Stalking

  1. Introduction

    A person who published private intimate photos/videos of another with the intention to harass that person and who also credibly threatened that person, or who was under a restraining order, may be charged with stalking under the Penal Code.

  2. Text of the Statute

    Cal. Penal Code § 646.9:

    “(a) Any person who willfully, maliciously, and repeatedly follows or willfully 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 is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.

    (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.

    (c) (1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, commits a violation of subdivision (a) shall be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or five years.

    (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years.

    (d) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender pursuant to Section 290.006.

    (e) For the purposes of this section, "harasses" means 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.

    (f) For the purposes of this section, "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."

    (g) For the purposes of this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, 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, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of "credible threat."

    (h) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

    […]

    (l) For purposes of this section, "immediate family" means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.”

  3. Cases

    1. People v. Buckley, No. D066227, 2015 WL 6164035 (Cal. Ct. App. Oct. 21, 2015).

      • Procedural Posture: A jury convicted defend of simple stalking of victim 1 (count 1) and two counts of stalking victim 1 with a court order in effect (counts 2 and 3). It also convicted defendant of one count of simple stalking of victim 2 (count 6) but found defendant not guilty of another count of simple stalking of victim 2 (count 4) and of stalking victim 2 with a court order in effect (count 5). Defendant appealed his convictions on several grounds, including that the trial court erroneously sentenced him under both Cal. Penal Code § 646.9(a) and Cal. Penal Code § 646.9(b) for his convictions involving victim 1, despite the fact that the latter provision relates to a penalty and not a substantive crime.

      • Law: Cal. Penal Code § 646.9

      • Facts: Defendant and victim 1 dated from June 2010 through November 2010, when victim 1 ended the relationship. Following the breakup, defendant repeatedly called and texted victim 1, sent photographs of dead people, accused victim 1 of killing her father, destroyed victim 1’s belongings, threatened to commit suicide. On November 15, 2010, victim 1 obtained a temporary retraining order against defendant; however, defendant continued to contact victim 1 and sent a nude photograph of victim 1 to her mother. Victim 1 also feared that defendant would send nude photos of her to her boss and coworkers. On December 1, 2010, a 5-year permanent restraining order was issued preventing defendant from contacting victim 1; however, defendant continued to contact and threaten victim 1.

      • Defendant and victim 2 had a three-week intimate relationship during September 2012, during which time victim 2 allowed defendant to take nude photographs of her. After victim 2 broke off the relationship, defendant got upset and repeatedly attempted to contact her. In early October 2012, victim 2 obtained a temporary restraining order against defendant and, in late October 2012, victim 2 obtained a permanent restraining order against defendant. Despite the restraining orders, defendant continued to contact victim 2, waited outside of victim 2’s home, threatened victim 2, send nude photos of victim 2 to her friends, and posted nude photos of victim 2 on Facebook.

      • Outcome: The court vacated the convictions on counts 1 and 2 and otherwise affirmed the judgment. The court found that the record established one continuous criminal act of stalking against victim 1 from November 2010 through September 2012—and not three separate counts—because there were no significant breaks between defendant’s conduct.

    2. People v. Moreno, No. C072902, 2014 WL 6809702 (Cal. Ct. App. Dec. 3, 2014).

      • Procedural Posture: Defendant was required to register as a sex offender and convicted of nineteen felonies and two misdemeanors, including burglary, wiretapping, unauthorized computer access, and stalking. On appeal, defendant contends there was insufficient evidence to support two counts of wiretapping and that he was entitled to a jury trial because the residency requirements of sex offender registration impose additional punishments.

      • Law: Stalking (Cal. Penal Code § 646.9); burglary (Cal. Penal Code § 459*); wiretapping (Cal. Penal Code § 631(a)); unauthorized computer access (Cal. Penal Code § 502(c)(4))

      • Facts: Defendant and victim dated from April 2007 until January 2010 and maintained a cordial relationship. Within two months, defendant and victim began dating again. In March 2010, defendant visited victim’s home and installed two spyware programs on her computer. The first program recorded computer activity, including email, chats and website visits. The second program emailed defendant regular activity reports. On July 16, defendant and victim broke up. Following the breakup, defendant broke into victim’s apartment numerous times, stole various items from victim’s home (including jewelry, concert tickets, keepsakes and used condoms), threatened to publish nude photos of victim online, installed spyware on victim’s computer, installed hidden cameras in victim’s home, photographed victim through her windows, and disabled victim’s alarm system. After searching defendant’s home and computer, police discovered a computer file labeled “stalking,” dated images of items stolen from  victim’s home, detailed written accounts on victim’s sexual activity, a lock-picking kit, various items stolen from victim's home, intercepted chats and emails from victim, and more than 40 hidden camera videos from victim’s home.

