A public officer lawfully warns people to disperse when the officer directs
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
The court has a sua sponte duty to give this instruction deﬁning the elements of
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
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].)
• Elements. Pen. Code, §§ 407, 409.
CALCRIM No. 2686 CRIMES AGAINST GOVERNMENT