Harassment Under the California Penal Code: Penalties and Defenses

The California harassment penal code is not a single statute but a set of Penal Code sections that criminalize different kinds of unwanted, threatening, or intimidating conduct, with penalties running from a six-month misdemeanor to a five-year felony when prior convictions or a restraining order are in the picture. Which section applies depends on what the accused actually did, who the target was, and whether a court order was already in place.

The Statutes Prosecutors Use

California has no catch-all harassment offense. Prosecutors pick from several Penal Code sections, and the elements, classification, and defenses differ for each.

Stalking Under Penal Code 646.9

Stalking is the most serious harassment charge in the code. It requires two things at once: a willful, malicious, and repeated pattern of following or harassing a specific person, and a credible threat made with the intent to place that person in reasonable fear for their safety or the safety of their immediate family.¹ One angry voicemail on its own probably doesn’t get there. A string of escalating messages combined with showing up at someone’s workplace usually does.

“Harassing” is defined as a knowing and willful course of conduct that would cause a reasonable person to feel seriously alarmed, annoyed, or harassed. A “credible threat” is one the target can reasonably take seriously and that the person making it appears capable of carrying out.²

Harassing Communications Under Penal Code 653m

This section covers unwanted phone calls, texts, and other electronic messages sent with the intent to annoy or threaten. There is no requirement of a credible threat of violence. Repeatedly calling someone and using obscene or threatening language qualifies, and so does repeated contact regardless of content when the intent to annoy is present.

Cyber Harassment Under Penal Code 653.2

Penal Code 653.2 targets the electronic posting of someone’s personal information with the intent to cause harassment by third parties. The classic scenario is posting a person’s address, phone number, or other identifying information online to incite others to contact, threaten, or frighten them. The prosecution must show the poster intended both to place the victim in fear and to cause a third party to contact or harass them.

Criminal Threats Under Penal Code 422

Criminal threats charges often ride alongside harassment charges when the conduct includes explicit threats of death or serious bodily injury. A conviction requires a willful threat to kill or cause great bodily injury, made with the specific intent that the statement be taken as a threat, communicated clearly enough and seriously enough to cause the target sustained fear.³ Unlike stalking, a single incident can support the charge.

Restraining Order Violations Under Penal Code 273.6

Once a court has issued a protective order, contacting the protected person in violation of it is itself a crime under Penal Code 273.6, regardless of whether the underlying contact would otherwise be criminal.⁴ A single “just checking in” text can be enough for an arrest.

A Note on Workplace Harassment

California’s Fair Employment and Housing Act prohibits workplace harassment based on protected characteristics, but FEHA is enforced through civil proceedings before the California Civil Rights Department, not through criminal prosecution.⁵ Workplace conduct becomes a Penal Code matter only when it also involves threats, stalking, or the other criminal conduct described in this article.

What the Prosecution Has to Prove

Every harassment-related charge in California requires a specific mental state. Bumping into someone at the grocery store three times in a week isn’t stalking, however uncomfortable it made them. The prosecution has to show the defendant deliberately chose the prohibited conduct.

For stalking, both prongs must be satisfied: the willful and malicious pattern of harassing or following, and the credible threat made with the intent to cause reasonable fear.² A pattern of following without any threatening communication doesn’t meet the standard, and a single threat without a pattern of harassment doesn’t either.

For harassing communications, the prosecution has to prove the messages or calls were sent with the specific intent to annoy or threaten. Context matters. A debt collector calling repeatedly may be aggressive without being criminal; the question is whether the calls crossed from persistent to purposefully harassing.

Intent is almost always built from circumstantial evidence: the volume and escalation of contacts, whether the accused kept going after being told to stop, statements revealing purpose, and the overall pattern. Continuing to contact someone after a clear demand to stop is routinely treated as strong evidence of intent.

Misdemeanor Versus Felony

Several California harassment offenses are “wobblers.” The prosecutor can charge them as a misdemeanor or a felony depending on prior history, whether a restraining order was already in force, and how serious the conduct was.

Penal Code 653m (harassing communications) and Penal Code 653.2 (cyber harassment) are straight misdemeanors. They cannot be filed as felonies regardless of the circumstances.

Stalking under Penal Code 646.9 is a wobbler. A first offense with no restraining order in place can be charged as a misdemeanor. It becomes a felony when the defendant was violating a restraining order at the time of the stalking, or when the defendant has a prior felony conviction for stalking, domestic violence, or criminal threats.¹

Criminal threats under Penal Code 422 is also a wobbler, and a single threat can be filed as a felony if the circumstances are serious enough. A felony conviction for criminal threats qualifies as a serious felony under Penal Code 1192.7, which makes it a strike. A second serious or violent felony then doubles the prison sentence, and a third can bring 25 years to life.

A restraining order violation under Penal Code 273.6 starts as a misdemeanor but can escalate when the violation causes physical injury or when the defendant has prior violations.⁴

Penalties by Statute

Harassing communications (PC 653m): up to six months in county jail, a fine of up to $1,000, or both.
Cyber harassment (PC 653.2): up to one year in county jail, a fine of up to $1,000, or both.
Misdemeanor stalking under PC 646.9(a): up to one year in county jail, a fine of up to $1,000, or both.¹
Felony stalking while violating a restraining order under PC 646.9(b): two, three, or four years in state prison.¹
Felony stalking with a qualifying prior conviction under PC 646.9(c): two, three, or five years in state prison.¹
Restraining order violation under PC 273.6(a): up to one year in county jail, a fine of up to $1,000, or both. If the violation causes physical injury, the minimum jail time rises to 30 days and the maximum fine to $2,000.⁴

Judges can also impose probation, community service, or mandatory counseling. A person convicted of felony stalking can be ordered to register as a sex offender under Penal Code 290.006.¹

Consequences reach past the sentence itself. A felony conviction can cost professional licenses, complicate housing, and create immigration problems for non-citizens. A criminal threats conviction, as a strike, magnifies the sentence for any future serious or violent felony.

