California Penal Code 415 PC
Disturbing the Peace
California Penal Code 415 PC is commonly referred to as "disturbing the peace."1 Although disturbing the peace is a crime in and of itself, it is most frequently used as a plea bargaining tool. This means that disturbing the peace is a charge that California criminal defense lawyers frequently request when trying to negotiate a reduced charge for their clients.
Penal Code 415 PC is a "wobbler," which means that it is an offense that...depending on the circumstances...prosecutors can charge as either a misdemeanor or as an infraction.2
Disturbing the peace is an offense which can be quite difficult to prove. This is why it is critical to discuss your case with a good California criminal defense attorney who can help you beat this charge.
In order to better understand this offense, our Los Angeles "disturbing the peace" defense attorneys will address the following:
Overview of Penal Code 415 PC | Disturbing the Peace
How Does the Prosecutor Prove that I am Guilty of Disturbing the Peace?
How Do I Fight a Disturbing the Peace Charge?
Penal Code 415 PC and Related Offenses
Disturbing the Peace as a Plea Bargaining Tool
If, after reading this article, you have additional questions, we invite you to contact us.
You may also find helpful information in our related articles on Penal Code 647(a) Lewd Conduct in Public, Penal Code 647(b) Prostitution / Solicitation, Penal Code 422 PC Criminal Threats, California Domestic Violence Charges, and Self-Defense / Defense of Others.
Overview of Penal Code 415 PC | Disturbing the Peace
California "disturbing the peace" laws were first enacted in 1872.3 Sometimes referred to as "breach of the peace," these disorderly conduct laws are designed to protect against just that...disorderly conduct.
However, despite common misperception, most laws regarding loud noise (for example, hosting a loud party, or performing construction during unreasonable hours) are typically enforced through local municipal codes. Criminal "disturbing the peace" laws are generally reserved for more serious situations.
Since its creation, the most noteworthy change to California's "disturbing the peace" law pertains to the subdivision dealing with "fighting words." A 1976 amendment changed the statute from punishing "[a]ny person who uses offensive words in a public place which are inherently likely to produce a violent reaction" to "[a]ny person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction."4
The California Legislature substituted these words in an effort to ensure the statute's constitutionality.5 The irony, however, is that a frequent complaint regarding California "disturbing the peace" laws is that the laws are vague and ambiguous. Those who allegedly violate Penal Code 415 are often surprised and caught off-guard.
The good news is that these laws are often difficult for prosecutors to prove...and easy for California defense attorneys to defend against.
How Does the Prosecutor Prove that I am Guilty of Disturbing the Peace?
It depends with which subdivision of Penal Code 415 PC prosecutors have charged you. Since there are three ways to violate California's "disturbing the peace" law, let's examine each separately.
Penal Code 415(1) unlawful fighting
In order to convict you of unlawful fighting under California "disturbing the peace law," the prosecutor must prove that you
- willfully and unlawfully fought another person (or challenged another person to fight), and
- that the fight or challenge took place in a public place.6
A few notes about this offense...
- "Willfully" means deliberately or on purpose.7
- If you fought only because you were either (1) defending yourself, or (2) defending another, then you are entitled to an acquittal under California's "self-defense / defense of another" law. California's "self-defense / defense of another" law allows you to reasonably defend yourself or another when
- you reasonably believe that you or another person is about to suffer bodily harm,
- you reasonably believe that force is the only way to protect against that harm, and
- you use no more force than is reasonably necessary to defend against the danger.8
- It should be noted that if you commit any of the offenses prohibited under Penal Code 415 PC upon school grounds...and you are not a registered student or employee at that school...you initially face the same penalty as anyone else convicted of Penal Code 415.9 This includes a maximum 90-day county jail sentence and a maximum $400 fine.
However, if you have been previously convicted of this offense...or of another criminal offense that took place upon school grounds...your minimum jail sentence could increase to 90 days and your maximum fine could increase to $1,000.10
Penal Code 415(2) unreasonable noise
In order to convict you of disturbing the peace by making "unreasonable noise," the prosecutor must prove that you
- willfully and maliciously caused loud and unreasonable noise, and
- the noise disturbed another person.11
As for this offense...
