Existing law makes a 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 the persons safety, or the safety of the persons immediate family, guilty of the crime of stalking, punishable as a misdemeanor or a felony.

This bill would instead also make a person guilty of stalking if the person has the intent to harm or the intent to place under surveillance for the purpose of harming another person, and engages in conduct that either places that person in reasonable fear of death or serious bodily injury to themselves, a close family member, or a pet, service animal, emotional support animal, or horse that belongs to that person, or causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to one of the above persons. 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 the safety of that persons pet, service animal, emotional support animal, or horse. By changing the definition of a crime, this bill would impose a state-mandated local program.

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.

Existing law makes a 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 the persons safety, or the safety of the persons immediate family, guilty of the crime of stalking, punishable as a misdemeanor or a felony.

This bill would instead make a person guilty of stalking if the person has the intent to harm or the intent to place under surveillance for the purpose of harming another person, and engages in conduct that either places that person in reasonable fear of death or serious bodily injury to themselves, a close family member, or a pet, service animal, emotional support animal, or horse that belongs to that person, or causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to one of the above persons. By changing the definition of a crime, this bill would impose a state-mandated local program.

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.

Date of Hearing: July 2, 2024

Counsel: Sandy Uribe / Andrew Ironside

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 89

Author:(Ochoa Bogh) – As Amended Ver:April 13, 2023

VOTE ONLY

SUMMARY: Expands the crime of stalking to include making a credible threat with the intent to place a person in reasonable fear for the safety of their pet, service animal, emotional support animal, or horse.

EXISTING LAW:

1. States that 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 their immediate family is guilty of stalking. (Pen. Code, § 646.9, subd. (a).)
   
2. Punishes stalking by imprisonment in county jail for not more than one year, or by imprisonment in the state prison. (Pen. Code, § 646.9, subd. (a.).)
   
3. Provides that a person who commits stalking while there is a temporary restraining order, injunction, or any other court order in effect prohibiting stalking behavior against the same party shall be punished by imprisonment in the state prison for 2, 3, or 4 years. (Pen. Code, § 646.9, subd. (b).)
   
4. Provides that a person who commits stalking after having been convicted of domestic violence, violation of a protective order, or of criminal threats shall be punished by imprisonment in the state prison for 2, 3 or 5 years. (Pen. Code, § 646.9, subd. (c)(1).)
   
5. Provides that a person who commits stalking after previously having been convicted of felony stalking shall be punished by imprisonment in the state prison for 2, 3, or 5 years. (Pen. Code, § 646.9, subd. (c)(2).)
   
6. Authorizes the sentencing court to order a person convicted of felony stalking to register as a sex offender. (Pen. Code, § 646.9, subd. (d).)
   
7. Requires the sentencing court to consider issuing a restraining order valid for up to 10 years when a defendant is convicted of stalking, regardless of whether the defendant is placed on probation or sentenced to state prison or county jail. (Pen. Code, § 646.9, subd. (k).)
   
8. Defines the following terms as it relates to the elements of the crime of stalking:
   
   1. “Harass” 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.” (Pen. Code, § 646.9, subd. (e).)
      
   2. “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.” (Pen. Code, § 646.9, subd. (f).)
      
   3. “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.” (Pen. Code, § 646.9, subd. (g).)
      
   4. “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.” (Pen. Code, § 646.9, subd. (l).)
      
9. Provides that a person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of animal cruelty. (Pen. Code, § 597, subd. (a).)
   
10. Punishes a violation of animal cruelty as a felony with imprisonment in the county jail under realignment, or by a fine of not more than $20,000, or by both; or alternatively, as a misdemeanor with imprisonment in a county jail for not more than one year, or by a fine of not more than $20,000, or by both. (Pen. Code, § 597, subd. (d).)
    

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, “According to the Bureau of Justice Statistics Special Report: Stalking Victimization in the US, perpetrators of stalking tend to damage their victim’s property, even going as far as to target the victim’s loved ones, including pets. One National Crime Victimization Survey estimated that four in 10 stalkers threaten a “victim or the victim’s family, friends, co-workers, or family pet,” with 87,020 threats to harm a pet being reported.
   
   “Humans and animals form strong bonds that induce strong feelings of affection and connection, which can make a pet an easy target for threats and physical harm. California’s law ignores how powerful a threat or injury to a beloved pet can be. Not updating state statute to conform to federal anti-stalking law leaves victims and their pets vulnerable to threats and attacks by a stalker. It is critical that California’s anti-stalking law is updated in order to better protect victims and their pets.”
   
2. Elements Required for Stalking Prosecutions: Stalking is generally understood as repeated threatening behavior that is intended to place the subject of the stalking in reasonable fear for their safety or the safety of their family. In order to convict a person under the current stalking statute, Penal Code section 646.9, the prosecutor must prove the following:
   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 their safety, or for the safety of their immediate family. (See CALCRIM No. 1301; see also People v. Falck (1997) 52 Cal.App.4th 287, 297-298.)

