April 22, 2013 By Wallin & Klarich

California has one of the harshest stalking laws in the country. Those accused of stalking face harsh penalties that can quickly escalate. Your best hope is to talk to an experienced stalking defense attorney immediately and get all of your questions answered. Below, the experienced stalking defense attorneys at Wallin & Klarich explain the basics of a stalking charge and the potential punishment.

Prosecution for Stalking PC 649

Under Penal Code section 649, to convict you of stalking, the prosecutor must show you engaged in one of the following acts:

• You willfully, maliciously, and “repeatedly followed” someone; OR

• You willfully and maliciously “harassed” someone

After showing that you engaged in one of these acts, the prosecutor must then prove that you made a “credible threat” with the intent to place someone in reasonable fear for his or her safety or that of an “immediate family” member.

The attorneys at Wallin & Klarich have successfully defended people accused of stalking for over 30 years. One of our most common strategies is the most intuitive. We argue that the prosecutor cannot prove all of the elements of stalking by showing that, in fact, you did not “willfully and maliciously” harass or repeatedly follow the victim. Or, even if you did, you did not make a threat to the victim.

What Does Willfully and Maliciously Mean?


Willfully and maliciously refer to the general concept of “malice” in criminal law. To be frank, courts do not fully understand what this means. Penal Code section 7 explains, “The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.…” Actual hatred or intent to injure is rarely required for malice. In most circumstances, the phrase “willfully and maliciously” means that you intended to do a wrongful act.

What Does “Harass” Mean?

Under Penal Code 646.9(e), harass means that you knowingly engaged in a “course of conduct” that had no legitimate purpose. The prosecutor must show that you targeted a specific person with your actions and that your actions “seriously alarms, annoys, torments, or terrorizes” that person. “Course of conduct” means that you harassed the victim at least twice. Penal Code 646.9(f).

Punishment for Stalking

The punishment for stalking depends on your record.

• If this is your first offense, stalking is a “wobbler”-meaning it can be punished as a felony or misdemeanor. A felony conviction can carry a sentence of up to 3 years in state prison. A misdemeanor conviction can mean up to one year in county jail and a $1000 fine, or both. PC 646.9(a)

• If the person you allegedly stalked has a court order demanding that you stay away, you face a felony charge and a state prison sentence of 2, 3, or 4 years.

• If you are convicted of a subsequent stalking charge, you face a felony with a mandatory sentence of 2, 3, or 5 years. PC 646.9(c)(2).

• If you already have a felony conviction for certain types of domestic violence, you can be charged with a wobbler as well. The misdemeanor conviction carries up to one year in county jail or a $1000 fine, or both. The felony conviction carries a state prison sentence of 2, 3, or 5 years. Penal Code 646.9(c)(1).

Registration as Sex Offender

On top of these penalties, if you are convicted of felony stalking and the court finds that you committed the stalking as a result of sexual compulsion or for the purposes of sexual gratification, the court may order you to register as a sex offender under Penal Code section 290.006.

California Stalking Defense Attorney

If you have been accused of stalking, you need to contact a Calilfornia stalking defense attorney from Wallin & Klarich today. At Wallin & Klarich, we have been successfully defending clients accused of stalking for over 30 years. Our attorneys are available to help you answer any question that you may have relating to your stalking charge. We have the skill and experience to help you fight for your freedom. Our offices are conveniently located in Orange County, Los Angeles, San Diego, San Bernardino, Riverside, Ventura, Victorville, Torrance, Sherman Oaks, and West Covina. Call us today at (877) 4-NO-JAIL or (877) 466-5245. We will be there when you call.

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