- "Maliciously" means intentionally doing a wrongful act with the unlawful intent of annoying or injuring another person.12
- That the noise "disturbed another person" means that the noise
- presented a danger of immediate violence, or
- was used for the purpose of disrupting lawful activities (rather than as a means to communicate).13
Because of the strict nature of these definitions and requirements, police don't frequently arrest people for maliciously causing unreasonable noise. Music, loud cheers, games...these activities aren't typically engaged in for the purpose of "annoying" other people....nor do they present an immediate danger.
However, if another person (or the police) asks you to stop making loud, unreasonable noise...and you don't...a judge and/or jury could infer that your conduct was both willful and malicious.14
Example:
An example of a violation of this subdivision comes from a 1982 California case where a man was arrested for shouting and loudly laughing at a police officer who was trying to question him. The conduct took place around 1:00 am in a hotel hallway. Several occupants of the hotel opened their doors to see what was happening.
The Court ruled that the conduct was disruptive and not communicative in nature. It held that the defendant "intended to (and did create) a disturbance by making loud noises and that the purported communication was used as a guise to that end."15
Penal Code 415(3) fighting words
In order to convict you of provoking another person under California's "disturbing the peace law," the prosecutor must prove that you
- used offensive words which were inherently likely to provoke an immediate violent reaction,
- those words were directed at one or more persons and spoken in a public place.16
and
This offense is what's known as the "fighting words" exception to the right of free speech that is otherwise guaranteed by the First Amendment to the United States Constitution.17 This is because California courts have held that the types of "offensive words" that this subdivision prohibits necessarily invite a breach of the peace.
The courts believe that these "fighting words" are never essential to the expression of ideas and that any value they may have is significantly outweighed by society's interest in order and morality.18
Courts will determine what qualifies as "offensive words" on a case-by-case basis.19 Words that are vulgar, profane, rude, abusive, or disrespectful by themselves do not warrant prosecution for this offense.20 It is the context surrounding your "fighting words" that is critical. You must speak the words in a provocative manner that is sure to provoke a violent response.21
Let's look at a few examples to better understand what conduct will and will not sustain a "fighting words" conviction under Penal Code 415 PC.
Example 1:
Defendant was convicted of Penal Code 415 "fighting words" when he wore a jacket displaying the words "Fuck the Draft" walking through a courthouse. The California court ruled that these words...displayed in this manner...were likely to incite violence and thereby disturb the peace.22
However, two years later in 1971, the California Supreme Court reversed the defendant's conviction, holding that as long as there was no underlying intent to incite violence (or to disrupt the draft), the words used to convey defendant's feelings about the draft were protected by the First Amendment as free speech.23
Defendant never engaged in, never threatened to engage in, nor did anyone in the vicinity threaten to engage in any act of violence.24 The words on his jacket weren't directed at any one individual in particular and people who disapproved of the message could simply look away.25 It was simply an expression of speech and did not rise to the level of disturbing the peace under Penal Code 415.26
Example 2:
Defendant, a 16-year-old male, screamed "fucking bitch" at his neighbor as she drove past his house. Defendant had reportedly screamed at her and called her "obscene" names for about three years. On the occasion in question, the neighbor was "enraged and humiliated."27
Unlike the case above where "fuck the draft" simply appeared on the defendant's jacket (and wasn't directed at any one in particular), the court held that the defendant screamed "fucking bitch" in order to provoke his neighbor. The court stated that it was certain that this phrase, directed at this neighbor under the circumstances would, in fact, invite an immediate violent reaction.28
Example 3:
As Police were arresting defendant's uncle, defendant screamed at the officer, "You ain't taking my uncle, mother fucker...Hey, punk ass mother fucker, take off that gun and badge and I'll kick your ass...Come on, man, me and you." 29
The court acknowledged that if the defendant had uttered that challenge to an "ordinary" citizen, there would be no doubt that it rose to the level of "fighting words." The court, however, recognized that police exercise a higher degree of restraint than the average citizen when it comes to reacting to verbal abuse.
Simply shouting obscenities or insults at an officer does not amount to disturbing the peace. But the court also stated that an individual isn't immune from prosecution simply because the person he addresses is an officer.30
Analyzing the case on its own, the court ruled that the defendant's challenge to the officer posed a real threat of violence...different than if he had simply insulted or annoyed the officer. The court held that the words were offensive and likely to provoke an immediate violent reaction.31
How Do I Fight a Disturbing the Peace Charge?
There are a variety of defenses to this charge that a skilled California criminal defense attorney could present on your behalf. Below is an example of some of the most common.
You lacked the intent to disturb the peace
If you didn't act willfully, maliciously, or with the intent of inciting violence, you must be acquitted of disturbing the peace. All three subdivisions of Penal Code 415 PC require a willful and unlawful act.
With respect to unlawful fighting, if you fought to protect yourself or another, you are innocent because you only acted in self-defense or in defense of another.
With respect to unlawful and unreasonable noise, if you didn't intend to disturb or annoy others with your activity, prosecutors can't convict you of this offense. And finally,
With respect to "fighting words," if you reasonably and honestly believed that the words you spoke were not likely to provoke a violent reaction, you have not broken the law.32
You were engaged in a constitutionally protected activity
Whether you were a part of a peaceful protest or simply sharing an unpopular opinion, if your words or conduct were protected by the First Amendment, you are not guilty of disturbing the peace.
You were falsely accused and wrongly arrested
There are a number of reasons why someone may falsely accuse you of disturbing the peace. Perhaps you had a falling out with a spiteful neighbor. Maybe you embarrassed someone who sought revenge by claiming that you challenged him/her to a fight. Maybe you had a run-in with the police and...because the officer simply didn't like your attitude...he wanted to charge you with something.
As San Francisco criminal defense attorney Jim Hammer explains,33 "Unfortunately, it's not at all uncommon for people to falsely accuse other people of crimes. Anger, revenge, or even dislike frequently lead to false accusations and even wrongful convictions. It's my job to set the record straight and to prove my client's true innocence."
Penal Code 415 PC and Related Offenses
There are several offenses that...because of their nature...are often charged in connection with a disturbing the peace allegation. Some of these include (but are not limited to):
California Penal Code 242 PC "battery"
A Penal Code 242 PC "battery" takes place when you willfully and unlawfully use force or violence upon another.34 As a result, if you fight another person in a public place, prosecutors could charge you with disturbing the peace under Penal Code 415(1) PC and Penal Code 242 PC battery.
California Penal Code 602 PC "trespass"
Penal Code 602 "trespass" takes place when you enter or remain on another's property without the right to do so.35 If you violate any of the subdivisions of Penal Code 415 PC while on another's property...after you've been asked to leave...prosecutors could charge you with disturbing the peace and trespass.
The reason we say "after" the owner asked you to leave the property is because most disturbing the peace violations occur (1) while on public property, or (2) while on private property that is open to the public. Because of this, it is presumed that you have an initial right to be on the property.
However, if, for example, you are in a store causing a disturbance and refuse to leave after the owner asks you to do so, police could arrest you for both violations.
California Penal Code 148(a) "resisting arrest"
Penal Code 148(a) "resisting arrest" takes place when you resist, delay, or otherwise obstruct an officer from performing his/her professional duties.36 If, for example, you direct "fighting words" at an officer as a means of trying to delay or otherwise obstruct him from performing his duties, he could charge you with resisting arrest and disturbing the peace.
Disturbing the Peace as a Plea Bargaining Tool
While disturbing the peace is a crime in and of itself, California defense lawyers often use it as a negotiating tool. As previously stated, a conviction for Penal Code 415 PC carries a maximum jail sentence of 90 days and a maximum $400 fine.37
In reality, most people who are convicted of this offense pay a small fine and serve little (or more typically no) jail time. However, when a disturbing the peace charge is substituted for a more serious offense in a plea bargain, you may have to serve some jail time and/or pay a higher fine in exchange for the reduced charge...then again, you may not.
