Stalking a current or former spouse or romantic partner, or a current or former (within the last six months) member of your household elevates stalking into the realm of domestic violence.

The History of the Criminalization of Stalking in California

Stalking (as codified at California Penal Code section 646.9) has always been a problem for law enforcement and (legitimate) victims in California. However, it wasn’t until 1991 that stalking was actually criminalized by state law. Prior to that, police would simply tell victims that they were powerless to do anything until the stalker – which wasn’t even a word then – actually harmed the victim.

Even after the first anti-stalking law was passed in 1991, however, it was only codified as a misdemeanor in the Penal Code. In addition, the stalker wouldn’t be arrested, much less charged, unless he or she was about to inflict immediate harm on the victim. Indeed, many times police would not arrest the suspected perpetrator unless the victim had previously obtained a TRO or a more permanent protection order against the stalker.

In 1994 – realizing the then-current anti-stalking law’s shortcomings – the state legislature passed a stronger criminal statute, which now focused on the pattern of stalking activities for the purpose of terrorizing (or, alternatively, seriously harassing) the victim. Further, the victim no longer needed to be placed in immediate danger. Finally, and perhaps most importantly, the new law allowed prosecutors the discretion of charging stalking as a felony with potential prison sentences of forty-eight months in the most extreme cases. As a result, California could now boast of having the most stringent anti-stalking law in the U.S.

Not surprisingly, the crime took on new significance with the widespread use of the internet in the late 1990s. (Which also coincided with Americans’ newfound obsession with celebrities – see below.) The internet allowed stalkers to easily locate the personal information of their victims, including residence and employment addresses, which, of course, facilitated stalking.

The Stalking and Threat Assessment Team

As a result, in July 1997, the LA County DA’s Office created the county’s first Stalking and Threat Assessment Team (commonly known as “STAT”). This is a special unit comprised of highly trained prosecutors and investigators whose duties range from enforcing restraining orders to trailing particularly dangerous stalkers once they leave jail or prison.

See: https://www.latimes.com/archives/la-xpm-1997-jul-23-me-15578-story.html.

Cyberstalking Laws in California

In 1998, California again led the nation by including cyberstalking as part of its anti-stalking law. Specifically, state Senate Bill number 1796 expanded the criminal code to encompass credible threats transmitted through any and all electronic means (e.g., landlines & cell phones, computers/the internet, Camcorders, facsimile machines, and beepers). And, thus, “cyberstalking” was officially identified as a subset of stalking. (Of course, today social media postings, message aps, text messages, and any other electronic communication fall under this crime.)

See: http://leginfo.ca.gov/pub/97-98/bill/sen/sb_1751-1800/sb_1796_cfa_19980823_141606_sen_floor.html.

Indeed, only three weeks after the cyberstalking law was enacted on January 1, 1999, the first such crime was prosecuted in California – not surprisingly, by the LA County DA’s Office.

See: https://www.latimes.com/archives/la-xpm-1999-jan-22-mn-523-story.html. See also: https://da.lacounty.gov/contact/office-directory/stalking-and-threat-assessment-team-stat.

California Statutes Regarding Domestic Violence – Stalking

California Penal Code section 646.9

The state’s primary anti-stalking law consists of the following elements:

  1. you intentionally, maliciously, and continually follow or harass the purported victim; and 

  2. you make a criminal threat to him or her with the intent to place that person in fear for his or her immediate safety or the safety of his or her immediate family member.

See: https://codes.findlaw.com/ca/penal-code/pen-sect-646-9.html.

Convictions and Sentencing Terms for Domestic Violence – Stalking

Felony and Misdemeanor convictions

If you are convicted of stalking under Pen. Code § 646.9(a), you will be punished as follows:

  1. state prison (see below) (felonies only); 

  2. a maximum county jail sentence of 12 months (felonies or misdemeanors);

  3. a $1,000 fine (same); or

  4. imprisonment or jail and a fine (same); and

  5. a restraining order (maximum of ten years) (same).

