CALCRIM No. 2686. Refusal to Disperse: Riot, Rout, or Unlawful Assembly (Pen. Code, §§ 407, 409)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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2686.Refusal to Disperse: Riot, Rout, or Unlawful Assembly (Pen.
Code, §§ 407, 409)
The defendant is charged [in Count ] with refusal to disperse
after being ordered to do so [in violation of Penal Code section 409].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was present at the location of (a/an) (riot[,]/ [or]
rout[,]/ [or] unlawful assembly);
2. A public officer lawfully ordered the defendant to disperse;
[AND]
3. The defendant willfully remained present at the location of the
(riot[,]/ [or] rout[,]/ [or] unlawful assembly) after the order to
disperse(;/.)
<Give element 4 when instructing on the defense of being a public offıcer
or person assisting an offıcer.>
[AND
4. The defendant was not a public officer or a person assisting an
officer in attempting to disperse the (riot[,]/ [or] rout[,]/ [or]
unlawful assembly).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
[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 to use force or violence with the immediate ability to carry
out those threats.]
[A rout occurs when two or more people, assembled and acting together,
make an attempt to commit or advance toward committing an act that
would be a riot if actually committed.]
[An unlawful assembly occurs when two or more people assemble
together (to commit a crime/ [or] to do a lawful act in a violent manner).
[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 that violence will occur
immediately.]]
(A/An) <insert description> is a public officer.
A public officer lawfully warns people to disperse when the officer directs
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them, in the name of the People of the State, to immediately disperse.
The officer is not required to use any particular words. However, the
words used must be sufficient to inform a reasonable person that the
officer is acting in an official capacity and ordering people to leave the
area. In addition, the officer must communicate the order in a
reasonable way that ensures that the order is heard.
[The People do not have to prove that the defendant participated in the
(riot[,]/ [or] rout[,]/ [or] unlawful assembly).]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give element 4 if there is evidence that the defendant was a public officer or
assisting a public officer.
Penal Code section 407 defines an “unlawful assembly” as two or more people
assembled together “to do an unlawful act, or do a lawful act in a violent,
boisterous, or tumultuous manner.” The Supreme Court has held that “the
proscriptions of sections 407 and 408 on assemblies to do a lawful act must be
limited to assemblies which are violent or which pose a clear and present danger of
imminent violence.” (In re Brown (1973) 9 Cal.3d 612, 623 [108 Cal.Rptr. 465, 510
P.2d 1017]; see Collins v. Jordan (9th Cir. 1996) 110 F.3d 1363, 1371.) Because the
assembly must in fact be violent or pose an immediate threat of violence, an
assembly that is “boisterous or tumultuous” does not establish a violation of the
statute. The committee has therefore eliminated these words from the instruction
since they are archaic and potentially confusing.
The jury must determine whether the person who allegedly gave the order was a
public officer. (See People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr.
604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition
of “public officer” (e.g., in the case of “peace officer,” the court may state “a
Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer
are peace officers”). (Ibid.) However, the court may not instruct the jury that the
person was a public officer as a matter of law (e.g., “Officer Reed was a peace
officer”). (Ibid.)
Give the bracketed sentence that begins with “The People do not have to prove” on
request. (In re Bacon (1966) 240 Cal.App.2d 34, 49 [49 Cal.Rptr. 322].)
AUTHORITY
• Elements. Pen. Code, §§ 407, 409.
• Command to Disperse. Pen. Code, § 726.
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• Riot Defined. Pen. Code, § 404.
• Rout Defined. Pen. Code, § 406.
• Unlawful Assembly Defined. Pen. Code, § 407.
• Assembly for Lawful Act Requires Violence or Clear and Present Danger of
Violence. In re Brown (1973) 9 Cal.3d 612, 623 [108 Cal.Rptr. 465, 510 P.2d
1017]; see Collins v. Jordan (9th Cir. 1996) 110 F.3d 1363, 1371.
• No Particular Manner of Warning Required. In re Bacon (1966) 240 Cal.App.2d
34, 50-51 [49 Cal.Rptr. 322]; People v. Cipriani (1971) 18 Cal.App.3d 299,
307-308 [95 Cal.Rptr. 722]; In re Wagner (1981) 119 Cal.App.3d 90, 105 [173
Cal.Rptr. 766].
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
RELATED ISSUES
Penal Code Sections 409 and 416(a)
Penal Code section 409 applies to any person remaining at an unlawful assembly
following an order to disperse, whether or not that person is involved in the violent
or illegal activity. (Dubner v. City and Co. of San Francisco (9th Cir. 2001) 266
F.3d 959, 967-968; In re Bacon (1966) 240 Cal.App.2d 34, 49 [49 Cal.Rptr. 322].)
Refusal to disperse is also punishable under Penal Code section 416(a). Penal Code
section 416(a) applies only to those who have the specific intent to commit violent
or unlawful acts but does not require that the gathering meet the definition of riot,
rout, or unlawful assembly. (Dubner v. City and Co. of San Francisco (2001) 266
F.3d 959, 967-968; In re Wagner (1981) 119 Cal.App.3d 90, 110-111 [173 Cal.Rptr.
766].) Use this instruction only for a charge of violating Penal Code section 409. If
the defendant is charged under Penal Code section 416(a), give CALCRIM No.
2687, Refusal to Disperse: Intent to Commit Unlawful Act.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 18.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.21 (Matthew Bender).
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© Judicial Council of California.