A good California defense lawyer can frequently negotiate a disturbing the peace charge in lieu of more serious offenses, such as
- Penal Code 647(a) lewd conduct in public,38
- Penal Code 647(b) prostitution / solicitation,39
- California domestic violence charges,40 and
- Penal Code 422 PC criminal threats.41
These offenses all carry stiffer penalties and a social stigma that can impact your reputation, career, and family.
If you have additional questions about California "disturbing the peace" laws, or you would like to discuss your case confidentially with one of our California criminal defense lawyers, we invite you to contact us at Shouselaw.
We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.
Legal References:
1California Penal Code 415 PC -- Fighting; noise; offensive words ("Disturbing the peace"). ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.")
2See Penal Code 415 PC "disturbing the peace" above. See also California Penal Code 17 PC -- Felony; misdemeanor; infraction; classification of offenses. ("(d) A violation of any code section listed in [Penal Code] Section 19.8 is an infraction subject to the procedures described in [California Penal Code] Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.") California Penal Code 415 PC "disturbing the peace" is listed in Penal Code section 19.8.
3California Penal Code 415 -- Disturbing the peace. Historical and Statutory notes. ("Former § 415, enacted in 1872, amended by Code Am.1877-8, c. 299, § 1, relating to disturbing the peace with noise, fighting, etc., was repealed by Stats.1974, c. 1263, p. 2742, § 1.")
4In re John V. (1985) 167 Cal.App.3d 761, 768. ("In 1976 section 415 [California's "disturbing the peace law"] was amended again to change the definition of "offensive" words. The phrase "inherently likely to produce a violent reaction" was replaced with "inherently likely to provoke an immediate violent reaction...." (Stats.1976, ch. 298, § 1, p. 606, emphasis supplied.) The Legislature made this further effort to insure the constitutionality of the statute. Aware of Chaplinsky and Gooding v. Wilson, supra, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, the Legislature attempted to remove all doubt about the constitutionality of [Penal Code] section 415 by requiring the threatened breach of the peace be immediate. ( Review of Selected 1976 California Legislation, 8 Pacific L.J. (1977) p. 275.) [California Penal Code] Section 415(3) [disturbing the peace by using "fighting words"]as enacted and construed by the courts is not unconstitutionally overbroad.")
5 See same.
6Judicial Council Of California Criminal Jury Instruction CALCRIM 2688 -- Disturbing the peace: Fighting or challenging someone to fight. ("To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant willfully [and unlawfully] (fought/[or] challenged someone else to fight); [AND] [2] The defendant and the other person were (in a public place/in a building or on the grounds of <insert description of school from [California] Pen. Code, § 415.5 [Disturbing the peace]>) when (the fight occurred/[or] the challenge was made)(;/.)")
7See same regarding Penal Code 415 PC -- Disturbing the peace. ("Someone commits an act willfully when he or she does it willingly or on purpose.")
8Judicial Council Of California Criminal Jury Instruction CALCRIM 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")
9California Penal Code 415.5 -- Disturbing the peace at a school... ("(a) Any person who (1) unlawfully fights within any building or upon the grounds of any school, community college, university, or state university or challenges another person within any building or upon the grounds to fight, or (2) maliciously and willfully disturbs another person within any of these buildings or upon the grounds by loud and unreasonable noise, or (3) uses offensive words within any of these buildings or upon the grounds which are inherently likely to provoke an immediate violent reaction is guilty of a misdemeanor punishable by a fine not exceeding four hundred dollars ($400) or by imprisonment in the county jail for a period of not more than 90 days, or both...(f) This section shall not apply to any person who is a registered student of the school, or to any person who is engaged in any otherwise lawful employee concerted activity.")
10See same. ("(b) If the defendant has been previously convicted once of a violation of this section [California Penal Code 415.5 PC disturbing the peace at a school] or of any offense defined in Chapter 1 (commencing with [California Penal Code] Section 626) of Title 15 of Part 1, the defendant shall be sentenced to imprisonment in the county jail for a period of not less than 10 days or more than six months, or by both that imprisonment and a fine of not exceeding one thousand dollars ($1,000), and shall not be released on probation, parole, or any other basis until not less than 10 days of imprisonment has been served. (c) If the defendant has been previously convicted two or more times of a violation of this section or of any offense defined in Chapter 1 (commencing with [California Penal Code] Section 626) of Title 15 of Part 1, the defendant shall be sentenced to imprisonment in the county jail for a period of not less than 90 days or more than six months, or by both that imprisonment and a fine of not exceeding one thousand dollars ($1,000), and shall not be released on probation, parole, or any other basis until not less than 90 days of imprisonment has been served.")
