Cyberstalking Laws in California – Penal Code 646.9 PC
California's cyberstalking laws make it a crime to stalk somebody using an electronic communication device and are a form of online harassment through the anonymity of the Internet.
The crime of stalking is defined under Penal Code 646.9 PC and described as harassing or threatening someone to the point where they fear for their safety or the safety of their family.
This statute was amended in the late 1990s by changing the definition of credible threats to include “electronically communicated threats.”
An “electronic communication device “includes the Internet, cell phone, landline, text messages, email, fax machine, or any other type of electronic device.
The digital age requires new laws to protect people from abuse. That said, the drive to legislate the Internet can see users' First Amendment rights brought into question. Such can be the case with cyberstalking charges.
The Los Angeles District Attorney's Office has a special unit, the “stalking and threat assessment team (STAT).” Their prosecutors work closely with Los Angeles Police Department detectives to investigate and prosecute cyberstalking cases.
Because cyberstalking is seen as a subset of stalking in California, parties accused of such behaviors can face both misdemeanor and felony charges, called a “wobbler.”
The filing decision by the prosecutor will usually depend on the following factors:
- whether the victim had already filed a restraining order,
- criminal history of the defendant,
- whether the stalking was related to a domestic violence case.
Cyberstalking cases are occurring more frequently with the rise of social media and other internet platforms.
It's essential to react to these charges with care to keep your criminal history clear. Our Los Angeles criminal defense lawyers will review further below.
Defining Cyberstalking Under California Law
California Penal Code Section 646.9 describes cyberstalking as a variation of traditional stalking, which is defined as follows:
- “Any person who willfully, maliciously, and repeatedly follows or harasses someone and makes a credible threat with the intent to place the victim or their family in reasonable fear for their safety is guilty of the crime of stalking.”
Individuals charged with stalking at large are accused of purposefully and repeatedly harassing a particular person. In turn, parties charged with cyberstalking allegedly engage in similar behaviors.
The setting in which these behaviors allegedly occur varies but can include social media platforms, email servers, and even workplace chatrooms.
“Harassing” under the context of this statute means you engaged in willful behavior directed at the victim that annoyed or tormented them for no legitimate purpose.
The behaviors that California law considers indicative of cyberstalking include mass-following repeated direct messaging and "doxxing" a person's personal information.
It is these alleged behaviors, combined with what the prosecution calls a "credible threat to another individual," as defined by California Penal Code Section 646.9(g), that can see a person face both jail time and fines.
What Are the Related Crimes?
- Penal Code 422 PC - criminal threats,
- Penal Code 653m PC – making annoying phone calls,
- Penal Code 207 PC – kidnapping,
- Penal Code 288.2 PC – sending harmful matter to a minor,
- Penal Code 653.2 PC – post harmful information on the internet,
- Penal Code 632 PC - eavesdropping,
- Penal Code 647(j)(4) PC – revenge porn.
Contending with Cyberstalking Charges
A person can face cyberstalking charges for a myriad of reasons. Because the Internet is so difficult to legislate, engaging with someone may be seen as violating that individual's right to privacy.
That said, each person online and operating from within the United States is entitled to certain protections, particularly those that cover freedom of speech.
Examples of cyberstalking include sending unsolicited harassing emails, text messages, or posting embarrassing information or pictures online.
What, then, should someone do if they face cyberstalking charges? It is in no one's best interest to plead before a court without consulting an attorney.
Parties facing these kinds of charges should get in touch with a California criminal defense law firm as soon as they're able to avoid accidentally complicating their cases.
For a prosecutor to prove that a case of chargeable cyberstalking has occurred, they have to prove all the elements of the crime that include:
- You willfully and maliciously harassed someone,
- You made a credible threat to them that caused reasonable fear to the victim or their family,
- You communicated by using the internet or other electronic device.
Cyberstalking Misdemeanors and Felonies
Depending on the breadth of evidence brought forward in a legal complaint, a person accused of cyberstalking may face misdemeanor or felony charges.
Misdemeanor charges for an individual without an existing criminal history can include one year of jail time and up to $1,000 in fines.
The same consequences apply to those individuals accused of cyberstalking with a criminal record.
Felony charges are slightly more severe. Individuals facing felony cyberstalking charges may see up to 3 years in state prison if convicted.
Depending on the circumstances surrounding their case, a court may also require this individual to register with California's sex offender registry, Penal Code 290 PC.
Usually, a judge will only impose this registration penalty if they believe you stalked the victim for the purpose of sexual compulsion or sexual gratification.
Individuals with criminal records charged with cyberstalking may face a prison sentence of up to five years, with registration requirements remaining the same.
Convicted cyberstalking defendants could also be ordered to participate in counseling and even confinement in a state-run mental illness.
Further, a defendant will usually face a restraining order against them prohibiting contact with the victim.
Finally, prosecutors could charge you with cyberstalking under California's domestic violence laws that will subject you to further penalties if the victim was your spouse, someone you live with, or somebody in a dating relationship. Violating a restraining order can lead to jail time and a fine.
Cyberstalking in Tandem with Traditional Stalking
Because cyberstalking qualifies as a subset of stalking, California courts may choose to bring an accused individual up on mutual charges.
Like cyberstalking, stalking is considered a variable case, meaning that parties accused of the behaviors described by California's Penal Code section 646.9 may face either a misdemeanor or felony charges.
The charges a person has to contend with will vary based on the nature of their case. That said, dual-charges of cyberstalking and traditional stalking can see these consequences compounded.
A person charged with cyberstalking may also face accusations related to child pornography, sexual assault, or emotional, physical, or financial abuse.
Anyone facing more than one charge in a cyberstalking case can sit down with a defense lawyer to discuss how best to approach their unique case.
Defending Against Cyberstalking Charges
The party bringing cyberstalking charges to court may have malicious intentions of their own. Many criminal defense attorneys argue that cyberstalking charges are retaliatory in nature, such as:
- Divorce proceedings,
- Child custody battle,
- Spite or jealously after a breakup
Other times, defense attorneys can argue that alleged online harassment was misinterpreted or meant the receiver no actual harm.
The best defense against cyberstalking charges, however, is reasonable doubt. The prosecution in these cases must prove malicious intent beyond a reasonable doubt, supplying evidence of actionable and aggressive behavior.
Attorneys who can highlight the complexities of cyberstalking cases can lessen or even remove the charges leveled against the accused.
Cyberstalking charges deserve to be taken seriously in California courts. Without the appropriate defense, you or your loved ones may face debilitating fines and jail time.
We could negotiate with the prosecutor to reduce charges or dismiss the case.
Through prefiling intervention, we might be able to persuade the prosecutor from filing formal criminal charges before court proceedings even begin, known as a “DA reject.”
Eisner Gorin LLP is based in Los Angeles County and serves people throughout Southern California, including Ventura County, Orange County, San Bernardino, Riverside, and Santa Barbara.
You can reach us for an initial consultation at (310) 328-3776 or fill out our contact form.