The penal code is a legal document containing a list of actions that are considered crimes in the state of California. The document describes a crime in-depth and also outlines the accompanying punishment for those found guilty.
Unfortunately, like most written laws, the California Penal Code (CPC) is written using legal jargon that makes it a nightmare for the average person to understand. So, we thought we should make things a little easier for you.
For this post, we will mainly be focusing on the California Penal code harassment 646.9 that describes what constitutes it and stalking in the state. And just so that there are no misunderstandings, we will use real-life examples to show you how the laws are interpreted. Sometimes, what you may consider a crime may be ruled out as a non-offense in a court of law.
Once you have a clear understanding of these laws we will finish off by looking at how these crimes like harassment and stalking can create a hostile working environment in your business and steps you can take to prevent them from happening.
That's our endgame. To help you as a business owner or manager create a friendly working environment where every employee is motivated to produce their best work.
Note: If you want to become compliant with the law while maintaining a safe harassment-free environment for your company, try EasyLlama. Our sexual harassment training videos for California can help your company avoid unnecessary fines and penalties. Get in touch for a free test drive of our videos today.
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Definition of Stalking Under Penal Code 646.9
According to penal code 646.9(a), 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.
Take note of the words in bold because they are critical in proving that a particular action qualifies as a crime under California law.
Here is a teardown of the above law for better understanding.
A person is guilty of stalking in California if the following statements are true:
- The person willfully, maliciously, and repeatedly followed another person. Willfully means the act was intentional and maliciously means the person had some bad motives when engaging in the act. Repeatedly means the act occurred more than once.
- The person willfully and maliciously harassed another person. To harass under California law means to engage in willful course of conduct directed at a specific person to annoy, alarm, torment, or terrorize the person, and that serves no legitimate purpose.
- A person made a credible threat to another person with the intent of putting the person in reasonable fear for his or her safety or the safety of his or her immediate family. It's not enough that threats are made, the threats need to be believable.
Now, let's say Mark and Millie are two employees in your company. On this particular weekend, Mark has an errand he needs to run out of town. It also happens that this same weekend, Millie is visiting her parents who live outside of town.
Unbeknown to them, both Millie and Mark and heading to the same location. Millie is the first to leave office and Mark follows shortly after.
While walking to the train station, Millie notices Mark behind her and becomes instantly alert because she has always suspected that he has a thing for her. Mark on the other hand is shy by nature so, all the while he maintains a safe distance from Millie so that he doesn't have to talk to her.
Millie boards the train and notices that Mark has also boarded the same train. Now she is uncomfortable because this is unusual. Mark lives on the other side of town. And why hasn't he said a single word to her.
Once they have reached their stop Millie alights the train and once again notices that Mark is behind her.
Now, she has moved from being uncomfortable to being scared. Convinced that Mark is following her, Millie hurries her pace while trying to figure out a way to escape. Thankfully, she bumps into an officer, narrates her story to him which consequently leads to Mark's arrest. Is Mark guilty of stalking in this case?
Well, Mark intentionally chose to stay behind Millie which gave her the impression he was following her. The act also put reasonable fear into Millie to a point she almost started running. However, there was no malice behind Mark's actions. He was just on an errand that happened to be at the same place as Millie was going. Also, this occurred only once and, therefore, cannot be classified as stalking.
Let's take another example. Your company is opening up a new branch and Joan and Val are the two most competent people for that position. Val knows this and so she starts using threats to intimidate Joan from taking up the position if it's offered to her. It begins with a note on Joan's desk. Don't take the managerial position or else you will celebrate it from a hospital bed. Then while at home, Joan receives a package. Upon opening it, she finds dead roses and a note from Val with the same message.
In this scenario, what Val is doing qualifies as harassment. She intentionally and repeatedly threatens Joan and you can read malice from the dead flowers and the notes. Also, she doesn't say it but the package to Joan's home means to say I know where you live which is enough to put Joan under reasonable fear for her safety and the safety of her immediate family.
Scenarios that don't qualify as stalking
- The action is a constitutionally protected activity - A good example is labor picketing where employees engage in protests to shine a light on a certain issue. As long as the employees remain within their limits, they cannot be charged with harassment under California law.