11Judicial Council Of California Criminal Jury Instruction CALCRIM 2689 -- Disturbing the Peace: Loud and Unreasonable Noise. ("To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant maliciously and willfully disturbed another person by causing loud and unreasonable noise... [AND] [2] The other person was in a building or on the grounds of <insert description of school from [California] Pen. Code, § 415.5 [disturbing the peace at a school]> at the time of the disturbance...")
12See same regarding California Penal Code 415 PC disturbing the peace causing unreasonable noise. ("Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.")
13People v. Superior Court (Commons) (1982), 135 Cal.App.3d 812, 817. ("'We are satisfied that loud shouting and cheering constitute the loud 'noise' prohibited by [Penal Code] section 415 only in two situations: 1) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors.'")
See also Judicial Council Of California Criminal Jury Instruction 2689 -- Disturbing the Peace: Loud and Unreasonable Noise. ("In order to disturb another person by causing loud and unreasonable noise, there must be either: [1] A clear and present danger of immediate violence; OR [2] The noise must be used for the purpose of disrupting lawful activities, rather than as a means to communicate.")
14People v. Vaughan (1944) 65 Cal.App.2d Supp. 844, 851. ("There is a sufficient showing that the disturbances were wilful and malicious to satisfy the requirement of [California Penal Code] section 415 [disturbing the peace] that they be so done. Both of these terms are defined by section 7 of the Penal Code. The stronger word is "maliciously," which imports "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." A presumption of law applicable here is declared by section 1963, subd. 3, C.C.P., "That a person intends the ordinary consequences of his voluntary act." Here the defendant Vaughan had been previously informed that many of the guests of the hotel were day sleepers and must not be awakened, that she must not knock on the doors or go to them, but the rule of the hotel was that those desiring to see guests must come to the desk and ask for them. Similar statements, though not in so much detail, were made to both defendants on the Sunday in question. But relying on what they regarded as their legal rights, they insisted on going ahead and knocking on all doors loudly. The ordinary consequences of this would be to awaken the sleepers of whose presence they had been informed, to disturb their peace, and to vex and annoy them. This is sufficient, under the above-cited statutory provisions, to enable the jury to infer willfulness and malice [under California Penal Code 415 PC "disturbing the peace"].")
15People v. Superior Court (Commons) (1982), 135 Cal.App.3d 812, 817. ("Real party laughed and shouted very loudly in the hallway of a hotel at about 1 a.m. By reasonable inference, hotel residents were in fact disturbed from their rest by this commotion in the hall, as evidenced by their conduct in looking out into the hall. The loud laughter was itself disruptive and was not communicative in nature. If real party intended only to communicate with the police, he could have done so in a normal tone of voice appropriate to the hotel environment and late hour. Shouting would be appropriate if real party felt threatened by the officers and attempted to elicit help. But there was no call for help, only obscenities directed toward the officers. In short, the facts support a reasonable inference that real party intended to and did create a disturbance by making loud noises, and that the purported communication was used as a guise to that end [which is why defendant was convicted of California Penal Code 415 disturbing the peace].")
16Judicial Council Of California Criminal Jury Instruction CALCRIM 2690 -- Disturbing the Peace: Offensive words. ("To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant used offensive words that were inherently likely to provoke an immediate violent reaction; [AND] [2] When the defendant used those words, (he/she) was (in a public place/in a building or on the grounds of <insert description of school from Pen. Code, § 415.5>)(;/.)")
17United States Constitution: First Amendment. ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.")
18In re Alejandro G. (1995) 37 Cal.App.4th 44, 47. ("[California Penal Code] Section 415 [disturbing the peace], subdivision (3) codifies the "fighting words" exception to the right of free speech under the First Amendment of the United States Constitution. "Fighting words" are "'those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.... [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' "")
19See same at 48. ("Whether offensive words uttered in a public place are inherently likely to provoke an immediate violent reaction must be decided on a case-by-case basis.")
