Penal Code 407 & 408 PC – Unlawful Assembly in California

Penal Code 408 PC is the California statute that makes it a crime for a person to participate in an unlawful assembly. This means for two or more people to gather together to do something illegal, or to do a lawful act in a violent manner. A violation of this code section is a misdemeanor offense.

Penal Code 407 PC provides the legal definition of an unlawful assembly. The statute provides that “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.”

The law has come into public view recently in light of the protests over the George Floyd killing, police abuse, and racial injustice.

The language of PC 408 states that, “every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”

Examples of illegal acts

• joining in a Los Angeles protest that involves throwing rocks into storefronts.
• a group of people setting neighborhood cars on fire and endangering public safety.
• protesting a police department action by vandalizing the department’s headquarters.

Legal Defenses

Persons can challenge unlawful assembly charges by raising a legal defense. Three common defenses include the accused showing that:

• he/she did not willfully participate in an assembly,
• he/she did not know that an assembly was unlawful, and/or
• his/her acts were protected by the First Amendment.

Penalties

A violation of California Penal Code Section 408 is a misdemeanor offense (as opposed to a felony or an infraction).

The crime is punishable by:

• custody in county jail for up to six months, and/or
• a fine of up to $1,000.

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

• 1. How does Penal Code 407 PC define an unlawful assembly?
• 2. Can a defendant raise a legal defense?
  • 2.1 No willful participation
  • 2.2 No knowledge of unlawfulness
  • 2.3 First Amendment Protection
• 3. What are the penalties for violating PC 408?
• 4. Can a person get a conviction expunged?
• 5. Are there related offenses?
  • 5.1 Participation in a riot – PC 404
  • 5.2 Failure to disperse at the scene of a riot – PC 409
  • 5.3 Failure to disperse – PC 416

1. How does Penal Code 407 PC define an unlawful assembly?

Penal Code 407 OC provides the California definition of unlawful assembly. A prosecutor must prove the following to convict a person under this statute successfully:

1. the defendant willfully participated in an unlawful assembly, and
2. the defendant knew that the assembly was unlawful when he/she participated.¹

Someone commits an act “willfully” when he/she does it willingly or on purpose.²

An unlawful assembly occurs when two or more people assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner.³

When two or more people assemble to do a lawful act in a violent manner, the assembly is not unlawful unless:

• violence actually occurs, or
• there is a clear and present danger of imminent violence.⁴

Note that this last rule allows courts to interpret this statute to help protect First Amendment rights narrowly.⁵

Assemblies are not unlawful under PC 408 unless there is a threat of imminent violence.

2. Can a defendant raise a legal defense?

Our criminal defense lawyers advise clients that they can always raise a legal defense in unlawful assembly cases. Three effective defenses include the accused showing that:

1. he/she was not a willful participant in the assembly.
2. he/she had no knowledge that the assembly was unlawful.
3. his/her acts were protected by the First Amendment.

2.1 No willful participation

Recall that a person is only guilty under this statute if he/she willfully participated in an unlawful assembly. This means it is always a defense for an accused to say that he/she did not act willfully.

2.2 No knowledge of unlawfulness

Also recall that a conviction under these laws requires that the defendant knew that an assembly was in fact unlawful. A defense, therefore, is for the accused to say that he/she did not have this knowledge.

2.3 First Amendment Protection

The First Amendment to the U.S. Constitution protects a citizen’s right to assemble freely or come together in public. This means a defendant can challenge a PC 408 allegation by saying that his acts were protected by the Constitution. The defense is valid, though, only if the accused was a demonstrator engaging in a peaceful type of assembly. If it was unlawful, then, the defendant is guilty under this statute.

3. What are the penalties for violating PC 408?

The crime of unlawful assembly is a misdemeanor offense in California.⁶ A conviction under the statute is punishable by:

• imprisonment in county jail (as opposed to state prison) for up to six months, and/or
• a maximum fine of $1,000.⁷

Note that a judge can award a defendant with misdemeanor (or summary) probation in lieu of jail time.

Unlawful assembly carries up to 6 months in jail and/or $1,000 in fines in California.

4. Can a person get a conviction expunged?

California criminal law says that a person convicted under this statute can get the conviction expunged.

This is true provided that the convict successfully completes:

• his/her jail time, or
• probation (whichever was imposed).

5. Are there related offenses?

Three crimes related to unlawful assembly include:

1. participation in a riot – PC 404,
2. failure to disperse at the scene of a riot – PC 409, and/or
3. failure to disperse – PC 416.

5.1 Participation in a riot – PC 404

Penal Code 404 PC is the California statute that makes it a crime for two or more people to act together to:

• use force or violence,
• engage in disturbing the public peace, or
• display a threat of violence.

Depending on the facts of a case, law enforcement could charge a person with both:

• rioting, and
• unlawful assembly.

5.2 Failure to disperse at the scene of a riot – PC 409

Penal Code 409 PC is the California statute that makes it a crime for a person to remain at a riot after having been ordered by police officers to disperse.

Note that this statute also makes it a crime for someone to remain at an unlawful assembly after being ordered to disperse.

5.3 Failure to disperse – PC 416

Penal Code 416 PC is the California statute that makes it a crime for a person to assemble for the purpose of disturbing the public, and then fail to leave after being ordered to do so by the police.

Depending on the facts of a case, a person could be charged with:

• PC 408,
• PC 409, and
• PC 416.

See our related articles on vandalism (PC 594) and disturbing the peace (PC 415).

Legal References: