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Penal Code 646.9: California Stalking Charges, Penalties, and Defenses
Quick answer: Under California Penal Code § 646.9, stalking is committed by a 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 their own safety or the safety of their immediate family. A first offense is a wobbler: as a misdemeanor it carries up to one year in county jail and a fine of up to $1,000, and as a felony it carries a state prison term. Stalking committed while a restraining order or other court order is in effect is a felony punishable by two, three, or four years. A person with a prior conviction for domestic violence, violating a protective order, or criminal threats faces up to five years. Since January 1, 2026, a credible threat includes a threat against the person’s pet, service animal, emotional support animal, or horse. The most frequently contested issues are whether there was a credible threat and whether the defendant intended to cause fear.
Key Takeaways
- Stalking requires two things: a pattern (repeated following or a course of harassing conduct) and a credible threat.
- The threat can be implied by conduct. No explicit words are required.
- Annoying, persistent, or unwanted contact without a credible threat is not stalking, although it may violate other laws.
- An existing restraining order turns the offense into a straight felony.
- The sentencing court must consider a protective order of up to 10 years.
- Stalking is listed in federal immigration law as a deportable offense.
- The offense is excluded from misdemeanor judicial diversion under Penal Code § 1001.95.
Elements the Prosecution Must Prove
Under CALCRIM No. 1301, the People must prove beyond a reasonable doubt that:
- The defendant willfully and maliciously harassed, or willfully, maliciously, and repeatedly followed, another person; and
- The defendant made a credible threat with the intent to place the other person in reasonable fear for their safety or the safety of their immediate family.
If the charge is under subdivision (b), the People must also prove that a court order prohibiting the conduct was in effect at the time.
Key definitions in the statute
| Term | Meaning under § 646.9 |
|---|---|
| Harasses | A knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person and serves no legitimate purpose |
| Course of conduct | Two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is excluded. |
| Repeatedly | More than once |
| Credible threat | A verbal or written threat, including one made through an electronic communication device, or a threat implied by a pattern of conduct, or a combination, made with intent to place the person in reasonable fear and with the apparent ability to carry it out. Intent to actually carry it out is not required. Being in custody is not a defense. |
| Immediate family | A spouse, parent, child, anyone related by blood or marriage within the second degree, and anyone who regularly lives in the household or did within the prior six months |
| Electronic communication device | Includes telephones, cell phones, computers, video recorders, and similar devices |
| Willfully / maliciously | On purpose / with intent to disturb, annoy, or injure, or to do a wrongful act |
The 2026 Amendment: Threats Against Pets and Service Animals
SB 221 (Stats. 2025, ch. 576), effective January 1, 2026, amended the definition of credible threat. A threat now qualifies if it is made with the intent to place the person in reasonable fear for the safety of their pet, service animal, emotional support animal, or horse, in addition to their own safety or their family’s. The change brought California closer to the federal stalking statute. For conduct before 2026, the earlier definition applies.
Penalties by Subdivision
| Subdivision | Circumstance | Classification | Custody exposure |
|---|---|---|---|
| (a) | First offense, no court order in effect | Wobbler | Misdemeanor: up to 1 year in county jail and/or a fine up to $1,000. Felony: state prison term. |
| (b) | Stalking while a temporary restraining order, injunction, or other court order prohibiting the conduct against the same person is in effect | Felony | 2, 3, or 4 years in state prison |
| (c)(1) | Prior conviction under Penal Code § 273.5, § 273.6, or § 422 | Wobbler | Up to 1 year in county jail, or 2, 3, or 5 years in state prison |
| (c)(2) | Prior felony stalking conviction | Felony | 2, 3, or 5 years in state prison |
Additional consequences written into the statute:
- Protective order. The sentencing court must consider an order restraining contact with the victim for up to 10 years, whether the sentence is probation, jail, or prison (subd. (k)).
- Counseling. If probation is granted, the court must order counseling unless it finds good cause not to (subd. (j)).
- Sex offender registration. The court may order registration under Penal Code § 290.006 (subd. (d)).
Consequences outside the statute
- Firearms. A felony conviction brings a lifetime prohibition. A misdemeanor conviction brings a 10-year prohibition under Penal Code § 29805.
- Bail. A person arrested for stalking generally cannot be released on reduced bail or on their own recognizance without a hearing in open court (Penal Code § 1270.1).
- Immigration. Federal law lists “a crime of stalking” as a ground of deportability (8 U.S.C. § 1227(a)(2)(E)(i)).
- Employment and licensing. A conviction appears on background checks and is reportable to most licensing boards.
- Three Strikes. Stalking is not, by itself, on the lists of serious or violent felonies, but charges often filed with it, such as criminal threats, are.
