California Penal Code 404 & 405 - Rioting

Acting with violence and belligerence while in public is considered a form of disturbing the peace. Inciting or participating in a riot is a form of disrupting the peace and you will get arrested and charged.

Taking advantage of a peaceful assembly by escalating the rhetoric and contributing to the violence is a crime and law enforcement will get involved. This is one reason why it is highly recommended you call a criminal defense attorney who can fight on your behalf.

For a deeper understanding of what rioting is, let’s take a look at how California defines it.

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Definition of Rioting

California outlines rioting and participating in a riot under Penal Code 404 and 405. These statutes explain rioting as:

  • Two or more people working or acting together without legal authority to do so and:
    • Two or more people does not mean these people had to know each other.
    • Regardless of whether working together was planned or unplanned, acting together without lawful authority is enough.
  • They use force or violence,
  • Are disturbing the peace, or
    • By unlawfully fighting, challenging another person to a fight,
    • Using offensive language that could be used to provoke an immediate violent reaction, or
    • Willfully being malicious or unreasonably loud in a public space.
  • They threaten to use force or violence, and
    • Either by using their body or using tools, such as
      • Throwing objects like rocks or water bottles.
    • They have the immediate ability to follow through with those threats.
      • Even if they do not act on the threats or threatening behavior, they can still be guilty if they possessed the immediate power to execute said threats.

Unfortunately, in the confusion of a riot, it’s not unheard for law enforcement to arrest anyone that is present, regardless of whether you were participating or not. If this is the case, contact a criminal defense lawyer who can help.

Closely Related Offenses

California Penal Code 372 - Public nuisance laws;

You violate this statute when you create, maintain, or fail to remove something deemed a public nuisance. A nuisance is considered an object or activity that affects the health, morals, or safety of the immediate community.

California Penal Code 373(a) - Allowing public nuisance on your property or leased property;

This crime is committed when someone allows, maintains, or permits a public nuisance on their property or leased property, and they continue to allow it even after receiving a legal written notice to fix or remove the said nuisance.

California Penal Code 404.6 - Inciting a riot;

This crime is committed when a person urges other people to engage in rioting, in burning or destroying property, and/or to commit acts of force or violence.

California Penal Code 405(a) - Taking or preventing someone from getting arrested by rioting;

This crime is committed when an individual removes a person who is being arrested or in police custody by using a riot.

California Penal Code 407 and 408 - Unlawful assembly;

This crime is committed when two or more people assemble together for the purposes of illegal activity or to do a legal activity, but act in a boisterous, tumultuous, or violent manner.

California Penal Code 409 - Failing to disperse;

This statute is violated when an individual chooses to remain at a riot or at an unlawful assembly even after they were ordered to leave by law enforcement.

California Penal Code 415 - Disturbing the peace;

You can violate this statute if you disrupt the peace by fighting in public, being loud, or using offensive language.

California Penal Code 463 - Looting;

This statute is violated when someone commits petty or grand theft, or burglary while there is a declared state of emergency.

California Penal Code 416 - Failing to disperse at a public disturbance;

This statute makes it a crime for someone to assemble or gather to purposely disturb the peace and they fail to leave even after being ordered to go by law enforcement.

The Prosecution

There are several facts of the case the prosecution must prove beyond a reasonable doubt to get a conviction for PC 404 and 405, rioting. These facts are known as the:

Elements of the Crime

  • At least two people or more were acting together without the lawful authority to do so, and
  • They used force or violence, or
  • Disturbed the peace, or
  • They threatened to use force or violence, AND
  • They had the immediate power to execute those threats.

It’s important to note, even if force or violence was not used, people can still get charged if they had the immediate ability to act violently or with force.

Who Can Be Charged

To illustrate who can be charged with PC 404 and 405, rioting, or participating in a riot, take a look at the following examples.

Example 1:

Georgie and Lance were attending a protest downtown. They had no plans of standing in solidarity with the protestors but instead were looking for avenues of opportunity to escalate things. They wanted to loot some of the small businesses and thought it would be easier if they drummed up a riot. Once counter-protestors arrived, they began hurling offensive language at them, getting other people to follow suit. The counter-protesters responded by throwing things and Georgie mirrored their actions. Fighting broke out and the riot began. Georgie and Lance were rioting before they started breaking store windows to loot.