Stalking requires either repeated following or harassment which necessarily includes multiple acts. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293; People v. Heilman (1994) 25 Cal.App.4th 391, 400) “Repeated . . . simply means the perpetrator must follow the victim more than one time. The word adds to the restraint police officers must exercise, since it is not until a perpetrator follows a victim more than once that the conduct rises to a criminal level.” (People v. Heilman, supra, 25 Cal.App.4th at 400.)

This bill would expand the offense stalking to include situations where the person threatens the safety of another’s pet, service animal, emotional support animal, or horse. The background provided by the author notes that the federal stalking statute protects the pet, service animal, emotional support animal, or horse of that person. (18 USCS § 2261A.)

There are many instances where California law is not coextensive with federal law. Moreover, existing state law does provide protections to animals under animal cruelty laws. Expanding the stalking statute to pets and other animals creates a slippery slope for significant expansion of other crimes such as criminal threats and domestic violence.

Finally, as noted above, the crime of stalking is based on a continuous course of conduct involving multiple acts, not a single incident. (See also People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293.) A prosecutor can already argue that any person would reasonably fear for their own safety (as opposed to that just of their pet) if the perpetrator was threating a person’s pet in addition to committing other harassing or threatening behavior against that person. As such, this bill is unnecessary.

1. Recent Relevant Supreme Court Case Law: On June 27, 2023, the United States Supreme Court decided Counterman v. Colorado (2023) 600 U.S. __ [2023 U.S. LEXIS 2788], a case deciding what constitutes a “true threat” and what test should be applied to determine if a statement or conduct rises to the level of a true threat. The issue arose in the context of a conviction for the crime of stalking. The Colorado statute makes it unlawful to, in pertinent part, to directly, or indirectly through another person, knowingly either: make a credible threat to another person and, in connection with the threat, repeatedly follow, approach, contact or place under surveillance that person … or, make a credible threat to another person and, in connection with the threat, repeatedly make any form of communication with that person … regardless of whether a conversation ensues. (CRS 18-3-602, subd. (1).)
   
   In Counterman, supra, the defendant’s stalking conviction was based on hundreds of messages sent to the victim over Facebook. Counterman never met the victim and she never responded to any of his messages. While some of the messages were benign, others suggested Counterman might be surveilling the victim, and others expressed anger and threats of harm. The conviction was based solely on the repeated Facebook communications. (2023 U.S. LEXIS 2788, *6-7.) Counterman argued that the conviction should be overturned because the statements were not true threats and so were protected under the First Amendment. (Id. at *8.)
   
   The Supreme Court noted that the Colorado courts had used an objective, reasonable person standard to determine if Counterman had made a threat. (2023 U.S. LEXIS 2788, *8.) The question before the Court was “whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements.” (Id. at *5.) The Court answered the question in the affirmative. (Id. at *9.) The Court reasoned that reliance on an objective standard would sometimes result in self-censorship because people would be worried about how their statements would be perceived. (Id. at *12-15.) To prove this subjective understanding, the Court further held that a mental state of recklessness is sufficient. In the threats context, recklessness means “that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’” (Id. at *18.)
   
   While the Supreme Court overturned Counterman’s conviction, it did not overturn the Colorado stalking statute. Rather, what is affected going forward is the evidence prosecutors must prove to establish a conviction under the statute. Under the new U.S. Supreme Court precedent, going forward prosecutors will have to show that the defendant knew that others could perceive a statement made threatened violence and yet the defendant uttered it anyway.
   
   As in Colorado, California courts have applied an objective reasonable-person standard to determine if statements constitute a credible threat. The California stalking statute itself notes that the person that is the target of the threat must have reasonable fear for their safety. (Pen. Code, § 646.9, subd. (g).) However, under California law, prosecutors also have had to prove subjective mens rea for stalking based on threats, namely that “the defendant made a credible threat with the intent to place the other person in reasonable fear for their safety, or for the safety of their immediate family.” (See CALCRIM No. 1301; see also People v. McCray (1997) 58 Cal.App.4th 159, 172 [“The crimes with which appellant was charged required proof of his intent to place Michelle in fear for her safety or that of her family…. (§ 646.9, subd. (a)).”].)
2. Argument in Support: According to Crime Victims United of California, “Stalking is a crime of power and control. Victims of stalking live in fear. The victim endures unspeakable harassment, threats, and is literally terrorized. Perpetrators of this crime often threaten their loved ones, including their pets. This leaves the victim to live in fear, not only for their safety but the safety of loved ones and precious pets.
   
   “Unfortunately, California law does not recognize terrorizing a victim about their pet as a crime or form of stalking. Federal law does and brings the ability of victims who are threatened with harm to their animals to be able to hold their preparators accountable.
   
   “It is critical to the safety and security of stalking victims that penal code section 646.9 be amended to include victims' pets. SB 89 would do that providing much need protection to the victims of stalking. It is widely known that animal cruelty is “the link” to more violent behavior. By adding this critical section and conforming state law to Federal law, broader protection for crime victims can be provided.”
   