Stalking and Restraining Orders
Stalking allegations rarely arrive alone. The same facts commonly produce:
- a civil harassment restraining order based on stalking, which requires only clear and convincing evidence of harassment, not proof of a crime;
- a domestic violence restraining order when the parties dated, lived together, or are related, since stalking is expressly listed as conduct a family court can enjoin;
- a stalking emergency protective order under Penal Code § 646.91, issued at an officer’s request; and
- a criminal protective order at arraignment.
Two consequences follow. First, once any order is in place, further alleged contact is charged under subdivision (b), a felony with a two-year minimum prison term. Second, anything the accused says in the civil restraining order case can be used in the criminal prosecution. See restraining order hearings with a pending criminal case.
Cyberstalking
California has no separate cyberstalking statute. Section 646.9 covers threats made “through the use of an electronic communication device,” so texts, emails, direct messages, social media posts, and posts made through fake accounts are prosecuted under the same section. Related statutes include:
| Statute | Conduct | Level |
|---|---|---|
| Penal Code § 653m | Obscene, threatening, or repeated harassing calls and electronic messages | Misdemeanor |
| Penal Code § 653.2 | Posting personal information to incite harassment by third parties | Misdemeanor |
| Penal Code § 637.7 | Using an electronic tracking device on a vehicle or movable thing without consent | Misdemeanor |
| Penal Code § 422 | Threat of death or great bodily injury causing sustained fear | Wobbler and a strike as a felony |
| Penal Code § 273.6 | Violating a protective order | Misdemeanor in most cases |
In digital cases, attribution is often the central factual question. An account name, a phone number, or an IP address is not the same as proof of who typed a message. Subscriber records, device extractions, and location data can support or undercut the prosecution’s theory.
Defenses to Stalking Charges
No credible threat
The statute does not criminalize unwanted attention by itself. Sending flowers, repeated apologies, or pleas to reconcile may be unwelcome, but without words or conduct that communicate a threat to safety, the second element is missing. Prosecutors often rely on an “implied” threat. The defense answers with the full context of the communications.
No intent to cause fear
The People must prove the defendant intended to place the person in fear. That is a higher mental state than the recklessness the U.S. Supreme Court held is the constitutional minimum for threat prosecutions in Counterman v. Colorado (2023) 600 U.S. 66. Evidence of the defendant’s actual purpose, such as serving legal papers, exchanging children, or retrieving property, goes directly to this element.
No course of conduct or repeated following
One incident is not stalking. Two contacts that are unrelated, or separated by a long period with no continuity of purpose, may not qualify either.
Legitimate purpose
Harassment is conduct that “serves no legitimate purpose.” Co-parenting communication, debt collection within legal limits, investigation, journalism, and process serving can involve repeated contact that is lawful.
Constitutionally protected activity
Protected speech and protest are excluded from the definition of course of conduct, and the statute does not apply to conduct during labor picketing.
The fear was not reasonable
The threat must be one that would cause a reasonable person to fear for their safety. The complaining witness’s own conduct, such as initiating contact, continuing a friendly dialogue, or delaying any report, is relevant.
Misidentification and false accusation
Stalking accusations arise in breakups, custody disputes, and workplace conflicts. Phone records, location data, and third-party witnesses can show that the accused was not the source of the contact, or that it did not occur.
Mental health diversion
Although stalking is excluded from misdemeanor judicial diversion, pretrial mental health diversion under Penal Code § 1001.36 may be available when a qualifying diagnosis was a significant factor in the conduct and the court finds the person suitable. See mental health diversion under Penal Code § 1001.36.
What to Do If You Are Accused of Stalking
- Stop all contact with the complaining person, directly and through others, including on social media.
- Do not explain yourself to police. Detectives often call to “get your side.” Statements about why you made contact are used to prove intent. See what to do when police want to talk to you.
- Preserve everything. Do not delete messages, accounts, or call logs. Deletion can look like consciousness of guilt, and complete threads often help the defense.
- Comply with any order the moment you learn of it, including firearm relinquishment.
- Retain counsel before a filing decision. In wobbler cases, early advocacy can affect whether the case is filed as a felony, a misdemeanor, or at all.
Examples: Stalking, or Something Else?
| Conduct | Likely analysis |
|---|---|
| Following a former partner to work on several days and texting “I know where you are, you can’t hide from me” | Repeated following plus a statement that can be read as a credible threat. Chargeable as stalking. |
| Fifty calls and texts in a weekend asking to get back together, with no threats | Harassing conduct but no credible threat. More consistent with Penal Code § 653m or a civil restraining order. |
| One threatening voicemail | No course of conduct. May be charged as criminal threats or under § 653m(a), not stalking. |
| Repeated drive-bys of a home and photos of the house sent to the resident with no caption | A threat may be implied by a pattern of conduct. Intent and context are contested. |
| Continuing the same conduct after being served with a restraining order | Felony stalking under subdivision (b), plus violation of the order |
| A process server or investigator making repeated attempts at contact | Legitimate purpose. Not harassment under the statute. |
Examples are illustrative. Charging decisions depend on all of the evidence.
