Penal Code § 404 PC is the California statute that defines the crime of rioting or participating in a riot. This occurs when two (2) or more people acting together do any of the following without authority of law:
- Use force or violence;
- Disturb the public peace; or
- Threaten to use force or violence with immediate power to execute that threat.1
The language of the code section states that:
404. (a) 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, is a riot.
(b) As used in this section, disturbing the public peace may occur in any place of confinement. Place of confinement means any state prison, county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, or any juvenile hall, juvenile camp, juvenile ranch, or juvenile forestry camp.
- A group of 10 college students takes over the office of the president of their college; they tie up the president and vow not to release him unless certain demands of theirs are met.
- After an appalling case of police misconduct, several hundred people gather in their city’s business district, break windows and vandalize cars.
- Several neighborhood activists, who are upset about the displacement of affordable housing in their neighborhood by expensive new condos, camp out outside the new condos and play loud drums all night long so the residents cannot sleep.
Participating in a riot is a misdemeanor.2 The potential penalties include up to one (1) year in county jail, and/or a fine of up to one thousand dollars ($1,000).3
If you are charged with participating in a riot, you may be able to get the charges reduced or dismissed by arguing one of the following common legal defenses:
- You were merely present at the scene and did not actually participate in the riot;
- You were acting in self-defense against police who were using excessive force; and/or
- You were a victim of mistaken identification.
In this article, our California criminal defense attorneys4 will explain the following:
- 2. Penalties
- 3. Legal Defenses
- 4. PC 404 Rioting and Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of rioting under California Penal Code 404 PC is two (2) or more people, acting together without authority of law, to willfully do one of the following:
- Disturb the public peace;
- Use force or violence; or
- Threaten to use force or violence, if the threat is accompanied by the immediate power of execution.5
Example: Polly is outraged after the local police department fails to discipline an officer who brutally used a Taser on a local teenager for no good reason. She joins a small group of people from her neighborhood in a protest outside a police station.
The protestors begin to chant, “Kill the police!” over and over again. But none of them has any weapons. All they do is chant this phrase outside the station, not particularly loudly.
Polly and the other protestors are threatening to use force or violence. But given that their group is small and they don’t have any weapons—and the people they are threatening are heavily-armed police officers—they probably don’t have the immediate power to carry out that threat.
Thus, they may not be guilty of rioting under Penal Code 404 PC.
Acting “willfully” means that you acted willingly or on purpose.6
By the same token, California law says that you cannot be guilty of rioting simply for being present at the scene of a riot. You need to have either participated actively in the riot, or supported those who were participating in it.7
Example: In the cafeteria of a California jail, a group of 10 or so prisoners ambushes the guards and ends up taking their weapons.
Scott is one of the prisoners in the cafeteria at the time, but he does not participating in the attack on the guards. He sits on the sidelines watching silently while the attack occurs.
The prisoners who were actively involved in attacking the guards, or who encouraged other prisoners to participate in the attack, may be guilty of rioting. But Scott is not guilty even though he was present at the scene of the riot.
Even though it also requires two (2) or more people acting together, rioting is different from the California crime of conspiracy.
Conspiracy requires people to work together for a common plan, purpose or agenda—but rioting does not. Simply committing acts of violence together, planned or unplanned, and for any reason, is sufficient.8
Example: Hugh works in a pulp mill. He and his co-workers go on strike to demand better working conditions and higher pay. The owners of the mill hire temporary “scab” workers to take their place.
Hugh and his co-workers make plans to meet outside the pulp mill one morning to picket the entrance and engage in a peaceful protest. They have no plans to engage in violence.
But when the temporary workers show up for work, one of Hugh’s co-workers becomes enraged and begins throwing rocks at them. Hugh and the others join in.
Hugh and his co-workers are guilty of rioting even though they did not plan a violent disturbance. They engaged in violence together, which is sufficient for the crime of participating in a riot.9
Participating in a riot is a California misdemeanor and carries the following penalties:
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).10
In practice, judges in rioting cases frequently grant misdemeanor (summary) probation —with little or no actual jail time—on the condition that the defendant stays away from the location of the riot and obey all laws going forward.
If you or a loved one is charged with California rioting, we can help you fight for justice, possibly with the help of one of the following common legal defenses:
You were merely present at the scene and did not participate in the riot
To be guilty of rioting in California, you need to have actively participated in the riot—or supported others in doing so.11
According to Los Angeles criminal defense attorney Neil Shouse12:
“Just being present at the scene of a riot is not the crime of rioting in California—even though stressed or overzealous cops may act like it is. Unfortunately, people often are arrested just for being at a riot. But they should not be convicted of rioting without hard proof that they were actively involved.”
You acted in self-defense against police who were using unreasonable force
During riots, police are typically nervous, overworked and sometimes just plain angry. Instances of police brutality are particularly likely in these situations.
Then, to make matters worse, people who try to defend themselves against police brutality may be charged with California Penal Code 404 participating in a riot.
But if the behavior that led to your arrest was done in self-defense—against police aggressors—you are not guilty of this offense. The help of a good criminal defense attorney is essential for challenging the biased or out-and-out inaccurate accounts of cops about what actually happened on the scene.
You were a victim of mistaken identification
For all the reasons just described, police dealing with emergency situations are prone to make mistakes—including misidentification of the people who were involved in unlawful activity.
Particularly if you were on the scene of a riot, and you happen to be of the same race or ethnicity as many of the people involved, you could easily be accused of engaging in wrongdoing simply because police or eyewitnesses mistook you for someone else.