20Jefferson v. Superior Court (1975) 51 Cal.App.3d 721, 724. ("Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 established that the mere use of a vulgar, profane, indecorous, scurrilous, opprobrious epithet cannot alone be grounds for prosecution [under California Penal Code 415 disturbing the peace] (see 403 U.S. at pp. 20 and 25-26, 91 S.Ct. 1780).")
21See same at 725. ("From the constitutional precedents we deduce that it is not enough that the auditor violently react to the words in the abstract because he does not approve of profanity. The context in which the words are used must be considered, and there must be a showing that the words were uttered in a provocative manner, so that there was a clear and present danger violence would erupt.")
See also CALCRIM 2690 -- Disturbing the Peace: Offensive words. ("A person uses offensive words inherently likely to provoke an immediate violent reaction if: [1] He or she says something that is reasonably likely to provoke someone else to react violently; AND [2] When he or she makes that statement, there is a clear and present danger that the other person will immediately erupt into violence. In deciding whether the People have proved both of these factors, consider all the circumstances in which the statement was made and the person to whom the statement was addressed. The People do not have to prove that the defendant intended to provoke a violent response.")
22People v. Cohen (1969) 1 Cal.App.3d 94, 99. ("In the matter before us the defendant deliberately wore a jacket emblazoned with language which is clearly offensive and below the 'minimum standard of propriety and the accepted norm of public behavior' (Goldberg v. Regents of University of California, 248 Cal.App.2d 867, 880, 57 Cal.Rptr. 463) at least when paraded through a courthouse corridor containing women and children. The defendant's conduct consisted of more than a quiet and peaceful assertion of his convictions about the draft. He carefully chose the forum for his views where his conduct would have an effective shock impact. The defendant's stated purpose was to force a confrontation with others as to his opinion of the draft. The expression he chose to display on his jacket is one which is not used publicly to espouse a philosophy or a personal conviction. He was intent upon attracting the attention of others to his views by the sheer vulgarity of his expression. He must have been aware that his behavior would vex and annoy a substantial portion of his unwilling 'audience'. His conduct was, therefore, malicious under Penal Code section 7...It was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket. The fact that the police intervened and that the defendant was arrested before violence occurred does not make his conduct any the less provocative. We think it also a reasonable inference from the time and place of defendant's act that he intended to provoke disorder. It is our conclusion that the defendant's acts constituted the type of offensive conduct prohibited by [California Penal Code] section 415 [disturbing the peace] in that it had a tendency to incite others to violent behavior or to disturb the peace.")
23Cohen v. California (1971) 403 U.S. 15, 18. ("The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech,'...not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)." Defendant's charges under California Penal Code 415 PC for disturbing the peace were reversed).
24See same at 16. ("'The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.' 1 Cal.App.3d 94, 97-98, 81 Cal.Rptr. 503, 505 (1969).")
25See same at 20. ("While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not 'directed to the person of the hearer.' Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult...[and at 21] Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.")
26See same at 26. ("It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below [that is, the conviction for California Penal Code 415 disturbing the peace] must be reversed.")
27In re John V. (1985) 167 Cal.App.3d 761, 764. ("Sixteen-year-old John and Nancy W. are neighbors. John screamed "fucking bitch" at W. as she drove past his house, about 15 to 25 feet away. W. was startled. She felt fear and shock. When she arrived home she was angry. Her anger then turned to fury. She became incoherent, enraged and humiliated. John had been screaming at her and calling her obscene names for about three years. Included within his repertoire of epithets were "whore," "fucking bitch," "bitch," and "fucking liar."")
28See same at 769. ("Unless we are prepared to reject the "fighting words" exception to the First Amendment we must accept the premise that there are certain words in our society which when directly communicated to a person under certain circumstances will in fact provoke an immediate violent reaction. As infrequent as that situation may be we are satisfied it occurred in the case before us. We are hard pressed to think of a more volatile situation than the one here when John decided to provoke W. once again by calling her a "fucking bitch."' As a result, defendant was prosecuted under Penal Code 415 California's disturbing the peace law.)
