2683. Participating in a Riot
The defendant is charged [in Count ______] with participating in a riot.
To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully participated in 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.
Someone commits an act willfully when he or she does it willingly or on purpose.
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Elements. Pen. Code, §§ 404, 405.
Riot Defined. Pen. Code, § 404.
Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 13.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.21 (Matthew Bender).
Prior Agreement Not Necessary
"It [is] not necessary that a previous agreement between the aggressors should have been alleged, or have existed, to bring such offenses within the inhibitions of section 404." (People v. Bundte (1948) 87 Cal.App.2d 735, 743 [197 P.2d 823].) "Thus, it is the concurrence of unlawful action by individuals in the use, or threat to unlawfully use force or violence that constitutes the offense of riot. [Citation.] All persons who encourage, incite, promote, give support to or countenance a riot are principals in a riot." (People v. Cipriani (1971) 18 Cal.App.3d 299, 304 [95 Cal.Rptr. 722] [italics in original, citing People v. Bundte, supra, 87 Cal.App.2d at pp. 744-746].)
Mere Presence Not Sufficient
Mere presence alone does not make someone a rioter. (People v. Bundte (1948) 87 Cal.App.2d 735, 746 [197 P.2d 823].)
(New January 2006)