CALCRIM No. 1301. Stalking (Pen. Code, § 646.9(a), (e)-(h))

Judicial Council of California Criminal Jury Instructions (2024 edition)

Download PDF
Bg446
1301.Stalking (Pen. Code, § 646.9(a), (e)-(h))
The defendant is charged [in Count ] with stalking [in violation of
Penal Code section 646.9].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously harassed or willfully,
maliciously, and repeatedly followed another person;
AND
2. The defendant made a credible threat with the intent to place the
other person in reasonable fear for (his/her) safety [or for the
safety of (his/her) immediate family].
<If a court order prohibiting defendant’s contact with the threatened person
was in effect at the time of the charged conduct, give the following two
paragraphs>
[If you find the defendant guilty of stalking [in Count[s]], you must then
decide whether the People have proved that a/an (temporary restraining
order/injunction/<describe other court order>)) prohibiting
the defendant from engaging in this conduct against the threatened
person was in effect at the time of the conduct.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.]
Acredible threat is one that causes the target of the threat to reasonably
fear for his or her safety [or for the safety of his or her immediate
family] and one that the maker of the threat appears to be able to carry
out.
Acredible threat may be made orally, in writing, or electronically or may
be implied by a pattern of conduct or a combination of statements and
conduct.
Harassing means engaging in a knowing and willful course of conduct
directed at a specific person that seriously annoys, alarms, torments, or
terrorizes the person and that serves no legitimate purpose.
A course of conduct means two or more acts occurring over a period of
time, however short, demonstrating a continuous purpose.
[A person is not guilty of stalking if (his/her) conduct is constitutionally
protected activity. <Describe type of activity; see Bench Notes
below> is constitutionally protected activity.]
1022
Bg447
Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to disturb, annoy, or
injure someone else.
[Repeatedly means more than once.]
[The People do not have to prove that a person who makes a threat
intends to actually carry it out.]
[Someone who makes a threat while in prison or jail may still be guilty
of stalking.]
[A threat may be made electronically by using a telephone, cellular
telephone, pager, computer, video recorder, fax machine, or other similar
electronic communication device.]
[Immediate family means (a) any spouse, parents, and children; (b) any
grandchildren, grandparents, brothers, and sisters related by blood or
marriage; or (c) any person who regularly lives in the other person’s
household [or who regularly lived there within the prior six months].]
[The terms and conditions of (a/an) (restraining order/injunction/
<describe other court order>) remain enforceable despite the
parties’ actions, and may only be changed by court order.]
New January 2006; Revised April 2010, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give element 3 if the defendant is charged with stalking in violation of a temporary
restraining order, injunction, or any other court order. (See Pen. Code, § 646.9(b).)
If there is substantial evidence that any of the defendant’s conduct was
constitutionally protected, instruct on the type of constitutionally protected activity
involved. (See the optional bracketed paragraph regarding constitutionally protected
activity.) Examples of constitutionally protected activity include speech, protest, and
assembly. (See Civ. Code, § 1708.7(f) [civil stalking statute].)
The bracketed sentence that begins with “The People do not have to prove that”
may be given on request. (See Pen. Code, § 646.9(g).)
The bracketed sentence about the defendant’s incarceration may be given on request
if the defendant was in prison or jail when the threat was made. (See Pen. Code,
§ 646.9(g).)
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1301
1023
Bg448
Give the bracketed definition of “electronic communication” on request. (See Pen.
Code, § 422; 18 U.S.C., § 2510(12).)
If there is evidence that the threatened person feared for the safety of members of
his or her immediate family, give the bracketed paragraph defining “immediate
family” on request. (See Pen. Code, § 646.9(l); see Fam. Code, § 6205; Prob. Code,
§§ 6401, 6402.)
If the defendant argues that the alleged victim acquiesced to contact with the
defendant contrary to a court order, the court may, on request, give the last
bracketed paragraph stating that such orders may only be changed by the court. (See
Pen. Code, § 13710(b); People v. Gams (1996) 52 Cal.App.4th 147, 151-152,
154-155 [60 Cal.Rptr.2d 423].)
AUTHORITY
• Elements. Pen. Code, § 646.9(a), (e)-(h); People v. Ewing (1999) 76 Cal.App.4th
199, 210 [90 Cal.Rptr.2d 177]; People v. Norman (1999) 75 Cal.App.4th 1234,
1239 [89 Cal.Rptr.2d 806].
• Intent to Cause Victim Fear. People v. Falck (1997) 52 Cal.App.4th 287, 295,
297-298 [60 Cal.Rptr.2d 624]; People v. Carron (1995) 37 Cal.App.4th 1230,
1236, 1238-1240 [44 Cal.Rptr.2d 328]; see People v. McCray (1997) 58
Cal.App.4th 159, 171-173 [67 Cal.Rptr.2d 872] [evidence of past violence
toward victim].
• Repeatedly Defined. People v. Heilman (1994) 25 Cal.App.4th 391, 399, 400 [30
Cal.Rptr.2d 422].
• Safety Defined. People v. Borrelli (2000) 77 Cal.App.4th 703, 719-720 [91
Cal.Rptr.2d 851]; see People v. Falck (1997) 52 Cal.App.4th 287, 294-295 [60
Cal.Rptr.2d 624].
• Substantial Emotional Distress Defined. People v. Ewing (1999) 76 Cal.App.4th
199, 210 [90 Cal.Rptr.2d 177]; see People v. Carron (1995) 37 Cal.App.4th
1230, 1240-1241 [44 Cal.Rptr.2d 328].
• Victim’s Fear Not Contemporaneous With Stalker’s Threats. People v. Norman
(1999) 75 Cal.App.4th 1234, 1239-1241 [89 Cal.Rptr.2d 806].
• Subsections (b) & (c) of Pen. Code, § 646.9 are Alternate Penalty Provisions.
People v. Muhammad (2007) 157 Cal.App.4th 484, 494 [68 Cal.Rptr.3d 695].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1195-1197 [67 Cal.Rptr.3d 871].
LESSER INCLUDED OFFENSES
• Attempted Stalking. Pen. Code, §§ 664, 646.9.
CALCRIM No. 1301 CRIMINAL THREATS AND HATE CRIMES
1024
Bg449
RELATED ISSUES
Harassment Not Contemporaneous With Fear
The harassment need not be contemporaneous with the fear caused. (See People v.
Norman (1999) 75 Cal.App.4th 1234, 1239-1241 [89 Cal.Rptr.2d 806].)
Constitutionality of Terms
The term “credible threat” is not unconstitutionally vague. (People v. Halgren
(1996) 52 Cal.App.4th 1223, 1230 [61 Cal.Rptr.2d 176].) The element that the
objectionable conduct “serve[] no legitimate purpose” (Pen. Code, § 646.9(e) is also
not unconstitutionally vague; “an ordinary person can reasonably understand what
conduct is expressly prohibited.” (People v. Tran (1996) 47 Cal.App.4th 253, 260
[54 Cal.Rptr.2d 650].)
Labor Picketing
Section 646.9 does not apply to conduct that occurs during labor picketing. (Pen.
Code, § 646.9(i).)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 333-336.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11A[2] (Matthew Bender).
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1301
1025

© Judicial Council of California.