California Legislature—2013–14 Regular Session

Assembly Bill No. 885

Introduced by Assembly Member Ammiano

February 22, 2013

An act to amend Section 646.9 of the Penal Code, relating to stalking.

LEGISLATIVE COUNSEL’S DIGEST

AB 885, as introduced, Ammiano. Stalking.

Existing law provides that a person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat, as specified, is guilty of stalking, and may be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than $1,000, or by both that fine and imprisonment, or by imprisonment in the state prison. Existing law further provides that a person who engages in the above-described behavior when there is a temporary restraining order, injunction, or other court order in effect prohibiting the specified behavior against the same party, may be punished by imprisonment in the state prison for 2, 3, or 4 years.

This bill would make technical, nonsubstantive changes to those provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 646.9 of the Penal Code is amended to
read:

646.9.  

(a)  begin delete Any end delete begin insert A end insert 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,
punishable by imprisonment in a county jail for not more than one
year, or by a fine of not more than one thousand dollars ($1,000),
or by both that fine and imprisonment, or by imprisonment in the
state prison.

(b)  begin delete Any end delete begin insert A end insert person who violates subdivision (a) when there is a
temporary restraining order, injunction, or begin delete any end delete other court order
in effect prohibiting the behavior described in subdivision (a)
against the same party, shall be punished by imprisonment in the
state prison for two, three, or four years.

(c) (1)  begin delete Every end delete begin insert A end insert person who, after having been convicted of a
felony under Section 273.5, 273.6, or 422, commits a violation of
subdivision (a) shall be punished by imprisonment in a county jail
for not more than one year, or by a fine of not more than one
thousand dollars ($1,000), or by both that fine and imprisonment,
or by imprisonment in the state prison for two, three, or five years.

(2) Every person who, after having been convicted of a felony
under subdivision (a), commits a violation of this section shall be
punished by imprisonment in the state prison for two, three, or
five years.

(d) In addition to the penalties provided in this section, the
sentencing court may order a person convicted of a felony under
this section to register as a sex offender pursuant to Section
290.006.

(e) For the purposes of this section, “harasses” means engages
in a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, torments, or terrorizes the
person, and that serves no legitimate purpose.

(f) For the purposes of this section, “course of conduct” means
two or more acts occurring over a period of time, however short,
evidencing a continuity of purpose. Constitutionally protected
activity is not included within the meaning of “course of conduct.”

(g) For the purposes of this section, “credible threat” means a
verbal or written threat, including that performed through the use
of an electronic communication device, or a threat implied by a
pattern of conduct or a combination of verbal, written, or
electronically communicated statements and conduct, made with
the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her
family, and made with the apparent ability to carry out the threat
so as to cause the person who is the target of the threat to
reasonably fear for his or her safety or the safety of his or her
family. It is not necessary to prove that the defendant had the intent
to actually carry out the threat. The present incarceration of a
person making the threat shall not be a bar to prosecution under
this section. Constitutionally protected activity is not included
within the meaning of “credible threat.”

(h) For purposes of this section, the term “electronic
communication device” includes, but is not limited to, telephones,
cellular phones, computers, video recorders, fax machines, or
pagers. “Electronic communication” has the same meaning as the
term defined in Subsection 12 of Section 2510 of Title 18 of the
United States Code.

(i) This section shall not apply to conduct that occurs during
labor picketing.

(j) If probation is granted, or the execution or imposition of a
sentence is suspended, for begin delete any end delete begin insert a end insert person convicted under this
section, it shall be a condition of probation that the person
participate in counseling, as designated by the court. However, the
court, upon a showing of good cause, may find that the counseling
requirement shall not be imposed.

(k) (1) The sentencing court begin delete also end delete shall begin insert also end insert consider issuing an
order restraining the defendant from any contact with the victim,
that may be valid for up to 10 years, as determined by the court.
It is the intent of the Legislature that the length of begin delete any end delete begin insert a end insert restraining
order be based upon the seriousness of the facts before the court,
the probability of future violations, and the safety of the victim
and his or her immediate family.

(2) This protective order may be issued by the court whether
the defendant is sentenced to state prison, county jail, or if
imposition of sentence is suspended and the defendant is placed
on probation.

(l) For purposes of this section, “immediate family” means begin delete any end delete
begin insert a end insert spouse, parent, child, begin delete any end delete begin insert a end insert person related by consanguinity or
affinity within the second degree, or begin delete any other end delete begin insert another end insert person who
regularly resides in the household, or who, within the prior six
months, regularly resided in the household.

(m) The court shall consider whether the defendant would
benefit from treatment pursuant to Section 2684. If it is determined
to be appropriate, the court shall recommend that the Department
of Corrections and Rehabilitation make a certification as provided
in Section 2684. Upon the certification, the defendant shall be
evaluated and transferred to the appropriate hospital for treatment
pursuant to Section 2684.