California Penal Code 646.9 defines stalking as willfully, maliciously, and repeatedly following or harassing another person and making a credible threat with the intent to place them in reasonable fear for their safety or the safety of their immediate family.

This crime extends to cyberstalking. To successfully prosecute this charge, the government must prove both the pattern of conduct and the existence of a credible threat intended to cause fear.

For tech startup founders and executives, high-frequency digital communication is often a standard operating procedure.

However, what one person views as "aggressive networking" or "digital persistence" in a business or personal context can be mislabeled by law enforcement as criminal harassment.

If you are under investigation or facing charges, it is critical to intervene early to prevent a filing or mitigate the consequences of charges that have already been filed.

Take action by contacting the criminal defense attorneys at Eisner Gorin LLP; call our office at (818) 781-1570 or use our contact form.

What Constitutes Stalking Under Penal Code 646.9?

Under  California Penal Code 646.9, stalking is not merely annoying or persistent behavior. The prosecution must establish several distinct elements beyond a reasonable doubt:

• Willful and Malicious Harassment: The defendant must have engaged in a "knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person."
• Repeated Following or Harassment: A single incident is insufficient. There must be a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.
• A Credible Threat: This is often the central point of contention. The defendant must have made a threat, verbal, written, or implied through conduct, with the intent to place the victim in reasonable fear for their safety.
• Reasonable Fear: The victim must actually fear for their safety, and that fear must be "reasonable" under the circumstances.

Cyberstalking and Digital Persistence

Cyberstalking is a subset of PC 646.9 that involves the use of an "electronic communication device." This includes emails, text messages, social media interactions, and even GPS tracking.

The law considers electronic communication to include any transfer of signs, signals, writing, images, sounds, or data. This broad definition means that even non-verbal digital interactions can form the basis of a stalking charge if a "credible threat" is inferred.

The "Credible Threat" Requirement

A credible threat under Penal Code 646.9 does not require the defendant to actually intend to carry out the threat. It only requires that the defendant made the threat with the intent to place the target in fear.

The threat can be communicated:

1. Orally or in writing;
2. Through electronic communication;
3. Implied by a pattern of conduct or a combination of statements and conduct.

If a tech professional, such as a startup founder, is involved in high-stakes litigation or a contentious partnership dissolution, frequent emails regarding legal or financial demands might be misinterpreted as threats.

Our defense strategy often focuses on demonstrating that the communications served a legitimate purpose and lacked the requisite intent to cause fear.

Stalking Penalties and Sentencing in California

Stalking is a wobbler in California, meaning it can be charged as either a misdemeanor or a felony, depending on the defendant's criminal history and the facts of the case.

How the case is charged matters; depending on the charge, a tech industry person found guilty of stalking or cyberstalking could expect these consequences:

Misdemeanor Penalties

• Up to one year in county jail.
• A fine of up to $1,000.
• Informal probation.

Felony Penalties

• Sixteen months, two years, or three years in California State Prison.
• Formal probation.
• Issuance of a long-term restraining order.

If the defendant stalks someone in violation of a court-issued restraining order, the offense is automatically a felony and could result in a longer jail term than those listed above.

Additionally, if the defendant has a prior conviction for stalking, the charge is a felony, even if the new incident did not involve a restraining order violation.

Stalking vs Criminal Threats in California

Key Differences Explained

• Stalking requires a pattern of behavior over time, while criminal threats can be based on a single incident
• Criminal threats require a clear and specific threat of serious harm, while stalking can involve implied threats through repeated conduct
• Both offenses require that the victim experience reasonable fear, but the nature and duration of that fear may differ

Summary

Stalking requires repeated conduct and a credible threat, while criminal threats involve a single serious threat of harm that causes sustained fear.

Frequently Asked Questions About Stalking Laws in California

What is considered stalking under California law?

Stalking under Penal Code 646.9 involves willfully and repeatedly harassing or following someone while making a credible threat that causes reasonable fear for their safety or the safety of their family.

Is cyberstalking a crime in California?

Yes. Cyberstalking is prosecuted under Penal Code 646.9 when electronic communication such as texts, emails, or social media is used as part of a pattern of harassment with a credible threat.

Do you need to make a direct threat to be charged with stalking?

No. A threat can be implied through repeated actions or conduct. However, there must still be evidence that the behavior was intended to cause fear.

