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Name: People v. Kenney (2023) 88 Cal.App.5th 516
Case #: D079227
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/22/2023

The trial court did not err in denying motion to dismiss charges of resisting a peace officer where the deputy verbally informed defendant of the existence of a domestic violence restraining order (DVRO) prior to lawfully removing him from the home. Kenney was inside his mother’s home in violation of a temporary DVRO that had not yet been served. Deputies, from outside Kenney’s locked bedroom door, advised him that there was a restraining order on file and that he was not allowed to be there. After Kenney refused to come out, deputies forced the door open and arrested Kenney. He was charged with resisting an executive officer and filed a motion to dismiss, arguing his right to notice and due process was violated because he had not been served with the DVRO nor informed of the upcoming hearing date regarding the order. The trial court denied the motion. After he was convicted of a lesser included offense (Pen. Code, § 148), Kinney appealed and challenged the denial of his motion to dismiss. Held: Affirmed. Penal Code section 836 authorizes a peace officer to arrest a person who has violated a DVRO where the officer has probable cause to believe the person has notice of the order. Under subdivision (c)(2) of section 836, a person who has not been served with a DVRO is nevertheless “deemed to have notice of the order” if “informed by a peace officer of the contents of the protective order.” “The conduct that is (allegedly) violating the restraining order will define the contours of the information that must be disclosed.” Here, the Court of Appeal concluded that Kenney only needed to be informed that the DVRO contained a move-out order. Substantial evidence supported the trial court’s denial of the motion to dismiss because body camera video established that deputies adequately informed Kenney of the material contents of the restraining order.

The trial court erred by failing to instruct the jury on the notice provision of Penal Code section 836, subdivision (c)(2), but the error was harmless. The crux of the trial was whether deputies acted lawfully, which in turn depended on their compliance with the notice provisions in section 836, subdivision (c). Neither party asked for instructions on this point. The jury was instructed that, to convict, it must find that the officer was “performing his lawful duty.” The jury was not given any guidance on how to make that determination. A trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence, and the trial court should have instructed the jury on the notice provisions of section 836, subdivision (c). However, the error was harmless because the prosecutor informed the jury of the correct legal standard in section 836, subdivision (c), and the legal standard was also printed on the DVRO, which the jury had as a trial exhibit.