Elements of Stalking

Elements of Stalking

The crime of Stalking is committed when a person willfully, maliciously, and “repeatedly follows” or willfully and maliciously “harasses” another person and makes a “credible threat” intending to frighten that person and if the person believes they or an immediate family member is in danger of serious injury.[1]

A specific exception is conduct that occurs during labor picketing.[2]

To commit the offense the victim must at the time of the incident(s) underlying the charges be intimidated or frightened by of defendant’s behavior. [3]

The constitutionality of the crime has repeatedly been challenged unsuccessfully in the courts.[4]

There are several offenses in the Penal Code related to Stalking including criminal threats under section 422; trespass to carry out threat under section 601; telephone harassment, under section 653m; and violation of order enjoining harassment under section 273.6.

Under the Stalking statute, 646.9, to “harass” means to engage in a knowing and willful “course of conduct,” without a legitimate or lawful purpose, that is focused on a specific and identifiable person(s) which “seriously alarms, annoys, torments, or terrorizes” that person. [5] Other courts have said to “harasses” involves a course of conduct directed at a person that would normally result in alarming, annoying, or tormenting someone.[6]

A “course of conduct” means at least two or more acts over a discernable period no matter how short which shows a consistency of purpose and plan. [7]

An “immediate family member” would include a spouse, a parent, a child, or other close relative, or any other person who regularly resides in the household or has done so within the preceding 6 months.[8]

The term “credible threat” is a threat that is verbal, written, or through an “electronic communication device,” or a combination of all of these and is suggested or implied by a pattern of conduct. The threat places a person in reasonable fear of serious injury, or that of his or her family. It must be made with the “apparent” ability to carry it out. That a person who makes the threat is in custody when the threat is made is not a defense. [9] The threat does not require proof it can be accomplished, only that it is made with the required intent, and necessary effect on the victim.[10]


[1] Section 646.9(a) of the California Penal Code; People v. Uecker (2009) 172 C.A.4th 583, 595, 91 C.R.3d 355.

[2] Section 646.9(i ) of the California Penal Code.

[4] People v. Heilman (1994) 25 C.A.4th 391 , 398, 30 C.R.2d 422; People v. Halgren (1996) 52 C.A.4th 1223, 1229, 1231, 61 C.R.2d 176; People v. Falck (1997) 52 C.A.4th 287, 293, 60 C.R.2d 624; People v. Borrelli (2000) 77 C.A.4th 703, 712, 91 C.R.2d 851.

[5] Section 646.9(e) of the California Penal Code; People v. Tran (1996) 47 C.A.4th 253, 259, 260, 54 C.R.2d 650; People v. Ewing (1999) 76 C.A.4th 199, 205, 90 C.R.2d 177.

[6] People v. Zavala (2005) 130C.A.4th 758, 767, 30 C.R.3d.

[7] Section 646.9(f) of the California Penal Code; People v. Ibarra (2007) 156 C.A.4th 1174, 1195, 1198, 67 C.R.3d 871.

[8] Section 646.9(l) of the California Penal Code.

[9] Section 646.9(g) of the California Penal Code; People v. Zavala, supra, 130 C.A.4th 767.

[10] Section 646.9(g) of the California Penal Code; People v. McClelland (1996) 42 C.A.4th 144, 154, 49 C.R.2d 587.