3. Argument in Opposition: According to the American Civil Liberties Union California Action, “[W]e must respectfully oppose SB 89, which would greatly expand the definition of “stalking,” a crime that carries with it a punishment of between one and five years incarceration in prison, as well as potential immigration consequences.
   
   “SB 89 is an emotional expression of the outrage society feels when a person acts to intimidate and harass another, but it takes the wrong policy approach. Existing law already provides protections to animals under animal cruelty laws at the State and Federal level. In 2016, AB 494 amended Code of Civil Procedure 527.6 (civil harassment), Welfare and Institutions Code sections 213.5 (juvenile), and 15657.03 (elder and dependent adult abuse) to permit a court to issue a protective order for animals to keep a person away from them, and restrain from conduct including making threats. California also allows domestic violence protective orders to include pets. In addition, Federal law includes the crime of stalking and actions that make the victim fear that the stalker will hurt the victim’s pet, service or emotional support animal, or horse (18 U.S.C. § 2261A (2019)).
   
   “For these reasons, we must respectfully oppose SB 89.”
   
4. Related Legislation:
   
   1. AB 56 (Lackey) would expand eligibility for victim compensation to include emotional injuries from specified felony crimes including stalking. AB 56 is pending hearing in the Senate Appropriations Committee.
      
   2. AB 829 (Waldron) would require a court to consider ordering a defendant who has been granted probation after conviction of specified animal abuse crimes to undergo a mental health evaluation, and requires the defendant to complete mandatory counseling as directed by the court, if the evaluator deems it necessary. AB 829 is pending in the Senate Appropriations Committee.
      
5. Prior Legislation:
   
   1. AB 1982 (Ting), of the 2013-2014 Legislative Session, would have modified the crime of stalking from one requiring specific intent on the part of the perpetrator to one of general intent and would have included a domesticated pet within the definition of immediate family for purposes of the crime of stalking. AB 1982 was held in the Assembly Appropriations Committee.
      
   2. SB 1320 (Kuehl), Chapter 832, Statutes of 2002, revised California's stalking statute to, among other things, specify that constitutionally protected activities are not included with the meaning of "credible threat."
      

SB 2184 (Royce), Chapter 1527, Statutes of 1990, enacted California's stalking statute.

REGISTERED SUPPORT / OPPOSITION:

Support

American Association of University Women (AAUW) San Jose
American Association of University Women - California
American Kennel Club, INC.
American Society for The Prevention of Cruelty to Animals
California District Attorneys Association
California Police Chiefs Association
Crime Victims Alliance
Crime Victims United
Los Angeles County District Attorney's Office
Peace Officers Research Association of California (PORAC)
Riverside County District Attorney
Social Compassion in Legislation

Oppose

ACLU California Action
California Attorneys for Criminal Justice
San Francisco Public Defender

Analysis Prepared by: Sandy Uribe / Andrew Ironside / PUB. S. / (916) 319-3744

Date of Hearing: July 11, 2023

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 89

Author:(Ochoa Bogh) – As Amended Ver:April 13, 2023

SUMMARY: Expands the crime of stalking to include making a credible threat with the intent to place a person in reasonable fear for the safety of their pet, service animal, emotional support animal, or horse.

EXISTING LAW:

1. States that 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 their immediate family is guilty of stalking. (Pen. Code, § 646.9, subd. (a).)
   
2. Punishes stalking by imprisonment in county jail for not more than one year, or by imprisonment in the state prison. (Pen. Code, § 646.9, subd. (a.).)
   
3. Provides that a person who commits stalking while there is a temporary restraining order, injunction, or any other court order in effect prohibiting stalking behavior against the same party shall be punished by imprisonment in the state prison for 2, 3, or 4 years. (Pen. Code, § 646.9, subd. (b).)
   
4. Provides that a person who commits stalking after having been convicted of domestic violence, violation of a protective order, or of criminal threats shall be punished by imprisonment in the state prison for 2, 3 or 5 years. (Pen. Code, § 646.9, subd. (c)(1).)
   
5. Provides that a person who commits stalking after previously having been convicted of felony stalking shall be punished by imprisonment in the state prison for 2, 3, or 5 years. (Pen. Code, § 646.9, subd. (c)(2).)
   
6. Authorizes the sentencing court to order a person convicted of felony stalking to register as a sex offender. (Pen. Code, § 646.9, subd. (d).)
   
7. Requires the sentencing court to consider issuing a restraining order valid for up to 10 years when a defendant is convicted of stalking, regardless of whether the defendant is placed on probation or sentenced to state prison or county jail. (Pen. Code, § 646.9, subd. (k).)
   
8. Defines the following terms as it relates to the elements of the crime of stalking:
   
   1. “Harass” 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.” (Pen. Code, § 646.9, subd. (e).)
      
   2. “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.” (Pen. Code, § 646.9, subd. (f).)
      
   3. “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.” (Pen. Code, § 646.9, subd. (g).)
      
   4. “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.” (Pen. Code, § 646.9, subd. (l).)
      
9. Provides that a person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of animal cruelty. (Pen. Code, § 597, subd. (a).)
   
