Jacquelyn Duffy, Judge Superior Court County of San Luis Obispo (Super. Ct. No. F447354)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
This appeal turns on the meaning of a single word, "victim." Once again, we turn to the wisdom of Justice Oliver Wendell Holmes: " 'A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' (Citation.)" (Almar Limited v. County of Ventura (1997) 56 Cal.App.4th 105, 106). The skin of this living thought may vary greatly as defined by the Legislature in an abundance of criminal statutes. There are situations when the electorate or the Legislature will supply a definition for the subject provision or statute and there are times when no specific definition is provided. In the latter instance, must the appellate court offer a strict construction, as, for example, when the rule of "lenity" requires that a criminal defendant receive the benefit of the doubt? (See e.g.People v. Alberts (1995) 32 Cal.App.4th 1424, 1427.) Or is the appellate court to liberally construe the statute if it is "remedial"? (Almar Limited v County of Ventura, supra, 56 Cal.App.4th at p. 110.) We should not resort to the "dictionary school of jurisprudence" when construing a statute. (See e.g. Unzueta v. Ocean View School District (l992) 6 Cal.App.4th, 1689, 1705, dissenting opn. of Justice Gilbert.) And we must follow the overall guideline given to us by the Legislature and construe the provisions of a statute "according to the fair import of their terms, with a view to effect its objects and to promote justice." (Pen. Code, § 4.)*fn1
We hold that a member of the immediate family of a stalking victim (Pen. Code § 646.9, subd. (a)) who suffers emotional harm, here a child, is a "victim" for purposes of a post-conviction restraining order.
Nancy Lynn Clayburg appeals from the judgment entered after her conviction by a jury of, inter alia, two counts of stalking and she was sentenced to prison for two years, eight months.
The named victim of one of the stalking counts was B., appellant's former husband and the father of their daughter. At appellant's sentencing, the trial court ordered that appellant not have any contact with daughter for 10 years. However, it tempered its ruling by allowing contact if pursuant to subsequent trial court order.
The trial court issued the order pursuant to section 646.9, subdivision (k)(1), which provides: "The court shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. [First Sentence.] It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. [Second Sentence.]"
Appellant contends that the order was unauthorized because daughter was not a named victim of the stalking. We affirm by reading the two sentences together. We also use some common sense and ask ourselves: what is the Legislature trying to accomplish? Although the statute could have been drafted with greater precision, we believe that the Legislature intends that the courts protect a child of a named victim The second sentence, to a certainty, shows that the Legislature has a legitimate concern for the "safety" of a child of a named victim. We also observe that the actual definition of the crime of stalking speaks to the fear suffered by a member of the named victim's "immediate family," (§ 646.9, subd. (2).) Our construction of the statute "promotes justice." A contrary construction would, in our view, defeat justice.
B. was married to appellant for 14 years. They separated in April 2007. The divorce became final in December 2010 and B. was the primary custodial parent of daughter. At the time of trial, daughter was 13 years old.
Appellant owned a set of Lynx Black Cat golf clubs. In November 2007 appellant went to B.'s house, pounded a golf club on the front porch, and demanded custody of daughter. B. locked the front door and said that he would call the police if she did not leave. Daughter "saw her mom and ran to her room, crying." At about 1:30 a.m. in December 2007, appellant telephoned B. and accused him of sexually abusing daughter.
At a family law court hearing in January 2008, appellant said "that she was afraid that if she saw [B.], she would physically harm [him] and then face criminal charges." That same month, B. and daughter listened to a message appellant had left on B.'s answering machine. Appellant said: "The devil wants you. God is going to let him get you and you are going to like it because you are his [the devil's] brother." Daughter asked, "Daddy, why is . . . Mommie saying the ...