California Penal Code §646.9: Stalking
Penal Code §646.9 defines stalking as:
“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....”
The Elements of Stalking
The prosecutor must prove the following three elements to obtain a stalking conviction under Penal Code §646.9:
1. A person willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person.
Penal Code §646.9(e) defines harassed as 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. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress.”
Course of conduct is defined as a “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” Constitutionally protected activity is not included within the meaning of course of conduct. Repeatedly is defined as “on more than one occasion.”
2. That person following or harassing made a credible threat.
Penal Code §646.9(g) has redefined the term credible threat to encompass not only a verbal or written threat, including that performed through the use of an electronic communication device (i.e. fax, e-mail, pagers, etc.), but also “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 so as 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.” Their threat does not need to be direct.
The credible threat made by the stalker must be against the personal safety of the victim or the victim’s family. The current test of credible threat is 1) whether or not a reasonable person would fear for his or her safety, or the safety of his or her immediate family; 2) did the victim believe the suspect would carry out the threat, and 3) did this threat actually cause substantial emotional distress to the victim.
3. The person who made the threat did so with the specific intent to place the other person in reasonable fear for his or her safety or the safety of the immediate family of such person(s).
The specific intent element is satisfied if the suspect intended to place the victim in fear; intent to actually carry out the threat is not required. Therefore, incarceration is not a defense in stalking cases.
Under Penal Code §646.9(a), a first-time convicted stalker can be sentenced up to three years in state prison, even if there is no restraining order in effect. However, if there is a restraining order or any other protective court order in effect, he or she could be sentenced up to four years in state prison.
If the defendant was previously convicted of stalking (§646.9), criminal threats (§422), domestic battery (§273.5), or a felony violation of a restraining order, a five-year sentence can be imposed.
Other provisions of Penal Code §646.9 provide that the sentencing court may issue a restraining order against the defendant that is valid for up to ten years, requires that the stalker participate in counseling and, in certain cases, register as a sex offender. The court may also order that the defendant receive mental health treatment while incarcerated.
Criminal Threats Defined
California Penal Code §422: Criminal Threat
Penal Code §422 defines a criminal threat as:
“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety....”
Elements of a Criminal Threat
The prosecutor must prove the following four elements to obtain a criminal threat conviction under Penal Code §422:
1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person.
The principle difference between a criminal threat and stalking is that a criminal threat is truly a crime of words rather than conduct. As such, §422 does not require a pattern of conduct: one threat is sufficient. However, the threat must be one of death or great bodily injury against the victim or the victim’s immediate family.
2. The person who made the threat did so with the specific intent that the statement be taken as a threat.
The law does not require that the suspect had the intent to carry out the threat, only that the suspect intended the statement to be taken as a threat. The context and the circumstances under which the statement was uttered are important. The meaning of the threat must be gleaned from the words and all the surrounding circumstances.
3. The threatening statement, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.
Although the statute states that the threat must be “unequivocal, unconditional, and specific,” case law has held that the language of the statute does not mean that the suspect must be standing in front of the victim with a weapon in his or her hand when he or she makes the threat. The courts have held that there does not have to be a showing that the suspect had the immediate ability to carry out the threat, nor does the statute require a time or specific manner of execution. Rather, the statute requires that the words used be of an immediately threatening nature and convey an immediate prospect of execution. The threat may be conveyed either face-to-face to the victim by the suspect or by letter, fax, e-mail, telephone, through third parties, or any other form of communication. Conditional threats are true threats if their context and surrounding circumstances reasonably convey to the victim that the threat is intended.
4. The threatening statement caused the other person reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.
Sustained fear is defined as “a period of time that extends beyond what is momentary, fleeting, or transitory.” Fifteen minutes of fear may be more than sufficient to constitute “sustained fear.”
The crime of making a criminal threat is a wobbler. That means it can be prosecuted either as a misdemeanor or a felony. A defendant who is convicted of this crime as a felony can be sentenced up to three years in the state prison. A misdemeanor conviction is punishable up to one year in the county jail. Conviction of a felony criminal threat is a strike under the state’s “three strikes” law.
UCSB Police Resources/Safety Lectures
The UCSB Police Department offers training and lectures customized for your group or department. If you would like to schedule an officer to come speak to your group about Stalking, Identity Fraud or Campus Active Shooter safety, please contact Sgt. Bowman at (805) 893-2303 or firstname.lastname@example.org