Cyberstalking Charges (Penal Code § 646.9) in California

Under California Penal Code § 646.9, cyberstalking charges can come down to texts, DMs, or social media activity taken out of context. What one person calls “harassment,” another sees as venting, closure, or miscommunication. But once law enforcement gets involved, things move fast, and not always fairly.

If you’re being accused of online stalking or harassment, you need more than just a clean record to protect you. You need a defense team that knows how to break down digital evidence, challenge weak claims, and keep the court focused on what actually matters: your intent, your rights, and the real facts.

What is Stalking Under Penal Code § 646.9?

California Penal Code § 646.9 makes it a crime to engage in a pattern of conduct that places another person in reasonable fear for their safety. The law applies to both in-person stalking and cyberstalking conducted through electronic means.

Elements of Stalking

To convict you of stalking under PC 646.9, prosecutors must prove beyond a reasonable doubt that:

• You willfully, maliciously, and repeatedly followed or harassed another person
• You made a credible threat against that person
• You intended to place the person in reasonable fear for their safety or the safety of their immediate family
• The person was actually placed in reasonable fear

All four elements must be present. If the prosecution cannot prove even one element, you should not be convicted.

What is Cyberstalking?

Cyberstalking is stalking conducted through electronic communication devices. Under PC 646.9, electronic communication devices include:

• Cellular phones and smartphones
• Computers and tablets
• Video recorders
• Fax machines
• Pagers
• Any other electronic device capable of transmitting communications

This means that threats or harassment conducted through:

• Text messages or SMS
• Email
• Social media platforms (Facebook, Instagram, Twitter/X, TikTok, etc.)
• Dating apps
• Online forums or comment sections
• Video messages
• Direct messaging apps (WhatsApp, Telegram, Signal, etc.)

can all constitute cyberstalking if the other elements of the crime are met.

Key Terms Defined

Understanding the specific legal definitions used in PC 646.9 is crucial:

“Harasses”

Under the statute, harassment means engaging in a knowing and willful course of conduct directed at a specific person that:

• Seriously alarms, annoys, torments, or terrorizes the person
• Serves no legitimate purpose

The conduct must be more than merely annoying—it must seriously alarm or terrorize the victim.

“Course of Conduct”

This means two or more acts occurring over any period of time, however short, that show a continuity of purpose. Even acts separated by just hours or days can constitute a course of conduct if they demonstrate an ongoing pattern.

Important: Constitutionally protected activity (like lawful protests or free speech) is not included in the definition of “course of conduct.”

“Credible Threat”

A credible threat is a verbal or written threat, including those made through electronic communication, or a threat implied by a pattern of conduct that:

• Is made with intent to place the target in reasonable fear for their safety or their family’s safety
• Is made with the apparent ability to carry out the threat
• Causes the target to reasonably fear for their safety or their family’s safety

The threat can be direct (“I’m going to hurt you”) or implied through a pattern of behavior. Prosecutors do NOT need to prove you actually intended to carry out the threat—only that you intended to make the victim afraid.

“Immediate Family”

The law protects not just the direct victim but also their immediate family, which includes:

• Spouses or partners
• Parents
• Children
• Anyone related by blood or marriage within the second degree
• Anyone who regularly resides (or, within the past six months, regularly resided) in the household

Penalties for Violating Penal Code § 646.9

Stalking and cyberstalking are “wobbler” offenses in California, meaning they can be charged as either misdemeanors or felonies depending on the circumstances and your criminal history.

Misdemeanor Stalking

If charged as a misdemeanor, penalties include:

• Up to one year in county jail
• A fine of up to $1,000
• Both jail time and a fine
• Formal or informal probation

Felony Stalking

Basic felony stalking (without aggravating factors) carries:

• 16 months, 2 years, or 3 years in California state prison
• Fines
• Formal felony probation

Enhanced Penalties

Penalties increase significantly in certain situations:

Violation of a Restraining Order (PC 646.9(b)): If you commit stalking while a restraining order, protective order, or injunction is in effect against you prohibiting that behavior, you face:

• 2, 3, or 4 years in state prison

Prior Felony Convictions (PC 646.9(c)): If you have prior felony convictions for domestic violence (PC 273.5), violating a protective order (PC 273.6), or criminal threats (PC 422), penalties increase to:

• Up to one year in county jail (misdemeanor), OR
• 2, 3, or 5 years in state prison (felony)

Repeat Stalking Offense: If you’ve already been convicted of felony stalking and commit the offense again:

• 2, 3, or 5 years in state prison

Sex Offender Registration

In addition to criminal penalties, the sentencing court has discretion to order you to register as a sex offender under PC 290.006 if you’re convicted of felony stalking. This is not automatic but can be imposed based on the circumstances of your case.

