California Criminal Jury Instructions (CALCRIM) (2017)

2685. Participating in an Unlawful Assembly

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2685.Participating in an Unlawful Assembly (Pen. Code, §§ 407,
408)
The defendant is charged [in Count ] with participating in an
unlawful assembly [in violation of Penal Code section 408].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully participated in an unlawful assembly;
AND
2. The defendant knew that the assembly was unlawful when (he/
she) participated.
Someone commits an act willfully when he or she does it willingly or on
purpose.
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.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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.
AUTHORITY
• Elements. Pen. Code, §§ 407, 408.
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• 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.
• Specific Intent to Commit Unlawful or Violent Act Not Required. People v.
Kerrick (1927) 86 Cal.App. 542, 551 [261 P. 756].
• Knowledge That Assembly Unlawful Required. In re Wagner (1981) 119
Cal.App.3d 90, 103–104 [173 Cal.Rptr. 766]; Coverstone v. Davies (1952) 38
Cal.2d 315, 320 [239 P.2d 876].
• 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, § 11.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.21 (Matthew Bender).
CALCRIM No. 2685 CRIMES AGAINST GOVERNMENT
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