10. Punishes a violation of animal cruelty as a felony with imprisonment in the county jail under realignment, or by a fine of not more than $20,000, or by both; or alternatively, as a misdemeanor with imprisonment in a county jail for not more than one year, or by a fine of not more than $20,000, or by both. (Pen. Code, § 597, subd. (d).)
    

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, “According to the Bureau of Justice Statistics Special Report: Stalking Victimization in the US, perpetrators of stalking tend to damage their victim’s property, even going as far as to target the victim’s loved ones, including pets. One National Crime Victimization Survey estimated that four in 10 stalkers threaten a “victim or the victim’s family, friends, co-workers, or family pet,” with 87,020 threats to harm a pet being reported.
   
   “Humans and animals form strong bonds that induce strong feelings of affection and connection, which can make a pet an easy target for threats and physical harm. California’s law ignores how powerful a threat or injury to a beloved pet can be. Not updating state statute to conform to federal anti-stalking law leaves victims and their pets vulnerable to threats and attacks by a stalker. It is critical that California’s anti-stalking law is updated in order to better protect victims and their pets.”
   
2. Elements Required for Stalking Prosecutions: Stalking is generally understood as repeated threatening behavior that is intended to place the subject of the stalking in reasonable fear for their safety or the safety of their family. In order to convict a person under the current stalking statute, Penal Code section 646.9, the prosecutor must prove the following:
   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 their safety, or for the safety of their immediate family. (See CALCRIM No. 1301; see also People v. Falck (1997) 52 Cal.App.4th 287, 297-298.)

Stalking requires either repeated following or harassment which necessarily includes multiple acts. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293; People v. Heilman (1994) 25 Cal.App.4th 391, 400) “Repeated . . . simply means the perpetrator must follow the victim more than one time. The word adds to the restraint police officers must exercise, since it is not until a perpetrator follows a victim more than once that the conduct rises to a criminal level.” (People v. Heilman, supra, 25 Cal.App.4th at 400.)

This bill would expand the offense stalking to include situations where the person threatens the safety of another’s pet, service animal, emotional support animal, or horse. The background provided by the author notes that the federal stalking statute protects the pet, service animal, emotional support animal, or horse of that person. (18 USCS § 2261A.)

There are many instances where California law is not coextensive with federal law. Moreover, existing state law does provide protections to animals under animal cruelty laws. Expanding the stalking statute to pets and other animals creates a slippery slope for significant expansion of other crimes such as criminal threats and domestic violence.

Finally, as noted above, the crime of stalking is based on a continuous course of conduct involving multiple acts, not a single incident. (See also People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293.) A prosecutor can already argue that any person would reasonably fear for their own safety (as opposed to that just of their pet) if the perpetrator was threating a person’s pet in addition to committing other harassing or threatening behavior against that person. As such, this bill is unnecessary.

1. Recent Relevant Supreme Court Case Law: On June 27, 2023, the United States Supreme Court decided Counterman v. Colorado (2023) 600 U.S. __ [2023 U.S. LEXIS 2788], a case deciding what constitutes a “true threat” and what test should be applied to determine if a statement or conduct rises to the level of a true threat. The issue arose in the context of a conviction for the crime of stalking. The Colorado statute makes it unlawful to, in pertinent part, to directly, or indirectly through another person, knowingly either: make a credible threat to another person and, in connection with the threat, repeatedly follow, approach, contact or place under surveillance that person … or, make a credible threat to another person and, in connection with the threat, repeatedly make any form of communication with that person … regardless of whether a conversation ensues. (CRS 18-3-602, subd. (1).)
   
   In Counterman, supra, the defendant’s stalking conviction was based on hundreds of messages sent to the victim over Facebook. Counterman never met the victim and she never responded to any of his messages. While some of the messages were benign, others suggested Counterman might be surveilling the victim, and others expressed anger and threats of harm. The conviction was based solely on the repeated Facebook communications. (2023 U.S. LEXIS 2788, *6-7.) Counterman argued that the conviction should be overturned because the statements were not true threats and so were protected under the First Amendment. (Id. at *8.)
   
   The Supreme Court noted that the Colorado courts had used an objective, reasonable person standard to determine if Counterman had made a threat. (2023 U.S. LEXIS 2788, *8.) The question before the Court was “whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements.” (Id. at *5.) The Court answered the question in the affirmative. (Id. at *9.) The Court reasoned that reliance on an objective standard would sometimes result in self-censorship because people would be worried about how their statements would be perceived. (Id. at *12-15.) To prove this subjective understanding, the Court further held that a mental state of recklessness is sufficient. In the threats context, recklessness means “that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’” (Id. at *18.)
   
   While the Supreme Court overturned Counterman’s conviction, it did not overturn the Colorado stalking statute. Rather, what is affected going forward is the evidence prosecutors must prove to establish a conviction under the statute. Under the new U.S. Supreme Court precedent, going forward prosecutors will have to show that the defendant knew that others could perceive a statement made threatened violence and yet the defendant uttered it anyway.
   
