Can I Be Arrested for Stalking My Own Spouse?

California’s Laws Against Stalking 

Under California Penal Code Section 646.9, stalking is defined as willfully, maliciously, and repeatedly following or harassing another person. In order to convict you of stalking, the prosecution must prove that you: 

• Willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person 
• Made 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 

Per this section, harassment consists of knowing and willful conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person and serves no legitimate purpose. Additionally, a credible threat is defined as a verbal or written threat, including that performed through an electronic communication device, or a threat implied by a pattern of conduct, made with the intent to place the target in reasonable fear for his or her safety and made with the apparent ability to carry out the threat. It is not necessary to prove that the defendant had the intent to actually carry out the threat. 

Examples of stalking include: 

• Repeated phone calls 
• Sending unwanted messages, letters, or gifts 
• Following someone and showing up at their home, school, or work 
• Threatening to harm someone or those close to them 
• Other actions that control, track, or scare someone

In California, stalking is considered a “wobbler” offense, meaning it could be charged as either a misdemeanor or a felony depending on the circumstances of your case. If you are convicted of a misdemeanor, you may be facing the following penalties: 

• Up to $1,000 in fines 
• Up to 1 year in county jail 

On the other hand, if you are convicted of a felony, you may face 16 months, 2 years, or 3 years in state prison. If the court decides to grant probation rather than incarceration, you must participate in counseling designated by the court as a term of your probation. 

Besides fines and jail time, the court may also issue a restraining order prohibiting the defendant from any contact with the victim. The order may last up to 10 years, depending on factors such as the seriousness of the crime, the probability of future violations, and the safety of the victim and his or her family. It does not matter whether the defendant is sentenced to jail or probation; the protective order may still stand. 

Can I Be Charged for Stalking My Spouse? 

The short answer is yes. Even if you are married to the victim, if you engage in behavior that is classified as stalking, you may still be prosecuted under PC Section 646.9. You may be wondering, how do I know if my conduct will alarm or annoy my spouse enough to constitute harassment? For example, if I call my spouse multiple times with harmless intentions, will I still meet the elements of stalking under the statute? The law defers to the person being stalked. In this case, your activities are presumed to have demonstrated your criminal culpability. Therefore, if you are unsure whether the conduct you are about to engage in could be considered harassment or stalking, it is best not to do it. 

If you do engage in these actions and your spouse brings a case against you, you can be arrested and charged under PC Section 646.9. There are several ways to protect yourself from a stalking charge before it is ever brought to court: 

• Hire an experienced family law attorney as soon as you suspect that your spouse or someone else has accused you of stalking 
• Avoid communicating with the accuser in person, by phone, text, social media, mail, or through other people 
• Do not speak to law enforcement or offer evidence without your attorney present 

Contact Wallin & Klarich Today 

If you have been accused of stalking, you need an experienced defense team to represent you. With 40+ years of experience, Wallin & Klarich is your best choice amongst Southern California criminal defense firms. Our attorneys have helped thousands of clients in family law cases, and we have the skills and resources to secure a successful outcome for you. We know that these can be tough cases, but we always keep your best interests in mind. You can place your trust in us. 

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles, and San Diego, you are sure to find an available and convenient attorney near you. 

Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.