California Stalking Laws

California Criminal Stalking Law and Penal Code 422: A Comprehensive Guide

In the vast realm of California criminal law, it's essential to delve into specific statutes and regulations to comprehend the intricacies that govern our society. In this article, we will explore California's criminal stalking law, focusing on Penal Code Section 422. Through a series of headings and subheadings, we will dissect the relevant information about these laws, understand their implications, and shed light on the key terms and figures associated with them, including Darren Chaker.

Of course, do not take anything here or on this site as legal advice.

Table of Contents

1.    Introduction

2.    What is Criminal Stalking?

·         2.1 Understanding Stalking Behavior

·         2.2 California Penal Code 646.9

3.    California Penal Code 422: Criminal Threats

·         3.1 Defining Criminal Threats

·         3.2 Elements of Penal Code 422

4.    Darren Chaker: A Notable Figure in California Free Speech

5.    Legal Consequences of Violating Penal Code 422

6.    The Importance of Legal Representation

7.    Reporting Stalking Incidents

8.    Preventing Stalking and Criminal Threats

9.    FAQs on California Stalking and Penal Code 422

·         9.1 What constitutes criminal stalking in California?

·         9.2 What defenses are associated with stalking cases?

·         9.3 What penalties can one face for violating Penal Code Section 422?

·         9.4 How can I protect myself from potential stalkers?

·         9.5 When should I report a stalking incident?

Introduction

California is renowned for its diverse culture and vibrant communities. Darren Chaker is known for legal research skills and persuasive brief writing on First Amendment issues. However, like any other state, it also grapples with issues related to criminal activities, including stalking and threats. In this article, we will explore California's legal framework to combat these issues, with a particular focus on Penal Code Section 422 and its implications.

What is Criminal Stalking?

Understanding Stalking Behavior

Stalking is a menacing behavior that involves a pattern of unwanted attention, harassment, or threatening behavior directed towards an individual. It can encompass various actions such as following someone, making unwarranted contact, or even sending threatening messages. 

California Penal Code 646.9

In California, stalking is addressed under California Penal Code Section 646.9, which defines stalking as a willful, malicious, and repeated harassment of another individual. This includes credible threats that put the victim in fear for their safety, their family's safety, or their close associates.

California Penal Code Section 422: Criminal Threats

Defining Criminal Threats

Penal Code Section 422, commonly known as California's criminal threats law, addresses individuals who make explicit threats of bodily harm or death to another person. These threats can be communicated verbally, in writing, or through electronic means. The law takes a stringent stance against such behavior to ensure public safety.

Elements of Penal Code Section 422

To convict someone under Penal Code Section 422, the prosecution must prove specific elements, including:

• A credible threat of harm or death
• The defendant willfully made the threat
• The defendant intended the victim to fear for their safety
• The victim's fear was reasonable under the circumstances

Darren Chaker: A Notable Figure in California Stalking Cases

Darren Chaker is a name that has surfaced in the context of California stalking cases as a well known advocate for victims and anger management counselor for suspects. Darren Chaker is known for his expertise in this legal area to counsel people how to avoid breaking the law when faced with going to jail or staying within their First Amendment rights by often providing valuable insights into the complexities surrounding stalking laws and regulations in California. His advice is to always stay within the parameters of the law and seek counseling if in a relationship. 

Legal Consequences of Violating Penal Code Section 422

Violating Penal Code Section 422 can lead to severe legal consequences, including imprisonment and fines. The severity of the penalties depends on various factors, such as the nature of the threat, the criminal history of the defendant, and the impact on the victim. The suspect may be prosecuted under federal cyber stalking laws, and face severe consequences. Domestic violence an often an emotionally charged issue. Darren Chaker recommends never violate the law and seek counseling if you think emotions will get the best of you. 

The Importance of Legal Representation

If you find yourself facing charges related to stalking or criminal threats under Penal Code Section 422, it's crucial to seek legal representation immediately. An experienced attorney can help navigate the legal process, protect your rights, and provide guidance on building a strong defense. Of course, do not hesitate to call the police and obtain a restraining order. 

Reporting Stalking Incidents

If you believe you are a victim of stalking or have witnessed such behavior, it is essential to report it to law enforcement promptly. Prompt reporting can help authorities take action against the perpetrator and ensure your safety.