   As in Colorado, California courts have applied an objective reasonable-person standard to determine if statements constitute a credible threat. The California stalking statute itself notes that the person that is the target of the threat must have reasonable fear for their safety. (Pen. Code, § 646.9, subd. (g).) However, under California law, prosecutors also have had to prove subjective mens rea for stalking based on threats, namely that “the defendant made a credible threat with the intent to place the other person in reasonable fear for their safety, or for the safety of their immediate family.” (See CALCRIM No. 1301; see also People v. McCray (1997) 58 Cal.App.4th 159, 172 [“The crimes with which appellant was charged required proof of his intent to place Michelle in fear for her safety or that of her family…. (§ 646.9, subd. (a)).”].)
2. Argument in Support: According to Crime Victims United of California, “Stalking is a crime of power and control. Victims of stalking live in fear. The victim endures unspeakable harassment, threats, and is literally terrorized. Perpetrators of this crime often threaten their loved ones, including their pets. This leaves the victim to live in fear, not only for their safety but the safety of loved ones and precious pets.
   
   “Unfortunately, California law does not recognize terrorizing a victim about their pet as a crime or form of stalking. Federal law does and brings the ability of victims who are threatened with harm to their animals to be able to hold their preparators accountable.
   
   “It is critical to the safety and security of stalking victims that penal code section 646.9 be amended to include victims' pets. SB 89 would do that providing much need protection to the victims of stalking. It is widely known that animal cruelty is “the link” to more violent behavior. By adding this critical section and conforming state law to Federal law, broader protection for crime victims can be provided.”
   
3. Argument in Opposition: According to the American Civil Liberties Union California Action, “[W]e must respectfully oppose SB 89, which would greatly expand the definition of “stalking,” a crime that carries with it a punishment of between one and five years incarceration in prison, as well as potential immigration consequences.
   
   “SB 89 is an emotional expression of the outrage society feels when a person acts to intimidate and harass another, but it takes the wrong policy approach. Existing law already provides protections to animals under animal cruelty laws at the State and Federal level. In 2016, AB 494 amended Code of Civil Procedure 527.6 (civil harassment), Welfare and Institutions Code sections 213.5 (juvenile), and 15657.03 (elder and dependent adult abuse) to permit a court to issue a protective order for animals to keep a person away from them, and restrain from conduct including making threats. California also allows domestic violence protective orders to include pets. In addition, Federal law includes the crime of stalking and actions that make the victim fear that the stalker will hurt the victim’s pet, service or emotional support animal, or horse (18 U.S.C. § 2261A (2019)).
   
   “For these reasons, we must respectfully oppose SB 89.”
   
4. Related Legislation:
   
   1. AB 56 (Lackey) would expand eligibility for victim compensation to include emotional injuries from specified felony crimes including stalking. AB 56 is pending hearing in the Senate Appropriations Committee.
      
   2. AB 829 (Waldron) would require a court to consider ordering a defendant who has been granted probation after conviction of specified animal abuse crimes to undergo a mental health evaluation, and requires the defendant to complete mandatory counseling as directed by the court, if the evaluator deems it necessary. AB 829 is pending in the Senate Appropriations Committee.
      
5. Prior Legislation:
   
   1. AB 1982 (Ting), of the 2013-2014 Legislative Session, would have modified the crime of stalking from one requiring specific intent on the part of the perpetrator to one of general intent and would have included a domesticated pet within the definition of immediate family for purposes of the crime of stalking. AB 1982 was held in the Assembly Appropriations Committee.
      
   2. SB 1320 (Kuehl), Chapter 832, Statutes of 2002, revised California's stalking statute to, among other things, specify that constitutionally protected activities are not included with the meaning of "credible threat."
      
   3. SB 2184 (Royce), Chapter 1527, Statutes of 1990, enacted California's stalking statute.
      

REGISTERED SUPPORT / OPPOSITION:

Support

American Association of University Women - California
American Association of University Women - San Jose

American Kennel Club, INC.

American Society for the Prevention of Cruelty to Animals

California District Attorneys Association

California Police Chiefs Association

Crime Victims Alliance

Crime Victims United

Los Angeles County District Attorney's Office

Peace Officers Research Association of California

Riverside County District Attorney

Social Compassion in Legislation

Opposition

ACLU California Action

California Attorneys for Criminal Justice

San Francisco Public Defender

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

THIRD READING  

Bill No: SB 89

Author: Ochoa Bogh (R), et al.

Amended: 4/13/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/11/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

SUBJECT: Crimes: stalking

SOURCE: Riverside County District Attorney

DIGEST:

This bill expands the offense of stalking to include making a credible threat with the intent to place that person in reasonable fear for the safety of that person’s pet, service animal, emotional support animal, or horse.

