Penal Code 646.9 Cyberstalking

Cyberstalking takes the same elements of traditional stalking behavior and applies it to the current technology where a person may use social media, texts, email or any other electronic means.

In this post, I will explain California’s cyberstalking law under penal code 646.9¹

Elements of Cyberstalking

To be found guilty of stalking under PC § 646.9(a), the prosecution must prove all three elements of the crime beyond a reasonable doubt:

1. The defendant willfully, maliciously, and constantly harassed and followed the victim, AND
2. The defendant made a credible threat with the intent to place that person in reasonable fear of their own life or safety or that of their family, AND
3. The threats were communicated with use of an electronic device

Although the language of the statute appears to apply to in-person stalking, it is also applicable to cyberstalking where a defendant uses electronic means to harass and threaten an individual who has a reasonable fear for their own well-being or life or that of their immediate family.

It is also not necessary that the defendant had any intent to carry out the threat but had the ability to do so. 

Examples of  Cyberstalking

Cyberstalking necessarily includes the use of an electronic device.

A usual example is to send text message or emails to someone to communicate a threat although use of cellphones or a landline phone to send threats comes under this statute.

Also, someone who uses a workplace chatroom to continually harass, threaten, or post offensive, crude, and embarrassing information or photos of a coworker can be convicted of cyberstalking. 

Harassing conduct for purposes of this statute means having engaged in repeated and willful conduct that targeted the victim and which resulted in tormenting, grossly offending or frightening the individual for no protected or legitimate purpose.

Some examples are:

• Posting a person’s address or email address on social media and claiming the person will have sex with anyone in order to encourage overwhelming responses of persons appearing at the victim’s residence or harassing them online
• Posing as someone else and posting offensive and intimidating comments and/or images for the purpose of harassing that individual
• Posting any offensive information about a person regardless of whether it is true for the purpose of harassment
• Logging onto a person’s online bank accounts to steal funds or to ruin a victim’s credit
• Repeated, intrusive, embarrassing, and frightening communications conveyed through a phone, email, or social media

Cyberstalking can also be charged in conjunction with other crimes so long as an electronic device is used in the commission of the offense, including the folllowing crimes:

1. Criminal threats²
2. Harmful material sent to seduce a minor³
3. Criminal invasion of privacy⁴
4. Annoying phone calls⁵.

Penalties For PC 646.9(a)

PC § 646.9(a) is a wobbler offense, meaning that a prosecutor can charge a defendant with a misdemeanor or felony depending on the facts and circumstances of the harassing or threatening behavior.

If charged as a misdemeanor the penalties include:

• Informal or summary probation
• Up to one year in jail
• And/or a fine up to $1,000⁶
• Referral for counseling
• Issuance of a protective order barring the defendant from any further contact with the victim

A felony conviction carries a sentence of:

• Formal probation, or
• Up to 3-years in state prison
• Up to 5-years in state prison if convicted of felony stalking based on violation of a restraining or protective order (PC § 273.6) or if the defendant has a prior felony conviction for cyberstalking
• A fine up to $1,000⁷
• Issuance of a protective order prohibiting the defendant from further contact with the victim
• Referral for counseling 
• Possible registration as a sex offender if the defendant stalked the person for purposes of sexual gratification or sexual compulsion⁸
• 25-years to life under California’s three-strikes law if this is a third felony conviction⁹

If the offending behavior was committed in the context of domestic violence where the defendant was harassing or threatening a spouse, ex-spouse, or someone the defendant lives or lived with, or who is in a dating relationship, a prosecutor can use California’s domestic violence laws to increase the penalties. 

Like any serious felony conviction, a defendant who is a non-citizen faces adverse immigration consequences including deportation or inadmissibility for citizenship.

For cyberstalking to be considered a deportable or inadmissible offense, it must be one of moral turpitude, an aggravated felony, or involve domestic violence¹⁰.

Can A Conviction Be Expunged?

Depending on the circumstances of a conviction somone convicted of violating penal code 646.9 may be eligible for an expungement¹¹.

Legal Defenses

There are a number of defenses to charges of cyberstaking including the following:

Lack of actual fear by victim of the threatened conduct

If a defendant makes threatening comments on a phone, email, via text, or on social media that the intended victim does not take seriously or dismisses as coming from an angry or “mentally ill” person, then the element of creating actual fear is absent. 

Threat is too vague

An aggrieved defendant sends texts or emails to the victim stating that he “knows” people, or that that he knows where you live.

This threat is too vague and non-specific to rise to a level that satisfies an immediate and specific threat to harm the victim.

Threat was fabricated

In some domestic disputes involving a divorce or child custody battle, a party may allege that the other party made threatening comments on the phone that a defense attorney may argue were fabricated and simply retaliatory in nature or meant to show that the party is unstable.

To sustain a charge of cyberstalking, the victim must demonstrate that the defendant had malicious intent and engaged in repeated instances of aggressive or threatening behavior.

In some cases, the aggrieved party may only have misinterpreted the comments made.

Engaged in legitimate conduct

A group of high school students send messages to each other regarding another party where they fantasize about killing the person, his dog, or dismembering him.

The messages are never sent to the person nor ever read by him.

Since the intended victim never experienced a reasonable fear of threats to his life or well-being, the elements of cyberstalking are not satisfied and the communications are considered legitimate conduct, though school officials may act to discipline the students. 

Threat was not credible 

A threat that no reasonable person would consider credible or capable of being carried out is not considered stalking or that of any other criminal offense

Footnotes

1. Any person who willfully, maliciously, and repeatedly follows or willfully and 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 [↩]
2. a communication of a threat that would result in death or great bodily harm and which was clear, immediate, unconditional, and specific so that it was a serious prospect that it would be carried out and created reasonable fear in the victim) – PC § 422(a). [↩]
3. sending images to a minor intended to sexually arouse the sender or recipient and with the intent for sexual contact to occur)—PC § 288.2(a)(1). [↩]
4. also known as “revenge porn,” consisting of sending images of the person or victim engaged in sexually explicit conduct or of intimate body parts of that person who intended such images to be private)–PC § 647(j). [↩]
5. making obscene or threatening calls with intent to harass or annoy — PC § 653m [↩]
6. Californa Penal Code 646.9 PC [↩]
7. See same [↩]
8. PC § 290.006 [↩]
9. PC § 667 [↩]
10. 8 USC § 1227 [↩]
11. Penal Code 1203.4 [↩]