California Legislature—2013–14 Regular Session

Assembly Bill No. 1982

Introduced by Assembly Member Ting

February 19, 2014

An act to amend Section 1109 of the Evidence Code, and to amend Section 646.9 of the Penal Code, relating to stalking.

LEGISLATIVE COUNSEL’S DIGEST

AB 1982, as introduced, Ting. Stalking.

Under existing law, 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, punishable 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 provides that a person who violates these provisions after having been convicted of certain other crimes is subject to additional punishment, as specified.

This bill would instead provide that a person is guilty of the crime of stalking when that person willfully engages in a course of conduct directed at a specific person or group of persons and knows or should have known that the course of conduct would cause a reasonable person to fear for his or her safety or the safety of his or her immediate family, or to suffer substantial emotional distress, as defined. The bill would include additional crimes for which a person is subject to additional punishment if that person violates these provisions after having been convicted of those crimes. The bill would also require a person who violates these provisions by engaging in a course of conduct directed at a person who was a minor at the time during the course of that conduct to be punished by imprisonment in the state prison for 2, 3, or 5 years. By changing the definition of a crime, this bill would impose a state-mandated local program.

Under existing law, evidence of a person’s character or a trait of his or her character is inadmissible when offered to prove his or her conduct on a particular occasion, except as specified. Existing law provides, however, that when a defendant is accused of an offense involving domestic violence in a criminal action, evidence of the defendant’s commission of other domestic violence may be admitted to prove the defendant’s conduct, except when the court exercises its discretion to exclude the evidence of prior acts, as specified.

This bill would provide that when a defendant is accused of an offense involving stalking in a criminal action, evidence of the defendant’s prior acts of stalking may be admitted to prove the defendant’s conduct, except as specified.

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.

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

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

SECTION 1.  

Section 1109 of the Evidence Code is amended
to read:

1109.  

(a) (1) Except as provided in subdivision (e) or (f), in
a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant’s
commission of other domestic violence is not made inadmissible
by Section 1101 if the evidence is not inadmissible pursuant to
Section 352.

(2) Except as provided in subdivision (e) or (f), in a criminal
action in which the defendant is accused of an offense involving
abuse of an elder or dependent person, evidence of the defendant’s
commission of other abuse of an elder or dependent person is not
made inadmissible by Section 1101 if the evidence is not
inadmissible pursuant to Section 352.

(3) Except as provided in subdivision (e) or (f) and subject to
a hearing conducted pursuant to Section 352, which shall include
consideration of any corroboration and remoteness in time, in a
criminal action in which the defendant is accused of an offense
involving child abuse, evidence of the defendant’s commission of
child abuse is not made inadmissible by Section 1101 if the
evidence is not inadmissible pursuant to Section 352. begin delete Nothing in
this end delete begin insert This end insert paragraph begin delete prohibits or limits end delete begin insert does not prohibit or limit end insert
the admission of evidence pursuant to subdivision (b) of Section
1101.

begin insert

(4) Except as provided in subdivision (e) or (f), in a criminal
action in which the defendant is accused of an offense involving
stalking, evidence of the defendant’s commission of other acts of
stalking is not made inadmissible by Section 1101 if the evidence
is not inadmissible pursuant to Section 352.

end insert

(b) In an action in which evidence is to be offered under this
section, the people shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance
of any testimony that is expected to be offered, in compliance with
the provisions of Section 1054.7 of the Penal Code.

(c) This section shall not begin delete be construed to end delete limit or preclude the
admission or consideration of evidence under any other statute or
case law.

(d) As used in this section:

(1) “Abuse of an elder or dependent person” means physical or
sexual abuse, neglect, financial abuse, abandonment, isolation,
abduction, or other treatment that results in physical harm, pain,
or mental suffering, the deprivation of care by a caregiver, or other
deprivation by a custodian or provider of goods or services that
are necessary to avoid physical harm or mental suffering.

(2) “Child abuse” means an act proscribed by Section 273d of
the Penal Code.

(3) “Domestic violence” has the meaning set forth in Section
13700 of the Penal Code. Subject to a hearing conducted pursuant
to Section 352, which shall include consideration of any
corroboration and remoteness in time, “domestic violence” has
the further meaning as set forth in Section 6211 of the Family
begin delete Code, end delete begin insert Code end insert if the act occurred no more than five years before the
charged offense.

begin insert

(4) “Stalking” has the meaning set forth in Section 646.9 of the
Penal Code.

end insert

(e) Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the court
determines that the admission of this evidence is in the interest of
justice.

(f) Evidence of the findings and determinations of administrative
agencies regulating the conduct of health facilities licensed under
Section 1250 of the Health and Safety Code is inadmissible under
this section.

SEC. 2.  

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, begin delete 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 end delete begin insert engages in a course of conduct directed
at a specific person or group of persons and knows or should have
known that the course of conduct would cause a reasonable person
to end insert fear for his or her safety begin delete , end delete or the safety of his or her immediate
family begin insert , or to suffer substantial emotional distress end insert 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 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.

begin insert

(c) A person who violates subdivision (a) by engaging in a
course of conduct directed at a person who was a minor at any
time during the course of conduct shall be punished by
imprisonment in the state prison for two, three, or five years.

end insert begin delete

(c)

end delete

begin insert (d) end insert  (1)  begin delete Every end delete begin insert A end insert person who, after having been convicted of a
begin delete felony end delete begin insert crime end insert under Section begin insert 166, end insert 273.5, 273.6, begin delete or end delete 422, begin insert or 653m, end insert
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)  begin delete Every end delete begin insert A end insert 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.

begin delete

(d)

end delete

begin insert (e) end insert  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.

begin delete

(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.

end delete

(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. begin insert The conduct may include, but
is not limited to, acts committed directly, indirectly, electronically,
or through third parties. The conduct may also include, but is not
limited to, acts committed by any gesture, method, or device, or
following, monitoring, observing, physically or electronically
surveilling, threatening, interfering with a person’s property, or
identity theft of, false personation of, or communicating to or about,
a person. end insert Constitutionally protected activity is not included within
the meaning of “course of conduct.”

begin delete

(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.”

end delete begin insert

(g) For purposes of this section, “substantial emotional distress”
means a greater level of distress than everyday mental distress or
being upset, but does not require that the victim seek psychological
or medical treatment.

end insert begin delete

(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.

end delete begin delete

(i)

end delete

begin insert (h) end insert  This section shall not apply to conduct that occurs during
labor picketing.

begin delete

(j)

end delete

begin insert (i) end insert  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.

begin delete

(k)

end delete

begin insert (j) end insert  (1) 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.

(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.

begin delete

(l)

end delete

begin insert (k) end insert  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 domesticated pet, end insert begin insert a end insert 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.

begin delete

(m)

end delete

begin insert (l) end insert  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.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B 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 XIII B of the California
Constitution.