California Criminal Jury Instructions (CALCRIM) (2017)

2683. Participating in a Riot

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2683.Participating in a Riot (Pen. Code, §§ 404, 405)
The defendant is charged [in Count ] with participating in a riot
[in violation of Penal Code section 405].
To prove that the defendant is guilty of this crime, the People must
prove that the defendant willfully participated in a riot.
Ariot 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
New January 2006
Instructional Duty
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(1); People v. Lara (1996) 44 Cal.App.4th
102, 107 [51 Cal.Rptr.2d 402].
Secondary Sources
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].)