2682. Inciting a Riot
The defendant is charged [in Count ______] with inciting a riot.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (did an act or engaged in conduct that encouraged a riot[,]/ [or] urged others to commit acts of force or violence[,]/ [or] urged others to burn or destroy property);
2. The defendant acted at a time and place and under circumstances that produced a clear, present, and immediate danger that (a riot would occur/ [or] acts of force or violence would happen/ [or] property would be burned or destroyed);
3. When the defendant acted, (he/she) intended to cause a riot.
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.
[The People do not have to prove that anyone actually (rioted/ [or] committed acts of force or violence/ [or] burned or destroyed property).]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Give the bracketed sentence that begins with "The People do not have to prove" on request.
Elements. Pen. Code, § 404.6(a).
Riot Defined. Pen. Code, § 404.
Statute Constitutional. People v. Davis (1968) 68 Cal.2d 481, 484-487 [67 Cal.Rptr. 547, 439 P.2d 651].
Terms of Statute Understandable. People v. Jones (1971) 19 Cal.App.3d 437, 447 [96 Cal.Rptr. 795].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 14.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.21 (Matthew Bender).
Defendant Must Urge Others
To be guilty of inciting a riot, the defendant must urge others to commit acts of force or property destruction. (People v. Boyd (1985) 38 Cal.3d 762, 778 [215 Cal.Rptr. 1, 700 P.2d 782]; In re Wagner (1981) 119 Cal.App.3d 90, 106 [173 Cal.Rptr. 766].) Thus, in In re Wagner, supra, 119 Cal.App.3d at p. 106, the court held that the evidence was insufficient to establish incitement to riot where the defendant was observed throwing rocks at the police.
(New January 2006)