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

Penal Code § 405a PC is the California statute that makes it a crime 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.

The language of the statute reads that:

405a. 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 

• starting a riot after police arrest a friend in order to help them 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

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

• there was no riot,
• you were 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:

• custody in county jail for up to four years, or
• felony (or formal) probation.

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

• 1. Is it a crime to take someone from police custody?
• 2. Are there legal defenses?
  • 2.1. No riot
  • 2.2. No rescue
  • 2.3. No one in custody
• 3. What are the PC 405a penalties?
• 4. Are there immigration consequences?
• 5. Can I get a conviction expunged?
• 6. Are there related offenses?
  • 6.1. Rioting – PC 404
  • 6.2. Rescuing a prisoner – PC 4550
  • 6.3. Resisting an executive officer – PC 69

1. Is it a crime to take someone from police custody?

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

1. you 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 they 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. you knew they were 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. you were not involved in a riot,
2. you were not trying to take someone from custody, and/or
3. there was no one in custody.

2.1. No riot

Recall that you are guilty under these laws if you participated in a riot. Further, “riot” has a specific legal definition. This means it is a legal defense to show that you were not rioting. Perhaps, for example, you were 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 you 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 to say that, while you may have been rioting, no one was in custody. Again, though, you may still be guilty of rioting, per Penal Code 404.

3. What are the PC 405a 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 you 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 you being either:

• deported, or
• marked as inadmissible.

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

5. Can I get a conviction expunged?

You can get an expungement if convicted of this crime.

An expungement is available provided that you successfully complete the imposed:

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

A judge may even expunge a conviction if you 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 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 to use threats or violence to:

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

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

---

Legal References: