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Cyberstalking

Penal Code 646.9 PC - Cyberstalking Law

California Penal Code 646.9 PC cyberstalking law is a crucial legal provision that criminalizes the act of stalking someone using an "electronic communication device." Stalking, in this context, is defined as a form of harassment or threat that instills fear for one's safety or the safety of one's family.

An electronic communication device includes the Internet, cell phone, landline phone, e-mail, text messages, fax machine, video message, or any other electronic device.

In 1998, California lawmakers made a significant amendment to PC 646.9, introducing the concept of "cyberstalking." This was a response to the increasing online harassment, a direct result of the Internet's rapid growth. The amendment recognized that a credible threat could be communicated electronically.

Simply put, California cyberstalking laws make it a crime to stalk someone using an electronic communication device, as it's a type of online harassment through online anonymity.

Stalking is generally described as harassing or threatening someone to the point where they fear for their safety. The original staking law was amended (Senate Bill 1796) in the late 1990s to include electronic threats like social media, cell phones, text messages, etc.

Law enforcement agencies and the Los Angeles District Attorney's Office play crucial roles in fighting cyberstalking. They have a dedicated unit called the "stalking and threat assessment team (STAT)" that works closely with LAPD detectives investigating cyberstalking cases.

Some people who are charged with cyberstalking might also face allegations related to child pornography, sexual assault, or emotional, physical, or financial abuse.

What Does the Law Say?

The full text of California Penal Code Section 646.9 that covers stalking is below.

"(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 their safety or the safety of their 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.

(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.

PC 646.9 cyberstalking law prohibits stalking someone using an electronic communication device.

(c) (1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, violates subdivision (a) shall be punished 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 for two, three, or five years.

(2) Every person who, after having been convicted of a felony under subdivision (a), violates 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 under Section 290.006.

(e) For this section, "harasses" means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person and that serves no legitimate purpose.

(f) For the purposes of this section, "course of conduct" means two or more acts occurring over some time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included in the "course of conduct."

(g) For the purposes of this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.

Proving that the defendant intended to carry out the threat is unnecessary. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included in "credible threat."

Criminal Threats

(h) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

(i) This section shall not apply to conduct during labor picketing.

(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 participates in counseling as designated by the court. However, upon showing good cause, the court may find that the counseling requirement shall not be imposed.

(k) (1) The sentencing court shall also 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. The Legislature intends 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.

(2) The court may issue this protective order whether the defendant is sentenced to state prison or county jail or if the imposition of sentence is suspended and the defendant is placed on probation.

(l) For purposes of this section, "immediate family" means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household or who, within the prior six months, regularly resided in the household.

(m) The court shall consider whether the defendant would benefit from treatment under Section 2684. If deemed appropriate, the court shall recommend that the Department of Corrections and Rehabilitation certify as provided in Section 2684. The defendant shall be evaluated and transferred to the relevant hospital for treatment under Section 2684 upon the certification."

What Must Be Proven for a Conviction?

To convict you of PC 646.9 cyberstalking, the prosecutor must prove that you deliberately and repeatedly harassed someone, such as on social media platforms and chatrooms.

Harassment means engaging in willful behavior directed at someone annoyed or tormented for no legitimate purpose. Cyberstalking includes repeated direct messaging and "doxxing" someone's personal information.

Cyberstalking accusations can include sending unsolicited emails or text messages or posting information or pictures online. The district attorney must prove all the elements of the crime beyond a reasonable doubt, including the following:

  • You willfully and maliciously harassed someone.
  • You made a credible threat to somebody that caused reasonable fear.
  • You communicated via the internet or other electronic devices.

What are the PC 646.9 Penalties?

PC 646.9 cyberstalking can be filed as a misdemeanor or felony (wobbler) based on the following factors:

  • Whether the victim filed a restraining order against the defendant.
  • Whether the stalking case is related to domestic violence.
  • Criminal history of the defendant. 

If you are convicted of cyberstalking, the punishments will include the following:

  • Misdemeanors carry up to one year in county jail time and $1,000 in fines.
  • Felonies carry up to three years in state prison but up to five years for anyone with a criminal history.
  • Possible requirement to register with California's sex offender registry under Penal Code 290 PC if the judge believes you stalked the victim for sexual compulsion or sexual gratification.
  • Possible order to participate in counseling and be sentenced to serve time in a state-run mental illness facility.
  • A possible restraining order may be issued against you prohibiting contact with the victim.
  • Possible additional penalties if the cyberstalking is related to domestic violence, such as when the victim was your spouse, someone you live with, or somebody in a prior dating relationship.

What Are Related Crimes?

Several California offenses are related to Penal Code 646.9 PC cyberstalking, including the following:

  • Penal Code 653m PC - annoying phone calls. This law makes it a misdemeanor to place obscene or harassing phone calls with the intent to annoy. You must make repeated or harassing phone calls or use obscene or threatening language.
  • Penal Code 653.2 PC - cyber harassment. This means posting harmful information online (cyberbullying). This law makes it a crime to send electronic communications to place the recipient in reasonable fear for their safety.
  • Penal Code 422 PC - criminal threats. This law makes it a crime to communicate a threat to somebody that could result in great bodily injury or death.
  • Penal Code 288.2 PC - sending harmful matter to a minor. This law prohibits sending or distributing harmful material of a sexual nature to minors via the Internet, chat rooms, social media, mail, etc.
  • Penal Code 647(j)(4) PC - revenge porn. This law makes it a crime to post sexually explicit images or videos of someone online without consent, which causes the victim to suffer serious emotional distress.
  • Penal Code 207 PC - kidnapping. This law makes it a crime to move another person a substantial distance without their consent by means of force or fear.
  • 18 U.S. Code 2261A - federal stalking. When stalking occurs across state or international borders or involves using the United States mail system or electronic communications at an interstate level, then the crime of stalking can be charged as a federal crime. 

What are the PC 646.9 Defenses?

If you were accused of cyberstalking, a California sex crime defense attorney can use several common defenses to challenge the charges, as discussed below. 

Cyberstalking Defenses

Perhaps we can argue that the person accusing you has malicious intentions, such as using the accusations in divorce proceedings, a child custody battle, or anger after a relationship breakup. Maybe we can argue that the alleged online harassment was misinterpreted or meant no actual harm to the victim.

Recall that the district attorney must prove malicious intent beyond a reasonable doubt and provide evidence of aggressive unlawful behavior. Maybe we can create enough reasonable doubt to avoid a conviction.

Perhaps we can negotiate with the prosecutor for reduced charges or a case dismissal. Maybe we can convince the prosecutor not to file formal criminal charges before the first court date, called a "DA reject." Contact us for more information. The Hedding Law Firm is in Los Angeles, CA.

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