29In re Alejandro G. (1995) 37 Cal.App.4th 44, 47. ("As Stevens was handcuffing Parraz, Alejandro said, "You ain't taking my uncle, mother fucker." Stevens ignored Alejandro and continued handcuffing Parraz. Alejandro then said, "Hey, punk ass mother fucker, take off that gun and badge, and I'll kick your ass." Stevens again ignored Alejandro and finished handcuffing Parraz. At that point, Alejandro said, "Come on. Come on, me and you. Come on, man, me and you." Stevens then walked over to Alejandro and said, "Are you challenging me to a fight?" Alejandro responded, "Fuck yes," at which point Stevens arrested him for challenging him to fight.")
30See same at 48. ("The words uttered by Alejandro to Officer Stevens would constitute "fighting words" in violation of [California Penal Code] section 415, subdivision (3) if addressed with hostility to an average citizen. The issue we must decide is whether the court reasonably concluded that Alejandro's words were inherently likely to provoke an immediate violent reaction under the particular circumstances surrounding their utterance, including the fact they were addressed to a police officer. [and at 49] We reject the contention that "fighting words" uttered to a police officer cannot, as a matter of law, constitute a violation of [California Penal Code] section 415, subdivision (3) because a police officer is required to exercise a higher degree of restraint than the average citizen in reacting to verbal abuse. However, we also reject the People's suggestion that courts should look solely to the content of the words without regard to the fact they were uttered to a police officer. In determining whether [California Penal Code] section 415 subdivision (3) [fighting words] was violated, courts must consider the totality of the circumstances, including the status of the addressee. That the addressee was a police officer trained and obliged to exercise a higher degree of restraint than the average citizen is merely one factor to be considered along with the other circumstances.")
31See same at 50. ("Turning to the present case, we conclude the court's true finding on the [California Penal Code] section 415, subdivision (3) count is substantially supported by the evidence. First, it is significant that Alejandro expressly challenged Officer Stevens to fight, thereby posing a real threat of violence, as opposed to addressing language to Stevens which was merely vulgar, insulting and/or annoying. Second, Stevens testified he felt personally threatened by Alejandro and 'felt that based upon his verbal assaults that it could turn into physical assault.'")
32In re John V. (1985) 167 Cal.App.3d 761, 770. (""A person does not act unlawfully where he commits an act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make the act lawful. 'When a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them. [Citation.]' " ( People v. Rivera (1984) 157 Cal.App.3d 736, 742-743, 203 Cal.Rptr. 842, quoting People v. Scott (1983) 146 Cal.App.3d 823, 831, 194 Cal.Rptr. 633.) A defendant cannot be convicted under [California Penal Code] section 415(3) [fighting words] where from all the evidence the trier of fact has a reasonable doubt as to whether the defendant reasonably and in good faith believed the language used was not inherently likely to provoke an immediate violent reaction.")
33San Francisco criminal defense attorney Jim Hammer defends clients accused of California crimes throughout the Bay Area, including San Francisco, Oakland, Berkeley, Marin County and San Jose. Contact us at Shouse Law Group at 888-327-4652.
34California Penal Code 242 PC -- Battery. ("A battery is any willful and unlawful use of force or violence upon the person of another.")
35California Penal Code 602 "trespass" simply put, takes place when you enter someone else's property without permission or a right to do so. It's an illegal intrusion that interferes with the rights of another person or property. Penal Code 602 details the many ways an individual commits this offense.
36California Penal Code 148 PC -- Resisting, delaying or obstructing officer...("(a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.")
37California Penal Code 415 PC -- Fighting; noise; offensive words ("Disturbing the peace"). ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.")
38California Penal Code 647(a) Lewd conduct in public. ("Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.")
39California Penal Code 647(b) Prostitution / solicitation. ("Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.")
40California domestic violence charges punish a variety of offenses that are committed against one's current or former spouse, roommate, or significant other. If committed against one of these persons, a domestic violence Penal Code 415 PC "disturbing the peace" charge may be filed.
41California Penal Code 422 Criminal threats. ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.")
