Penal Code 404.6 PC - Inciting A Riot

Updated March 29, 2021

Playlist: Inciting a Riot

California Penal Code 404.6 PC defines the crime of “incitement to riot.” One commits this crime if, intending to cause a riot, he urges other people to:

engage in rioting,
commit acts of force or violence, OR
burn or destroy property¹

Specifically, 404.6 PC states:

“Every person who with the intent to cause a riot does an act or engages in conduct that urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances that produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of incitement to riot.”

To commit this crime, the defendant himself does not actually need to engage in rioting or violence. Urging others to do so is sufficient. Nor is it necessary that the “incitement” actually cause these other people to riot, commit violence or burn or destroy. All that’s necessary is that the accused was trying to instigate these things. ²

However, it’s only incitement to riot if a person acts where there is a “clear and present and immediate danger” of these acts of rioting, violence or burning actually happening. Examples would include:

At a May Day rally, as a police line tries to hold back an angry crowd, Stewart yells to the crowd “If you have a rock, throw it at those pigs”
At a heated labor protest in front of a Wal-Mart store, Billy yells for the crowd to throw rocks at the store windows

California courts have found that Penal Code 404.6 is not unconstitutional insofar as being too vague, giving police too much discretion, or infringing on free speech. ³

Defense to an “Incitement to Riot” Charge

Arrests for this charge tend to arise out of very chaotic situations. It’s easy for witnesses, especially the police, to be so frazzled by the chaos that they misperceive who in the crowd was actually rioting or trying to incite violence. Consequently, many false arrests get made.

Typical defenses that we have successfully asserted in these sorts of cases include:

Our client was merely present, but was not the one who urged the crowd to riot
Our client merely urged the crowd to protest, but to riot or commit violence
Even if there was an incitement to riot, it was in a circumstance where that result was unlikely to happen
The police are lying or exaggerating in order to make a case against protesters, because they are angry and biased against the protesters

In the latter case, it can be very useful to run a Pitchess Motion to get the personnel and disciplinary history of the arresting officers. If we find they have a history of misconduct, this can undermine their credibility and often get Penal Code 404.6 charged reduced or dismissed.

Penalties, Punishment & Sentencing for Inciting
a Riot

When police make arrests at a mob scene or unruly gathering, a number of charges may get filed, in addition to rioting

Penal Code 404.6 PC is a U.S. misdemeanor in California law Conviction can trigger up to one year of county jail, and a fine of up to $1000.00. ⁴ However, a judge may grant probation with little or no jail time. Probation will require that the defendant stay our of trouble, or risk getting violated and sent to jail for up to the maximum term.

Inciting a jail or prison riot (where someone suffers serious bodily injury) makes the punishment wobbler, meaning it can be filed as either a misdemeanor or a felony in California law.⁵ As a felony, it carries up to three years in
California state prison.

Related Crimes

When police make arrests at a mob scene or unruly gathering, a number of charges may get filed, in addition to rioting. Some of the other typical charges include:

Participation in a Riot

Codified in California Penal Code 404 and 405, participating in a riot is where two or more people act together to

commit acts of violence
threaten violence, or
cause a disturbance⁶

To be liable under Penal Code 404 and 405, however, one must personally be committing violence, threats or disturbing the peace.

Unlike inciting a riot, this crimes requires active participation in the rioting. One can incite a riot just be urging or instigating others to riot, even if the inciter never actually participates. To be liable under Penal Code 404 and 405, however, one must personally be committing violence, threats or disturbing the peace.

Penal Code 404 defines what a riot is. Penal Code 405 makes it a
misdemeanor to engage in rioting, punishable by up to a year of incarceration.⁷

Unlawful Assembly

California law as to unlawful assembly, in Penal Code 407 & 408, makes it a crime for two or more people to gather in assemblies to commit illegal acts or in assemblies which are “violent or which pose a clear and present danger of imminent violence.”⁸ Merely being present in the unlawful assembly can be a crime, even if a particular person is not actively engaged in violence.⁹

A group gathered together to riot, or where incitation to rioting is taking place, would fit the legal definition of unlawful assembly. However, because freedom of peaceful assembly is protected by the First Amendment, courts strictly limit who can be prosecuted for this offense…only those who assemble to commit violence or where there is an immediate danger of violence.

Penal Code 407 defines an unlawful assembly; Penal Code 408 makes this offense a misdemeanor.¹⁰

Refusal to Disperse

Codified in Penal Code 409 PC & Penal Code 416 PC, “refusal to disperse” is when a person refuses to leave the scene of a riot or unlawful assembly, even after being ordered to do so by law enforcement. A person who refuses to disperse--and who remains and urges on potential rioters--could be charged under Penal Code 404.6 and 409 & 416.

Along with unlawful assembly, the United States Constitution limits the application of this law. To be liable under Penal Code 409 or Penal Code 416, the dispersal order must have been necessary to prevent violence or to alleviate a threat of immediate violence.¹¹And authorities must distinguish between wrongdoers and mere bystanders.¹²

Disturbing the Peace

Penal Code 415 PC “disturbing the peace” is where one engages in fighting, uses fighting words, or makes unreasonable noise. Even if the police can’t prove that someone was “inciting a riot,” they may be able to make a Penal Code 415 case if the person was fighting, challenging others to fight, or making a loud disturbance.¹³

Here too, there are strict constraints on when people may be prosecuted. They can’t be prosecuted just for engaging in expression, even loudly. The “unreasonable noise” must be intended to disturb and disrupt others, or in a time and place where it is likely to do so.¹⁴

Call us for help.

Call us for help…

If you or loved one is charged with Penal Code 404.6 inciting a riot and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. If your case is in Nevada, please see our article on the crime of inciting a breach of the peace in Nevada. Or if your case is in Colorado, please see our article on the crime of inciting a riot (CRS 18-9-102).

Legal References:

1. California Penal Code 404.6 (a) “Every person who with the intent to cause a riot does an act or engages in conduct that urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances that produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of incitement to riot.”
2. See CALJIC 16.230, the California Jury Instruction for “Incitement to Riot”:In order to prove this crime, each of the following elements must be proved:
  1 The defendant specifically intended to cause a riot;
  2 With the intent to cause a riot, [he] [she] committed an act or engaged in conduct which urged a riot, or [he] [she] urged others [to commit violent acts] [or] [to burn or destroy property]; and
  3 This conduct took place under circumstances which produced a clear and present and immediate danger that [force or violence] [, or] [the burning or destruction of property] would take place.
  To constitute the crime charged, no actual force need be used or violence occur, nor need there be any actual burning or destruction of property.
3. See People v. Davis (1968) 67 Cal.Rptr. 547, 68 Cal.2d 481, 439 P.2d 651.
4. See Penal Code 404.6 (b) “Incitement to riot is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”
5. See Penal Code 404.6 (c) “Every person who incites any riot in the state prison or a county jail that results in serious bodily injury, shall be punished by either imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.”
6. California Penal Code 404 , defining rioting as “any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law.”
7. Penal Code 405 “Every person who participates in any riot is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.” In re Brown (1973) 9 Cal.3d 612, 623.
8. In re John Wagner, In re William Reid Parker, In re James T. Fauss (1981) 119 Cal.App.3d 90, 103.
9. Penal Code 408 “Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”
10. Chambers v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (App. 1 Dist. 1977) 65 Cal.App.3d 904.
11. See Dubner v. City and County of San Francisco (2001) 266 F.3d 959.
12. California 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.”)
13. People 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.'”)