Stalking Charges in California (Penal Code § 646.9)

Stalking accusations are personal. They’re emotional. And they carry serious criminal consequences—sometimes even before charges are filed.

Under California Penal Code § 646.9, stalking is a felony or misdemeanor offense that can lead to jail time, prison, fines, and long-term no-contact orders. And if there’s a restraining order in place—or if you have prior convictions—the penalties escalate fast.

If you’re under investigation or facing charges for stalking in San Diego, it’s critical to understand exactly what you’re up against. This guide breaks it down—legally, strategically, and from a defense-focused perspective.

What is Stalking Under Penal Code § 646.9?

You can be charged with stalking in California if you:

“Willfully, maliciously, and repeatedly follow or harass another person and make a credible threat with the intent to place that person in reasonable fear for their safety or the safety of their immediate family.”

Let’s unpack that.

Key Legal Elements

To secure a stalking conviction, prosecutors must prove all of the following:

1. Willful and malicious conduct – The behavior must be intentional and harmful in purpose.
2. Repeated following or harassment – More than one act is required; this must show a pattern.
3. A credible threat – Verbal, written, or implied threats that cause the victim to reasonably fear for their safety or that of their family.

The law isn’t limited to physical following. In today’s world, stalking can occur via text, social media, GPS tracking, email, or any electronic communication—and these digital trails often form the backbone of the government’s case.

What Counts as Harassment, Threats, and Course of Conduct?

California law offers precise definitions:

• Harasses: Engaging in conduct that seriously alarms, annoys, torments, or terrorizes another person without a legitimate purpose.
• Course of conduct: Two or more acts, however close in time, that show a continuity of purpose.
• Credible threat: Any communication—verbal, written, electronic, or behavioral—that causes reasonable fear and appears capable of being carried out.

Important: Constitutionally protected activities—like peaceful protesting or free speech—are not considered stalking, even if the alleged victim feels uncomfortable.

Penalties for Stalking in California

Penal Code § 646.9 allows stalking to be charged as either a misdemeanor or felony depending on the facts of the case and your criminal history.

Basic Offense – PC § 646.9(a)

• Misdemeanor: Up to 1 year in county jail, $1,000 fine, or both
• Felony: 16 months, 2 years, or 3 years in state prison

With a Court Order or Restraining Order in Place – PC § 646.9(b)

If you violate the law while a temporary restraining order, injunction, or other protective order is in place:

• Felony only
• State prison: 2, 3, or 4 years

With Prior Convictions – PC § 646.9(c)

If you’ve previously been convicted of certain felonies (like domestic violence, criminal threats, or stalking), the penalties escalate:

• County jail (up to 1 year) or
• State prison: 2, 3, or 5 years

The law treats repeat conduct as an aggravating factor and increases potential incarceration time accordingly.

Additional Consequences Beyond Jail or Prison

1. Sex Offender Registration

In felony cases, judges may order registration as a sex offender under Penal Code § 290.006 if the stalking involved sexual motivation. This is discretionary—but possible—and should not be underestimated.

2. Protective Orders

The court may issue a criminal protective order barring any contact with the alleged victim, valid for up to 10 years, even if you’re not sentenced to prison.

3. Mandatory Counseling

If you’re convicted and receive probation, counseling is a required condition unless the judge finds good cause to waive it.

4. Psychological Evaluation and Treatment

Courts may also recommend treatment under Section 2684, which could involve psychiatric evaluation and hospitalization.

What the Prosecution Will Try to Prove

Stalking cases are built on a mix of evidence, including:

• Text messages or DMs
• Phone call logs
• Surveillance footage
• Witness statements
• Police reports from prior incidents
• Screenshots or social media posts
• Testimony from the alleged victim

But digital evidence doesn’t always tell the full story. And just because someone feels afraid doesn’t mean the law was broken.

Our job is to isolate facts from assumptions, challenge subjective interpretations, and prevent the prosecution from inflating behavior into a felony charge.

Strategic Defenses to a Stalking Charge

Not every accusation holds up in court. At David P. Shapiro Criminal Defense Attorneys, we tailor every defense strategy to the client’s specific circumstances. That said, here are some common legal defenses that may apply:

1. No Credible Threat Was Made

The alleged “threat” may be vague, out of context, or misinterpreted. If the target couldn’t reasonably fear for their safety—or if the threat was legally protected speech—then the case may collapse.

2. No Intent to Harass

Intent is a key element. If your conduct had a legitimate purpose (e.g., co-parenting communication, collecting debt, enforcing a lease), it’s not harassment under the law.

3. False Allegations

In domestic disputes or breakups, false stalking allegations can be weaponized to gain leverage in custody battles or retaliate emotionally. We scrutinize the motives behind the complaint and look for inconsistencies.

4. Mistaken Identity or Circumstantial Evidence

Just because you were near the victim—or posted something online—doesn’t prove stalking. Digital “evidence” can be misleading or manipulated. We bring in forensic experts when necessary to evaluate authenticity.

How We Challenge the Government’s Narrative

Stalking charges often hinge on interpretation—and prosecutors are quick to paint a worst-case picture. Our job is to:

• Break down the prosecution’s timeline
• Challenge exaggerated claims of fear
• Cross-examine law enforcement methods
• Expose any bias, hearsay, or faulty assumptions
• Reframe your behavior in a lawful, non-criminal context

We may also involve mental health professionals, electronic forensic experts, and private investigators to build a strong, fact-based defense.

What to Do If You’re Under Investigation for Stalking

Even before charges are filed, a stalking investigation can lead to:

• Police interviews
• Search warrants on your phone or devices
• Emergency restraining orders
• Employer notifications
• Social fallout

The moment you become aware of an investigation is the moment to bring in legal counsel. Anything you say can be used against you—even casually or through text. We help you avoid self-incrimination, control your exposure, and prepare for what’s next.

Why Clients Trust Our Firm With Serious Allegations

At David P. Shapiro Criminal Defense Attorneys, we focus exclusively on criminal defense. We help people charged with serious crimes—like stalking—protect their reputation, freedom, and future.

We don’t make empty promises. We strategize, investigate, and fight.

What sets us apart:

• We treat you like a person, not a charge
• We prepare every case as if it’s going to trial
• We know San Diego prosecutors and courts—and how to push back

Facing a Stalking Charge in San Diego? Take Back Control.

A stalking charge can destroy your name and lock you out of opportunities before you even step foot in court. Don’t wait to get ahead of it.

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.