, including the following:

  • Seek counseling services

  • Comply with a restraining order

  • Perform community service

  • Enroll in a rehabilitation program

The victim may also file a civil lawsuit against you. If successful, you could be required to pay him/her compensatory damages.

The Implications of a Stalking Charge Conviction on Your immigration Status and Gun Rights

The legal penalties mentioned above are not the only consequence of a PC 646.9 violation conviction. A conviction for a PC 646.9 charge could also attract other detrimental consequences on top of these penalties. For example, a PC 646.9 charge conviction could affect your immigration status, particularly if it is DV-related or qualifies as an aggravated felony.

That means deportation is possible after a PC 646.9 violation conviction, and you can even become ineligible to return to the country after your deportation. That could significantly affect your life, especially if you already have a family or job here. A felony conviction under this statute could also strip you of your gun rights. PC 29800(a)(1) makes it unlawful for a felon to own, possess, receive, or carry a firearm.

Violating PC 29800(a)(1) will attract felony penalties, including sixteen months, two years, or three years of jail time.

Defenses That Could Help Challenge a Criminal Stalking Charge

A skilled defense attorney who understands how the local court treats stalking charges will know the best legal defenses that could challenge your unique stalking charge. Here is a brief overview of the legal defenses your defense attorney could use at your trial to secure a dismissal of your PC 646.9 charge or a lighter sentence:

An Issue of Mistaken Identification Occurred

Unfortunately, sometimes a stalking charge could stem from false claims or misunderstandings. To fight a PC 646.9 charge using this legal defense argument, your defense attorney can present eyewitness testimonies to help prove that you did not participate in the incident.

If your attorney can prove that you were in another location when the offense occurred, you could stand a chance of securing a favorable outcome.

You Performed an Activity Protected by the Constitution

As previously stated, if you participated in a peaceful protest or other activity protected by the Constitution, the prosecutor cannot secure a conviction against you under PC 646.9. If your defense attorney has sufficient evidence to support this legal defense, the court will reduce or perhaps dismiss your PC 646.9 charges.

The Threat Was Not Credible

Arguing that the threat was not credible means you admit that you threatened the victim, but the threat was not credible, meaning he/she did not have any reason to sustain fear for his/her safety. To secure a dismissal of your charge or a lighter sentence using this legal defense, the attorney must prove that the victim had no reason to perceive your threats as credible because they were vague or joking expressions.

You Had No Intent to Place the Victim or His/Her Immediate Family in Fear

Remember, to secure a stalking charge conviction against you, the prosecutor must prove that you had the criminal intent to place the victim or his/her immediate family in reasonable fear for their safety. Therefore, the judge could dismiss your charge if your attorney can prove that you had no criminal intent to cause fear, or perhaps your conduct was misinterpreted.

The Accusations You are Facing are False

Even lawmakers understand that false accusation is a common issue in DV-related cases. That is particularly true if the victim is an ex-spouse or ex-wife who wants to gain an advantage over you in a child custody case, or perhaps he/she is jealous of your achievements after a bitter divorce. The judge will reduce or dismiss your charges if this defense works to your advantage.

A thorough investigation of your case is vital to knowing the specific legal defense that will work to your advantage to secure the best possible outcome. Ensure you consult an attorney as soon as possible once you learn you are under investigation or after an arrest as an offender in a criminal stalking case.

Early intervention by a criminal defense attorney in your unique case can mean the difference between a dismissal of your case and a conviction.

How to Expunge a PC 646.9 Charge Conviction

To avoid the detrimental consequences of a conviction, your attorney can assist you in filing an expungement under PC 1203.4. An expungement can effectively dismiss your criminal record from the public eye, allowing you to lawfully state that you have never had a conviction in most situations. However, to qualify for an expungement, you must meet particular criteria under PC 1203.4. Specifically, you must:

Complete Your Probation

To qualify for an expungement of your stalking charge conviction, you must “successfully” complete your probation. Completing your probation “successfully” means you did not violate or breach any terms and conditions of the probation. Alternatively, if your probation is not over, you can secure an early termination to qualify for an expungement.

If the court did not award you probation after a PC 646.9 violation conviction, you must complete your jail sentence before filing for an expungement.

Have No Pending Criminal Charges

Having an open or pending criminal charge or being on probation for a different offense could make you ineligible for an expungement.

Consulting with an attorney before you file your expungement petition is advisable. An attorney can review the facts of your case to determine whether you are eligible for an expungement. When you are still on probation, he/she can help secure an early termination and begin the expungement process as soon as possible.

Securing an expungement has several benefits you cannot overlook. For example, it can improve your employment opportunities by removing your conviction from the public view. Unfortunately, if your stalking offense is a felony, an expungement will not restore your gun rights. Furthermore, an expungement will not prevent deportation after a conviction under PC 646.9 if you are a non-citizen.

Common Offenses Related to Stalking

Stalking has several related offenses that the prosecutor may file against you in addition to or instead of the underlying charge. Examples of the crimes include:

Kidnapping

Penal Code 207 defines the offense of kidnapping as using force or fear to move an individual from one place to another, regardless of the distance covered. Unlike a PC 646.9 charge, a kidnapping offense requires the prosecutor to prove that you physically moved the victim from one place to another. A kidnapping charge conviction is punishable by:

  • A fine not exceeding $10,000

  • A jail term of not more than eight years

Criminal Threats

You commit the criminal threats offense under PC 422 when you threaten to injure or kill someone, making him/her sustain reasonable fear or worry for his/her life or safety or that of his/her family members. You could be guilty under this law even if you did not have the physical ability to carry out the threat or intent to execute your threats.

Unlike PC 646.9, the offense of criminal threats does not focus on you following or harassing another person. Instead, the focus under PC 422 is the nature of your threat against the victim. A misdemeanor criminal threats charge could attract a fine not exceeding $1,000 and a jail term of up to one year.

Conversely, if the prosecutor secures a felony criminal threats charge conviction against you, your sentence could include:

  • Detention in the state prison for up to three years

  • Up to $10,000 maximum fine

Find a Credible Defense Attorney Near Me

Undoubtedly, a PC 646.9 violation conviction can be life-changing. Fortunately, a reliable defense attorney can prepare defense arguments that can reduce your sentence, dismiss your case, or secure a lighter charge. Our attorneys at Monterey Criminal Attorney pride themselves on their extensive knowledge of the criminal justice system and experience in local courts.

When you are facing a stalking charge, we can carefully analyze the facts of your unique case and craft the best defenses to help you secure a favorable outcome. Call us at 831-574-1791 to discuss your case with us today.