Firearm rights are affected too. A qualifying restraining order that prohibits harassing, stalking, or threatening an intimate partner or child bars firearm possession under federal law when the order was issued after a hearing with notice and either includes a credible-threat finding or explicitly prohibits the use of physical force.⁶ A misdemeanor conviction for a crime of domestic violence triggers a lifetime federal firearm ban under 18 U.S.C. § 922(g)(9).⁷ California courts issuing restraining orders routinely order the restrained person to surrender firearms, and failing to do so is a separate crime.

Defenses California Recognizes

California law gives an accused person several real avenues to fight harassment charges. Which one fits depends on the statute and the facts.

Constitutionally Protected Activity

Penal Code 646.9 explicitly excludes constitutionally protected activity from both the “course of conduct” and “credible threat” definitions.¹ Lawful picketing, political protest, and other First Amendment activity cannot support a stalking charge, even if the target finds it annoying or frightening. A labor organizer leafleting outside a business, a journalist repeatedly contacting a public figure, or a protester marching outside a government building is engaging in protected conduct. The defense breaks down when the activity crosses from expression into genuine threats or targeted intimidation.

Lack of Intent

Because every California harassment statute requires specific intent, showing that the required mental state was missing is one of the strongest defenses available. If repeated contact was genuinely accidental, if the defendant didn’t know the contact was unwanted, or if communications had a legitimate business or legal purpose, the intent element fails. This defense surfaces often in cases involving former coworkers, shared social circles, and co-parents who have to communicate about children. The question is whether the defendant knew or should have known their conduct was unwanted and kept going anyway.

No Credible Threat

For stalking charges, the prosecution has to prove a credible threat. Vague statements, expressions of frustration, or communications that no reasonable person would read as a genuine threat of harm can defeat this element. Courts look at whether the person making the statement appeared able to carry the threat out and whether a reasonable person in the target’s position would take it seriously.²

The Fear Was Not Reasonable

Stalking law requires reasonable fear, not just subjective fear. If the target’s reaction was objectively unreasonable given the circumstances, the charge fails. Someone who reads a polite request to return borrowed property as a threat has felt fear, but a court may find it wasn’t the kind of fear the statute was written to address.

False or Exaggerated Accusations

Harassment cases tied to ex-partners, custody disputes, or personal vendettas sometimes rest on fabricated or exaggerated allegations. Defense work here focuses on inconsistencies in the accuser’s account, the timing of the allegations relative to other disputes, and evidence that the accused wasn’t present or didn’t send the communications attributed to them. Digital evidence cuts both ways: screenshots can be damning, but metadata can also show when messages were fabricated or stripped of context.

How Evidence Shapes These Cases

Harassment prosecutions live on documentation. Isolated incidents rarely clear the threshold for stalking or harassing communications, so prosecutors have to show a pattern.

Digital evidence dominates. Text messages, emails, social media posts, voicemails, and call logs are usually the core exhibits. Screenshots with visible timestamps, carrier records showing call frequency, and social media activity logs establish both content and pattern. Prosecutors also lean on witness testimony and prior police reports, which carry weight because they show the defendant was on notice that the conduct was unwanted.

Defense attorneys go after digital evidence for gaps, manipulation, or missing context. A screenshot of a threatening message means less if the surrounding conversation shows the alleged victim initiating contact or provoking the exchange. Surveillance footage, GPS data, and cell tower records sometimes confirm or contradict claims about the defendant’s location.

Protective Orders and Why They Matter to the Criminal Case

Protective orders sit alongside the criminal statutes and change what conduct is criminal in the first place. An emergency protective order requested by a law enforcement officer takes effect immediately and expires at the earlier of the close of business on the fifth court day after issuance or the seventh calendar day.⁸ Civil harassment restraining orders under Code of Civil Procedure 527.6 can start as a temporary order lasting up to 21 days (or 25 if the hearing is extended) and, after a hearing on clear and convincing evidence, become a longer-term order lasting up to five years.⁹ Employers can also petition for a workplace violence restraining order under Code of Civil Procedure 527.8 to protect an employee from threats or stalking.¹⁰

Once any of these orders is in place, violating it is a crime under Penal Code 273.6, and a restraining order in force at the time of stalking conduct is what turns a misdemeanor stalking charge into a felony under Penal Code 646.9(b).¹ People sometimes treat restraining orders as suggestions. They are not. A single text to a protected person can result in an arrest even if the message looks harmless on its face.

1
California Legislative Information. California Penal Code 646.9
2
Justia. CALCRIM No. 1301 Stalking
3
California Legislative Information. California Penal Code 422
4
California Legislative Information. California Penal Code 273.6
5
California Civil Rights Department. Employment
6
Office of the Law Revision Counsel. 18 U.S. Code 922 – Unlawful Acts
7
United States Department of Justice Archives. Restrictions on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence
8
California Legislative Information. California Family Code 6256
9
California Legislative Information. California Code of Civil Procedure 527.6
10
California Legislative Information. California Code of Civil Procedure 527.8