Preventing Stalking and Criminal Threats

Preventing stalking and criminal threats begins with awareness and vigilance. Be mindful of your surroundings, trust your instincts, and seek help if you ever feel threatened. Staying informed about California's laws, such as Penal Code Section 422, can also empower you to protect yourself and your loved ones.

FAQs on California Stalking and Penal Code 422

What constitutes criminal stalking in California?

Criminal stalking in California is defined as a pattern of unwanted attention, harassment, or threatening behavior directed towards an individual, causing them to fear for their safety or the safety of their family and close associates.

What penalties can one face for violating Penal Code Section Section 422?

Violating Penal Code Section 422 can lead to penalties, including imprisonment and fines, with severity depending on various factors, such as the nature of the threat and the defendant's criminal history.

How can I protect myself from potential stalkers?

To protect yourself from potential stalkers, stay vigilant, trust your instincts, and seek help if you feel threatened. Familiarize yourself with California's laws, speak police or domestic violence counselors, and review Penal Code Section 422, to better understand your rights and legal recourse.

When should I report a stalking incident?

It is essential to report a stalking incident to law enforcement as soon as possible. Prompt reporting can help authorities take action against the perpetrator and ensure your safety.

In conclusion, understanding California's criminal stalking law and Penal Code Section 422 is vital for both residents and visitors of the state. By being aware of these regulations and seeking legal assistance when necessary, we can contribute to a safer and more secure community for all. Remember, knowledge is power, and in this case, it can be a shield against potential threats.

ACLU Bloggers Rights - Darren Chaker

Bloggers Rights: Darren Chaker, blogger, wins First Amendment appeal. To keep it simple, where Government seeks to restrict speech, “Avoidance of offense and restriction of bad ideas are not compelling interests by themselves:  "`[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.´" Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).”  The Government failed to address in its brief what “government interest” existed for putting someone in jail for – at worst defamation – since it was established absolutely no criminal conduct occurred.

Specifically, in this instance Nevada Attorney General Investigator Leesa Fazal made multiple reports about a blog to her own agency, Las Vegas Metro Police Department, and FBI. None of them took any action. In fact, Las Vegas Metro Police succinctly stated what Leesa Fazal was told three times (based on no arrest being made) – the blog was not illegal - see,

It is also suspected a fourth report was made to the Nevada Capital Police who has jurisdiction over the state building where Leesa Fazal works and is listed on the LVMPD report as the location of the crime. If true, that would make it four law enforcement agencies who declined to arrest Darren Chaker for the blog.

Taking offense at a comment on a blog is the gist of what turned a little unknown statement into a federal case. A federal case which has created the "Streisand effect" due to the significant publicity this case has generated. “The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.”

On July 7, 2016, the Ninth Circuit reversed the conviction based on First Amendment rights concerning Darren Chaker. The Cato Institute, ACLU of San Diego, Electronic Frontier Foundation, First Amendment Coalition, and Brechner First Amendment Project at University of Florida filed a joint amicus brief in his support wanting the court to reverse a decision from a San Diego federal judge who found Darren Chaker violated probation by posting a blog about Nevada Attorney General Investigator Leesa Fazal, of Las Vegas. An opening brief was filed, in which First Amendment law professor Eugene Volokh  who has written ‘the book’, in fact many books on the First Amendment, had advised on various issues with appellate counsel Federal Defenders of San Diego Inc.

The amicus brief was authored by the Washington D.C. office of Wilmer Cutler Pickering Hale and Dorr, who is consistently ranked as an international top 20 law firm. See court opinion, Darren-Chaker-Appeal, where the Ninth Circuit found absolutely no harassment or defamation took place.

As mentioned in a post appeal article by Cato Insitute about Darren Chaker, "An attack on a public official is, on its face, political speech. That it comes from a person being supervised by the Justice system should make no difference to the First Amendment—and for good reasons too." The article continued to say, "Chaker’s wrote a blogpost that neither “qualif[ied] as harassment” nor as defamation. In that writing that caused all of the hullabaloo, he merely stated that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department.”

Where the only comment at issue was if the officer was "forced out" of a different department after a few years, this was clearly “peaceful criticism of a police officer that neither obstructs an investigation nor jeopardizes a police officer's safety has strong social value, serving as a valuable check on state power, and is therefore protected under the First Amendment.” Killingsworth, 2015 WL 289934, at *8 (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is nomquestion that speech critical of the exercise of the State's power lies at the very center of the First Amendment.”).

