Cyberstalking (Penal Code § 646.9) in California

In California, repeated online messages, even without physical contact, can lead to felony charges under Penal Code § 646.9. These cases often start with one side feeling harassed or afraid, but the law leaves a lot of room for interpretation. That’s what makes these charges so dangerous. You don’t have to have a criminal record. You don’t have to think you did anything wrong. If someone believes your messages crossed the line, you could be looking at serious consequences, fast.

If you’ve been accused of cyberstalking, you need to act quickly and strategically. Our team defends good people facing life-changing accusations. We’ll help you figure out what’s really going on, what’s at stake, and what needs to happen next.

What Constitutes Cyberstalking Under California Law?

Under California Penal Code § 646.9, cyberstalking occurs when a person:

• Willfully, maliciously, and repeatedly follows or harasses another person
• Makes a credible threat against that person
• Intends to place the victim in reasonable fear for their safety or the safety of their immediate family
• Communicates that threat through an electronic communication device

The law defines “electronic communication device” broadly to include:

• Internet platforms and social media
• Email
• Text messages
• Phone calls (both cellular and landline)
• Video messages
• Fax machines
• Any other electronic device used for communication

This comprehensive definition ensures the law can adapt to new technologies and communication methods as they emerge, from traditional communication tools to the latest social media platforms and messaging applications.

Common Examples of Cyberstalking Behavior

Cyberstalking can manifest in various ways across different online platforms. Some common examples include:

• Sending unwanted, threatening, or harassing emails, text messages, or direct messages
• Creating fake online profiles to monitor someone’s activities
• Impersonating someone in chat rooms or on social media to damage their reputation
• Posting embarrassing or humiliating information about the victim online
• Publishing someone’s personal information (including phone numbers, address, workplace) to encourage harassment by others (also known as “doxxing”)
• Repeatedly contacting someone after being told to stop
• Sending explicit or disturbing content
• Logging into someone’s online accounts without permission

Even less severe forms of online harassment can cause significant emotional distress and fear for victims.

Elements Prosecutors Must Prove in Cyberstalking Cases

For a successful cyberstalking prosecution under Penal Code § 646.9, the district attorney must establish each of the following elements beyond a reasonable doubt:

Willful and Malicious Harassment

The prosecution must demonstrate that the defendant engaged in a knowing and willful course of conduct directed at the victim that seriously alarmed, annoyed, tormented, or terrorized them, and that served no legitimate purpose.

A “course of conduct” means two or more acts occurring over a period of time, however short, demonstrating a continuity of purpose.

Credible Threat

A “credible threat” means a verbal or written threat, including threats made through electronic communication, or a threat implied by a pattern of conduct, that would cause a reasonable person to fear for their safety or the safety of their family.

Intent to Cause Fear

The prosecutor must establish that the defendant intended to place the victim in reasonable fear for their safety or the safety of their immediate family.

Electronic Communication

For cyberstalking specifically, the prosecution must prove that the threatening or harassing behavior was communicated through an electronic device as defined in the statute.

Penalties for Cyberstalking Convictions in California

Cyberstalking is charged as a “wobbler” in California, meaning it can be prosecuted as either a misdemeanor or a felony depending on the circumstances of the case and the defendant’s criminal history.

Misdemeanor Cyberstalking

If convicted of misdemeanor cyberstalking, penalties may include:

• Up to one year in county jail
• Fines up to $1,000
• Probation
• Mandatory counseling
• A restraining order protecting the victim

Felony Cyberstalking

Felony cyberstalking carries more severe consequences, including:

• Up to three years in state prison
• Up to five years if the defendant has prior stalking convictions
• Fines up to $1,000
• Formal probation
• Mandatory counseling
• A restraining order protecting the victim that may last up to 10 years
• Possible registration as a sex offender under certain circumstances

The penalties increase significantly if:

• There was a restraining order in effect at the time of the stalking (two, three, or four years in state prison)
• The defendant has prior convictions for stalking or domestic violence-related offenses (two, three, or five years in state prison)
• The cyberstalking involved domestic violence

Domestic Violence Enhancement

If the alleged victim is a current or former spouse, cohabitant, dating partner, or co-parent, prosecutors may charge cyberstalking under California’s domestic violence laws, which can result in additional penalties.

