Ron Freitas
District Attorney

Vertical Prosecution

Are you being stalked? Are you being followed?

Stalking can be terrifying!Are they watching me? Are they following me? They call you at home and at work, day and night. They send threatening e-mails. While stalking may involve physical violence, it is more often a crime of being forced to live in fear, that feeling of unease you get whenever the phone rings or there is a knock at the door . . .

The San Joaquin County District Attorney’s Office files cases involving stalking. Many of those cases are from domestic violence situations. The stalker just can’t accept the relationship being over and does things to keep the victim in their life. Or, the stalker can’t accept that someone with whom they used to have an intimate relationship is now with someone else. A stalker may also be a total stranger who has decided for whatever reason to fixate on a particular target. Whatever the scenario, the stalker does not take rejection quietly.

If you believe you are in immediate danger, call 911!

This information has been prepared by the San Joaquin County District Attorney’s Office in order to provide you, as a victim of stalking, or knowing someone who you suspect is being stalked, with accurate information as to how such cases are handled. It is our hope that the information provided will answer your questions and relive some of your fears.

Questions About Stalking

Stalking is defined in Penal Code Section 646.9 as "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 . . ." Contrary to a common belief of what constitutes stalking, repeatedly following, phone calls, unwanted gifts, flowers, etc., may not legally constitute stalking. There must be a "credible threat" present, something which demonstrates the stalker'’'s danger toward the victim. This may come in the form of threats, actual violence, or behavior that implies a threat. It is not necessary that the stalker intend to actually carry out the credible threat, just that it place the intended target in fear for his or her safety.

If you think someone is stalking you, the most important thing to do is immediately cease all contact with the stalker. Don't initiate any contact with the person who is stalking you. The stalker may try to contact you, but you should do everything in your power to avoid any contact with them. If contact is made for whatever reason, for example if the stalker calls your phone, let him know in a firm manner that you do not want him to contact you anymore and that you will call the police. It is equally important that you call law enforcement to document what has happened. If you have been sent anything by the stalker . . . gifts, flowers, letters . . . or if there are messages on voice mail, SAVE THEM! These may be crucial pieces of evidence in a prosecution. Alert law enforcement that you have saved these things so they may collect and preserve them. For your safety and those around you, it is advised you inform friends, family, coworkers, or anyone else whom you deal with on a regular basis of the situation.

Some stalking charges are charged only as felonies, while others may be felonies or misdemeanors.  The decision of whether a stalking case will be charged as a misdemeanor or felony is for the District Attorney.  Factors which go into making that decision include the length of time of the harassing conduct, the severity of the threat, prior criminal record, injury, used of a weapon, and the presence of a restraining order.  Misdemeanor stalking is punishable up to one year in the county jail, while certain types of stalking may be punishable by up to 5 years in prison.

The sentencing range for stalking is broad, from probation to prison.  Our goal is to stop the unwanted contact and offer protection to the victim.  Length of sentence is often determined by the severity of the defendant’s conduct, injuries to the victim, and criminal record.  Whether the defendant is currently on probation or parole also play a role in determining sentence.  Whatever the outcome of the case, a victim of stalking should be prepared for the eventuality that the stalker will some day be released from custody.  To that end, a stalking victim should develop a plan to help deal with that inevitability.  The San Joaquin County District Attorney’s office can assist with obtaining restraining orders, money for alarm system installation, or in the worst of cases, relocation.

You will only have to testify in court if you are either ordered by the judge to appear in court, or you receive a subpoena directing you to appear. Many cases are resolved without the victim having to testify, but not all. In some cases, a victim or other witness may even have to testify more than once. This is how the process works:

  1. When a criminal complaint has been filed against your abuser, he will be ordered to go to court and enter a plea to the charges against him. This first step is called an arraignment. In the case of an arraignment on misdemeanor charges, the defendant may be able to resolve his case without any further appearances. If so, there will be no jury trial and you will not have to come to court. In the case of a felony arraignment, the matter will be first set for preliminary hearing. The preliminary hearing is an opportunity for the court to determine if there is probable case to permit the case to go to jury trial sometime in the near future. You may be required to testify at the preliminary hearing, and eventually at trial as well. However, the vase majority of felonies resolve prior to jury trial, and many of them resolve before the preliminary hearing. If the case resolved before the preliminary hearing, you will not have to testify at all.
  2. At several stages of the proceedings including pretrial conferences and prior to the preliminary hearing (if a felony), the defendant will appear with his attorney. By this time, the defendant’s attorney will have had an opportunity to review all of the evidence that the prosecutor will use in court to prove the defendant has been stalking you. The prosecutor may recommend a particular sentence to the judge in exchange for a guilty plea from the defendant.
  3. The defense attorney will talk to the defendant and let him know what sentence the prosecutor is recommending to the judge. A majority of defendants will plead guilty prior to trial. This occurs because they see all of the evidence that the prosecutor has gathered against them and how it will be used to convict them. Additionally, they understand that if the case goes to jury trial and they are found guilty, the prosecutor will recommend a harsher sentence and the judge may follow that recommendation.
  4. It is important for you to know that if the defendant pleads guilty early in the proceedings (before preliminary hearing in felonies), you will not have to testify. Just because you receive a subpoena and may have to come to the courthouse does not guarantee that you will be required to actually testify in court.

You can request that law enforcement obtain an Emergency Protective Order (EPO) from the on-call judge when they respond to the scene and there is an immediate threat of violence. this order is effective once it has been served on the abuser and orders him not to contact you. Once a case is filed and you believe the defendant may harm you further, contact the Domestic Violence Unit at the DA's Office and request that the prosecutor ask the judge to issue a "stay away order." This order tells the defendant to stay away from you (generally 100 yards), and not to hurt, threaten, or harass you. If the defendant does not obey the order, he will be told to appear in court again to answer to the judge who made the order. If this happens, the judge can send him to jail. At any time whether or not charges are filed, you can pursue a civil restraining order. If granted, this order usually lasts for three years and is valid regardless if charges are filed and is valid no matter where you or the defendant are. This is the most preferable type of protective order to obtain. If you need help, contact the Women's Center at (209) 941-2611, and District Attorney Victim/Witness Program at (209) 468-2500, and they can assist in obtaining a civil restraining order. It is crucial that all violations of a protective order are reported immediately to law enforcement.

No. You do not have to hire an attorney because you are the victim of a crime. When the defendant abused you, a criminal act which violated the laws of the State of California was committed. The prosecutor represents the People of the State of California. The People of the State of California are prosecuting your abuser for violating the law and it is ultimately the decision of the prosecutor whether or not to file charges.