      • Outcome: The trial court judgment was affirmed.

    3. People v. Cavazos, No. A124274, 2010 Cal. App. Unpub. LEXIS 3420 (Cal. Ct. App. May 11, 2010).

      • Procedural Posture: Jury convicted defendant for stalking his ex-girlfriend and he appealed.

      • Law: Cal. Penal Code § 646.9(a) (stalking) and 647(k)(3) (illegal videotaping)

      • Facts: After victim broke up with defendant, he called her constantly, began making threats to her and her family and showed up at her apartment unexpectedly. He also showed her three videos he had recorded on his cell phone of them having consensual sex. He told victim that if she did not have sex with him, he would post the videos on the internet or show them to her family. Defendant continued to use the videos as a way to force victim to meet with him by telling her he would erase the videos if she complied with his requests. Defendant would sexually assault victim at the meetings. The victim went to the police and reported that defendant was making harassing phone calls. She obtained a restraining order, but did not report the rape, kidnap or false imprisonment until a few months later (the jury failed to convict defendant on those charges).

      • Outcome: Affirmed. The court failed to find an abuse of discretion by the trial court or any undue prejudice. “Jane Doe’s testimony establishing [the stalking] was corroborated by the recordings of appellant’s cell phone messages, and appellant’s admission that he slapped her, repeatedly called her in violation of the restraining order, and threatened to harm her."

      • Note: Ex-girlfriend referred to as “Jane Doe.”

    4. People v. Muhammad, No. A104207, 2005 Cal. App. Unpub. LEXIS 1469 (Cal. Ct. App. Feb. 22, 2005).

      • Procedural Posture: Appellant appealed conviction for stalking.

      • Law: Cal. Penal Code § 646.9(a)

      • Facts: After breaking up, appellant left victim telephone messages threatening her car and her life. Victim reported these threats to the police. The victim and appellant subsequently resumed their romantic relationship. After they broke up a second time, appellant showed up at victim's work place to threaten her and later broke into her apartment and vandalized it. Victim reported the vandalism to the police. Appellant then began calling victim 50 times a day and once again made threats to her life. Appellant returned to victim's work place, this time with various photos of the partially nude victim. Appellant dropped these photos onto victim's coworker’s desk requesting that the coworker give the photos to the victim as she had left them at appellant's home. Victim obtained restraining order against appellant and appellant was finally arrested.

      • Outcome: Affirmed. No discussion of stalking since the appellant did not appeal that conviction. Instead, he appealed the criminal threats conviction and jury instruction regarding the truth of the testimony of the victim.

      • Note: Victim’s initials were used.

    5. People v. Abber, No. B156617, 2003 Cal. App. Unpub. LEXIS 4695 (Cal. Ct. App. May 13, 2003).

      • Procedural Posture: Appellant was convicted of stalking his ex-girlfriend and placed on probation. Appellant appealed on the grounds that the stalking statute is unconstitutionally vague.

      • Law: Cal. Penal Code § 646.9(a)

      • Facts: After the victim, Heather Tulloch, ended her relationship with appellant, the appellant began harassing her by following her around and leaving abusive messages for her to ensure that she knew she was being followed. She obtained a temporary restraining order against the appellant. They began dating again and had an “off and on” relationship. During their “on” period, she allowed him to photograph her nude and videotape their sexual relations. After they broke up again, he resumed harassing her and threatened to show the nude photos “all over town and to [her] friends and family.” He started called her as often as 20 time per day at her work and even posed as a patient at her work. He also followed her to work. One of Tulloch’s coworkers called the Sheriff’s Department. She said she was afraid of obtaining a restraining order, but eventually did. A Deputy went to Abber’s home to ask him his side of the story. Abber became belligerent and was arrested. Tulloch obtained a permanent restraining order against Abber. After the Sheriff’s Department found videotapes of Tulloch at Abber’s home, he was charged with stalking Tulloch. Tulloch then resumed her relationship with Abber and testified that they were in love at the trial. She was unable to get the restraining order lifted.

      • Outcome: Affirmed. The court disagreed with appellant’s challenge of the stalking statute’s constitutionality, basing its finding on People v. Heilman .1 “Constitutionally protected activity is not included within the meaning of ‘course of conduct’ in the statute.” In Heilman , the defendant challenged the statute by claiming that the term “repeatedly” as used in the statute was unconstitutionally vague. The Heilman court concluded that the term “repeatedly” is “a word of such common understanding that its meaning is not vague,” nor does it create the danger of arbitrariness or discrimination in the enforcement of the law. The Heilman court further noted that “The intent element of section 646.9 ensures law enforcement officials do not have boundless discretion in defining the crime.”

  1. People v. Heilman, 30 Cal. Rptr. 2d 422 (Cal. Ct. App. 1994).