PERREN, J., Dissenting. I respectfully dissent. M.A.R., the daughter of the victim, B.A.R., is not “a victim” within the meaning of Penal Code1 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” order of 10 years’ duration in favor of one other than the victim named in the information.
The majority construes section 646.9, subdivision (k), to include the child of a named stalking victim to also be a “victim” for the purpose of issuing a restraining order. The statute, however, distinguishes between the two. The first sentence of subdivision (k) instructs that the court may issue an order “restraining the defendant from any contact with the victim.” (Italics added.) The second sentence, however, tells us that in determining the length of the restraining order, the court may consider “the safety of the victim and his or her immediate family.” If “victim” was meant to include a child of the family, this qualification would be unnecessary. Moreover the distinction is underscored by section 646.9, subdivision (Z) where “immediate family”2 is defined. Had the Legislature intended to include members of the immediate family amongst those entitled to the benefit of a restraining order, it would have said so. It did not.
[95]“ ‘[I]t is a well-established rule of construction that when a word or phrase has been given a particular scope or meaning in one part or portion of a law it shall be given the same scope and meaning in other parts or portions of the law.’ [Citation.] ‘We can reasonably infer . . . that the Legislature intended the parallel language of the two [statutory] provisions to be construed identically.’ [Citation.]” (Blakely v. Superior Court (2010) 182 Cal.App.4th 1445, 1453 [106 Cal.Rptr.3d 715] [construing “prior to” in jurisdictional dates in two statutes applicable to mentally disordered offender proceedings].) The language of section 646.9 makes it clear that the Legislature understood the distinction between a “victim” and “the immediate family.”
Moreover, any doubt that the Legislature understood this distinction is resolved by recourse to section 136.2, former subdivision (a)(6),3 which empowers the court to issue restraining orders to protect “a victim” (§ 136.2, subd. (a)) and “immediate family members” in cases of domestic violence.4 To the same effect are the provisions of the Family Code governing the issuance of emergency protective orders (Fam. Code, §§ 6240-6257), and protective orders and other domestic violence prevention orders (id., § 6300 et seq. and especially § 6320),5 as well as restraining orders following conviction for the infliction of corporal injury upon a spouse or cohabitant (§ 273.5, subd. (i)).6 In each of these sections “the victim” is invariably distinguished from members of the victim’s family. And these sections are available to protect M.A.R., appellant’s daughter.
In sum, there are a number of vehicles to be taken that will achieve the result both the majority and I desire: the protection of the children and of [96]family members of a “victim.” Any expansion of the reach of section 646.9 rests with the Legislature, not with us.
I would reverse the “no contact” order. The decision to issue other and further restraining orders as permitted by law rests with the trial court.
Appellant’s petition for review by the Supreme Court was denied February 20, 2013, S207487.
All further statutory references are to the Penal Code unless otherwise noted.
“For purposes of this section, ‘immediate family’ means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.” (§ 646.9, subd. (1), italics added.)
Redesignated section 136.2, subdivision (a)(6)(A). (Stats. 2011, ch. 155, § 1.)
Effective January 1, 2012, subdivision (i) of section 136.2 was added enabling the court to issue restraining orders prohibiting contact with “the victim” pursuant to that section for up to 10 years. Subdivision (i) distinguishes between the victim and the immediate family as does subdivision (a)(6)(A). (See fn. 3, ante.)
Family Code section 6320, subdivision (a) provides: “The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” Family Code section 6340, subdivision (a) authorizes such orders after formal hearing for a period of up to five years. (Fam. Code, § 6345.)
Section 273.5, subdivision (i) provides: “Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which 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.”