Statutes and Cases

People v Lopez (2015 Cal.App. LEXIS 803 –Opinion filed Aug. 18, 2015

Despite an absence of overt threats in defendant’s communication with the victim, and defendant’s argument that it was not his intent to instill fear, the court found that defendant’s “course of conduct” over a period of many years was sufficient to establish a credible threat and sustain a conviction under Penal Code section 646.9. (See also, People v Falck (1977)52 Cal.App.4th 287 and People v. Uecker 172 Cal.App.4th 583.) Defendant first met the victim at a library when she was 16. When she realized that he believed they had a romantic relationship, she tried to distance herself. She avoided his calls so then he started sending emails, most of which were several thousand words long. She left for college and he began contacting her again. For the next 5-6 years he sent packages to her mother’s house. When she turned 26 she received a card with a fresh flower in it. A few months later she received a picture of a “labyrinth” made of small rocks in the image of her face. She recognized the location of the labyrinth as about five blocks from her home. The victim, after further contacts by the defendant told him to stop contacting her. He told her that they “will perform a special ceremony at H&M labyrinth to cleansing (sic) any remaining past emotional and psychological harm that we might have caused each other” He asked her to dress all in white. She finally reported it to the police who contacted the defendant and told him to leave her alone. He continued his conduct. The victim encountered him again and told him he was frightening her and she had reported it to the police. He continued following and contacting her and was finally arrested.

PEOPLE V. McPHEETERS, 218 Cal. App. 4th 124 (Cal. App. 3d Dist. 2013)

OVERVIEW: Defendant repeatedly contacted the victim after she obtained a restraining order against him. He bragged about beating people up and told the victim something might happen to her. He moved into an apartment next door to the victim and threatened her boyfriend. After being arrested, defendant told the officer that nothing could be done to stop him from shooting the victim. The officer told the victim about defendant’s statements.

Whether a defendant intends that words uttered to third parties be relayed to the victim may be irrelevant for purposes of establishing a credible threat under Pen. Code, § 646.9. It is a defendant’s entire course of conduct, including conduct and statements to third parties that foreseeably a victim may be told, that is relevant for establishing a credible threat and not necessarily any particular intent that the comments be conveyed to the victim. In determining whether a threat occurred under § 646.9, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered. A court cannot ignore what a victim knows about a defendant, regardless of how it is learned, in assessing whether a defendant’s behavior rises to the level of a credible threat.

PEOPLE V. OGLE (2010) 185 CA4th 1138

Defendant was convicted of making criminal threats, disobeying a domestic relations order, and stalking. His prior conviction of stalking was admitted under Evidence Code Section 1109 to show his propensity for those crimes. The Court of appeal held that, Stalking is an act of domestic violence subject to Evidence Code Section 1109 and is therefore admissible to prove propensity in a prosecution for domestic violence. His prior stalking was also admissible under Evidence Code Section 1101 to show intent and the sustained nature of the victim’s fear.


After the Defendant’s daughter was placed into foster care, the defendant stalked the foster parents. There were rumors she had also stalked the judge who had presided over the dependency hearings. In light of those rumors and his friendship with the dependency judge, the trial judge recused himself. Over a year later; the case was reassigned to the same trial judge who had previously recused himself. He heard the case and the defendant was found guilty. The Court of appeal stated that it was not error for the trial judge not to recuse himself the second time.

PEOPLE V. HALLER (2009) 174 CAL. APP.4th 1080

Defendant was convicted of criminal threats, stalking and assault with a deadly weapon. He was sentenced under the three strike laws to 78 years to life in prison. He complained he would not be eligible for parole until he was 119 years old. The court found that the sentence was not cruel and unusual. The court stated that his crimes caused or threatened violence to his victims, terrorized the victims with relentless threats of vile acts of violence and disrupted the victims’ lives to such an extent they were afraid to sleep.

PEOPLE V. RAMON (2009) 175 CAL. APP.4th 843

Section 646.9, subd. (a), (b) and (c) do not create separate offenses, but instead create different punishments. 646.9(a) sets out the elements of the crime of stalking. The purpose of Subdivisions (b) and (c) is to establish a higher base term for stalking when it is committed by a defendant with a particular criminal history. Thus, sections (b) and (c) are penalty provisions.

PEOPLE V. UECKER (2009) 172 CAL APP 4TH 583

1) Defendant was convicted of stalking two women and sentenced to 50 years in state prison. As to one victim, the evidence showed that after she expressed a lack of interest, the defendant became angry and left a note calling her derogatory names, wrote notes and left them on her car for over seven months and indicated he was going to do whatever it took to get her to go out with him. As to the other victim a real estate agent, he called her under the guise of looking for real estate, continued calling her over 30 times in three weeks, calls became increasingly hostile and demanding, and he indicated that he knew she was aware of his sex offender status. Court of appeal affirmed the verdict holding there was sufficient evidence to support the charges.


