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Participating in a Riot in California - Penal Code 404 PC

Posted by Dmitry Gorin | Feb 15, 2023

Under California Penal Code 404 PC, it is a crime for anyone to participate in a riot willfully. However, for a prosecutor to prove you are guilty of participating in a riot, they must prove, beyond a reasonable, that you violated all the elements of the crimes.

Participating in a Riot in California - Penal Code 405 PC
Penal Code 404 PC makes it a misdemeanor crime to participate in a riot in California.

They must show that a riot occurred with two or more people acting together without legal authority. They must also prove that they disturbed the public peace by using force or violence or by threatening to use force or violence and that they had the immediate ability to carry out those threats.

Notably, it's not necessary that a previous agreement between the rioters existed and that someone's mere presence at the scene of a riot does not make that person a rioter.

PC 404 says, "(a) Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by the immediate power of execution, by two or more persons acting together, and without the authority of law, is a riot."

PC 404 is participating in a riot is a misdemeanor crime that carries jail time and a fine, but the court has the discretion to impose probation only rather than serving time in jail. Let's review this state law in more detail below.

What Is Considered a Riot?

Peaceful protests and other gatherings are both lawful in California and constitutionally protected.

These gatherings become unlawful when they become violent or threatening. Under California law, the public disturbance must have the following criteria to be considered a riot:

  • Two or more persons act together in disturbance of the public peace; AND
  • They use force or violence as part of the disturbance; OR
  • They threaten the use of force or violence with the immediate ability to carry out their threats.

Examples of riotous behavior can include physical confrontations with people, property damage, and other behaviors that endanger public safety. Important points about this law:

  • Not every unlawful gathering is considered a riot. If, for example, two people got into a verbal argument at a protest, they may be arrested for disorderly conduct, but it would not qualify as a riot under PC 404. Likewise, if a gathering causes unnecessary disruptions or blocks traffic flow, but there are no threats or execution of violence, the participants could face other charges, but it would not be classified as a riot.
  • Being present at a riot does not necessarily constitute participation; you must be a willful participant. If, for example, you attended a peaceful demonstration that turned violent but did not actively participate in the violence, you would not be guilty under PC 404.
  • A riot does not depend on the size of the crowd. Under PC 404, a riot can occur with as few as two active participants.

What Are Some Examples?

EXAMPLE 1: Alex, a member of an environmental activist group, attends a peaceful protest against fracking. During the protest, the group starts breaking windows and throwing rocks at police officers, and Alex joins in the behavior. As a result, Alex can be charged under PC 404 because he participated in a riot, even though he didn't initiate it.

EXAMPLE 2: Rob attends a community protest but does not participate in disorderly conduct. He stands by while others throw rocks and break windows, but he never punches anyone or throws anything.

Rob might be charged with other applicable crimes, such as failing to disperse, defined under Penal Code 409, if the police gave such an order. Still, he is likely not guilty under PC 404 because he did not actively participate in the violence.

What Are the Related Crimes for PC 404?

Participation in a riot often occurs in tandem with other illegal activities, which may be charged in addition to PC 404. Examples include, but are not limited to:

  • Inciting a riot defined under Penal Code 404.6 PC: Urging other people to participate in riotous behavior, whether or not you actively participate in any violence;
  • Unlawful assembly defined under Penal Code 407 PC: This occurs when two or more people assemble with the intent to commit a crime or conduct that disturbs the peace. Unlike participating in a riot, there does not have to be any actual violence for this charge to apply—just the intent to break the law;
  • Forcible removal defined under Penal Code 405a: Using force to remove someone from police custody during a riot (a felony offense);
  • Failing to disperse is defined under Penal Code 409 PC: Refusing to leave a riot or unlawful assembly when police order it;
  • Battery defined under Penal Code 242 PC: Applies if you use force or violence against another person during the riot;
  • Vandalism or malicious mischief defined under Penal Code 594 PC: Applies if you damage someone else's property during the riot;
  • Trespassing defined under Penal Code 602 PC: This misdemeanor crime carries up to six months in jail and a fine up to $1,000;
  • Disorderly conduct defined under Penal Code 647 PC;
  • Looting defined under Penal Code 463PC;
  • Arson defined under Penal Code 451 PC.  

What Are the Penalties for PC 404?

Under Penal Code 404 PC, participating in a riot is considered a misdemeanor offense and can carry up to 1 year in jail and fines of up to $1000.

The court may also order the defendant to pay restitution if any damages occurred due to the conduct. Additionally, the defendant may be charged with additional offenses if they committed other acts of violence or vandalism during the riot.

What Are the Defenses for PC 404?

If you're charged with participating in a riot, several possible defenses may be available to you depending on the facts of the case. These are discussed below.

Perhaps we can argue that you did not willfully participate in the riot. For example, you either stepped away from the violent actions or were physically carried along with the mob and could not break away.

Defenses for Participating in a Riot
Contact our law firm for legal guidance.

Perhaps we can argue that the assembly didn't meet the criteria of a riot. If your attorney can demonstrate that no violence or credible threats of violence occurred, the charges under PC 404 may be dismissed.

Perhaps we can argue that you acted in self-defense, defense of another person, or defense of property. In violent situations, sometimes defensive actions can be misinterpreted as aggression.

The charges may be dismissed if your attorney can show that your actions were an appropriate defensive response to someone else's violent actions.

Perhaps we can negotiate with the prosecutor for reduced charges or persuade them not to file formal charges in the first place, called a “DA reject.”

You can contact our law firm for an initial case evaluation via phone or the contact form. Eisner Gorin LLP is located in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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