If a public officer lawfully orders the crowd to disperse and you stay, you can be charged with a misdemeanor under Penal Code section 409 for remaining, even if you took no part in whatever made the gathering unlawful. The prosecution still has to prove that the gathering was a riot, rout, or unlawful assembly as the law defines those terms, and that the order was lawful. Taking part in an unlawful assembly, and refusing to disperse from a gathering you joined to disturb the peace or commit a crime, are separate misdemeanors with their own elements.
What makes a gathering an unlawful assembly
Penal Code section 407 defines the term: two or more people who assemble together “to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner.” The second branch is narrower than it reads. In In re Brown (1973) 9 Cal.3d 612, the California Supreme Court held that, for assemblies to do a lawful act, sections 407 and 408 must be limited to assemblies that are violent or that pose a clear and present danger of imminent violence. The jury instruction for participating in an unlawful assembly, CALCRIM No. 2685, follows that holding: a lawful-purpose assembly “is not unlawful unless violence actually occurs or there is a clear and present danger that violence will occur immediately,” and its bench notes explain that the committee dropped the words “boisterous or tumultuous” from the instruction. The same instruction describes the first branch as assembling to commit a crime. A loud gathering for a lawful purpose that never turns violent, and never comes close, does not meet the second branch.
Taking part is one charge; staying after the order is another
Participating in an unlawful assembly is a misdemeanor under Penal Code section 408. Under CALCRIM No. 2685, the prosecution must prove that you willfully participated and that you knew the assembly was unlawful when you did.
Remaining after a dispersal order is a separate misdemeanor under Penal Code section 409, which exempts public officers and the people helping them disperse the crowd. CALCRIM No. 2686 lists the elements: you were present at the location of a riot, rout, or unlawful assembly; a public officer lawfully ordered you to disperse; and you willfully remained there after the order. On request, the court also tells jurors that the prosecution does not have to prove you participated in the riot, rout, or unlawful assembly. The instruction’s Related Issues note, citing a California Court of Appeal decision and a federal appeals court decision, says section 409 applies to any person who remains at an unlawful assembly after an order to disperse, whether or not that person was involved in the violent or illegal activity.
The same instruction defines the other two gatherings. 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 it with the immediate ability to carry out the threat. A rout occurs when two or more people, assembled and acting together, attempt or advance toward an act that would be a riot if committed. Riot itself is a different charge, covered on our rioting page.
What a lawful dispersal order requires
Under CALCRIM No. 2686, an officer lawfully warns people to disperse by directing them, in the name of the People of the State, to immediately disperse. No particular words are required. The words used must be enough to tell a reasonable person that the officer is acting in an official capacity and ordering people to leave the area, and the officer must communicate the order in a reasonable way that ensures it is heard. The bench notes add that the jury decides whether the person who gave the order was a public officer; the judge may not instruct jurors that the person was one as a matter of law.
Refusing to disperse with your own unlawful purpose
Penal Code section 416(a) is a narrower misdemeanor aimed at people who gather to disturb the public peace or to commit an unlawful act and then do not disperse when a public officer commands it. Under CALCRIM No. 2687, the prosecution must prove that you assembled with one or more others, that you intended to disturb the public peace or commit a crime, that a public officer had probable cause to believe the assembly’s purpose was unlawful, that the officer lawfully warned you to disperse, and that you willfully remained. The instruction defines intending to disturb the public peace narrowly, as intending to commit overt acts that are themselves violent or that tend to incite others to violence. Its Related Issues note says section 416(a) reaches only people who have the specific intent to commit violent or unlawful acts, but, unlike section 409, does not require that the gathering meet the definition of a riot, rout, or unlawful assembly.
For section 416(a) specifically, subdivision (b) adds a restitution rule. If you personally cause damage to public or private property as a result of violating subdivision (a), you must pay restitution directly to the victim, including the costs of cleaning up, repairing, replacing, or restoring the property; if the court finds you unable to pay, it must order community service instead. Under subdivision (d), the prosecuting agency or claimant must prove that you personally caused the damage, and that burden never shifts to you.
What the penalty is
Sections 408, 409, and 416(a) each call the offense a misdemeanor without setting a punishment, and section 407 only defines the term. Penal Code section 19 supplies the default whenever no other law prescribes a different punishment for a misdemeanor: a county jail term of no more than six months, a fine capped at $1,000, or both together.
Getting help
Whether the gathering was ever violent enough to be unlawful, whether the dispersal order was given and heard the way the law requires, and whether you had the intent section 416(a) requires are fact-specific questions; whether any arrest or search was lawful is a separate question governed by different rules. The Law Offices of David S. Chesley can go through the police report, and any recording of how the dispersal order was given, with you. Call (800) 755-5174 to talk through your case.