Penal Code 405a PC – Taking a Person from Custody by a Riot

Updated

California “Lynching” Laws (Penal Code 405a & 405b PC)

California law defines “lynching” as forcing a prisoner or detainee from police custody. The best example is a group of rioters who wrest an arrestee away from the police. The crime of lynching is defined in Penal Code 405a and 405b. Lynching is a felony under California law, punishable by up to 4 years in county jail or state prison. But a good criminal defense lawyer can often get Penal Code 405a and 405b charges reduced or dismissed. More info at http://www.shouselaw.com/lynching.html or call (888) 327-4652 for a free consultation.


Penal Code 405a PC is the California statute that makes it a crime for a person to remove someone from police custody by means of a riot. The offense is charged as a felony. Penalties can include up to four years in county jail.

405a PC states that “a person who participates in the taking by means of a riot of another person from the lawful custody of a peace officer is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”

Note that this offense was previously called "lynching." But the California governor struck the term "lynching" from the statute in 2015 in SB 629. This was due to its connotation with the more serious crime of a mob seizing and hanging a person, in particular African Americans in the old South. Other than omitting the word lynching, the statute remains the same.

Examples of conduct that can lead to 405a PC charges

  • starting a riot after police arrest a friend in order to help him escape.
  • after being taken into custody, yelling at others to start a riot to help break free.
  • rioters taking a person from custody near a prison center.

Defenses

A defendant can challenge an accusation under this statute with a legal defense. Common defenses include:

  • there was no riot,
  • the defendant was not trying to rescue someone, and/or
  • there was no one in custody.

Penalties

A violation under these laws is charged as a felony. This is opposed to a misdemeanor or an infraction.

The crime is punishable by:

Our California criminal defense attorneys will highlight the following in this article:

police facing rioters
Penal Code 405a PC makes it a crime to remove someone from police custody by means of a riot.

1. What is a crime under this statute?

A prosecutor must prove the following to convict a person under PC 405a:

  1. the defendant participated in a riot, and
  2. the purpose of the riot was to take, or remove, a person from police custody.1

A “riot” occurs when two or more people act together to do any of the following:

  • use force or violence,
  • disturb the public peace, or
  • threaten to use force or violence with immediate power to execute that threat.2

Note that a person that gets taken from custody by a riot can also be guilty of this offense. This is provided that he instigated or encouraged the riot.3

Example: Marcos is arrested by police during a break at a concert. Marcos starts shouting things like, “abuse of power, “and “they have the wrong man.” He starts heckling the cops and demands that he's “free and innocent.” Other concert goers begin to surround the police and soon start rioting and free Marcos.

Here, the concert goers are guilty under Penal Code 405a. But Marcos is guilty as well since he started the riot.

Also note that knowledge is not an element of proof under this statute. This means that a prosecutor does not have to show that:

  1. a person was in lawful police custody, and
  2. the defendant knew he was in custody.4

2. Are there legal defenses?

Defense attorneys use several legal strategies in attacking charges under this statute. These include showing that:

  1. the defendant was not involved in a riot,
  2. the accused was not trying to take someone from custody, and/or
  3. there was no one in custody.

2.1. No riot

Recall that a person is only guilty under these laws if he participated in a riot. Further, “riot” has a specific legal definition. This means it is a legal defense for an accused to show that he/she was not rioting. Perhaps, for example, an accused was just in a crowd of onlookers as someone escaped from custody.

2.2. No rescue

Also recall that a prosecutor must prove that the purpose of any riot was to free a detainee. A defense, therefore, is to show that the purpose of any riot was not to rescue someone from custody. Note, though, that the accused may still be guilty of rioting, per Penal Code 404 PC.

2.3. No one in custody

There has to be a person in custody in order for these laws to apply. Therefore, it is always a defense for an accused to say that, while he/she may have been rioting, no one was in custody. Again, though, the defendant may still be guilty of rioting, per Penal Code 404.

man serving jail time for a 405a PC charge
A violation of this law can result in a fine and/or jail time

3. What are the penalties?

A violation of this statute is charged as a felony.

The crime is punishable by:

  • custody in county jail for up to four years, and/or
  • a maximum fine of $10,000.5

A judge may award a defendant with felony (or formal) probation in lieu of jail time.

4. Are there immigration consequences?

A conviction of this offense may have negative immigration consequences.

The commission of an aggravated felony can result in a non-citizen being either:

This means a conviction could hurt a defendant's immigration status if the facts of the case are so harsh that they show the accused committed an aggravated felony.

5. Can a person get a conviction expunged?

A person can get an expungement if convicted of this crime.

An expungement is available provided that the defendant successfully completes the imposed:

  • jail term, or
  • probation conditions (whichever is applicable).

A judge may even expunge a conviction if the defendant violated probation.

6. Are there related offenses?

There are three crimes related to taking a person from custody by a riot. These are:

  1. rioting – PC 404,
  2. rescuing a prisoner – PC 4550, and
  3. resisting an executive officer – PC 69.

6.1. Rioting – PC 404

Penal Code 404 PC is the California statute that makes it a crime for two or more people to riot.

The definition of “riot” is provided above in section 1.

6.2. Rescuing a prisoner – PC 4550

California Penal Code 4550 PC makes it a crime for a person to:

  • rescue,
  • help in rescuing, or
  • attempt to rescue a prisoner of the state.

A “prisoner” may include:

  • an inmate of a county jail or the California State prison,
  • a member of a prison road camp, and/or
  • a person in an officer's lawful custody.

6.3. Resisting an executive officer – PC 69

Penal Code 69 PC is the California statute that defines the crime of "resisting an executive officer." This section makes it a crime for a person to use threats or violence to:

  1. try to prevent an executive officer from performing his duties, or
  2. resist an executive officer in the performance of his duties.

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Legal References:

  1. California Penal Code 405a PC. See also In re Anthony J. (1999) 72 Cal.App.4th 1326.

  2. California Penal Code 404 PC.

  3. In re Anthony, supra.

  4. People v. Richards (2017) 227 Cal.Rptr.3d 95.

  5. California Penal Code 405a PC. See also Penal Code 1170h PC.

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