Georgie and Lance are guilty of rioting. In addition to facing charges for PC 404 and 405, they could also face charges for PC 404.6, inciting a riot, and PC 463, looting.

Example 2:

Ed gets upset when a peaceful protest fills the streets in his neighborhood. He decides to ram his car into a crowd of people. A riot breaks out when law enforcement refuses to arrest Ed for aggravated battery using a vehicle as a deadly weapon. Several protesters armed with baseball bats begin yelling threats to police officers.

The rioters with weapons can be charged with PC 404, even if they did not use the bats to engage in any physical altercation. The fact that they made threats and could follow through with those threats using the baseball bats is enough to face a rioting offense.

Example 3:

Miller and Carl were at a protest in the park when they got annoyed by the number of law enforcement officers talking and joking with armed counter-protesters. They began hurling insults, attempting to shame the officers for picking sides. They got more frustrated when the counter-protesters and police officers began laughing at them. Other demonstrators noticed the police officers’ behavior and began yelling at them as well. Feeling encouraged by the support of the other protesters, Miller and Carl pulled out their slingshots and began shooting pebbles at the opposition. Things escalated from there and a riot ensued.

Miller and Carl could be charged with PC 404 and 405, rioting. They may also face charges for PC 404.9, inciting a riot because they were the first two people who began instigating the opposition.

Legal Defense

There are defenses that can be used to contest any charges for PC 404 and 405, rioting. A knowledgeable legal defense team will be familiar with the possible defenses that can be used to fight these charges. Below are just some of the common defenses used to dispute a rioting offense.

First Amendment Rights

The First Amendment of the U.S. Constitution gives everyone the right to freedom of speech. This means everyone has the right to peacefully assemble, which includes participating in a protest. Unfortunately, there are situations where a protest can be escalated by law enforcement or counter-protesters. In so doing, a riot can break-out and otherwise peaceful demonstrators could be dragged into a blanket charge for rioting.

If you face a PC 404 and 405 offense just for exercising your First Amendment right to freedom of speech, you should not be guilty of rioting.

Were you acting in self-defense?

To be guilty of rioting more than one person would have to be able to follow through with any threats they made. Making threats without having the present ability to execute them means you do not meet the criteria for rioting and should not be charged with PC 404 and 405.

For instance, during a peaceful assembly law enforcement felt threatened by the sheer number of people and began throwing tear gas canisters into the crowd, forcing them to disperse. A riot ensued. Leah and Toni would pick up the tear gas cans and throw them back. They were arrested and charged with rioting for tossing the chemical weapons back at the police.

However, Leah and Toni did not bring any threatening weapons and only sought to defend themselves by tossing the tear gas back. Regardless of the perceived threat that the police officers claimed, neither Leah nor Toni had made any threats nor did they possess any weapons. Technically, they were defending themselves from chemical weapons and would not be guilty of rioting.

Was it a case of mistaken identity?

Sadly, there are instances in which random people are swept up to be arrested during a riot. Even people who had nothing to do with the violence including those who were simply trying to separate themselves from it. This is especially the case when law enforcement cannot tell who is instigating violence because so many people are present. This leads to false arrests and cases of mistaken identity.

Taylor and Nava, for example, were bloggers recording a peaceful protest. When counter-protestors successfully escalated the crowd it led to a massive fight between the two sides. In the melee, multiple objects were hurled at law enforcement and the cops proceeded to make arrests. Officers thought Taylor and Nava were the ones throwing objects and arrested them for rioting. Their objections and explanation for their presence were completely ignored.

Fortunately, their defense attorney was able to prove they were not participating in the riot because of the recordings. It proved they were only there to observe and the charges were completely dropped.

On the other hand, there are instances where this happens, and the defendants do not possess any recordings to prove their innocence. If this is the case, do not hesitate to contact a criminal defense attorney for help.

Were you in the wrong place at the wrong time?

Oftentimes, when there is a riot, most people who are present will be under suspicion for rioting. Regardless of whether you were participating or not, police officers will attempt to make massive arrests. If you were separating yourself from the violence, you should be charged with PC 404 and 405.

For instance, Scarlett and Mia worked at a downtown coffee shop and were just closing up when a large crowd had gathered in the street. It wasn’t long before police officers showed up and ordered the crowd to disperse. They refused and began hurling insults and threats at the officers. More law enforcement arrived to arrest as many people as possible for failing to comply. The crowd began rioting when they realized the police officers were boxing them in.