Sex offender registration is lifetime and severely restricts where you can live and work.

Additional Consequences of a Stalking Conviction

Beyond the criminal penalties, a stalking conviction triggers several collateral consequences:

Restraining Orders

The sentencing court can issue a restraining order prohibiting any contact with the victim for up to 10 years. This order can be imposed regardless of whether you’re sentenced to:

• State prison
• County jail
• Probation with suspended sentence

The length of the restraining order depends on factors like the seriousness of the offense, probability of future violations, and the victim’s safety concerns.

Mandatory Counseling

If you’re granted probation or a suspended sentence, the court will typically require you to participate in counseling as a condition of probation. The court can only waive this requirement upon a showing of good cause.

Immigration Consequences

For non-citizens, a stalking conviction can lead to:

• Deportation
• Inadmissibility (inability to return to the U.S. if you leave)
• Denial of naturalization applications
• Denial of visa applications

Professional and Personal Impact

A stalking conviction appears on background checks and can affect:

• Employment opportunities
• Professional licenses
• Child custody and visitation rights
• Housing applications
• Your reputation in the community

Common Defenses to Stalking and Cyberstalking Charges

Several legal defenses may apply to PC 646.9 charges:

No Credible Threat

If you never made a credible threat, you cannot be convicted of stalking. Perhaps:

• Your communications were vague or ambiguous
• Your statements were taken out of context
• You lacked the apparent ability to carry out any alleged threat
• The alleged “threat” was actually a warning, prediction, or conditional statement

No Intent to Cause Fear

Stalking requires specific intent to place the victim in reasonable fear. If you didn’t intend to frighten the person, this defeats an essential element. For example:

• You were trying to reconcile a relationship
• Your contact was for legitimate purposes
• You didn’t realize your actions were frightening

The Victim’s Fear Was Unreasonable

Even if you made statements that could be interpreted as threatening, the victim’s fear must be reasonable under the circumstances. If an objective person in the victim’s position wouldn’t have been afraid, this can be a defense.

Constitutionally Protected Activity

PC 646.9 explicitly excludes constitutionally protected activity. If your conduct involved:

• Lawful protests or demonstrations
• Protected free speech
• Labor picketing

you cannot be convicted of stalking for that activity.

False Accusations

Unfortunately, false allegations of stalking are not uncommon, particularly in contentious divorces, custody battles, or romantic relationships. People may fabricate or exaggerate stalking claims to:

• Gain an advantage in family court
• Obtain a restraining order
• Retaliate against an ex-partner
• Get attention or sympathy

An experienced attorney can investigate the accuser’s motives and credibility.

Lack of “Course of Conduct”

The statute requires at least two acts demonstrating a continuity of purpose. If there was only a single incident or if the acts don’t show a continuing pattern, you should not be convicted.

Mistaken Identity

In cyberstalking cases especially, it’s possible that someone else used your account, device, or identity to send threatening messages. Digital forensic investigation may reveal:

• Your account was hacked
• Someone else had access to your devices
• The messages came from a different IP address
• The messages were sent when you had an alibi

How Cyberstalking Cases Are Investigated

Cyberstalking cases typically involve digital evidence, which creates both challenges and opportunities for the defense:

Evidence Collection

Investigators will attempt to gather:

• Screenshots of messages, posts, or emails
• Phone records showing call logs and text messages
• IP address logs from websites or apps
• Security camera footage (if in-person contact occurred)
• Witness statements from the alleged victim and others
• Your social media posts or online activity

Digital Forensics

Law enforcement may:

• Seize your electronic devices (phones, computers, tablets)
• Execute search warrants for your email or social media accounts
• Subpoena records from internet service providers or tech companies
• Analyze metadata to determine when and where messages were sent

Important: This is why it’s critical to contact an attorney immediately if you’re under investigation. An attorney can protect your rights during searches and ensure proper procedures are followed.