1) Defendant pled guilty to stalking his ex-girlfriend. The court issued a criminal protective order to protect the victim’s new boyfriend, who had also been threatened and harassed by the defendant, but was not a named victim in the complaint.

2) Held: The court struck the protective order, but found that because the current boyfriend had been threatened and harassed it was appropriate for the court to incorporate a stay-away order into the defendant’s conditions of probation (See, Corpuz below.)


1) Defendant had prior convictions for felony stalking and making criminal threats against the same victim. A restraining order was in effect at the time the new stalking began. Defendant was charged with four counts of stalking 646.9(a), 646.9(b), 646.9(c) (1) and 646.9(c) 2, each arising out of the identical course of conduct.

2) Held: Although the single stalking offense was charged in four separate counts, the defendant could be convicted of only one count of stalking.

3) PC 646.9(b), 646.9(c)(1) and 646.9(c)(2) did not define a substantive offense but were penalty provisions triggered when the offense of stalking as defined in 646.9(a) was committed by a person with a specified history of misconduct. A penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances.

PEOPLE V. IBARRA (2007) 156 CAL APP 4TH 1174

1) Ordinarily, if several different crimes are committed by a defendant, all twelve members of the jury must agree as to each separate crime. They are given an “unanimity” instruction by the judge.

2) An unanimity instruction is not required as to stalking because the offense is defined in 646.9(a) as a crime requiring a continuous course of conduct over a period of time.

PEOPLE V. EMMERSON (2007) 155 CAL APP 4TH 1506

1) Civil rights action against deputy sheriff and the county based on search of defendant’s home and his subsequent arrest. Jury awarded defendant damages and trial court awarded attorney fees and costs. (San Bernardino County) Verdict overturned by Court of Appeal.

2) Although, the affidavit could have included more dates and provided more specific background information, it was saved by statement from an informant that the defendant admitted to keying the victims’ car and taking their pool sweep.

3) Items seized during the search included a spray can labeled “Envelope X-Ray Spray”, a chemical used to see inside an envelope without opening it; four small bottles labeled, “Key Scratch”, a chemical used to damage the paint on a car; “Lock-Out Drops”, a chemical used to freeze locks; “Body Bag Parts”, a chemical that smells like a decaying body; “Stink Bombs”, a foul smelling liquid; three firearms; and “The Encyclopedia of Revenge”, a guide book to harassing and taking revenge against enemies through a list of 1, 160 suggested techniques including subscribing to magazines in the target’s name.

PEOPLE V. CORPUZ (2006) 38 CAL APP 4TH 995

1) California’s stalking law makes it a straight felony to engage in certain defined conduct when there is a tro, injunction, or any other court order prohibiting that behavior against the same party. (PC 646.9(b)) Raises penalty to 2-3-4 years in state prison.

2) The phrase used in the statute, “or any other court order”, includes a stay away order issued as a condition of probation.

3) Judgment by the appellate court that reduced defendant’s felony stalking conviction to a misdemeanor was reversed where the appellate court erroneously concluded that a felony stalking conviction cannot be based upon a violation of a condition of probation. (Kern County)

PEOPLE V. ZAVALA (2006) 137 CAL APP 4TH 1283

1) No unanimity instruction to the jury was necessary because the continuing course of conduct doctrine applied to stalking which is self-defined to require a course of conduct.

2) Evidence of prior violent acts against the defendant’s wife were admissible to prove defendant’s intent that his words be taken as a threat and to whether the threat reasonably caused the victim to fear for her safety.

3) The target of the threat need only fear for her safety, or the safety of her family. It is no longer required that the threat be against the life of, or threaten great bodily injury to the injury target. (However, facts of the case indicated that the defendant “put his hands around wife’s throat….causing her to cough and lose her breath, and wife thought Zavala was trying to choke or kill her;” and threatened to kill her on several occasions.

4) Wife told police she did not believe Zavala was capable of killing her.

5) “Apparent ability” – “Zavala’s violent character towards wife was demonstrated by an earlier 2002 assault on his wife, as well as the choking incident, and her belief that he might not be capable of murder did not exclude a reasonable belief that he was capable of violently assaulting her.”

PEOPLE V. JANTZ (2006) 137 CAL APP 4TH 1283

1) Defendant was convicted of first degree murder w. spec. circ. of lying in wait, stalking, and making a criminal threat against his wife. In a bifurcated sanity trial, the jury found that the defendant was legally sane when he committed the offenses.

2) During the sanity trial, the prosecution mental health experts testified that the defendant told them he knew the difference between right and wrong at the time of the murder.

