BILL NUMBER: SB 1796 CHAPTERED
BILL TEXT
CHAPTER 825
FILED WITH SECRETARY OF STATE SEPTEMBER 25, 1998
APPROVED BY GOVERNOR SEPTEMBER 24, 1998
PASSED THE SENATE AUGUST 25, 1998
PASSED THE ASSEMBLY AUGUST 20, 1998
AMENDED IN ASSEMBLY JULY 21, 1998
AMENDED IN ASSEMBLY JUNE 25, 1998
AMENDED IN SENATE APRIL 28, 1998
AMENDED IN SENATE MARCH 30, 1998
INTRODUCED BY Senator Leslie
(Principal coauthor: Assembly Member Hertzberg)
(Coauthor: Senator Hurtt)
(Coauthors: Assembly Members Alby, Baldwin, Bowler, Campbell,
Cunneen, House, Leach, Lempert, Margett, Oller, and Richter)
FEBRUARY 18, 1998
An act to amend Section 1708.7 of the Civil Code, and to amend
Sections 422, 646.9, and 653m of the Penal Code, relating to
stalking.
LEGISLATIVE COUNSEL'S DIGEST
SB 1796, Leslie. Stalking: cyberstalking.
(1) Existing law provides that a person is liable for the tort of
stalking when the defendant engaged in a pattern of conduct intended
to follow, alarm, or harass, resulting in the plaintiff reasonably
fearing for his or her safety or the safety of an immediate family
member, where the defendant has either made a credible threat or
violated a restraining order.
This bill would expand the definition of "credible threat" to
include threats made by means of an electronic communication device,
and would incorporate the definition of "electronic communication"
used in a specified provision of federal law.
(2) Existing law prohibits the willful issuance of a threat to
commit a crime which will result in the death or great bodily injury
of another, with the specific intent that the statement be taken as a
threat even if there is no actual intent of carrying out the crime,
where the threat is so unequivocal, immediate, and specific so as to
cause the recipient to reasonably be in sustained fear for his or her
own safety or the safety of his or her immediate family.
This bill would clarify that this provision applies to threatening
statements made verbally, in writing, or by means of an electronic
communication device, and would incorporate the definition of
"electronic communication" used in a specified provision of federal
law. By expanding the scope of an existing crime, this bill would
impose a state-mandated local program.
(3) Existing law prohibits stalking, which is defined as the
willful, malicious, and repeated following or harassing of another,
where a credible threat, as defined, has been communicated to the
victim with the intent of placing the victim in reasonable fear for
his or her safety.
This bill would expand the definition of "credible threat" to
include threats communicated through the use of an electronic
communication device, including telephones, cellular phones,
computers, video recorders, fax machines, and pagers. This bill
would also incorporate the definition of "electronic communication"
used in a specified provision of federal law. By expanding the scope
of an existing crime, this bill would impose a state-mandated local
program.
(4) Existing law prohibits, regardless of the good faith of the
caller, the making of telephone calls to others with the intent to
annoy, where the caller either uses obscene language or makes threats
to the other parties person or property. Existing law also
prohibits the repeated telephoning of another at the recipient's
residence or, under certain circumstances, place of work, with the
intent to annoy, except where the repeated telephoning is conducted
in good faith. Existing law also provides that an offense under
these provisions committed by use of a telephone may be deemed to
have been committed at either the place of origin or receipt of the
telephone call or calls.
This bill would expand these provisions to include contacts by
means of an electronic communications device, including telephones,
cellular phones, computers, video recorders, fax machines, and
pagers. This bill would also create a good-faith exception for
obscene or threatening telephone calls or electronic contacts made
with the intent to annoy. This bill would also provide that an
offense committed by means of an electronic communication device
medium, including the Internet, may be deemed to have been committed
where the electronic communication or communications were originally
sent or first viewed by the recipient. This bill would incorporate
the definition of "electronic communication" used in a specified
provision of federal law. By expanding the scope of an existing
crime, this bill would increase local prosecution and incarceration
costs, and therefore would impose a state-mandated local program.
(5) This bill would provide that it shall only become operative if
AB 2351 is also enacted and becomes operative on or before January
1, 1999.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of this act to clarify that electronic
communications are included in the actions that can constitute the
crimes of harassment and stalking. It is not the intent of the
Legislature, by adoption of this act, to restrict in any way the
types of conduct or actions that can constitute harassment or
stalking.
SEC. 2. Section 1708.7 of the Civil Code is amended to read:
1708.7. (a) A person is liable for the tort of stalking when the
plaintiff proves all of the following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of
which was to follow, alarm, or harass the plaintiff. In order to
establish this element, the plaintiff shall be required to support
his or her allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, the plaintiff
reasonably feared for his or her safety, or the safety of an
immediate family member. For purposes of this paragraph, "immediate
family" means a spouse, parent, child, any person related by
consanguinity or affinity within the second degree, or any person who
regularly resides, or, within the six months preceding any portion
of the pattern of conduct, regularly resided, in the plaintiff's
household.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified
in paragraph (1), made a credible threat with the intent to place the
plaintiff in reasonable fear for his or her safety, or the safety of
an immediate family member and, on at least one occasion, the
plaintiff clearly and definitively demanded that the defendant cease
and abate his or her pattern of conduct and the defendant persisted
in his or her pattern of conduct.