- The threat was not credible - Let's say in a heated debate one employee threatens the other with physical injury if they don't shut up. Their exact words are, "Shut up or I will shove my boot so far up your behind that you will be spitting shoelaces all day."Now, while the threat may make the victim fear for their safety, the offender cannot be charged with harassment or stalking because not only is the threat unbelievable but it's also impossible to execute.
- False accusation - Taking Mark and Millie's scenario, Millie reporting to the officer that Mark is following her is a false accusation even if she believed it to be true. That's one form of false accusation. The other type is when the victim makes a claim that they know is completely made up.
Before escalating a harassment or stalking case to a court of law it's important that you first establish that it doesn't fall in any of the above categories because it won't hold water before the judge.
The above are also some of the defense strategies that a criminal defense attorney will use when defending people accused of stalking under the CPC 646.9 PC.
Penalties for Stalking in California
As long as it's a first-time offense, stalking in California is classified as a misdemeanor and the consequences include either 1 year in county jail, a fine of up to $1000, or both.
If a person is found guilty of stalking and also happens to have been charged with a similar offense against the same person before, the offense becomes a felony and the punishment is a jail sentence of 2-4 years in state prison.
If the person is found guilty of stalking also happens to be a convicted felon then depending on the magnitude of their crime, they could get up to 1-year imprisonment in county jail, a fine of up to $1000, both imprisonment and fine, or imprisonment in state prison for 2-5 years.
In addition to the penalties stated above, the sentencing court may order a person convicted of felony stalking to register as a sex offender if their offense was sexually motivated.
Other consequences for stalking and harassment
Apart from the punishment issued by the court of law, a person found guilty of criminal stalking in California may face additional consequences which include:
- A civil lawsuit by the victim - The victim may go to a civil court to seek compensation for any loss they may have incurred due to the crime. If the victim wins the civil suit then they stand to be awarded compensatory damages and punitive damages**.**
- Immigration consequences - A non-citizen found guilty of stalking and harassment could end up being deported and an immigrant could end up losing their visa.
- Negative implications on gun rights - Depending on the magnitude of the crime, a person may lose their right to own a gun.
Can a stalking conviction be expunged?
Expungement is the process of making a criminal record legally disappear so that it is not available to the general public.
A person convicted of stalking can request to have it expunged once they have served their probation or sentence as long as they are not currently being charged with another criminal offense or serving a sentence for a crime.
Cyberstalking: Definition under California law
Cyberstalking in California refers to the use of an electronic communication device to carry out the act of stalking as defined in CPC 646.9.
A person is guilty of cyberstalking if they use an electronic communication device to willfully and maliciously harass another person and also make a credible threat that causes the other person to fear for his or her safety and the safety of his or her immediate family.
Electronic communication devices in this case include but are not limited to telephones, cell phones, computers, pagers, fax machines, and video recorders.
Remember our above example where Val was trying to intimidate Joan into not taking the managerial position. If instead of the written notes and flowers, Val opted to use her phone to send the threatening message, that would fall under cyberstalking.
The penalties for cyberstalking in California are the same as the penalties for stalking that we outlined above. That is up to one year in county jail, a fine of not more than $1000, or, both.
Other consequences if found guilty of cyberstalking include counseling and/or confinement to a state-run mental hospital and a restraining order preventing you from getting near the victim.
Cyber harassment: Definition under California law
A person is considered to have committed the crime of cyber harassment in California if the following conditions are true.
- The person used an electronic device to electronically transmit, publish, email, hyperlink, or make available for download another person's personal identifying information like a picture or an electronic message of a harassing nature.
- The person had no consent from the victim to do these actions
- The actions were intentional and were carried out to put the other person in reasonable fear for his or her safety or the safety of his or her immediate family.
- The person performed the acts intentionally knowing that they would incite third parties to harass or cause the other person unwanted physical contact or injury to the other person.
How is this different from cyberstalking as defined under the penal code 646.9?
In the case of cyberstalking the offender directly executes the stalking or harassment. However, in the case of cyber harassment, the offender's actions incite other people to execute the harassing and stalking of the victim.
For instance, let's say an employee has been let go after failing to abide by the company's code of conduct. The employee knows they are in the wrong but then goes on to publish a rant on their social media about how they were dismissed unfairly. Now the people reading the post get incited and start harassing the company manager, calling him all sorts of names and threatening to attack him or his family. In this case, the said employee is guilty of cyber harassment.
