In California, the crime of stalking is found in California Penal Code § 646.9. Certain language and conduct may elevate to the level of criminal stalking. It is a criminal offense for anyone to follow, harass, and threaten another person to the extent that the other person is in fear for his or her safety or the safety of an immediate family member.
The statute states that:
“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…”
The statute defines “harasses” as engaging “in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.”
A “course of conduct” under the statute may be a simple act of brief duration. Two or more acts occurring over some period of time, however short, showing a continual purpose, meet the “course of conduct” requirement under the statute. Constitutionally protected activity is not included within the meaning of “course of conduct.” Exercising free speech or legally protesting cannot be considered credible threats, and, therefore, are not criminal offenses under the statute.
Any action must be a “credible threat” that places someone in reasonable fear of their safety or their immediate family’s safety. A credible threat is one that is verbal, written, or electronically communicated. It may be a threat implied by a pattern of conduct. A credible threat may be a combination of both communication and conduct. The threat must be made with the apparent ability to put someone in reasonable fear.
It is important to note that a defendant may be convicted of criminal stalking without proving he or she had the intent to carry out the threat. Also, simply because the person making the threat is incarcerated does not mean that he or she cannot be charged with criminal stalking. Constitutionally protected activity is not included within the meaning of “credible threat.”
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