ANALYSIS:

Existing law:

1. States that 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 their immediate family is guilty of stalking. (Pen. Code, § 646.9, subd. (a).)
2. States that stalking is an alternate felony-misdemeanor, punishable by imprisonment in county jail for not more than one year, or by imprisonment in the state prison. (Pen. Code, § 646.9, subd. (a.).)
3. Provides that any person who violates a temporary restraining order, injunction, or any other court order in effect prohibiting stalking behavior against the same party shall be punished by imprisonment in the state prison for 2, 3, or 4 years. (Pen. Code, § 646.9, subd. (b).)
4. States that every person who, after having been convicted of domestic violence, violating a protective order, or criminal threats and commits stalking shall be punished by imprisonment in the state prison for 2, 3 or 5 years. (Pen. Code, § 646.9, subd. (c)(1).)
5. States that every person who, after having been convicted of felony stalking, commits stalking shall be punished by imprisonment in the state prison for 2, 3, or 5 years. (Pen. Code, § 646.9, subd. (c)(2).)
6. Provides that in addition to the penalties provided above, the sentencing court may order a person convicted of felony stalking to register as a sex offender. (Pen. Code, § 646.9, subd. (d).)
7. Provides the following definitions as it relates to the crime of stalking:
   1. “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.
   2. “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.”
   3. “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.”
   4. “Electronic communication device” includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers.
   5. “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. (Pen. Code, § 646.9, subd. (l).) (Pen. Code, § 646.9, subds. (e), (f), (g), (h) and (l).)

This bill expands the crime of stalking to include making a credible threat with the intent to place a person in reasonable fear for the safety of that person’s pet, service animal, emotional support animal, or horse.

Comments

According to the author of this bill:

According to the Bureau of Justice Statistics Special Report: Stalking Victimization in the US, perpetrators of stalking tend to damage their victim’s property, even going as far as to target the victim’s loved ones, including pets. One National Crime Victimization Survey estimated that four in 10 stalkers threaten a “victim or the victim’s family, friends, co-workers, or family pet,” with 87,020 threats to harm a pet being reported.

Humans and animals form strong bonds that induce strong feelings of affection and connection, which can make a pet an easy target for threats and physical harm. California’s law ignores how powerful a threat or injury to a beloved pet can be. Not updating state statute to conform to federal anti-stalking law leaves victims and their pets vulnerable to threats and attacks by a stalker. It is critical that California’s anti-stalking law is updated in order to better protect victims and their pets.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Judicial Branch: Unknown court workload cost pressures to adjudicate additional misdemeanor and felony charges brought under the provisions of this bill (Trial Court Trust Fund, General Fund).
• CDCR: Unknown increase in costs to the Department of Corrections and Rehabilitation (CDCR) for additional commitments to state prison for persons found guilty of owning, purchasing, receiving or possessing a firearm while under specified firearms prohibitions (General Fund).

SUPPORT: (Verified 5/18/23)

Riverside County District Attorney (source)

American Association of University Women California

American Association of University Women California - San Jose Branch

American Kennel Club, Inc.

American Society for the Prevention of Cruelty to Animals

California District Attorneys Association

Crime Victims United

Peace Officers Research Association of California

Social Compassion in Legislation

OPPOSITION: (Verified 5/18/23)

California Attorneys for Criminal Justice

San Francisco Public Defender

Prepared by: Stella Choe / PUB. S. /

5/20/23 12:37:53

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SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 89 (Ochoa Bogh) - Crimes: stalking

Bill Summary:

SB 89 would expand the offense of stalking to include willfully, maliciously, and repeatedly following or willfully and maliciously harassing another person and also making a credible threat with the intent to place that person in reasonable fear for the safety of that person’s pet, service animal, emotional support animal, or horse.

Fiscal Impact:

• Judicial Branch: Unknown court workload cost pressures to adjudicate additional misdemeanor and felony charges brought under the provisions of this bill (Trial Court Trust Fund, General Fund).*
• CDCR: Unknown increase in costs to the Department of Corrections and Rehabilitation (CDCR) for additional commitments to state prison for persons found guilty of owning, purchasing, receiving or possessing a firearm while under specified firearms prohibitions (General Fund).*

*See Staff Comments for additional details.

Background:

Stalking is generally understood as repeated threatening behavior that is intended to place the subject of the stalking in reasonable fear for their safety or the safety of their family. The elements of stalking are (1) repeatedly following or harassing another person, (2) making a credible threat, (3) with the intent to place that person in reasonable fear for their own safety or the safety of an immediate family member. “Immediate family” is defined as “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.” This bill would additionally provide that stalking occurs when the credible threat causes the person to be in fear for the safety of a pet, service animal, emotional support animal, or horse.

Proposed Law:

Expands the offense of stalking to include willfully, maliciously, and repeatedly following or willfully and maliciously harassing another person and also making a credible threat with the intent to place that person in reasonable fear for the safety of that person’s pet, service animal, emotional support animal, or horse.

Staff Comments:

SB 89 would expand the wobbler offense stalking to include situations where a person makes a credible threat to the safety of a person’s pet, service animal, emotional support animal, or horse, while engaging in other malicious behavior. It is unknown how many additional prosecutions will be brought as a result of SB 89. However, both felony and misdemeanor charges carry the potential for incarceration, therefore certain defendants’ rights are attached to the proceedings. These include the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. It generally costs about $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased staff time and resources may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 proposed budget anticipates an ongoing annual allocation of $109.3 million from the GF to backfill declining revenue to the Trial Court Trust Fund.

