PC 148: Can Oral Notice of Restraining Order Suffice?

A temporary domestic violence restraining order (DVRO) issued after one party obtains it from court without giving notice to the restrained party, is designed to prevent an imminent threat of domestic violence. Its temporary status means it is effective for just 21 days until a hearing to make it last longer, which can be up to ten years.

Yet the exigency or dangerous situation that justified issuing it without notice may also require police to enforce it before the restrained person has been served with the order.

To keep the peace while at the same time affording due process, Penal Code § 835(c) provides that a law enforcement officer may enforce a DVRO after verifying it exists and orally informing the restrained person of the DVRO provisions. Penal Code § 835(c)(2).

This means the restrained person is never handed a copy of the order in writing and seems contrary to proper notice to many, as the following summary of a reported ruling from the Fourth Appellate District exemplifies.

On January 5, 2021, Christopher James Kenney’s mother was deeply concerned about her twenty-nine year old son’s drug addiction.

Hoping he would voluntarily enter a residential drug treatment center if forced to move out of her home, she obtained a DVRO against him, barring him from her house.

The court order ordered Kenney to “take only personal clothing and belongings needed until a hearing and move out immediately.” The hearing was scheduled for 15 days after the DVRO was issued without giving notice to Kenney.

In an accompanying order, the judge ordered the San Diego County Sheriff to “remove” Mr. Kenney from his mom’s residence.

After his mom received the temporary DVRO, she orally advised her son about it and told him to move out. She did not show him the order, nor did anyone serve him with the order. But on January 6, 2021, he complied and took his belongings in his car and drove off.

Two days later, he came back to the home. His mom asked him, “What are you doing here? You could be arrested!” Mr. Kenney responded, “Fuck you” and went to his room. His mom said, “This is not how restraining orders work” and called the San Diego County Sheriff.

When they arrived, she gave them a copy of the temporary restraining order and they read it. They also checked with their record division to confirm the order’s validity. Ms. Kenney told deputies that her son had not been served with it yet.

Deputy Evan Maldonado went into the house and encountered Mr. Kenney behind a locked bedroom door. Officer Maldonado yelled through the door to Mr. Kenney that “You’re not allowed to be here, buddy.” Mr. Kenney responded, “I’m not allowed to be in my own house?” Officer Maldonado answered, “Correct.” Another officer added, “So come out.”

Mr. Kenney responded, “I’m in my own fucking house. You’re tripping, bro.”

Officers responded, “No, we’re not tripping. You’re the one that needs to come out.”

Mr. Kenney responded, “No, I don’t. This is my own fucking house, dog.”

The officers told him once again to come out and Mr. Kenney responded, “This is bullshit. Fuck you guys. Break my fucking door down, dude. This is my fucking house.”

Officers answered, “Okay” They then used a credit card to open the door and Mr. Kenney pushed against the door to keep it shut. After a scuffle, officers arrested Mr. Kenney.

Kenney was charged with one count of resisting an executive with force. The case went to trial and the judge instructed the jury on the lesser-included offense of delaying or obstructing a police officer, Penal Code § 148(a).

The jury convicted Mr. Kenney of violating Penal Code § 148(a) and Mr. Kenney appealed his conviction to the Fourth Appellate District Court in San Diego. Mr. Kenney argued he could not be convicted of obstructing or delaying an officer if he was not properly served with the DVRO, so the officer was not performing a lawful duty when Mr. Kenney delayed or obstructed him.

The Fourth Appellate District affirmed the trial court conviction, explaining that Penal Code § 836 authorizes a police officer to arrest a person who has violated a DVRO where the officer “has probable cause to believe the person against whom the order is issued has notice of the order.” A person who has not been served with the order is nevertheless “deemed to have notice of the order” if “informed by a police officer of the contents of the protective order.” Penal Code § 836(c)(2). However, the only content of the order that needs to be disclosed is the conduct that violates the restraining order.

Here, body-worn cameras showed that the officers repeatedly informed Mr. Kenney that his mom had a restraining order against him that barred him from entering his mother’s house.

The officers’ later conduct was not illegal and therefore, Mr. Kenney’s conviction was affirmed.