Sex Offender Registration

In some cases, a felony cyberstalking conviction may require registration as a sex offender pursuant to Penal Code § 290.006. This penalty is typically imposed only if the court finds that the defendant stalked the victim “as a result of sexual compulsion or for sexual gratification.”

Legal Defenses to Cyberstalking Charges

Several legal defenses may be available to someone facing cyberstalking charges in California:

No Credible Threat Was Made

If the alleged threat was so outlandish or impossible that a reasonable person would not consider it genuine, this may serve as a valid defense.

Lack of Intent to Cause Fear

Cyberstalking requires the specific intent to place the victim in reasonable fear. Repeatedly sending messages without threatening content—such as professing love through a series of emails—generally does not constitute cyberstalking without additional threatening elements.

Constitutionally Protected Activity

The law specifically excludes constitutionally protected activities from the definition of “course of conduct.” This means that activities protected by the First Amendment, such as peaceful protests or legitimate political speech, are not considered stalking.

Mistaken Identity

Given the anonymous nature of many online interactions, it can sometimes be difficult to definitively identify who sent certain electronic communications.

False Accusations

False accusations of cyberstalking may arise during contentious situations like breakups, divorces, or custody disputes.

Related Offenses to Cyberstalking

Several other California statutes address behaviors related to cyberstalking and may be charged alongside or instead of Penal Code § 646.9:

Criminal Threats (Penal Code § 422)

This statute prohibits threats intended to place the recipient in fear of immediate harm. If these criminal threats are sent via electronic devices on multiple occasions, both cyberstalking and criminal threats charges may apply.

Harmful Matter Sent to a Child (Penal Code § 288.2)

This law prohibits sending obscene or erotic materials to a minor with the intent of sexual arousal. Repeatedly sending such content electronically could result in both cyberstalking and this sex crime charge.

Annoying Phone Calls (Penal Code § 653m)

This statute prohibits annoying phone calls or repeated contact by electronic devices. It’s similar to cyberstalking but doesn’t require the element of malice, making it a less serious offense with lighter penalties.

Posting Harmful Information on the Internet (Penal Code § 653.2)

Also known as “indirect electronic harassment,” this offense involves posting personal information or harmful messages about someone online with the intent to incite third parties to harass that person.

Revenge Porn (Penal Code § 647(j)(4))

This law prohibits intentionally distributing sexual images of another person that were expected to remain private, with the intent to cause emotional distress.

An effective defense often involves working with digital forensic experts who can analyze electronic communications and challenge the prosecution’s technical evidence.

Frequently Asked Questions About Cyberstalking

Can a single threatening message constitute cyberstalking?

No, cyberstalking requires a “course of conduct,” which means two or more acts demonstrating a continuity of purpose. A single threatening message could potentially be charged under other statutes, such as criminal threats (Penal Code § 422), but not cyberstalking.

Does cyberstalking require that the victim actually felt fear?

Yes, the victim must have reasonably feared for their safety or the safety of their immediate family. However, the prosecution doesn’t need to prove that the defendant actually intended to carry out the threat—only that they intended to cause fear and that the threat appeared credible.

Can I be charged with cyberstalking if I’m out of state or in another country?

Yes. If you direct harassing or threatening electronic communications toward someone in California, you may be subject to California’s cyberstalking laws even if you’re physically located elsewhere. California courts may have jurisdiction over crimes where either the conduct or the effects of the conduct occurred within the state.

Don’t Wait for Things to Get Worse. Call Us Now.

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life-altering and long-lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.