Felony stalking is punishable imprisonment in the state prison, meaning CDCR will be impacted by convictions under this bill. The fiscal impact to CDCR cannot be known with certainty, as the actual impact will depend on a number of factors, including, but not limited to, the frequency of stalking offenses committed that violate the provisions of SB 89, prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. The proposed 2022-23 per capita cost to house a person in a state prison is $104,079 annually, with an annual marginal rate per inmate of approximately $10,000.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 89 Hearing Date: April 11, 2023

Subject: Crimes: stalking

HISTORY

Source: Riverside County District Attorney’s Office

Prior Legislation: AB 1982 (Ting), held Assem. Approps., 2014

SB 1320 (Kuehl), Ch. 832. Stats. 2002

SB 2184 (Royce), Chapter 1527, Statutes of 1990

Support: American Kennel Club; California District Attorneys Association; Crime Victims United; Social Compassion in Legislation

Opposition: California Public Defenders Association

PURPOSE

The purpose of this bill is to delete the current definition of stalking and instead provide that a person is guilty of stalking if the person has the intent to harm or the intent to place under surveillance for the purpose of harming another person, and engages in conduct that either places that person in reasonable fear of death or serious bodily injury to themselves, a family member, or a pet, service animal, emotional support animal, or horse that belongs to that person, or causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress.

Existing law states that 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 their immediate family is guilty of stalking. (Pen. Code, § 646.9, subd. (a).)

Existing law states that stalking is an alternate felony-misdemeanor, punishable by imprisonment in county jail for not more than one year, or by imprisonment in the state prison. (Pen. Code, § 646.9, subd. (a.).)

Existing law provides that any person who violates a temporary restraining order, injunction, or any other court order in effect prohibiting stalking behavior against the same party shall be punished by imprisonment in the state prison for 2, 3, or 4 years. (Pen. Code, § 646.9, subd. (b.).)

Existing law states that every person who, after having been convicted of domestic violence, violating a protective order, or criminal threats and commits stalking shall be punished by imprisonment in the state prison for 2, 3 or 5 years. (Pen. Code, § 646.9, subd. (c)(1).)

Existing law states that every person who, after having been convicted of felony stalking, commits stalking shall be punished by imprisonment in the state prison for 2, 3, or 5 years. (Pen. Code, § 646.9, subd. (c)(2).)

Existing law provides that in addition to the penalties provided above, the sentencing court may order a person convicted of felony stalking to register as a sex offender. (Pen. Code, § 646.9, subd. (d).)

Existing law provides the following definitions as it relates to the crime of stalking:

• “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.
• “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.”
• “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.”
• “Electronic communication device” includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers.
• “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. (Pen. Code, § 646.9, subd. (l).) (Pen. Code, § 646.9, subds. (e), (f), (g), (h) and (l).)

This bill deletes the definition of “course of conduct,” “credible threat” and “electronic device” for purposes of stalking.

This bill deletes the current requirement that a person must willfully, malicious and repeatedly follow or willfully and maliciously harass another person and make a credible threat with the intent to place that person in reasonable fear for their safety, or the safety of their immediate family.

This bill instead provides that a is guilty of the crime of stalking if the person, with the intent to kill, injure, harass, or intimidate another person, or with the intent to place another person under surveillance for the purpose of killing, injuring, harassing, or intimidating that person, engages in conduct that does either of the following:

• Places that person in reasonable fear of the death of, or serious bodily injury to, that person, an immediate family member, a spouse or intimate partner, or the pet, service animal, emotional support animal, or horse of that person; or,
• Causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to one of the named categories of persons above.

COMMENTS

1. Need for This Bill

According to the author of this bill:

According to the Bureau of Justice Statistics Special Report: Stalking Victimization in the US, perpetrators of stalking tend to damage their victim’s property, even going as far as to target the victim’s loved ones, including pets. One National Crime Victimization Survey estimated that four in 10 stalkers threaten a “victim or the victim’s family, friends, co-workers, or family pet,” with 87,020 threats to harm a pet being reported.

Humans and animals form strong bonds that induce strong feelings of affection and connection, which can make a pet an easy target for threats and physical harm. California’s law ignores how powerful a threat or injury to a beloved pet can be. Not updating state statute to conform to federal anti-stalking law leaves victims and their pets vulnerable to threats and attacks by a stalker. It is critical that California’s anti-stalking law is updated in order to better protect victims and their pets.

