Stalking

What California’s Stalking Law Actually Requires

Penal Code § 646.9 makes it a crime to 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.

Three elements, and each one is a separate hurdle.

A Course of Conduct — Not a Single Act

“Harasses” means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes them, and that serves no legitimate purpose.

A course of conduct means a series of acts over a period of time, however short, showing a continuity of purpose.

One incident is not stalking. One angry call, one unwanted visit, one message — however upsetting — does not satisfy this element.

Serving No Legitimate Purpose

Built into the definition of harassment is a requirement that the conduct serve no legitimate purpose.

Contact for a genuine reason — coordinating a custody exchange, pursuing a legitimate business or financial matter, recovering property, or communicating through proper channels about a real dispute — does not become stalking because the other person finds it unwelcome.

A Credible Threat

A credible threat may be verbal, written, or electronic, or implied by a pattern of conduct. It must place the person in reasonable fear for their safety, and it must be made with the apparent ability to carry it out.

The person making the threat doesn’t have to actually intend to carry it out — but there must be a threat, and the fear it produces must be objectively reasonable, not merely sincere.

Constitutionally Protected Activity Is Excluded

The statute expressly excludes constitutionally protected activity. Speech and conduct protected by the First Amendment cannot form the basis of a stalking charge, regardless of how the recipient experiences it.

Cyberstalking

Electronic conduct counts. Penal Code § 646.9 reaches communications by phone, text, email, social media, and other electronic means — and the same elements apply.

Common allegations involve:

• Repeated messages across multiple platforms
• Contact through new accounts after being blocked
• Messages sent through third parties
• Posts about a person rather than to them
• GPS tracking devices or location-monitoring software
• Monitoring or spyware on a shared device

Electronic conduct also produces a complete record, which cuts both ways. The full message thread frequently shows context the complaining party’s excerpt does not — including responses, mutual contact, and the actual nature of the exchange.

Misdemeanor or Felony?

Stalking under § 646.9 is a wobbler — chargeable as either a misdemeanor or a felony depending on the circumstances and the defendant’s record.

Felony treatment is more likely where:

• The conduct occurred in violation of a restraining order or other court order — § 646.9(b)
• The defendant has a prior stalking conviction
• The defendant has prior convictions for specified offenses

Potential Sex Offender Registration — § 646.9(d)

Where the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the court may, in its discretion, order registration under Penal Code § 290.

This is discretionary rather than automatic, and it does not apply in most stalking cases. But it is available, and anyone facing this charge should understand the possibility exists — it affects what outcome is worth pursuing.

Penalties and Consequences

⚠️ VERIFY BEFORE PUBLISHING — figures require Polina’s sign-off. See Open Items.

As a misdemeanor: county jail exposure, fines, probation.

As a felony: state prison exposure, increasing with priors and with order violations.

Beyond Sentencing

• Protective orders, typically lasting years
• Firearm prohibition while an order is in effect, and following a felony conviction
• Custody and family court consequences — a stalking allegation during a separation affects custody proceedings substantially
• Employment and professional licensing, where the offense reads as a safety concern
• Immigration consequences for non-citizens
• Housing applications
• Mandatory counseling as a probation condition
• Reputational consequences that begin at the allegation

How These Allegations Arise

Understanding the context is part of the defense.

After a breakup. Repeated attempts to reconcile, to retrieve belongings, or to get an explanation. The contact is unwelcome. Whether it constitutes a course of conduct serving no legitimate purpose, accompanied by a credible threat, is a different question.

During a divorce or custody dispute. Where an allegation carries real strategic advantage, including under Family Code § 3044. → Restraining Orders

Workplace and neighbor conflicts that escalated over time.

Online disputes, where a pattern of posts or messages is characterized as a campaign.

Business and financial disputes involving persistent contact about a legitimate matter.

Defenses

There was no course of conduct. A single incident, or a small number of unconnected incidents without continuity of purpose, doesn’t satisfy the statute.

The conduct served a legitimate purpose. Contact about custody, property, a shared obligation, a business matter, or a genuine dispute falls outside the harassment definition.

There was no credible threat. This is a required element, separate from the conduct. Unwanted contact without a threat — express or implied through a pattern — doesn’t establish stalking.

The fear wasn’t objectively reasonable. The standard is what a reasonable person would feel, not what the complaining party sincerely felt.

The conduct was constitutionally protected. The statute expressly excludes protected activity.

The full record shows something different. Message threads, call logs, and social media histories frequently show mutual contact, responses, and context that an excerpted account omits.

False or exaggerated allegations. These occur, particularly during separations and custody disputes where an allegation carries advantage. Where the evidence supports it — timing, context, inconsistencies — it’s investigated and presented. It is one defense among several, not a starting assumption.

Mistaken identity, particularly in online cases involving accounts, shared devices, or spoofed numbers.

Why a Former Prosecutor Matters

Stalking cases are charged on a narrative — a timeline of contacts assembled from the complaining party’s account, usually with excerpts rather than complete records.

Polina Logrue reviewed and filed cases at the Orange County District Attorney’s Office. She knows how a filing deputy evaluates whether a course of conduct exists, what distinguishes a credible threat from unwelcome persistence, and which cases the office recognizes as belonging in family court rather than criminal court.

She also knows how quickly a complete message record can change a prosecutor’s view of a case that looked one way in a summary.

Meet Polina →

Accused of Stalking? Do This First

1. Stop all contact immediately — direct, indirect, and through third parties. This is the single most important step.
2. Read any protective order and follow it exactly, even if the protected person reaches out to you.
3. Preserve the complete record — full message threads, call logs, emails, social media history. Do not delete anything, including messages that look bad in isolation. Deletion creates separate exposure and destroys the context that helps you.
4. Write a timeline of the relationship or dispute and give it only to your attorney.
5. Identify witnesses who observed the interactions or the relationship.
6. Note any parallel proceedings — a restraining order hearing, a custody case, an HR complaint. They affect each other.
7. Say nothing publicly or on social media.
8. Call before giving any statement.

Call (949) 758-4469 · Confidential Consultation

Related Charges

• Restraining Orders — almost always filed in parallel
• Criminal Threats — Penal Code § 422
• Domestic Violence — Penal Code §§ 273.5, 243(e)(1)
• Trespass — Penal Code § 602
• Assault & Battery
• Expungements