Let's take another example. Say the company went on a team-building trip to a coastal town. During the trip, a lot of pictures were taken including some while at the beach. After the trip, one of the employees posts a picture from the beach on their social media. As it happens, one of the male team members is wearing a particularly tight swim shot and before you know it, he becomes the subject of online jabs aimed at his masculinity. Can the employee that posted the picture be charged with cyber harassment.
The employee used an electronic device to publish a picture in public without the consent of the other people in the picture. The action resulted in another person being harassed by the public. However, the action was not carried out intentionally to incite the public to harass his fellow employee. This cannot qualify as cyber harassment in court.
Other Crimes Related to Stalking in the Penal Code
According to the California criminal code section 207(a), a person is guilty of kidnapping if:
- The person uses force or other means to instill fear and consequently take, hold, detain, or arrest another person.
- The person carries their victim to another country, state, county, or another part of the same county.
The crime is related to stalking because, in several instances, stalkers end up kidnapping their victims.
Unlike stalking, kidnapping is a felony that is punishable by up to 8 years in state prison, a fine of up to $10,000, or both. The crime is also subject to the three-strike sentencing that may see the offender receive a sentence of not less than 25 years if they receive three strikes.
According to California Penal Code CPC 422(a), a person is guilty of making a criminal threat if:
- The person threatens another person with a crime that would result in death or great bodily injury either verbally, in written form, or using an electronic communication device.
- The criminal threat causes the other person reasonable fear for his or her safety or the safety of his or her immediate family members.
Depending on the nature of your threats, criminal threats may fall under misdemeanor or a felony. A misdemeanor conviction is punishable by up to one year in county jail while a felony conviction is punishable by up to three years in prison, a fine of up to $10,000, or both.
Conviction of a felony criminal threat is a strike under the state's three-strike system. If an offender gets three strikes on their criminal record, the consequence is a minimum of 25 years in state prison.
Annoying phone calls
Annoying phone calls as a crime is covered under CPC 653(a). A person is guilty of this crime if:
- The person uses a telephone or an electronic communication device to repeatedly call another person and make a credible threat that would cause the person to have a reasonable fear for their lives or that of their immediate family.
- The person makes repeated calls and uses obscene language that any reasonable person would find offensive.
Penalties for this crime include a term of up to 6 months in county jail, a fine of up to $1,000, or both.
Negative implications of stalking and harassment at the workplace
- Lost business productivity - Like we mentioned cases of harassment and stalking create a hostile working environment which affects employee morale. It's hard to be productive when you are constantly being harassed or fearing for your safety. Not to forget the disruption of business as investigations are carried out.
- Reputational damage to your business - If cases of harassment and stalking in the workplace get out you will find out that some people no longer wish to be associated with your business. This could be your investors or customers. Either way, this translates to lost revenue.
- Poor employee retention - No one wants to work in an environment where they don't feel safe. It shouldn't, therefore, come as a surprise if some employees no longer want to work in your organization after a case of stalking and harassment.
- Fines for failing to comply with state laws- The State of California now requires mandatory sexual harassment and abusive conduct training by all employers that have 5 or more employees. A case of stalking and harassment puts your business in the spotlight and if it is determined you did not conduct the appropriate training you will be charged with non-compliance.
How to prevent stalking and harassment in the workplace and ensure compliance with California harassment training requirements
The thing with most of these stalking and harassment cases is that they happen out of ignorance. Either the employees have no idea that their actions are crimes under California law or they are unaware of the legal implications of their actions.
So, what's the solution? Employee training.
There are free training modules provided by the government but these usually contain the same legal jargon that makes it hard to understand the written laws.
Also, they don't feature actual examples that are critical in ensuring that the point gets across with no misunderstanding.
This is where we now come in. Our compliance and sexual harassment training videos have been created with your company in mind. We'll get you to follow California AB 1825 laws quickly. To ensure we stand out from most of the other online training, EasyLlama uses small bite-sized videos depicting everyday employee interaction to ensure that each point gets across. The training has also been designed to meet California's latest regulations.
Let us help you create a safe working environment for your employees so that your business can thrive.