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Unlawful Assembly in California - Penal Code 408 PC

Posted by Dmitry Gorin | May 12, 2023

The First Amendment to the Constitution guarantees U.S. citizens the right to assemble peaceably. But when a so-called "peaceful assembly" turns violent or criminal behaviors ensue, it's considered an unlawful assembly, a criminal offense in California under Penal Code 408 PC.

This law is designed to maintain public order and safety by prohibiting individuals from assembling to commit illegal acts, disturbing the peace, or engaging in behavior that threatens public safety.

Unlawful Assembly in California - Penal Code 408 PC
PC 408 makes it a crime for two or more people to engage in an unlawful assembly.

Simply put, PC 408 makes it a crime for someone to participate in an unlawful assembly, which means two or more people gathering to do something illegal or a lawful act violently.

PC 408 says, “Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”

Penal Code 407 PC defines unlawful assembly as “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.”  

To convict you of violating this law, prosecutors must prove that you willfully participated in an unlawful assembly and that you knew the assembly was illegal when you participated. You act “willfully” when it is done on purpose.

A violation of this law is a misdemeanor offense. You could spend up to six months in county jail if convicted of this crime. Let's review this law in more detail below.

What Constitutes an Unlawful Assembly?

California Penal Code 407 PC clearly defines an unlawful assembly as one of two things:

  • Two or more persons assembling to commit an unlawful act; and
  • Two or more persons assembling to commit a lawful act in a "violent, boisterous, or tumultuous manner."

This second point is noteworthy because it gives law enforcement the right to charge you with unlawful assembly even if you are not committing another crime while assembling together.

What is an Unlawful Assembly?
An unlawful assembly is two or more people committing a lawful act in a violent manner.

If you are assembling lawfully, but police consider you disruptive or violent, you can still face criminal charges. However, when two or more people assemble to do a lawful act violently, the assembly is not considered unlawful unless violence occurs or there is a clear and present danger of imminent violence.

We should also note that an individual can be charged with unlawful assembly even if they did not personally commit a crime during the assembly, as long as the group's primary purpose was unlawful and they were participating with the group.

To convict you of unlawful assembly, the prosecution must prove the following elements beyond a reasonable doubt:

  1. You willingly participated in an assembly of two or more people; and
  2. The primary purpose of the assembly was to commit a crime, breach the peace, or engage in behavior that would likely result in a peace disturbance or a threat to public safety.

What Are Some Examples?

EXAMPLE 1: Frieda and Julie are part of a small protest in front of City Hall. Because their group is small, they decide to be loud and boisterous, blocking traffic and interfering with people entering the building. As a result, Frieda, Julie, and other group members can be charged under PC 408.

EXAMPLE 2: David joins a march protesting a recent Supreme Court decision, a march he believes to be peaceful. David then notices that some people ahead of him are throwing rocks at store windows and that the crowd seems to be getting louder and angrier.

Realizing things have gotten out of hand, David turns to leave the march, but police apprehend him while he is leaving. David is not guilty of unlawful assembly because he was not a willful participant in illegal activities.

What Are the Related Offenses?

Several California laws are related to Penal Code 408 PC unlawful assembly, such as the following:

What Are the Penalties for PC 408?

Unlawful assembly is classified as a misdemeanor in California. If convicted, you may face the following penalties:

  • Imprisonment in a county jail for up to six months;
  • A fine of up to $1,000;
  • Informal (summary) probation.

The court has the discretion to impose any or all of these penalties, depending on the circumstances of the case and the defendant's criminal history. A judge can award a defendant with misdemeanor summary probation instead of jail time.

What Are the Defenses for PC 408?

An experienced California criminal defense attorney can raise several defenses if you're a defendant facing unlawful assembly charges. Some of the most common defenses are discussed below.

Perhaps we can argue that there was a lack of intent. To convict you, the prosecution must prove that you willingly participated in an assembly that is deemed unlawful (i.e., assembled for the purpose of an illegal act or a legal act done violently).

Defenses for Unlawful Assembly in California
Contact our law firm for legal advice.

If your attorney can show that you did not have the required intent (for example, if the throng unwillingly carried you), you cannot be convicted of unlawful assembly.

Perhaps we can argue that there was a lack of knowledge. Willful participation in an unlawful assembly also requires knowing that the assembly is unlawful. If you were part of the assembly but unaware that the assembly was doing something illegal, your attorney can use this as a defense.

Perhaps we can argue freedom of speech and assembly. In some cases, individuals charged with unlawful assembly may say that their actions were protected by the First Amendment (in other words, the assembly was lawful), and the charges should be dismissed.

Perhaps we can argue there was police misconduct or no probable cause. In some cases, law enforcement officers may use excessive force or violate a defendant's constitutional rights during an arrest or investigation. If this occurs, the defense may be able to file a motion to suppress evidence or have the charges dismissed.

To review the details of your case, you can contact us by phone or through the contact form. Eisner Gorin LLP is based in Los Angeles, CA.

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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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