Felony prison sentences

If you are convicted of felony stalking and sentenced to prison, then depending on the circumstances, you will receive the following sentences:

      1. if you violated a restraining order or other order protecting the purported victim, you will get 24, 36 or 48 months (Cal. Pen. Code § 646.9(b));

      2. if you have been previously convicted of: a domestic violence charge (specifically, corporal injury on a spouse – Cal. Pen. Code § 273.5 – see: https://codes.findlaw.com/ca/penal-code/pen-sect-273-5.html); violating a protective order (Cal. Pen. Code § 273.6 – see: https://codes.findlaw.com/ca/penal-code/pen-sect-273-6.html); or making a criminal threat (Cal. Pen. Code § 422 – see: https://codes.findlaw.com/ca/penal-code/pen-sect-422.html), you might receive 24, 36 or 60 months (Cal. Pen. Code § 646.9(c)(1) – see: https://codes.findlaw.com/ca/penal-code/pen-sect-646-9.html). Alternatively you could also receive up to 12 months in jail or a $1,000 fine or both;

      3. if you were previously convicted of felony stalking, you will receive 24, 36 or 60 months (Cal. Pen. Code § 646.9(c)(2)).

If the sentencing judge also orders you to complete probation (which by definition means you were not sentenced to prison), or suspends your sentence, then you will almost certainly be ordered to attend a counseling program (which, of course, you will have to pay for yourself). Cal. Pen. Code § 646.9(j).

Finally, if you are forced to do prison time, you may still qualify for treatment in a mental health facility in lieu of at least some of that time if you qualify under California Penal Code section 2684.

See: https://codes.findlaw.com/ca/penal-code/pen-sect-2684.html.

Ancillary Punishments

In addition, anyone convicted of stalking will typically lose their firearms rights for at least ten years; be subjected to a stay-away order lasting up to a decade; and, if applicable, be required to register as a convicted sex offender.

See, e.g., California Penal Code section 290 (at: https://codes.findlaw.com/ca/penal-code/pen-sect-290.html); see also California Penal Code section 290.006 at: https://codes.findlaw.com/ca/penal-code/pen-sect-290.html; https://codes.findlaw.com/ca/penal-code/pen-sect-290-006.html.

Further, you may also face relatively unusual punishments such as a proscription from using the internet, social media or even a computer. You might even be forced to wear a tracking device at all times so the STAT team (see above) can monitor your movements.

Finally, it should go without saying that if you violate any of these proscriptions, you can face potentially significant prison time.

Defenses to Domestic Violence – Stalking

The following are all legitimate defenses to a misdemeanor or felony stalking charge:

  1. you inadvertently or otherwise unintentionally followed the purported victim (e.g., you both work(ed) in the same building);

  2. you did not have a malicious motive in following him or her (e.g., you were a process server trying to serve him or her with a civil complaint, court order or judgment);

  3. you admittedly did have bad intentions when you followed him or her but you only did so on a single occasion;

  4. you admittedly did repeatedly follow the purported victim with bad intentions, but your alleged threat was too generic, vague, overbroad, comical, outlandish, and/or otherwise incredible for a reasonable person to objectively believe you presented an imminent danger of harm;

  5. you never intended to frighten the purported victim (e.g., you played a stupid or otherwise harmless – at least in your own opinion – prank on him or her);

  6. you admittedly did intent to frighten the purported victim but he/she never believed you had the capacity to actually carry it out and, therefore, was not in fact placed in fear for his/her own safety or that of an immediate family member/relative;

  7. the purported victim was in fact terrified but he/she was so overly sensitive that no reasonable person would have experienced fear based on your alleged threat;

  8. your intentional threat was in the form of hand gestures, such as gang signs (and, thus, was not communicated verbally, in writing or through any electronic form as required by the anti-stalking statute);

  9. you did in fact intend to frighten the purported victim but the threat was directed to his/her cousin or uncle/aunt, for example, and therefore the latter did not fall under the definition of “immediate family” member as set forth in the statute;

  10. you were exercising a Constitutional right at the time of the alleged stalking (e.g., you were picketing in front of your former employer’s place of business as part of a labor dispute; or perhaps you were protesting police brutality in front of the Chief of Police’s home).

