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San Diego Stalking Lawyer

Stalking is a term that we hear about pretty regularly on the news and everyday life. It may be used for a verity of different things, but we will look at what stalking means legally. Stalking is outlined for as,  

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.

California Penal Code 646.9. We will look at the applicable elements to the crime one must fulfill in order to be charged with stalking. In addition, we will then look to the different defenses that may be appropriate depending on the situation to a stalking charge. Then we will look at some of the possible penalties that may be given if one is charged with stalking. Lastly, we will look to some mitigating factors that may lessen the sentence. Thus, we will look further into and breakdown what stalking really is.

Understanding the elements of a Stalking Charge in San Diego

We will look into all the elements of stalking and break them down and see what each entail and require in ordered to be fulfilled. The first element to stalking at one willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person. The second element is that one made a credible threat against that person. The last element is that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family. California Penal Code 646.9. The prosecution is going to have to prove all three of these elements beyond a reasonable doubt. If the prosecution fails on just one of these elements a person cannot be charged with the crime. Therefore, we will take a deeper look into all three of the elements to stalking.

The first element is that one willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person.

The first element is that one willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person. The first element of stalking is a pretty long statement with a lot of words that hold special meaning. To fully understand the element, we must break it down and define the terms. Thus, we will dissect the element to fully understand what it is stating.

The first term we come to in the element is willful. Willfully means with a purpose or willingness to commit the act. It is not necessary that one intends to break the law. CALJIC 1.20. An example of this would be Sarah following her ex-husband around town but she was more worried about his safety because he has suicidal tendencies. However, this would still be willful because Sarah’s act was on purpose, she had a purpose. Even though she did not intend to break the law. So, it is essential that the person charged with stalking acted is willful. Thus, willful means with a purpose or willingness to commit the act.

The next term stated is malicious. Maliciously is not a common word we hear, but it does hold a special meaning in the law. Maliciously means that you intend to commit a wrongful act or to intentionally anger, disturb, annoy, or injure another person in an unlawful manner. CALJIC 1.22. If we look back to the previous example about Sarah following her ex-husband because she was worried about him we could probably determine that she was not malicious. She was not malicious because she did not want to hurt him, in fact, it was the complete opposite. It may be possible that it was to intentionally to annoy but it is not necessarily given. Thus, maliciously means that you intend to commit a wrongful act or to intentionally anger, disturb, annoy, or injure another person in an unlawful manner.

The last term we will have to define in the first element is harassed. Harassing means to engage in a knowing and willful "course of conduct" directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person. Harassment serves no legitimate purpose. A "course of conduct" means two or more acts occurring over a period of time. No matter how short that demonstrate a continuous purpose. California Penal Code 646.9 PC. A legitimate reason could be a charity calling for donations or someone selling a potential product to one. The opposite of this could be someone who is a coworker who calls asking for dates even though you tell them no. The difference between the two scenarios is that the first had a legitimate purpose, whereas the second did not. It is also essential that this happens more than once. Thus, means to engage in a knowing and willful "course of conduct" directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person.

Therefore, the first element of stalking is that one willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person.

The second element we will look at is that one made a credible threat against that person.

The second element we will look at is that one made a credible threat against that person. This can fall within a gray are because what is considered a credible threat. However, there are guidelines in the rule that will show us what qualifies as a credible threat. Thus, the second element of stalking requires a credible threat.

A credible threat is outlined for us in the rule. It states, “A credible threat is one that causes the threatened person reasonably to fear for his/her safety or for the safety of his/her immediate family.” In order to be "credible", the person making the threat must have the apparent ability to carry out the threat even if they do not actually intend to do so. California Penal Code 646.9. In addition, A credible threat may be made verbally, in writing, through the means of an electronic communication device "electronic communication" devices include, but are not limited to, telephones, cell phones, pagers, text messages, fax machines, and e-mails, OR in any other manner that communicates the threat to the intended target. The main point is that it is reasonably believable that the one making the threats could act on them. For example, if a person were to say, “If you do not go out with ill have a meteor crash down on you.” That is not believable because the person has no control over a meteor and it is ridiculous. A different example would be if one said, “If you do not go out with me I will hurt you.” This threat is credible because it is possibly that the person will actually hurt you. The court will look at the person’s ability to carry out the threat. In addition, we need to look at how the threat was conveyed to the alleged victim. As stated above in the rule, it can be spoken or written, and even electronically sent to the alleged victim. This means social media or email would qualify for this element. Therefore, the second element of stalking is that one made a credible threat against that person. 

The last element that the prosecution will have to prove is that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family. 

The last element that the prosecution will have to prove is that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family. For this element, we will break down intent and placing one in reasonable fear. We will break it down into the two to get a better understanding of the third and final element. Thus, the final element is that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family.

Intent is a common thing to have required in order to be charged with a crime. Intent is where this the ones who is charged goal. They had the purpose to do the act. For an example, if one does not have the intent to place another in fear then they do fulfill this requirement. This is pretty similar to the willful part discussed earlier in regard to the first element.  Thus, one must have the appropriate intent in order to be charged with stalking.

The next part of this element that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family. This means the threat must place a reasonable person in fear. This is a pretty broad requirement, and a lot of different things can fulfill this part of the rule. The usual qualifications would be anything involving bodily injury. But there have been cases of one sending dead flowers to another daily that constituted as stalking. So, the state can bring this charge in a verity of situations. Thus, the main point is that it placed the individual in reasonable fear for their safety or for the safety of their immediate family.