1. Stalking and First Amendment Considerations

Stalking is generally understood as repeated threatening behavior that is intended to place the subject of the stalking in reasonable fear for their safety or the safety of their family. The elements of stalking are (1) repeatedly following or harassing another person, (2) making a credible threat, (3) with the intent to place that person in reasonable fear for their safety. (People v. Ewing (1999) 76 Cal.App.4th 199, 210.) Because the crime of stalking punishes speech, the statute must be narrowly tailored in order to pass constitutional scrutiny under the First Amendment, which prohibits laws that abridge the freedom of speech. (U.S. Const., 1st Amend.) Generally, courts have upheld our stalking law as currently written finding that it is not vague or overbroad. (People v. Halgren (1996) 52 Cal.App.4th 122; People v. Borrelli (2000) 77 Cal.App.4th 703.) A statute may be challenged for vagueness if the statute does not provide fair notice of what conduct is prohibited. (People v. Halgren, supra, 52 Cal.App.4th at 1229-1230.) A challenge to a statute on the basis of overbreadth must demonstrate it inhibits a substantial amount of protected speech. (In re M.S. (1995) 10 Cal. 4th 698, 710.)

Credible Threat

Courts have found that credible threats fall outside the protection of the First Amendment. (In re M.S., supra, 10 Cal.4th at 710; see Watts v. United States (1969) 394 U.S. 705, 706-708.) In the context of stalking, the term “credible threat” has been found to not be unconstitutionally vague. “The making of the credible threat alone is not punishable; a mere expression of anger or emotion does not fall within the provisions of the statute. The statute provides notice that a person is guilty of a felony if he or she willfully, maliciously, and repeatedly follows or harasses another person and also makes a credible threat with the specific intent to place the victim in reasonable fear for personal safety or the safety of immediate family members.” (People v. Halgren, supra, 52 Cal.App.4th at 1231.)

This bill deletes the requirement in the stalking statute that a credible threat must be made and instead provides that the person, with the intent to kill, injure, harass, or intimidate another person, or with the intent to place another person under surveillance for the purpose of killing, injuring, harassing, or intimidating engages in conduct that places the other person in reasonable fear of death or serious bodily injury. Without the requirement that a credible threat be made, the bill would make a person who never communicates or comes in contact with another person guilty of stalking.

Repeated Following or Harassment

Stalking requires either repeated following or harassment which necessarily includes multiple acts. (Pen. Code, § 646.9; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293; People v. Heilman (1994) 25 Cal.App.4th 391, 400) “Repeated . . . simply means the perpetrator must follow the victim more than one time. The word adds to the restraint police officers must exercise, since it is not until a perpetrator follows a victim more than once that the conduct rises to a criminal level.” (People v. Heilman, supra, 25 Cal.App.4th at 400.) As discussed above, a First Amendment challenge can be based on overbreadth meaning the law inhibits a substantial amount of protected speech. (People v. Halgren, supra, 52 Cal.App.4th at 1231.) Angry or emotional speech that does not rise to a credible threat is still protected under the First Amendment.

This bill deletes the requirement of repeated following or harassment, thereby allowing a person to be guilty of stalking based on a single act.

1. Addition of Threats to Animals within Stalking Statute

Existing law requires intent to place a person in reasonable fear for their safety, or the safety of their immediate family as an element of stalking. “Immediate family” is defined as “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.” (Pen. Code, § 646.9, subd. (l).)

This bill recasts those persons who the subject of the stalking may fear the safety of to include: (1) that person; (2) immediate family member; (3) a spouse or intimate partner; or (4) the pet, service animal, emotional support animal, or horse of that person. The definition of immediate family under existing law already includes spouse or any other person who regularly resides in the household which would in most instances would include an intimate partner. Pets, service animals and horses are not covered under “immediate family” nor are animals generally considered “persons.” However, existing law does provide protections to animals under animal cruelty laws and allows courts to issue protective orders requiring persons to stay away from pets and other animals that live with the person needing protection.

1. Argument in Support

According to the American Kennel Club:

Numerous studies and feedback from law enforcement officers indicate that a significant percentage of domestic violence situations also involve threats of, and outright abuse of pets. Studies have shown that nearly half (48%) of women delay leaving an abusive situation out of concern for their pet and 70% of victims report their abuser threatened, injured or killed their pet. Sadly, many abusers often use maltreatment or threats of abuse against pets as leverage to prevent victims from fleeing abusive relationships. In one study, 25% of the participants reported that they returned to an abusive relationship out of concern for their pets.

Senate Bill 89 seeks to address these concerns by expanding what constitutes stalking to include behavior that seeks to harm or threaten a domestic violence victim’s pet, service animals, or emotional support animals. This would bill would bring California in line with the federal stalking statute.

1. Argument in Opposition

According to the California Public Defenders Association:

SB 89 would increase the number of criminal cases that could be brought against individuals for stalking but expanding the definition to include intimate partners, pets and other animals in the definition. It also removes the requirement that the acts be committed willfully, maliciously, and repeatedly and that the person have made a credible threat, defined as a verbal or written threat in order to constitute stalking. It also removes from the definition of harassment that willful course of conduct constitutes two or more acts over a period of time and does not include constitutionally protected activity. SB 89 also includes causing or attempting to cause substantial emotional distress to the crime of stalking.

CPDA sympathizes with crime victims, but SB 89 expands the definition of stalking too broadly and with overly vague terms such as “substantial emotional distress” that allow overly zealous prosecution of conduct that doesn’t rise to a true threat. It also allows for the penalization of constitutionally protected activity in the definition of stalking in violation of the First Amendment.

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