How Stalking Cases Are Built
Stalking is rarely proven by one witness’s memory. Investigators assemble a record, and the defense should expect to see:
- The complaining witness’s log. Dates, screenshots, and saved voicemails, often compiled with the help of an advocate or a restraining order petition.
- Carrier and platform records. Call detail records, subscriber information, and account data obtained by warrant under the California Electronic Communications Privacy Act (Penal Code § 1546 et seq.).
- Device searches. A warrant for the accused’s phone or computer, including location history, search history, and deleted messages.
- Location evidence. License plate reader hits, toll records, rideshare data, and surveillance or doorbell video.
- Prior reports. Earlier calls for service, prior restraining order filings, and statements from friends, coworkers, and family.
- A recorded pretext call or message. Investigators sometimes have the complaining witness contact the accused while recording.
Each category can cut both ways. Complete records frequently show contact initiated by the complaining witness, gaps that contradict a claimed pattern, or location data inconsistent with an alleged encounter.
Frequently Asked Questions
What is stalking under California Penal Code 646.9?
Stalking is willfully, maliciously, and repeatedly following another person, or willfully and maliciously harassing another person, and making a credible threat with the intent to place that person in reasonable fear for their safety or the safety of their immediate family.
Is stalking a felony in California?
It can be. A first offense under subdivision (a) is a wobbler that may be charged as a misdemeanor or a felony. Stalking in violation of a restraining order or other court order is a felony punishable by two, three, or four years in state prison, and stalking with certain prior convictions carries up to five years.
What counts as a credible threat?
A credible threat is a verbal, written, or electronic threat, or a threat implied by a pattern of conduct, made with the intent to place the person in reasonable fear and with the apparent ability to carry it out. The prosecution does not have to prove the defendant intended to actually carry out the threat.
Can I be charged with stalking for texting or messaging someone?
Messages alone can support a charge if they amount to harassment and include or imply a credible threat made with intent to cause fear. Repeated unwanted messages without a credible threat are more commonly charged under Penal Code 653m or addressed through a civil restraining order.
How many incidents are needed for stalking?
Harassment requires a course of conduct, which means two or more acts over a period of time, however short, showing a continuity of purpose. Following must be repeated, meaning more than once.
What changed in the stalking law in 2026?
Effective January 1, 2026, SB 221 expanded the definition of credible threat so that it includes threats against a person’s pet, service animal, emotional support animal, or horse.
Will I have to register as a sex offender for stalking?
Registration is not automatic. The statute allows the sentencing court to order registration under Penal Code 290.006 if it finds the offense was committed as a result of sexual compulsion or for sexual gratification.
Does a stalking conviction affect gun rights?
Yes. A felony conviction results in a lifetime firearm prohibition. A misdemeanor stalking conviction results in a 10-year prohibition under Penal Code 29805, and any protective order issued in the case separately prohibits firearms.
Can a stalking charge be filed along with a restraining order case?
Yes. The same conduct often leads to a civil harassment or domestic violence restraining order petition and a criminal investigation at the same time. Statements made in the civil case can be used in the criminal case, so the two should be defended together.
Can stalking charges be reduced or dismissed?
Yes, depending on the evidence. Cases are dismissed or reduced when the prosecution cannot prove a credible threat or the required intent, when the contact had a legitimate purpose, or when the digital evidence does not reliably identify the sender. A wobbler conviction may later be reduced to a misdemeanor in some cases.
Legal Authorities Referenced
- Penal Code §§ 273.5, 273.6, 290.006, 422, 637.7, 646.9, 646.91, 653m, 653.2, 1001.36, 1001.95, 1270.1, 29805
- SB 221 (Stats. 2025, ch. 576), effective January 1, 2026
- Code of Civil Procedure § 527.6; Family Code § 6320
- 8 U.S.C. § 1227(a)(2)(E)(i)
- Counterman v. Colorado (2023) 600 U.S. 66
- CALCRIM No. 1301
Talk to a Stalking Defense Attorney
Power Trial Lawyers defends stalking charges and the restraining orders that accompany them in Los Angeles, Orange, Riverside, San Bernardino, and San Diego counties. The firm handles the criminal case and the restraining order hearing together. Contact the firm to discuss your case.
This page provides general information about California law. It is not legal advice, and reading it does not create an attorney-client relationship. Penalties depend on the charge, the facts, and the person’s record, and statutes change. Confirm details with counsel about your situation. Reviewed by Matthew Barhoma, Esq., Power Trial Lawyers. Last updated November 2026.