Defending Against Stalking Charges in California (Penal Code § 646.9)

Accused of Stalking in California? Your Rights and Freedom Are on the Line.

Being accused of stalking can turn your world upside down. Even before a conviction, the mere allegation can lead to restraining orders, arrest, social stigma, and restrictive bail conditions. Under California Penal Code § 646.9, stalking is a serious offense, often charged as a felony, with penalties that can include years in prison, mandatory counseling, and in some cases, even sex offender registration.

If you’re facing stalking charges in the Bay Area, The Nieves Law Firm is here to help you understand the law, assert your rights, and build a strong legal defense. Here’s what you need to know about how stalking is defined, charged, and punished in California.

What is Stalking Under Penal Code § 646.9?

Under California Penal Code § 646.9, stalking occurs when someone:

• Willfully, maliciously, and repeatedly follows or harasses another person
• Makes a credible threat intended to place that person, or their family, in reasonable fear for their safety

To secure a conviction, the prosecution must prove both a pattern of conduct (not just a one-time incident) and a credible threat that caused actual fear.

Legal Definitions:

• Harassment: Knowingly engaging in a course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes them and serves no legitimate purpose.
• Course of Conduct: Two or more acts over time (even a short time) showing a continuity of purpose.
• Credible Threat: A verbal, written, or electronically communicated threat, or a pattern of conduct, that causes reasonable fear. It doesn’t matter if the person intended to carry it out.

Examples of Stalking Behavior in California

Stalking isn’t always obvious. It can be subtle, manipulative, or even digital. Common examples of behavior that could result in charges include:

• Sending repeated, unwanted messages, emails, or texts
• Showing up uninvited at someone’s home, work, or school
• Using GPS, cameras, or social media to monitor someone’s movements
• Repeatedly calling someone, even after being told to stop
• Making threats or implying harm, even without physical violence

Even if your intentions were misunderstood or the threat was never carried out, intent and fear are what drive the case, not whether the threat was realistic.

Penalties for Stalking in California

Misdemeanor Stalking

For a first-time offense without aggravating factors:

• Up to 1 year in county jail
• Up to $1,000 in fines
• Possible restraining order
• Mandatory counseling
• Probation terms (such as no contact with the victim)

Felony Stalking

Felony charges can be filed if any of the following apply:

• A temporary restraining order or injunction was already in place
• You have prior convictions under PC §§ 273.5 (domestic violence), 273.6 (violating protective order), or 422 (criminal threats)
• You have a prior stalking conviction

Punishment may include:

• 2, 3, or 4 years in state prison
• If prior stalking or violent felony: 2, 3, or 5 years in prison
• Sex offender registration under PC § 290.006 (in felony cases, at judge’s discretion)
• A restraining order that can last up to 10 years

What Most People Get Wrong About Stalking Charges

It Doesn’t Take Violence or Physical Contact

You can be charged with stalking without ever laying a finger on someone. A pattern of messages, surveillance, or unwanted contact, if perceived as threatening, is enough to support charges.

Stalking Can Be Digital (Cyberstalking)

Many people assume stalking requires physical following. It doesn’t. Courts recognize electronic communication (texts, social media DMs, emails) as valid forms of harassment or threats.

One “Nice” Message Doesn’t Undo a Pattern

Even friendly or apologetic messages can be used against you if they’re part of a repeated effort to contact someone who clearly wants no contact.

You Can Be Prosecuted While In Jail

Even if you’re incarcerated, your communication (letters, calls, emails) can lead to stalking charges if it’s perceived as threatening.

You Don’t Need to “Mean It” to Be Convicted

Intent to cause fear is what matters—not your personal feelings or lack of intent to follow through. If the victim reasonably felt threatened, that may be enough for a conviction.

How Stalking Is Investigated and Prosecuted

Stalking cases often begin with a complaint to the police. From there, the alleged victim may request a civil restraining order, and prosecutors may pursue criminal charges. Law enforcement typically gathers:

• Text messages, emails, call logs
• Surveillance footage or witness statements
• Social media activity
• Prior police reports or restraining orders
• Testimony from the victim and their family

Even if the evidence is circumstantial, prosecutors may push forward, especially if a restraining order was already in place.

Possible Defenses to Stalking Charges

The defense strategy will depend on the facts, but common defenses include:

Constitutionally Protected Behavior

Expressing a political opinion, protesting, or engaging in free speech may not count as harassment or stalking—even if it makes someone uncomfortable.

No Credible Threat

A vague or exaggerated statement may not qualify as a credible threat if it lacks intent or the ability to follow through.

No Repeated Conduct

One message or incident, even if offensive, doesn’t meet the legal definition of “course of conduct.”

False Allegations or Misidentification

Sometimes accusations are fabricated or exaggerated during a breakup, custody battle, or workplace dispute.

Mental Health and Counseling Alternatives

Some defendants may qualify for pretrial diversion or alternative sentencing programs focused on rehabilitation rather than punishment.

Collateral Consequences of a Stalking Conviction

Beyond jail or prison time, a conviction can lead to:

• A permanent criminal record
• Difficulty securing employment or housing
• Restrictions on owning firearms
• No-contact orders or GPS monitoring
• Counseling or psychiatric evaluations
• Sex offender registration in felony cases (at court’s discretion)

If you are a noncitizen, a stalking conviction may also impact immigration status, including risks of deportation.

FAQs About California Stalking Charges (PC § 646.9)

Is stalking always a felony in California?

No. A first-time stalking offense without aggravating factors may be charged as a misdemeanor. However, it becomes a felony if there are prior convictions or protective orders in place.

Can I be charged with stalking for texting someone too much?

Yes, if the texts are unwanted, repeated, and cause the recipient to fear for their safety, they could support a stalking charge.

What if the person never told me to stop contacting them?

While direct notice can help establish boundaries, stalking charges don’t require the victim to explicitly say “stop” if the behavior is clearly unwanted and distressing.

Can the court make me register as a sex offender?

Yes, under Penal Code § 290.006, the court may require registration if the stalking conduct was found to be sexually motivated or extreme.

What happens if I violate a restraining order?

Violating a restraining order related to stalking can lead to new criminal charges, longer prison time, and the loss of probation eligibility.

Facing a Stalking Charge in the Bay Area? Get Legal Help Now.

If you’ve been accused of stalking under Penal Code § 646.9, don’t wait for things to escalate. These are serious accusations that can lead to life-changing consequences. The sooner you have a skilled criminal defense lawyer on your side, the better your chances of reducing or beating the charges.

Contact The Nieves Law Firm today for a confidential consultation. Let us review your case, protect your rights, and develop a strategy tailored to your goals.