We Are Not 'Slaves to the Tyranny of Literalness'

By Robyn Hagan Cain on November 26, 2012 | Last updated on March 21, 2019

Today's California appeal includes stalking, dead animals, broken golf clubs and windows, and the definition of a victim.

Nancy Clayburg was convicted of two counts of stalking, and sentenced to prison for two years, eight months. The named victim of one of the stalking counts was "B.," Clayburg's former husband and the father of her daughter.

At sentencing, the trial court ordered that Clayburg not have any contact with her daughter for 10 years, pursuant to California Penal Code 646.9(k)(1).

The statute 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.

Clayburg appealed, arguing the order was unauthorized because her daughter was not a named victim of the stalking.

The appellate court responded with "common sense" and an assurance that courts are not "slaves to the tyranny of literalness," holding that an immediate family member of a stalking victim who suffers emotional harm is a "victim" for the purpose of a post-conviction restraining order.

This conclusion seems reasonable in light of the details of Clayburg's stalker past. (She broke her ex's windows and golf clubs, and delivered dead, mutilated animals to a former supervisor.)

Here, the court noted that Clayburg's stalking incidents intimidated her daughter, who worried that Clayburg would break her windows while she was sleeping, and the broken glass would "go through [the] blinds." Applying the rationale of People v. O'Neal, the court concluded the daughter "suffered emotionally and was thus a victim." Therefore, the trial court did not err in restraining Clayburg from having contact with daughter.

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