3) If a defendant pleads NGI prior to trial, he may be examined by both court appointed and prosecution mental health experts to assist the jury in determining the defendant’s sanity. If the defendant does not place his mental condition into issue at the guilt phase, then the expert cannot testify at trial. If he does put his mental state into issue during the guilt phase, then the expert can testify, even to incriminating statements made by the defendant. The court gives the jury a limiting instruction that the expert’s testimony as to the incriminating statements should not be regarded as proof of the truth of the facts disclosed but considered only for showing the information upon which the expert based his opinion.

4) PC 1368: When a defendant is compelled to submit to a mental health exam for purposes of determining if he is competent to stand trial, the expert’s statements are inadmissible. But a defendant who pleads NGI has voluntarily put his mental state into issue agrees to submit to a prosecution mental examination and opens himself to testimony by these prosecution experts to rebut the defense experts.

5) Unanimity instruction was not required as to criminal threat (PC422) or stalking (PC 646.9) because the prosecutor clearly elected a specific threat; moreover, the stalking consisted of one continuous course of conduct.

6) A successful NGI relieves the defendant of all criminal responsibility. The defendant is confined to a mental institution until it is determined he is sane. (A diminished actuality defense i.e. the Twinkie defense, attacks the specific intent element of a crime and is a complete defense. The defendant walks out the door. A 1368 defense suspends a trial until the defendant is declared competent or until he has stayed in the psychiatric facility for the full term of the crime alleged. He does not receive good time/work-time credits.)

PEOPLE V. MARKLEY (2006) 138 CAL APP 4TH 230

1) Defendant was convicted of stalking after having been previously convicted of stalking the same victim. The prosecution had charged him with two counts of stalking 646.9(a) and 646.9(c) (2).

2) The defendant was only subject to punishment under the aggravated stalking section 646.9(c)(2) for 2 ,3 or 5 years in state prison.

PEOPLE V. BROWN (2002) 101 CAL APP.4TH313

1) As a condition of probation, the defendant, who was convicted of stalking, was ordered to submit to periodic polygraph examinations at his own expense.

2) The imposition of periodic polygraph examinations in connection with the defendant’s stalking therapy program was reasonably related to the crime of which he was convicted and to possible future criminality.

3) However, the questions asked during the polygraph examination must be narrowly tailored to those relating to the successful completion of the therapy program and the crime of which the defendant was convicted.

4) The defendant could not be forced to personally pay for these examinations as a term of probation.


1) The court upheld the PC 646.9(d) provision that the defendant had to register as a sex offender.

2) The trial court was not required to find beyond a reasonable doubt that the defendant committed stalking as a result of sexual compulsion or for sexual gratification.


1) Defines term “safety”: condition of being safe; freedom from danger or hazard; or quality of being devoid of whatever exposes one to danger or harm.

2) The court refused to limit the term “safety” to mean only physical safety.


1) Section 76 (5) – Stalking a Public Figure: Correlation to 646.9 (compare to Ewing, 76 cal. app. 4th 1999). “…the record showed there was sufficient evidence for the jury to rationally infer that the threatened judge did reasonably fear for her safety” vs. Ewing more exacting standard.

PEOPLE V. BUTLER 74 CAL APP 4TH 557 (August, 1999)

1) Judgment ordering commitment affirmed as defendant’s conviction for stalking met criteria of a qualifying offense under amended mentally disordered offender law.

2) Upholds broad definition of “force” which includes “implied force”.

3) Upholds legislature’s Senate Bill 279 which amends 2962 subdivision (e) (2) (q) to include “a crime in which perpetrator expressly or impliedly threatens another.”


1) Workplace Violence R/O CCP 527.8: Plaintiff (employer) must establish not only that defendant engaged in unlawful violence or made a credible threat of violence, but that great or irreparable harm would result to an employee without issuance of the restraining order. “There must be evidence of future harm.”

PEOPLE V. NORMAN (1999) 75 CA4TH 1234

1) The victim (Steven Spielberg) was in Europe during the period of time that the defendant stalked him at his Los Angeles home. The victim found out about the stalking activities several days later after the defendant was arrested.

2) Held: Defendant was properly convicted of stalking even though the victim’s fear was not contemporaneous with the defendant’s threats and harassment.

3) The defendant committed the harassing and threatening conduct while the victim was out of the country, but was later advised of the activity by his attorney and upon learning about the defendant’s conduce, feared for himself and his family’s safety.

PEOPLE V. EWING (1999) 76 CA4TH 199

1) Prosecutor must establish more than “scant” evidence of victim’s emotional distress.

2) Verdict was overturned because court held element of “harassment” was not proven.

3) Without evidence of the severity, nature, or extent of a victim’s emotional distress, the burden of proof is not met.