See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1301 (“Stalking”) at: https://www.justia.com/criminal/docs/calcrim/1300/1301/.

Example of a Domestic Violence – Stalking Misdemeanor Charge

Two Angelenos convicted of misdemeanor cyberstalking of West Hollywood woman

On or about January 21, 2014, LA Co. prosecutors alleged that two LA residents, Nick Prugo and Ed Feinstein, uploaded a solicitous advertisement to various online portals wherein they falsely portrayed a real-life WeHo beauty salon worker inviting strangers to rape her. Specifically, they allegedly assumed the woman’s online identity, claiming to have a rape fantasy and inviting strange men to her actual apartment.

Authorities even alleged the two men provided the apartment address, as well as the code to bypass her real security system. (By order of the superior court judge, the woman’s identity was kept secret throughout all of the criminal proceedings.) As they would later testify during a four-day-long preliminary hearing, no less than six men showed up at different times at her apartment.

As a result, both suspects were charged with felony cyberstalking, which they were fortunate enough to have knocked down to a misdemeanor when they pled guilty on or about September 11, 2016. The judge also dismissed the felony charge of solicitation for rape they were also facing due to a lack of evidence.

Both men took an open plea, which means that the Assistant DA prosecuting them did not make them or otherwise negotiate any plea offer – in other words, they took the plea with no indication as to what sentence the judge might hand down. (Typically, when making you an offer, the prosecutor will tell you what sentence they will recommend to the judge if you accept it.) Thus, the suspects threw themselves on the mercy of the court.

Accordingly, on or about November 16, 2016, the same judge sentenced them to a lenient thirty-six months of summary (informal) probation, three hundred and fifty hours of volunteer work, and required them to have no contact with the victim or each other for a decade.

See: https://da.lacounty.gov/sites/default/files/press/111716_Two_Sentence_in_Stalking_Case.pdf.

Interestingly, Prugo had gained a degree of national infamy for being a convicted ringleader of the so-called “Bling Ring” burglary crew that victimized famous actors and other celebrities in LA County to the tune of more than three million dollars. Comically, in his mugshot, he was admittedly wearing a t-shirt he stole from actor Orlando Bloom’s mansion. (In the ill-received 2013 eponymous film, Prugo was portrayed by actor Israel Broussard.)

Prugo eventually pled guilty to two counts of first-degree burglary (a strike offense) and, in April 2013, was sentenced to two years in prison – a term which was ultimately reduced by fifty percent for good behavior. See: https://ktla.com/news/bling-ring-member-nick-prugo-sentenced/.

Example of a Domestic Violence – Stalking Felony Charge

Ex-Vegas topless entertainer is sentenced to jail for feloniously cyberstalking her former boyfriend

During one fateful night in spring 1993, James Day, a journalist at a local newspaper in Las Vegas, Nevada, entered a strip club where he met and fell for a dancer, named Robin Kelly. Day, who admitted he was married at the time, embarked on a seven-year-long romantic relationship with Kelly, who allegedly began cyberstalking him when he broke up with her in spring 2000.

According to Day and authorities, Kelly moved to Ventura County, California, where she began a seven-month-long campaign of posting intimate photos and video footage of the two of them on the internet; harassing him and his wife at their home with numerous phone calls; e-mailing threats to his home and work e-mail addresses; uploading his address with said photos to the internet; and pinning sexually explicit photos of him around his community. (Kelly would later reportedly tell the superior court judge that she didn’t realize any of these actions were illegal.) She was arrested and charged with multiple felonies that November (2000).

Almost exactly nine years after they first met, in late March 2002, and one month after pleading guilty to felony cyberstalking (as well as felony attempted extortion and misdemeanor witness intimidation), Day was sentenced to more than two hundred days in the county women’s jail facility (with full credit for time served while awaiting trial); ordered to complete sixty months of formal probation; required to adhere to a ten-year stay-away/no-contact order; and was prohibited from using a computer or the internet for five years (i.e., during the length of her probationary term).

This was reportedly Ventura Co’s first cyberstalking conviction – again, the state’s first anti-cyberstalking law had been passed just over two years earlier (see above).