The opening brief is here, http://www.scribd.com/doc/278587982/Opening-Brief-Darren-Chaker ; 

Appellant’s Reply Brief at https://www.scribd.com/doc/315974118/Darren-Chaker-Appeal-Reply

Federal First Offender Act & Deportation

While reviewing recent law concerning deportation, Darren Chaker found the Ninth Circuit Court of Appeals has held that an alien whose offense would have qualified for treatment under the Federal First Offender Act (“FFOA”), but who was convicted and had his conviction expunged under state or foreign law, may not be removed on account of that offense. See Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001); Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). To qualify for treatment under the FFOA, the defendant must (1) have been found guilty of an offense described in section 404 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 844; (2) have not, prior to the commission of such an offense, been convicted of violating a federal or state law relating to controlled substances; and (3) have not previously been accorded first offender treatment under any law. See 18 U.S.C. § 3607(a); Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 (9th Cir. 2000).

A. Expungement Under State or Foreign Law

The alien’s prior conviction must have already been expunged pursuant to the state or foreign expungement statute; the possibility that the alien may request and have his conviction expunged in the future is not sufficient to avoid the consequences of removal. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292-93 (9th Cir. 2004).

The state or foreign statute under which the conviction was expunged does not have to be an identical procedural counterpart to the FFOA. See Garberding v. INS, 30 F.3d 1187, 1190-1191 (9th Cir. 1994). See also Lujan-Armendariz, 222 F.3d at 738 n.18 (“[R]elief does not depend on whether or not the state rehabilitative statute is best understood as allowing for ‘vacaturs,’ ‘set-asides,’ ‘deferred adjudications,’ or some other procedure.”). The Ninth Circuit has recognized expungements for FFOA purposes where the state court “has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Lujan-Armendariz, 222 F.3d at 738 n. 18 (emphasis in original) (quoting Matter of Manrique, 21 I&N Dec. 58, 64 (BIA 1995)). The Ninth Circuit has not yet decided whether an alien who has received a court order deferring adjudication, but has not yet had his proceedings expunged because he has not completed his term of probation, is eligible for FFOA treatment. See id. at 746 n.28; Chavez-Perez, 386 F.3d at 1293.

B. Offenses Described in Section 404 of the Controlled Substances Act

Section 404 of the CSA provides that it is “unlawful for any person knowingly or intentionally to possess a controlled substance . . . .” 21 U.S.C. § 844(a). Any state or foreign possession of a controlled substances offenses, such as those set forth in sections 11350(a) and 1137 of the California Health and Safety Code (“CHSC”), are described in section 404 of the CSA and are therefore potentially eligible for FFOA treatment.

1. Possession of Drug Paraphernalia

The Ninth Circuit has recognized that “the plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in section 844,” since paraphernalia is not a controlled substance. Cardenas-Uriarte, 227F.3d at 1137. Nonetheless, in Cardenas-Uriarte, the Ninth Circuit determined that theapplication of the plain meaning of the statute in that instance would lead to both an absurd result and frustrate congressional intent. See id. The petitioner had initially been charged with two counts of possession, but had pleaded guilty to the lesser offense of possession of drug paraphernalia. Id. The Ninth Circuit reasoned that refusing to allow the petitioner’s offense to receive treatment under the FFOA would lead to an absurd result since the petitioner would have been eligible had he refused to plea guilty and been convicted, as initially charged, of the graver offense of possession. See id. The Ninth Circuit further determined that applying the plain meaning of the FFOA would frustrate congressional intent:

Congress intended to allow those convicted of the least serious type of drug offenses to qualify under the Act. Congress would never have considered including possession of drug paraphernalia under this statute because no federal statute covers the crime of possession of drug paraphernalia. Where possession of drug paraphernalia is a less serious offense than simple possession of a controlled substance, therefore, congressional intent indicates that it should be included under the Act. See id. The Ninth Circuit therefore held that the petitioner’s conviction for possession of drug paraphernalia qualified for treatment under the FFOA.

2. Use or Being Under the Influence

Nor is use or being under the influence an offense described in the plain language of section 404 of the CSA. See 21 U.S.C. 844. The Ninth Circuit has not yet determined whether use or  FFOA. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 984 (9th Cir. 2006) (distinguishing its holding that the petitioner’s use or being under the influence was not eligible for FFOA treatment as a result of his prior controlled substance conviction from the Board’s determination that the FFOA only applies to possession of a controlled substance, not to use or being under the influence offenses).