How many incidents are required for stalking charges?

At least two or more acts are required to establish a pattern of conduct. A single incident is generally not enough for a stalking charge.

What is a credible threat in a stalking case?

A credible threat is any statement or conduct that would cause a reasonable person to fear for their safety. It does not require intent to actually carry out the threat.

Is stalking always a felony in California?

No. Stalking is a wobbler offense and may be charged as a misdemeanor or felony depending on the facts, prior history, and whether a restraining order was involved.

Can repeated messages alone be considered stalking?

Repeated messages may lead to charges only if they include a credible threat and create reasonable fear. Persistent communication alone is not always enough.

What happens if a restraining order is violated?

Violating a restraining order while engaging in stalking behavior can increase the charge to a felony and result in more severe penalties.

What defenses are available to stalking charges?

Common defenses include lack of a credible threat, no intent to cause fear, constitutionally protected activity, false accusations, or insufficient evidence of repeated conduct.

Can stalking charges be dropped or reduced?

Yes. Charges may be reduced or dismissed if the prosecution cannot prove all required elements, or if the defense successfully challenges the evidence or intent.

Defending Tech Professionals and High-Profile Clients

For high-profile individuals, a stalking allegation is a direct threat to professional reputation, investor funding, and future business and employment opportunities.

The social stigma associated with PC 646.9 can be more damaging than the legal penalties. We prioritize keeping these matters out of the public eye.

Common defense strategies include:

• Lack of Credible Threat: Proving that the alleged "threat" was hyperbole, a misunderstanding, or lacked the intent to cause fear.
• Constitutionally Protected Activity: The law explicitly excludes "constitutionally protected activity" from the definition of stalking. This includes lawful protests or communications made for legitimate business purposes.
• False Accusations: In high-conflict divorces or business disputes, false allegations of stalking are sometimes used as leverage.
• No Intent to Harass: Demonstrating that the frequency of contact was due to professional obligations or a legitimate personal misunderstanding, rather than malice.

Case Study: Defending "Digital Persistence"

A founder of a San Francisco-based fintech startup was charged with PC 646.9 after a series of late-night messages sent to a former business partner.

The messages concerned disputed intellectual property and included statements about "making things right" and "ensuring consequences.”

The prosecution argued these were credible threats of physical harm. While the argument was heated, that didn't mean it crossed the legal threshold for stalking or cyberstalking.

Eisner Gorin LLP intervened and performed a comprehensive forensic analysis of the digital trail. We demonstrated that:

• The "consequences" mentioned were strictly legal and financial in nature, referring to a pending civil lawsuit.
• The frequency of the messages correlated with specific technical milestones in the startup's development, proving a business motive rather than a malicious one. They were also consistent with message frequency throughout the business relationship.
• The defendant had no history of violence.

By presenting this evidence to the District Attorney before the preliminary hearing, we secured a dismissal of the felony stalking charges, resolving the matter as a non-criminal disturbance of the peace, thereby protecting the founder's reputation and his company's valuation.

Immediate Steps if You Are Accused of Stalking

If you are contacted by law enforcement regarding a stalking or cyberstalking investigation, you should not attempt to "explain your side" to the police.

Anything you say, even if intended to clarify a misunderstanding, can be used to establish the "pattern of conduct" required for a conviction, instead:

• Cease all communication with the complaining party immediately.
• Preserve all digital evidence, including emails, texts, and social media logs, in their original format.
• Consult with an attorney experienced in high-stakes criminal defense.

Law enforcement officers aren't in the tech world; they don't know what normal communications, language, and behavior look like in these startup work settings.

At Eisner Gorin LLP, we understand this world and are here to serve as a barrier between you and those who don't when you're being accused of stalking.

Contact a California Criminal Defense Attorney

Facing a stalking charge under PC 646.9 can jeopardize your freedom, your career, and your standing in the tech community. At Eisner Gorin LLP, we specialize in defending complex cases where digital evidence and personal intent are central.

We focus on aggressive pre-filing intervention to prevent unfounded allegations from becoming life-altering convictions.

To speak with a California criminal defense attorney regarding your case, contact Eisner Gorin LLP for a confidential consultation so we can get ahead of this investigation. Request a case evaluation now by calling (818) 781-1570.

Related Legal Topics

• Domestic Violence
• Restraining Order Violations
• Criminal Threats
• Federal Stalking