Stalking is among the criminal offenses we deal with at the Orange County Criminal Defense Attorney Law Firm. It is also among the many criminal offenses that are included in the crime of domestic violence. Harassing or following another person can be interpreted as stalking, especially if it invokes fear in the person being tracked. However, we understand that innocent acts like calling more times than necessary, or even following a person you want to talk to can be misinterpreted as malicious and cause the person to accuse you of stalking.
If you are accused of stalking in Orange County because of an innocent act, or you did to gain another person's attention, we could help prove your innocence. With our excellent skills and experience, we might be able to convince the court to either drop or reduce your charges.
Legal Meaning of Stalking in California
The law against stalking in the state of California is under Part 646.9 of California laws. It makes it an offense for someone to follow, threaten, and harass another person to the extent that the other party becomes fearful for their security. Following, harassing and threatening a person, in this, has to be done willfully and maliciously. The threat has to be credible enough to make the other party experience reasonable fear for their wellbeing or the protection of their immediate family. There are many ways in which the offense of stalking is committed in California.
To have a better understanding of this offense, let us go through the facts of the crime. These are the elements of the case, which the prosecutor is required to demonstrate before the court beyond any reasonable doubt so that the offender can be found culpable of stalking. They are:
- That the accused maliciously and willingly harassed or repeatedly followed the other party
- That the defendant made a dependable/ credible threat against the other party to place them in rational fear for their welfare and the welfare of their close family members
There are exceptions to this offense, though, and a person will not be guilty if they are doing something that is protected by the constitution. Some of these exceptional actions include:
- Engaging in legal protestations
- Exercising one’s freedom of speech
- Taking part in a lawful assembly
From the legal definition provided above, it is critical to understand some of the essential terms or phrases to understand the crime of stalking better:
Maliciously, Willfully and Repeatedly
For an action to qualify as a stalking offense in California, it must have been done maliciously, willfully, and frequently. A person is believed to have committed a crime willfully if they act purposely. A person is found to have acted maliciously if they did something illegal or if they did an unlawful act to annoy, or disturb someone else, or cause the person harm. When this is done repeatedly, it means that the action was done more times than once.
It is one way in which a person can commit the offense of stalking. Harassing, in this situation, means knowingly and willfully doing something terrible to a specific person when you are sure that your actions are alarming, annoying, tormenting, or terrorizing. Note that the act, in this situation, is one that does not serve any legitimate purpose. When such actions are committed over some time, however short that period might be, the person may be found guilty of harassment and, eventually, stalking.
The kinds of threats that are accepted in the commission of stalking offense must be reliable. A credible threat, in this situation, will be the kind of threat that results in the person being threatened to experience reasonable fear for their security or the wellbeing of their immediate family. A credible threat is also the kind of threat that appears possible to execute by the offender.
Note that this kind of threat can be made in writing, orally, and also electronically. It could also be inferred by a series of behavior or the combination of both behavior and statements.
It will not be easy for the court to determine whether or not the victim was placed in rational fear by the actions or utterances of the defendant. However, this can be done by merely analyzing the circumstances and facts of the situation. Note that threats, in this instance, must be actual threats. A genuine threat will not include the following:
- An overstated political statement
- An expression that was made jokingly
- A speech that is protected by the constitution
Fear for the Protection of Immediate Family Members
- An immediate family member is not any person that could be related to the victim, but:
- A spouse, parent or child
- A grandparent, grandchild, sister or brother as well as anyone related to the victim by either blood or marriage
- A person that regularly lives with the alleged victim in the same household
Stalking and Domestic Violence
Some domestic violence situations would involve the stalking of one partner by the estranged partner. In cases of domestic violence, stalking could take various forms, including:
- Making unwanted phone calls repeatedly with the intent to harass the other partner
- Visiting the victim in their home or workplace uninvited
- Sitting outside the victim’s house, sometimes in your car, just to watch their moves
Doing any of the above only once may not qualify as stalking until it becomes a pattern of malicious acts.
In cases of domestic violence, the defendant is sometimes issued with a restraining order, which should keep them from contacting their victims for a specified period. If, within that time, the defendant repeatedly issues threats or exhibits harassing behavior to the victim, it could amount to stalking. Following or shadowing an ex-partner, vandalizing their property, or committing any other offense that makes their fear for their security or the protection of their loved ones will count as stalking.