4) This case was overturned by 2002 amendment to stalking statute. Revised statute eliminated necessity of proving “substantial emotional distress”.

PEOPLE V. MC CRAY 58 CA4TH 159 (Oct., 1997)

1) Held: PC 646.9 does not require that the harassment be repeated and a defendant may be convicted of stalking arising out of a single instance of harassment.

2) Harassment does include multiple acts: “a series of acts over a period of time, however short, evidencing a continuity of purpose.”

3) Facts: Series of acts occurred within several hours on the same evening – defendant called victim numerous times threatening to kill her, indicated on the phone that he knew she had company at the house, came to her door and again threatened to kill her if she didn’t let him see the children.

4) Evidence of prior acts of violence by the defendant against the victim were admissible both under 1101 (b) to show motive and intent, and also it was relevant to prove that the victim was reasonably caused to be in fear for her safety by defendant’s threats or that the threats would cause a reasonable person to suffer substantial emotional distress.

PEOPLE V. FALCK 52 CA4TH 287 (Jan., 1997)

1) Defendant met and became obsessed with victim in 1982. He was arrested and convicted of trespass and ordered by the court to leave victim alone. In November, 1994, he stopped taking his medication and continued his stalking because the planets told him the time was right to try to get together with the victim. He repeatedly phoned the victim and sent her pornographic pictures.

2) Although defendant stated he had no intention to cause fear in the victim, it could be inferred from the fact that he insisted on maintaining contact with her even though she clearly was attempting to avoid him, and had been warned away by the police, the court and the victim’s husband.

3) Term “safety” as used in 646.9 has commonly accepted usage:

1) Condition of being safe; freedom from danger or hazard.

2) Quality of being devoid of whatever exposes one to danger harm.

PEOPLE V. GAMS 52 CA4TH 147 (Jan., 1997)

1) Conviction of 646.9(b) challenged because victim resumed relationship with suspect after restraining order was in effect.

2) PC 13710 – the terms and conditions of the protective order remain enforceable, not withstanding the acts of the parties.

3) Court rejects due process argument that might use R/O to entrap the suspect, if suspect believes he is acting in compliance with victim’s desire.

4) Describes “learned helplessness” theory woman or man is conditioned to believe that she/he cannot control what happens, and perception becomes reality.

5) Endorses use of expert testimony per PC Section 1107.

6) Operative dates in the information reflected the time period when the victim finally broke off the relationship (even though the restraining order was in effect prior to this occurrence) to the time of suspect’s arrest.

PEOPLE V. KELLY 52 CA4TH 568 (Jan., 1997)

1) Defendant was convicted of misdemeanor violation of a restraining order. These violations were part of his stalking conduct. He continued his stalking conduct after his release from jail.

2) Held: PC 646.9 does not define the crime of stalking in terms of a restraining order. The provision relating to restraining orders is merely a punishment enhancement.

3) Information alleged stalking from April 1 – Dec. 7, 1994, except for the dates alleged in the R.O. violation.

PEOPLE V. HALGREN 52 CA4TH 1223 (Sept., 1996)

1) When victim told suspect over the phone to leave her alone, he stated, “bitch, you don’t know who you are f…ing with. I am going to call you whenever the f… I want to, and I’m going to do to you whatever the f… I want to”.

2) Challenge to definition of “credible threat”. Suspect argued that a mere harmless expression of anger or disappointment could subject a person to criminal charges.

3) It is clear that the perpetrator’s intent, rather than the definition of the conduct engage in, which triggers the applicability of the statute.

4) 646.9 applies only when there has been a credible threat made with the intent to instill fear for personal safety.

5) Conduct consisted primarily of phone calls.

PEOPLE V. TRAN 47 CA4TH 253 (July, 1996)

1) The term, “no legitimate purpose”, is not constitutionally vague.

2) PC 646.9 is sufficiently clear to give notice to suspect.

PEOPLE V. MC CELLAND 42 CA4TH 144 (Jan., 1996)

1) Upholds constitutionality of 1994 law.

2) Victims state of mind (knowing that her husband had firebombed his ex-wife’s house) is relevant. “a reasonable person, aware that defendant had been convicted of attempted murder in burning his former wife’s house, would reasonably fear for her safety upon hearing such a remark”.

PEOPLE V. CARRON 37 CA4TH 391 (Aug. 1995)

1) Pre-1994 case.

2) Penal code section 646.9 does not require the intent to carry out the threat.

3) Specific intent is that the suspect intended to place the victim in fear.

PEOPLE V. HEILMAN 25 CA4th 391 (May, 1994)

1) Upholds validity of pre-1994 stalking law.

2) “Repeatedly” means “more than one time”.

3) “Harassment” means “multiple acts” course of conduct is a series of acts, over a period of time, however short, evidencing a continuity of purpose.