Clayburg

I respectfully dissent. M.A.R., the daughter of the victim, B.A.R., is not “a victim” within the meaning of Penal Code 1 section 646.9. She is a member of the victim’s immediate family. A charge of stalking naming M.A.R. as the victim was dismissed prior to trial. Contrary to the opinion of my colleagues, I do not believe that section 646.9, subdivision (a) authorizes a “no contact order” in favor of anyone other than the named victim.

The majority is correct when it says, “the immediate family of a stalking victim (§ 646.9, subd. (a))” is entitled to the court’s protection. My disagreement is not with our mutual destination but the vehicle we take to get there. I believe, however, that there is more than one way to “skin” a living thought, while not falling into the snare of the “dictionary school of jurisprudence.” Rather, I accept that a first principle of statutory construction is “to ascertain the Legislature’s intent so as to effectuate the purpose of the statute.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83 [ 45 Cal.Rptr.3d 394 , 137 P.3d 218 ].) In so doing it must be recalled that the issue before us is a narrow one: the power of the court to issue a “no contact”…

*88 Opinion

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.’ [Citations.]” (Almar Limited v. County of Ventura (1997) 56 Cal.App.4th 105, 106 [ 65 Cal.Rptr.2d 70 ].) 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 [ 37 Cal.Rptr.2d 401 ].) 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…