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Name: People v. Clayburg
Case #: B231263
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/19/2012

Penal Code section 646.9, subdivision (k)(1) (issuance of restraining order to stalking victim) applies to the daughter of the victim, even though she is not a named victim of the offense of conviction. Appellant harassed, threatened, and committed acts of vandalism against B., her former husband and the primary custodial parent of their daughter. B. and the daughter obtained restraining orders against appellant. Appellant was subsequently convicted of stalking B. At the trial, the now 13-year-old daughter testified to her fear of her mother. Appellant was sentenced to state prison and the court issued a restraining order, pursuant to section 646.9, subdivision (k)(1), prohibiting appellant from contacting both B. and the daughter for ten years. Appellant appealed, contending the order was unauthorized because daughter was not a named victim of the stalking. Affirmed. Section 646.9, subdivision (k)(1) provides, “The sentencing court also 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. 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.” Applying rules of statutory construction, the court read these two sentences together to determine legislative intent, and found that it was apparent the Legislature “wants the judiciary to protect the child of a named stalking victim.” A member of the immediate family of a stalking victim who suffers emotional harm is a “victim” for purposes of a post-conviction restraining order.