Criminal Law

1301. Stalking

The defendant is charged [in Count ______] with stalking.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person;


2. The defendant made a credible threat with the intent to place the other person in reasonable fear for (his/her) safety [or for the safety of (his/her) immediate family](;/.)

<Give element 3 if the defendant is charged with stalking in violation of a court order, Pen. Code, § 646.9(b).>


[3. A (temporary restraining order/injunction/ <describe other court order>) prohibiting the defendant from engaging in this conduct against the threatened person was in effect at the time of the conduct(;/.)]

<Give element 4 when instructing on conduct that was constitutionally protected.>


4. The defendant's conduct was not constitutionally protected.]

A credible threat is one that causes the target of the threat to reasonably fear for his or her safety [or for the safety of his or her immediate family] and one that the maker of the threat appears to be able to carry out.

A credible threat may be made orally, in writing, or electronically or may be implied by a pattern of conduct or a combination of statements and conduct.

Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose. A course of conduct means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.

Someone commits an act willfully when he or she does it willingly or on purpose.

Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, annoy, or injure someone else.

[ <Describe type of activity; see Bench Notes below> is constitutionally protected activity.]

[Repeatedly means more than once.]

[The People do not have to prove that a person who makes a threat intends to actually carry it out.]

[Someone who makes a threat while in prison or jail may still be guilty of stalking.]

[A threat may be made electronically by using a telephone, cellular telephone, pager, computer, video recorder, fax machine, or other similar electronic communication device.]

[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers, and sisters related by blood or marriage; or (c) any person who regularly lives in the other person's household [or who regularly lived there within the prior six months].]

[The terms and conditions of (a/an) (restraining order/injunction/ <describe other court order>) remain enforceable despite the parties' actions, and may only be changed by court order.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

Give element 3 if the defendant is charged with stalking in violation of a temporary restraining order, injunction, or any other court order. (See Pen. Code, § 646.9(b).)

If the defendant argues that his or her conduct or threat was constitutionally protected, give element 4. (See Pen. Code, § 646.9(f), (g).) The court must then further instruct on the type of constitutionally protected activity involved. (See the optional bracketed paragraph regarding constitutionally protected activity.) Examples of constitutionally protected activity include speech, protest, and assembly. (See Civ. Code, § 1708.7(f) [civil stalking statute].)

The bracketed sentence that begins with "The People do not have to prove that" may be given on request. (See Pen. Code, § 646.9(g).)

The bracketed sentence about the defendant's incarceration may be given on request if the defendant was in prison or jail when the threat was made. (See Pen. Code, § 646.9(g).)

Give the bracketed definition of "electronic communication" on request. (See Pen. Code, § 422; 18 U.S.C., § 2510(12).)

If there is evidence that the threatened person feared for the safety of members of his or her immediate family, the bracketed phrase in element 5 and the final bracketed paragraph defining "immediate family" should be given on request. (See Pen. Code, § 646.9(l); see Fam. Code, § 6205; Prob. Code, §§ 6401, 6402.)

If the defendant argues that the alleged victim acquiesced to contact with the defendant contrary to a court order, the court may, on request, give the last bracketed paragraph stating that such orders may only be changed by the court. (See Pen. Code, § 13710(b); People v. Gams (1996) 52 Cal.App.4th 147, 151-152, 154-155 [60 Cal.Rptr.2d 423].)


Elements. Pen. Code, § 646.9(a), (e)-(h); People v. Ewing (1999) 76 Cal.App.4th 199, 210 [90 Cal.Rptr.2d 177]; People v. Norman (1999) 75 Cal.App.4th 1234, 1239 [89 Cal.Rptr.2d 806].

Intent to Cause Victim Fear. People v. Falck (1997) 52 Cal.App.4th 287, 295, 297-298 [60 Cal.Rptr.2d 624]; People v. Carron (1995) 37 Cal.App.4th 1230, 1236, 1238-1240 [44 Cal.Rptr.2d 328]; see People v. McCray (1997) 58 Cal.App.4th 159, 171-173 [67 Cal.Rptr.2d 872] [evidence of past violence toward victim].

Repeatedly Defined. People v. Heilman (1994) 25 Cal.App.4th 391, 399, 400 [30 Cal.Rptr.2d 422].

Safety Defined. People v. Borrelli (2000) 77 Cal.App.4th 703, 719-720 [91 Cal.Rptr.2d 851]; see People v. Falck (1997) 52 Cal.App.4th 287, 294-295 [60 Cal.Rptr.2d 624].

Substantial Emotional Distress Defined. People v. Ewing (1999) 76 Cal.App.4th 199, 210 [90 Cal.Rptr.2d 177]; see People v. Carron (1995) 37 Cal.App.4th 1230, 1240-1241 [44 Cal.Rptr.2d 328].

Victim's Fear Not Contemporaneous With Stalker's Threats. People v. Norman (1999) 75 Cal.App.4th 1234, 1239-1241 [89 Cal.Rptr.2d 806].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 294-297.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.11A[2] (Matthew Bender).

Lesser Included Offenses

Attempted Stalking. Pen. Code, §§ 664, 646.9.

Related Issues

Harassment Not Contemporaneous With Fear

The harassment need not be contemporaneous with the fear caused. (See People v. Norman (1999) 75 Cal.App.4th 1234, 1239-1241 [89 Cal.Rptr.2d 806].)

Constitutionality of Terms

The term "credible threat" is not unconstitutionally vague. (People v. Halgren (1996) 52 Cal.App.4th 1223, 1230 [61 Cal.Rptr.2d 176].) The element that the objectionable conduct "serve[] no legitimate purpose" (Pen. Code, § 646.9(e) is also not unconstitutionally vague; "an ordinary person can reasonably understand what conduct is expressly prohibited." (People v. Tran (1996) 47 Cal.App.4th 253, 260 [54 Cal.Rptr.2d 650].)

Labor Picketing

Section 646.9 does not apply to conduct that occurs during labor picketing. (Pen. Code, § 646.9(i).)

(New January 2006)