Penal Code 646.9 is California’s stalking law. It requires willfully, maliciously, and repeatedly following or harassing someone, plus a credible threat intended to place them in reasonable fear for their safety or their family’s.
It is a wobbler that can be charged as a felony — but its elements are demanding.
The Elements of Stalking
The prosecution must prove all of it: (1) you willfully and maliciously and repeatedly followed or harassed another person; (2) you made a credible threat; and (3) you did so with the intent to place that person in reasonable fear for their safety or the safety of their immediate family. Both the repeated conduct and the credible threat are required — and many cases have one without the other.
Wobbler
PC 646.9 is a wobbler, punishable as a misdemeanor (up to one year in county jail and/or a $1,000 fine) or as a felony (a state-prison term). A prior stalking conviction or an existing restraining order can elevate the exposure.
Defenses
- No credible threat. Harassment alone is not stalking — the statute requires a credible threat.
- Not repeated, or not malicious. Isolated or innocent contact does not meet the standard.
- Protected activity. Constitutionally protected conduct is expressly excluded.
- False or exaggerated allegation — common in break-ups and disputes. These cases often overlap with restraining-order issues.
Frequently Asked Questions
What does the prosecution have to prove for stalking?
Three things: that you willfully, maliciously, and repeatedly followed or harassed the person; that you made a credible threat; and that you intended to place them in reasonable fear for their safety or their family's. Both the repeated conduct and a credible threat are required.
Is stalking a felony or a misdemeanor in California?
PC 646.9 is a wobbler. As a misdemeanor it carries up to one year in county jail and/or a $1,000 fine; as a felony it carries a state-prison term. A prior stalking conviction or an existing restraining order can increase the exposure.
Is harassment alone enough for a stalking charge?
No. Harassment by itself is not stalking. PC 646.9 also requires a credible threat made with the intent to place the person in reasonable fear — and many cases have repeated contact without the credible threat the statute demands.
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Ahmed S. Hasan
San Francisco Criminal Defense Attorney · State Bar of California #364992
Ahmed S. Hasan is the founder of ASH Legal, a solo criminal defense practice based in San Francisco. The firm runs on flat-fee representation: one lawyer, one fee, from arraignment through resolution. No hourly billing. No surprise invoices.
Ahmed is a graduate of Emory University School of Law and a member in good standing of the State Bar of California (Bar #364992). His practice focuses on San Francisco misdemeanor defense — DUI, domestic violence, petty theft and shoplifting, drug possession, vandalism, trespassing, and assault and battery — with particular attention to diversion-track outcomes that end in dismissal under PC 1001.95, PC 1001.36 (Mental Health Diversion), PC 1001.80 (Military Diversion), and PC 1001.83 (Parental Caregiver Diversion).
Ahmed previously served as a post-bar clerk with the San Francisco Public Defender's Office, the city's largest indigent-defense practice. He is a member of the Asian Pacific American Bar Association of Silicon Valley.
He represents clients at the San Francisco Hall of Justice (850 Bryant Street) and the Civic Center Courthouse. The ASH Legal office is at 15 Boardman Place, Suite 301, San Francisco, CA 94103.
Free 30-minute consultations are available by phone or Zoom. (510) 545-6515 · ahmed@ashlegal.com