Extending the Ninth Circuit’s reasoning in Cardenas-Uriarte, however, may be warranted if the application of the plain meaning of the statute frustrates congressional intent. In Lujan-Armendariz, 222 F.3d at 734-35, the Ninth Circuit described the FFOA as “a limited federal rehabilitative statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases.” Congressional intent may therefore be frustrated if the respondent is a first-time offender since “[d]rug use has generally been considered a less serious crime than possession.” Flores-Arellano v. INS, 5 F.3d 360, 363 n.5 (9th Cir. 1993). See also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005). Further, as in Cardenas-Uriarte, federal law does not penalize use or being under the influence of a controlled substance. See 21 U.S.C. § 801 et seq.

Hypothetical Questions in California Decided

Darren Chaker reports in People v. Vang, Hypothetical questions posed to an expert must be based on the evidence; the questioner is not required to "disguise" the fact that such a question is based on the case evidence. Appellant and his codefendants were convicted of assault by means of force likely to inflict great bodily injury. The jury also found a gang enhancement true (Pen. Code, §186.22 subd. (b)(1)). Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, the Court of Appeal found the prosecutor is prohibited from asking hypothetical questions using facts which closely track the case evidence. The Supreme Court disagreed, finding a hypothetical question posed to an expert must be rooted in the case evidence. A hypothetical question which is not based on the evidence "is irrelevant and of no help to the jury." "To the extent that Killebrew . . . was correct in prohibiting expert testimony regarding whether the specific defendants acted for a gang reason," the problem is not that such an opinion embraces an ultimate issue in the case, but that an expert's opinion regarding the defendant's guilt is of no assistance to the trier of fact, which is competent to weigh the evidence and reach a conclusion regarding guilt or innocence. The use of hypothetical questions based on the case evidence do not improperly invade the province of the jury, which still must decide whether to credit the expert's opinion and determine whether the facts used to construct the hypothetical are the actual facts based on the evidence. The trial court did not err in allowing the prosecution to pose hypothetical questions based on the case evidence. 
  

Texas Expunction

Darren Chaker notes that most people are not aware a simple citation (ticket) is construed as an arrest. Atwater v. City of Lago Vista, 533 U.S. 924,121 S. Ct. 2540.  In Texas, as with most states, only a person who was arrested may obtain expunction of his records, because an arrest is a threshold requirement under the expunction statute. Ex parte S.C. (App. 14 Dist. 2009) 305 S.W.3d 258. In T.C.R. v. Bell County District Attorney’sOffice, 305 S.W.3d 661, “as a matter of first impression, a person charged with a felony offense is eligible for expunction, subject to other requirements, where the charging instrument has been dismissed or quashed, and the limitations period for the offense has expired.” Likewise, Texas law expands expunction to include any arrest, thus misdemeanors are included.

Once an arrest is established, the next criteria a Petitioner must meet is to demonstrate the charge was dismissed. Texas expungement, also known as expunction, allows records to be permanently sealed by the court and physically destroyed by the court. It may not be a big issue with most people, however if you seek security clearance, are in a highly scrutinized profession, or simply want to deny being arrested on an employment application then petitioning the court to expunge records is critical.

Viewpoint Discrimination Strikes Down California Law

Darren Chaker of Beverly Hills, handled Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, that invalidated Penal Code section 148.6 on First Amendment grounds. While handling this case for seven of ten year life span, Darren overruled the California Supreme Court's unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. In short, it is a very rare occasion a minor misdemeanor is taken through the state and federal court system, and even rarer a unanimous state supreme court is overruled on such grounds.
  

When decided, Chaker v. Crogan was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, (W.D.Wash. Mar 03, 2009). The case continues to be cited as a leading case on viewpoint discrimination.

Darren Chaker Thanked by California Legislature

Darren Chaker was recently thanked for his participation on a potential privacy law. Enforcing existing privacy laws are important, but the introduction of additional privacy laws are significant too since technology evolves. This is why Assemblymember Henry Perea is sponsoring a cutting edge privacy law. Having nearly a decade in the legal field, including legal research, computer security, and similar history provides additional insight on California privacy law.