Most stalking incidences are believed to occur immediately after a break-up, when one ex-partner starts making contact or harassing the other, even after being warned against it. Some accusations of stalking could also end up investigated and convicted as domestic violence offenses. Note that merely contacting an ex-partner is not unlawful unless they have a protective order against you. If that contact becomes persistent and threats are involved, a California court can easily find you guilty of stalking.
In cases where an ex-partner is a victim of stalking, law enforcement agents may advise them to obtain a domestic violence protective order against their stalkers. If the request is granted, it might prevent the stalker from getting into any form of contact with the alleged victim in the future. In case the stalker violates the protective order, they can face criminal charges for both stalking and violating a protective order as provided under Section 273.6 of California laws.
Penalties for a Stalking Conviction
Offenders that get convicted of stalking in Orange County are likely to face two types of sentences, namely:
- The criminal penalties
- The civil penalties
If you are arrested and tried in a criminal court for stalking, you will have to face a criminal sentence once convicted. In a criminal court, a California stalking offense is a wobbler. This means that the court could either charge it as a felony or a misdemeanor. If the offender gets a misdemeanor conviction, here are the criminal penalties they are likely to receive:
- Summary or misdemeanor probation
- A maximum of one year behind bars
- A fine of not more than $1,000
If, on the other hand, the offender gets a felony conviction for stalking, here are some of the criminal penalties they are likely to get:
- Formal or felony probation
- A maximum of five years in prison
- Maximum fines of not more than $1,000
There are certain circumstances under which the offense of stalking will always be convicted as a felony crime in California. Some of these are:
- If the stalking offense was committed as a violation of a restraining order issued by the court
- If the defendant has a prior conviction of stalking. This will apply even though the alleged victim in the current situation isn’t the same as the victim in the previous case
Civil penalties will apply if the alleged victim of stalking decides to file a lawsuit against the defendant in a civil court to recover any damages they might have incurred after the commission of the stalking offense. If civil penalties apply, the offender will face them on top of the criminal penalties after their conviction. California laws allow stalking victims to file legal suits in civil courts if they suffer damages in the hands of a stalker. In such a case, the alleged victim will be required to prove a few facts of the case for them to recover their damages. These are:
- That the stalker was involved in a series of behavior with the intent to follow, harass, or alarm the victim. The civil court will require independent proof of this other than the victim's testimony as proof of their allegations.
- That as an outcome of the offender’s conduct, the alleged victim, suffered real fear for their wellbeing or the wellbeing of their close family members
- That the stalker did any of the following:
- Violated a protected order by their behavior
- Made credible threats against the victim’s protection or the wellbeing of their family members. That he/she did not stop harassing the victim even after they were asked to stop by the alleged victim
If the supposed victim can prove all these facts in a civil court, there is no doubt that their case will be successful. They will then be able to recover compensatory as well as punitive damages against the offender.
More Consequences of a Stalking Sentence
In addition to the criminal and civil penalties listed above, stalking in Orange County is a serious offense that has other consequences that might affect the life of a person in more ways than one. Some of these consequences include the following:
Stalking is among the many offenses in California whose conviction could have serious immigration consequences. Immigration laws in the United States provide that any non-citizen person that is convicted of stalking must be deported. if you are an immigrant and you have a stalking verdict in your criminal record, the law does not allow such a person to be admitted in the country
There are severe offenses in the state that are considered inadmissible and deportable. They are, for example, aggravated felonies, misdemeanors of moral turpitude, crimes related to the use of controlled substances, firearms crimes as well as domestic violence offense. The crime of stalking may not seem as dangerous as any of these offenses, but based on the details of your case, a felony conviction for stalking might rise to an aggravated felony. In that case, you may have to face serious immigration consequences if you are a non-citizen.
Effects on the Offender’s Gun Rights
Again, a felony stalking conviction could affect an offender’s gun rights. California State has a list of offenders who are prohibited by its laws to possess or acquire a gun. They are:
- People who have been convicted of a felony offense in any jurisdiction
- People who are dependent on narcotics
- People who have in their criminal record two or more sentences for flaunting a weapon, a misdemeanor provided under Section 417 of the California laws.
- People who have a conviction for certain misdemeanors such as corporal injury on a spouse, as provided under Section 273.5 of California laws
- People who have been diagnosed with mental illnesses
- People who are below the legal age of 18. California law does not allow any person below the age of 21 to purchase a gun
In that case, if the stalker gets a felony conviction, it will affect their rights to possess or buy a gun. If he/she already owns a forearm, they will be required to give it up and will not be allowed to buy another one.