Closely related offense to PC 404 participating in a riot include:
Stated in California Penal Code 404.6 PC, “incitation to riot” is where a person, intending to start a riot, urges people:
- To engage in rioting;
- To commit acts of force or violence; OR
- To burn or destroy property.13
To be liable for this crime, it’s not necessary that the “inciter” actively participates in the riot. All that’s necessary is that he tries to instigate one, in a situation where there’s an immediate danger that rioting could break out.14
California Penal Code 408 “unlawful assembly” is when two or more people gather together to:
- Do something illegal; or
- Act in a violent, boisterous or tumultuous manner.15
Of course, rioting—as defined in this section—would be unlawful, and therefore gathering for the purpose of rioting would constitute an “unlawful assembly.”
But because of the tension between this section and the First Amendment freedom of assembly, courts narrowly construe Penal Code 407 and 408 to apply only to “assemblies which are violent or which pose a clear and present danger of imminent violence.”16
Penal Code 407 PC defines an unlawful assembly; Penal Code 408 PC makes this offense a misdemeanor.17
Stated in Penal Code 409 & 416 PC, California “failure to disperse” laws apply to situations where authorities order the crowd at a riot or an unlawful assembly, or a crowd gathered to disturb the peace, to leave. Those who remain at the scene can be arrested and charged.18
In theory, someone who participates in a riot and then refuses to disperse could be charged under Penal Code 404 PC’s rioting law, as well as Penal Code 409 PC and/or Penal Code 416 PC. Failing to disperse is a California misdemeanor.19
As with unlawful assembly, there is an inherent tension between “failure to disperse” laws and freedom of assembly. Consequently, here too, courts have said the law only applies to scenarios where there is a need to quell violence or the danger of immediate violence.20
Stated in Penal Code 415 PC, California’s “disturbing the peace” law makes it a crime to engage in fighting, use offensive fighting words, or make unreasonable noise.21
If a protest or demonstration is loud and rowdy, but not necessarily violent, police may arrest people for disturbing the peace rather than rioting. Disturbing the peace can also be a helpful plea bargain from rioting charges.
Disturbing the peace is a low-level misdemeanor, carrying a maximum sentence of only ninety (90) days in jail.22
For additional assistance…
For questions about the California crime of participating in a riot, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada “rioting and routing” laws, please see our page on Nevada “rioting and routing” laws.
- Penal Code 404 PC – Riot; elements. (“(a) 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, is a riot. (b) As used in this section, disturbing the public peace may occur in any place of confinement. Place of confinement means any state prison, county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, or any juvenile hall, juvenile camp, juvenile ranch, or juvenile forestry camp.”)
- Penal Code 405 PC – Rioting; punishment. (“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.”)
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Penal Code 404 PC – Riot; elements, endnote 1, above.
See also Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 2683 – Participating in a Riot (Pen. Code, §§ 404, 405). (“The defendant is charged [in Count] with participating in a riot [in violation of Penal Code section 405]. To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully participated in a riot. A riot occurs when two or more people, acting together and without legal authority, disturb the public peace by using force or violence or by threatening to use force or violence with the immediate ability to carry out those threats. Someone commits an act willfully when he or she does it willingly or on purpose.”)
- CALCRIM 2683 – Participating in a Riot (Pen. Code, §§ 404, 405), endnote 5, above.
- People v. Bundte (1948) 87 Cal.App.2d 735, 746. (“Regarding the guilt of all who participate in, or who promote or encourage, a riot, it is said in 8 Ruling Case Law, page 331, section 361, supported by authorities, that: “… All who encourage, incite, promote, or take part in a riot are guilty of riot as principals; and a person, to be guilty as a rioter, need not be actively engaged, but if present giving support, countenance, etc., it is sufficient; but mere presence alone is not sufficient to constitute one a rioter.””)
- CALCRIM 2683 – Participating in a Riot (Pen. Code, §§ 404, 405), Related Issues: Prior Agreement Not Necessary. (“It [is] not necessary that a previous agreement between the aggressors should have been alleged, or have existed, to bring such offenses within the inhibitions of section 404.” (People v. Bundte, supra) “Thus, it is the concurrence of unlawful action by individuals in the use, or threat to unlawfully use force or violence that constitutes the offense of riot. [Citation.] All persons who encourage, incite, promote, give support to or countenance a riot are principals in a riot.” (People v. Cipriani (1971) 18 Cal.App.3d 299, 304 [95 560 Cal.Rptr. 722] [italics in original, citing People v. Bundte, supra, 87 Cal.App.2d at pp. 744–746].).”)
- Based on People v. Bundte, endnote 7, above.
- Penal Code 405 PC – Rioting; punishment, endnote 2, above.
- People v. Bundte, endnote 7, above.
- Our Los Angeles criminal defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings, defending everything from rioting to sex crimes.
- Penal Code 404.6 PC – Incitation to riot. (“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.”)
- California Jury Instructions – Criminal (“CALJIC”) 16.230 – Incitement to Riot.
- Penal Code 407 PC – Unlawful assembly. (“Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.”)
- In re Brown (1973) 9 Cal.3d 612, 623.
- Penal Code 408 PC – Unlawful assembly penalties. (“Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”)
- Penal Code 409 PC – Failure to disperse. (“Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor.”)
Penal Code 416 PC – Failure to disperse. (“(a) If two or more persons assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being desired or commanded so to do by a public officer, the persons so offending are severally guilty of a misdemeanor.”)
- Chambers v. Municipal Court (1977) 65 Cal.App.3d 904, 911.
- Penal Code 415