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California Penal Code Section 646.9
Elements of Stalking
Penal Code Section 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"
Elements of Stalking
1. A person willfully, maliciously, and repeatedly follows or
harasses another person.
Penal Code 646.9(e) defines harasses as
a person who "engages 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."
Course of conduct means 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
mean "a verbal or written threat, including that performed through the use of an
electronic communication device, (i.e. fax, e-mail, pagers, etc.) 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." 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 immediate 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 the threat actually place the victim in fear for his or her safety or the
safety of his/her immediate family.
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.
4. The person made the threat with the "apparent ability"
to carry out the threat so as to cause the victim to reasonably fear for his/her
safety or the safety of his/her immediate family.
"Apparent ability" only means that the victim believes
that the stalker is capable of carrying out the threat. It does not mean the
stalker actually possesses a knife, gun, bomb or other weapon.
Sentencing
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 felony stalking
(646.9), criminal threat, domestic violence, or violation of a domestic violence
restraining order the stalker can be sentenced up to 5 years in state prison.
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 the
defendant receive mental health treatment while incarcerated.
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