Therefore, the rule for stalking is 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.

Understanding the Defenses to a Stalking Charge in San Diego

There are some legal defenses that are available if one is charged with stalking.  We will look at some of the more common defenses that can possibly apply to an array of situations. The first being that the alleged threat was not credible. Another possible defense would be that there is a case of mistaken identity. Lastly, a possible defense would be that one was participating in constitutionally protected activity. Thus, there are multiple defenses that may be applicable to one’s situation to negate a stalking charge.

The first defense to a stalking charge discussed is that the alleged threat was not credible.

The first defense to a stalking charge discussed is that the alleged threat was not credible. This defense corresponds with the second element we discussed. If the threat that one alleged is unrealistic then one cannot be charged with stalking. An example would be a woman in her eighties confined to a wheelchair told a man in his twenties that she was going to beat him up if he kept racing down the street.  A reasonable person would not be in fear because of the particular situation. However, if one told another they would shoot them, but the truth is they do not own a gun that would still be credible cause it is reasonable that they buy a gun and act on the threat that they said. In addition, it would still put a person in fear. Thus, the threat not being credible is a possible defense.

The next defense that may be applicable to the charge is that there is a case of mistaken identity.

The next defense that may be applicable to the charge is that there is a case of mistaken identity.   With the nature of stalking it is possible that the alleged victim is not aware of who is making the threats or committing the act. Because this may happen at night or people keeping a distance it is possible that the wrong person is accused on accident. With the right attorney establishing your alibi this defense would be more than applicable to the stalking charge. It is also possible that one is stalked and they just assume it is one because of a past relationship or any other number of reasons. Therefore, proving a mistaken identity would be an applicable defense to stalking.

In addition, another possible defense is that that one was participating in constitutionally protected activity.

In addition, another possible defense is that that one was participating in constitutionally protected activity. This defense has to molded to each situation, depending on the circumstances. The First Amendment applies to his means that if for example, you were exercising free speech, protesting, or participating in an assembly, you are not in violation of California's anti-stalking laws. California Penal Code 646.9 (f). So, if one is acting within their rights and another brings a stalking charge they will be protected by the United States Constitution. With this defense constructed by expert legal help, the charges may be negated. Thus, if one was acting within their Constitutional rights they would have a defense.

Therefore, there are multiple defenses possible.

Understanding the Penalties to a Stalking Charge in San Diego

There is no set punishment for a stalking charge. It is very open to the discretion of the state. This means that stalking can be charged as a felony or a misdemeanor. This is referred to as a “wobbler” because it can be charged as either felony or misdemeanor.  The prosecution will look at the specifics of the case and the person who is charged criminal history when deciding whether to pursue felony or misdemeanor punishments. We will look at the specific penalties for both charges. Thus, stalking can be charged as a felony or misdemeanor.

There is a possibility that the stalking charge is a felony. The prosecution can exercise discretion on whether to pursue a felony. They will typically look to the specifics of the case and one’s criminal history. But if either of the followings applies it will be an automatic felony charge; the stalking is in violation of a court-issued protective order (restraining order), or the defendant has previously been convicted of stalking, even if the alleged victim in the new case is not the same person they previously stalked. California Penal Code 646.9 (b). The penalties one may face are any or a combination of formal probation, sixteen months to five years in the California State Prison, a maximum one thousand dollars fine, counseling and/or possible confinement in a state-run hospital that treats mental illness, a restraining order prohibiting any contact with the alleged victim. Therefore, stalking can result in a serious felony offense.

It is also possible that one is charged with a misdemeanor stalking. The punishment is naturally lighter if it is a misdemeanor. The prosecution once again has the discretion and will look at the specifics of the case and criminal history when deciding to pursue a misdemeanor charge. The possible penalties for misdemeanor charge include one or a combination of Informal probation otherwise known as summary probation, up to one year in a county jail, a maximum one thousand dollar fine, counseling, and/or possible confinement in a state-run hospital that treats mental illness, and/or a restraining order prohibiting any contact with the alleged victim. Thus, stalking can also be charged as a misdemeanor.

Therefore, stalking is known as a wobbler and can be a serious crime resulting in a felony, or a less serious crime resulting in a misdemeanor.  

Understanding Mitigating Factors that Will Help Get Your Stalking Charges Reduced or Dismissed in San Diego

Mitigating factors are something that can possibly lessen one’s sentence. Here, some mitigating factors could be not having a restraining order filed against them when they were charged with stalking. Not having a previous criminal record or stalking charge before this current one. If there are different facts and circumstances that play into the persons charged favor could possible lighten or change the punishment that is decided. Thus, there are possible mitigating factors to a stalking charge.

Hire a Lawyer in San Diego that Specializes in Stalking Cases

The rule for stalking is 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. In addition, there are multiple defenses possible. Moreover, the punishment can be a felony or misdemeanor. Lastly, there are possible mitigating factors for a stalking charge. It is important to hire an attorney that handles these types of cases on a day-to-day basis. Attorney Vik Monder has handled hundreds of stalking cases throughout San Diego County. It is important to hire a lawyer that has strong relationships with the prosecutors that issue these cases and the judges who will decide the ultimate issues in your case.

Contact San Diego Stalking Criminal Defense Attorney Vik Monder for a FREE consultation today at: 619-405-0063

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063

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