Can a Stalking Sentence Be Expunged?
The good news for those who might get a stalking conviction in California is that they can petition the court to have the crime expunged from their criminal record.
Expungement is allowed by the state laws, under Section 1203.4, to release the convicted person from practically all the consequences and penalties that could come out of such a conviction. What it means is that after the expungement, the offender will not have to disclose the conviction to prospective employers in the future. However, there are conditions the convicted person must face to have their felony or misdemeanor conviction expunged from their criminal record:
- The person must have completed their probation
- The person must not be facing another criminal charge, must not be on probation or facing a conviction for another crime
What it means is that once the defendant completes their probation or the jail term provided after the criminal conviction, they can immediately start the process of getting the conviction expunged from their record.
Legal Defenses to California Stalking Charges
Stalking may not seem like a serious offense, but its consequences can affect many aspects of a person's life. Getting a conviction is, therefore, out of the question for anyone that is facing stalking charges in Orange County today. That is why you need the best legal help you can get, to ensure that your charges are either reduced or dropped altogether. An experienced criminal defense attorney will be of great help to you. That is why you need to hire one as soon as you are arrested or once you realize that you are under investigation for stalking. The good thing is that there are many legal defenses that he/she can use in your case to get you a fair ruling. Some of them are:
The Kind of Threat you Made was not Credible
Stalking in California requires that the type of threat the stalker makes must be reliable enough to cause the victim to fear for their protection or the protection of their loved ones. The court will rely on the circumstances of the case to decide whether or not the threat was credible. Your attorney could argue that the threat was not sincere to cast some doubt in the prosecutor's case. If, for instance, the alleged stalker made the threat jokingly, with no intention of carrying out the threat, it will not be considered credible enough to cause the other individual to fear.
You had not Intended to Cause the Other Party Fear
The main element of stalking is that the victim took the defendant’s action so seriously to the extent of fearing for their security or the protection of their loved ones. If the defendant didn’t intend to cause the alleged victim's fear, then this element will not be satisfied, and the court will not find him/her guilty of this crime. Even though a threat was made, there is always no guarantee that it will cause the other party to fear. The defendant could, for instance, have repeated a threat jokingly, and the victim took it seriously. Note that the court must believe that the threat you made could not have elicited any fear for it to drop your case.
What You Engaged in is Constitutionally Protected
As mentioned earlier, certain activities could appear as stalking, but they are constitutionally protected. These are, for instance, legal protests. Some utterances could qualify as threats, while in the real sense, the person is just exercising his/her rights to speech. In such cases, you will not be found guilty of stalking. Your attorney must, however, demonstrate to the court how your conduct is constitutionally protected.
Stalking and Related Offenses
Certain offenses in California are often charged alongside stalking crime. These are, for instance:
The law against kidnapping in California is under Section 207 of the state laws. According to this law, kidnapping occurs when a person uses fear or force to move another person at a substantial distance. The main difference between abduction and stalking is that the former requires the defendant to handle the supposed victim physically, and then move him/her from one location to another.
Making Aggravating Phone Calls
The law against making endless phone calls to annoy another person is under Section 653m of California laws. According to this law, any person who makes an obscene or threatening phone call to another person or repeated calls to annoy or harass the other being will be guilty of aggravating phone calls. This crime is very similar to the offense of stalking as both carry the same element of intention to cause reasonable fear on the victim.
The crime of making criminal threats against another person is under Section 422 of California laws. According to this law, a criminal threat occurs when a person threatens to harm or kill another person physically. Other elements of this offense are that the threat must be clear and specific, and credible enough to cause the other individual reasonable fear for their safety and safety of their loved ones. Criminal threats can also be made in writing, verbally, or transmitted electronically.
The main difference between stalking and criminal threats is that stalking mainly focuses on the following or harassing of the other party. In contrast, criminal threat pays attention to nature and how the threat was made.
Find an Orange County Criminal Defense Attorney Near Me
If you are facing criminal charges for stalking, you must be worried about the severe consequences and penalties its conviction carries. However, you need not worry if you engage the services of a competent criminal defense attorney. At Orange County Criminal Defense Attorney Law Firm, we have excellent skills and experience to fight such charges. We know how life-changing such a conviction is. That is why we come up with the best defense to get your charges either reduced or dropped. Call us at 714-740-7848 if you are in Orange County, CA, and let us change the outcome of your case.