Scarlett and Mia just wanted to go home and had no intention of joining the riot. As they attempted to go through an alleyway, a couple of officers stopped them and arrested them anyway. They were charged with PC 404 rioting, and PC 409 failing to disperse.

Just because you are present when a riot begins does not mean you are automatically guilty by association. In this case, the coffee shop cameras showed that Scarlett and Mia had just locked up the shop and avoided the crowds in the street. Their defense lawyer was able to prove they were not involved and all charges were dismissed.

Penalties for Rioting

If convicted of PC 404 and 405 for participating in a riot you face a:

Misdemeanor;

A potential county jail sentence of one year, and/or

Fines as high as one thousand dollars, and/or

Summary (misdemeanor) probation.

However, the Judge has the discretion to grant summary probation in lieu of jail time depending on the defendant’s particular case and their criminal background history. If probation is granted, it is stipulated that the defendant:

  • Does not go back to the public space where the riot transpired, and
  • They must obey all laws going forward.

Enhanced Penalties

You can face maximum or harsher penalties if your violent actions resulted in severe bodily injury or death of another person, including a member of law enforcement.

It is critical that you seek legal counsel if your case involves the injury or death of a police officer or member of the armed forces. Such instances can result in the courts acting with zero tolerance and you could face compounded punishments including a longer county jail or state prison sentence.

Penalties for Closely Related Offenses

It’s not uncommon for people to face associated offenses in addition to rioting charges. If you find yourself fighting multiple charges, it’s crucial you find a defense lawyer who can help. The right criminal defense attorney can challenge the charges, possibly reducing the charges or getting them completely dismissed.

California Penal Code 372 - Public nuisance laws;

Misdemeanor;

As long as six months in county jail, and/or

Fines of up to one thousand dollars.

California Penal Code 373(a) - Allowing public nuisance on your property or leased property;

Misdemeanor;

A potential six-month county jail sentence, and/or

As much as one thousand dollars in fines.

California Penal Code 404.6 - Inciting a riot;

Misdemeanor;

Summary (misdemeanor) probation,

A possible one-year county jail sentence, and/or

Fines of up to one thousand dollars.

California Penal Code 405(a) - Taking or preventing someone who is getting arrested for rioting;

Felony;

Formal (felony) probation,

A possible county jail sentence of up to four years, and/or

Fines as high as one thousand dollars.

California Penal Code 407 and 408 - Unlawful assembly;

Misdemeanor;

Informal (misdemeanor) probation, and/or

A potential six-month county jail.

California Penal Code 409 - Failing to disperse;

Misdemeanor;

Summary (informal) probation,

A potential county jail sentence of six months, and/or

Fines as high as one thousand dollars.

California Penal Code 415 - Disturbing the peace;

Infraction;

A maximum fine of four-hundred dollars.

Misdemeanor;

A potential ninety-day county jail sentence,

Up to four-hundred dollars in fines, OR

Both jail time and fines.

California Penal Code 463 - Looting;

Misdemeanor;

Summary (informal) probation,

As long as one year in county jail,

As much as one thousand dollars in fines, and/or

Potential two-hundred-forty hours of community service.

Felony;

Formal (felony) probation,

16 months, 2, or 3 years in county jail,

Fines of up to ten thousand dollars, and/or

As much as two-hundred-forty hours of community service.

California Penal Code 416 - Failing to disperse at a public disturbance;

Misdemeanor;

Informal (misdemeanor) probation,

A possible county jail sentence of six months,

Fines as high as one thousand dollars, and

Potential restitution or payment for any property damage caused by the crime.

We Can Help

Do not let yourself or anyone else you care about face these charges alone. Depending on the circumstances of the case, it could be possible to face maximum penalties for PC 404 and 405, rioting. If you are located in San Diego, Los Angeles, or Orange County, contact the Law Offices of Anna R. Yum today.

Attorney Yum was a former prosecutor and is now an award-winning criminal defense lawyer. She understands that possessing a criminal record carries long-term consequences, which is why challenging any criminal offense is integral to maintaining control of your future.

If you or someone you know is facing rioting charges or any of the aforementioned offenses, let us help. Schedule your no-obligation, free-consultation by calling 619-233-4433 or contact us using our online contact form.

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