See: https://www.latimes.com/archives/la-xpm-2002-mar-22-me-stalk22-story.html.

Examples of Celebrity Stalking Cases

The 1989 murder of TV actress Rebecca Schaeffer changes how Californians viewed stalking

In the summer of 1986, a then-sixteen-year-old boy with mental health problems named Robert Bardo began allegedly stalking a then-nineteen-year old sitcom star named Rebecca Schaeffer (CBS’ My Sister Sam). As part of this campaign, he allegedly wrote her numerous letters, repeatedly showed up at the studio where she was filming her show (including once armed with a knife), and even hired a PI to locate the address of her WeHo residence through DMV records.

This obsession culminated tragically three years later when, on July 18th (1989), Bardo knocked on the door of her home and, when she answered, shot her in the torso, killing her. He was arrested the next day and charged with capital murder (for laying in wait) by future OJ Simpson prosecutor Marcia Clark. Bardo was sentenced to life without parole.

Notably, it was Schaeffer’s murder that served as the catalyst for California’s first anti-stalking law passed in 1990 and enacted on January 1, 1991 (see above). Indeed, prior to that, police wouldn’t even warn celebrities when they were being stalked.

See: https://www.latimes.com/archives/la-xpm-1991-12-21-me-585-story.html.

Rihanna’s stalker gets five years of probation for breaking into her home and waiting 12 hours for her

On or about May 8, 2018, Edward Leon allegedly jumped over a wall abutting the backyard of singer Rihanna’s estate just north of the Sunset Strip. Fortunately, she wasn’t home then but Leon allegedly waited for her for the next dozen hours. Rihanna’s employee arrived at the estate at that time, allegedly found Leon hiding there, and called 9-1-1. LAPD arrived on scene and arrested him for suspicion of felony stalking.

He eventually pled nolo contendre to that charge and, on February 6, 2019, received the following sentencing terms: sixty months’ formal probation, three months’ GPS monitoring, in-patient rehab for drugs & psychological treatment, a decade-long stay-away order, and a five-year social-media ban. Maximum sentence if he violated any of these terms: just under five years in a California penitentiary.

See: https://da.lacounty.gov/sites/default/files/press/020719_Orange_County_Man_Pleads_to_Stalking_Singer.pdf.

Celebrity stalker breaks into actress Sandra Bullock’s home while she’s there

Before dawn on or about June 7, 2014, LA prosecutors alleged that Josh Corbett of the La Crescenta area climbed over a yard enclosure and broke into actress Sandra Bullock’s West LA mansion. Unlike the Rihanna incident described above, Bullock was actually home at the time. She called LAPD, which arrived minutes later and apprehended him.

Three days later, Corbett was arraigned on the following three felonies: stalking, first-degree residential burglary (a strike offense), and possessing an automatic submachine pistol (which apparently was found in his vehicle). Potential maximum sentence: almost seven-and-a-half years in a California penal institution. Almost three years after his arrest (on or about May 23, 2017), Corbett took an open nolo contendre plea for the stalking and break-in felonies, and received sixty months’ formal probation, a decade-long stay-away order, and in-patient rehab for psychological treatment.

See: https://da.lacounty.gov/sites/default/files/press/052417_Montrose_Man_Pleads_to_Stalking_For_Break_In_at_Sandra_Bullocks_House.pdf.

Interestingly, LADALF lead counsel Ninaz Saffari was interviewed about this case on CBS This Morning. See: https://www.cbsnews.com/news/sandra-bullock-wakes-up-to-alleged-stalker-in-hallway/.

The Los Angeles Criminal Defense Attorney Law Firm (LADALF)

LADALF founder Ninaz Saffari’s aggressive representation and incomparable defense of stalking suspects (in particular) and domestic violence defendants (in general) began when she first began working as a deputy public defender for the LA. Co. PD’s Office more than fifteen years ago (as of 2020). In addition to her unparalleled skills at directly attacking the case against her client, she will also do everything in her power, when applicable, to obtain an alternative disposition, such as mental health counseling or drug treatment.