What Makes Cyberstalking Cases Unique

Cyberstalking cases differ from traditional stalking in several ways:

Permanence of Digital Evidence

Unlike in-person interactions that may be disputed, digital communications create permanent records. However, this cuts both ways—the defense can also use digital evidence to show:

• Context that was left out
• The victim’s responses or provocations
• That the communications were consensual or welcomed
• Timestamps proving you couldn’t have sent certain messages

Cross-Jurisdictional Issues

Because electronic communications cross state and even international borders, cyberstalking cases can involve:

• Multiple jurisdictions
• Federal charges (in addition to or instead of state charges)
• Complex questions about where the crime occurred

Authenticity Questions

Digital evidence raises questions about authenticity:

• Can the prosecution prove you sent the messages?
• Could your account have been hacked or used by someone else?
• Were screenshots altered or taken out of context?
• Can chain of custody for digital evidence be established?

The Difference Between Stalking and Other Crimes

PC 646.9 overlaps with several other California crimes, but there are important distinctions:

Stalking vs. Criminal Threats (PC 422)

Criminal threats require a threat of death or great bodily injury that causes sustained fear. Stalking requires a credible threat (which can be less specific) plus a course of conduct.

Stalking vs. Harassment (PC 653m)

PC 653m prohibits harassing phone calls or electronic communications. It’s typically a misdemeanor and doesn’t require proof of a credible threat or that the victim was placed in fear.

Stalking vs. Violating a Restraining Order (PC 273.6)

If you have contact with someone in violation of a restraining order, you can be charged with both violating the order AND stalking if the contact also meets the elements of PC 646.9.

Prosecutors may file multiple charges for the same conduct, which is why experienced legal defense is so important.

Frequently Asked Questions

Can I be charged with stalking for just sending messages?

Yes. If the messages constitute harassment and include credible threats that place someone in fear, this can support stalking charges even without any physical contact.

What if I was just trying to get my ex to talk to me?

Intent to reconcile doesn’t excuse stalking behavior. If your attempts to contact someone include threats and cause reasonable fear, you can still be charged.

Is it stalking if the person never told me to stop contacting them?

Not necessarily, but if you made credible threats and the person was reasonably afraid, you can still be charged even if they didn’t explicitly tell you to stop.

Can someone get a restraining order against me just by claiming I’m stalking them?

Yes. Restraining orders have a lower burden of proof than criminal cases. Someone can obtain a civil restraining order based on allegations alone, which is why responding properly to restraining order requests is critical.

What if I’m already in custody—can I still be charged with stalking?

Yes. PC 646.9 explicitly states that being incarcerated when you make threats is not a bar to prosecution.

Why You Need an Experienced Criminal Defense Attorney

Cyberstalking cases are complex and require an attorney who understands both criminal defense and digital evidence. An experienced attorney can:

• Challenge the authenticity and admissibility of digital evidence
• Investigate whether your constitutional rights were violated during searches
• Present context that changes the meaning of your communications
• Expose false allegations or ulterior motives
• Negotiate for reduced charges or alternative sentencing
• Fight to keep you out of prison and off the sex offender registry

Without proper representation, you risk severe penalties that could have been avoided.

How The Nieves Law Firm Can Help

If you’re facing stalking or cyberstalking charges under Penal Code § 646.9, The Nieves Law Firm is prepared to mount an aggressive defense. We understand that these cases often arise from relationship conflicts, misunderstandings, or false allegations.

Our approach includes:

• Immediately protecting your rights if you’re under investigation
• Conducting independent investigations into the allegations
• Working with digital forensic experts to analyze electronic evidence
• Challenging improper searches and seizures of your devices
• Presenting mitigating evidence and context
• Fighting for dismissals, reduced charges, or acquittals

We’ve successfully defended clients against stalking allegations and know what it takes to achieve favorable outcomes in these emotionally charged cases.

Don’t let a stalking allegation destroy your future. Contact The Nieves Law Firm today for a confidential consultation about your case. We’re ready to fight for you.