(B) The defendant violated a restraining order, including, but not
limited to, any order issued pursuant to Section 527.6 of the Code
of Civil Procedure, prohibiting any act described in subdivision (a).
(b) For the purposes of this section:
(1) "Pattern of conduct" means conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose. Constitutionally protected activity is not included within
the meaning of "pattern of conduct."
(2) "Credible threat" means a verbal or written threat, including
that communicated by means 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 and 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 immediate family.
(3) "Electronic communication device" includes, but is not limited
to, telephones, cellular telephones, 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.
(4) "Harass" means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys,
torments, or terrorizes the person, and which serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the person.
(c) A person who commits the tort of stalking upon another is
liable to that person for damages, including, but not limited to,
general damages, special damages, and punitive damages pursuant to
Section 3294.
(d) In an action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction.
(e) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(f) This section shall not be construed to impair any
constitutionally protected activity, including, but not limited to,
speech, protest, and assembly.
SEC. 3. Section 422 of the Penal Code is amended to read:
422. Any person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing, or
by means of an electronic communication device, is to be taken as a
threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made,
is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes
that person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family's safety, shall be punished
by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison.
For the purposes of this section, "immediate family" means any
spouse, whether by marriage or not, parent, child, any person related
by consanguinity or affinity within the second degree, or any other
person who regularly resides in the household, or who, within the
prior six months, regularly resided in the household.
"Electronic communication device" includes, but is not limited to,
telephones, cellular telephones, 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.
SEC. 4. Section 646.9 of the Penal Code is amended to read:
646.9. (a) Any person who willfully, maliciously, and repeatedly
follows or 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) Any person who violates subdivision (a) when there is a
temporary restraining order, injunction, or any 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) Every person who, having been convicted of a felony under this
section, commits a second or subsequent violation of this section
shall be punished by imprisonment in the state prison for two, three,
or four 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 subparagraph (E) of
paragraph (2) of subdivision (a) of Section 290.
(e) For the purposes of this section, "harasses" means 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. This course of conduct must be
such as would cause a reasonable person to suffer substantial
emotional distress, and must actually cause substantial emotional
distress to the person.
(f) For purposes of this section, "course of conduct" means a
pattern of conduct composed of a series of acts 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.
(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 any 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) The sentencing court also shall 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 any 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.
(l) For purposes of this section, "immediate family" means any
spouse, parent, child, any person related by consanguinity or
affinity within the second degree, or any other 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 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.
SEC. 5. Section 653m of the Penal Code is amended to read:
653m. (a) Every person who, with intent to annoy, telephones or
makes contact by means of an electronic communication device with
another and addresses to or about the other person any obscene
language or addresses to the other person any threat to inflict
injury to the person or property of the person addressed or any
member of his or her family, is guilty of a misdemeanor. Nothing in
this subdivision shall apply to telephone calls or electronic
contacts made in good faith.
(b) Every person who makes repeated telephone calls or makes
repeated contact by means of an electronic communication device with
intent to annoy another person at his or her residence, is, whether
or not conversation ensues from making the telephone call or
electronic contact, guilty of a misdemeanor. Nothing in this
subdivision shall apply to telephone calls or electronic contacts
made in good faith.
(c) Every person who makes repeated telephone calls or makes
repeated contact by means of an electronic communication device with
the intent to annoy another person at his or her place of work is
guilty of a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both the fine and imprisonment.
Nothing in this subdivision shall apply to telephone calls or
electronic contacts made in good faith. This subdivision applies
only if one or both of the following circumstances exist:
(1) There is a temporary restraining order, an injunction, or any
other court order, or any combination of these court orders, in
effect prohibiting the behavior described in this section.
(2) The person makes repeated telephone calls or makes repeated
contact by means of an electronic communication device with the
intent to annoy another person at his or her place of work, totaling
more than 10 times in a 24-hour period, whether or not conversation
ensues from making the telephone call or electronic contact, and the
repeated telephone calls or electronic contacts are made to the
workplace of an adult or fully emancipated minor who is a spouse,
former spouse, cohabitant, former cohabitant, or person with whom the
person has a child or has had a dating or engagement relationship or
is having a dating or engagement relationship.
(d) Any offense committed by use of a telephone may be deemed to
have been committed where the telephone call or calls were made or
received. Any offense committed by use of an electronic
communication device or medium, including the Internet, may be deemed
to have been committed where the electronic communication or
communications were originally sent or first viewed by the recipient.
(e) Subdivision (a), (b), or (c) is violated when the person
acting with intent to annoy makes a telephone call requesting a
return call and performs the acts prohibited under subdivision (a),
(b), or (c) upon receiving the return call.
(f) If probation is granted, or the execution or imposition of
sentence is suspended, for any person convicted under this section,
the court may order as a condition of probation that the person
participate in counseling.
(g) 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.
SEC. 6. This act shall become operative only if Assembly Bill 2351
is also enacted and becomes operative on or before January 1, 1999.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.