California Criminal Jury Instructions (CALCRIM) (2017)

2687. Refusal to Disperse: Intent to Commit Unlawful Act

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2687.Refusal to Disperse: Intent to Commit Unlawful Act (Pen.
Code, § 416(a))
The defendant is charged [in Count ] with refusal to disperse
after being ordered to do so [in violation of Penal Code section 416(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant assembled with one or more other people;
2. The defendant intended to (disturb the public peace/ [or] commit
a crime);
3. A public officer had probable cause to believe that the purpose
of the assembly was unlawful;
4. The public officer lawfully warned the defendant to disperse;
AND
5. The defendant willfully remained present at the location after
the order to disperse.
[As used here, a person intends to disturb the public peace if he or she
intends to commit overt acts that are themselves violent or that tend to
incite others to violence.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
(A/An) <insert description> is a public officer.
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.
An officer has probable cause to believe that the purpose of the
assembly is unlawful if the officer knows facts that would persuade
someone of reasonable caution to believe that the people present intend
to (immediately commit criminal or violent acts/ [or] incite others to
immediately commit acts of violence).
In deciding whether the officer has probable cause, consider evidence of
the officer’s training and experience and all the circumstances the
officer knew about at the time.
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New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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
officer”). (Ibid.)
AUTHORITY
• Elements. Pen. Code, § 416(a).
First Amendment Limitations on Statute. Chambers v. Municipal Court (1977)
65 Cal.App.3d 904, 909–911 [135 Cal.Rptr. 695].
• Command to Disperse. Pen. Code, § 726.
• No Particular Manner of Warning Required. In re Bacon (1966) 240
Cal.App.2d 34, 50–51 [49 Cal.Rptr. 322]; People v. Cipriani (1971) 18
Cal.App.3d 299, 307–308 [95 Cal.Rptr. 722]; In re Wagner (1981) 119
Cal.App.3d 90, 105 [173 Cal.Rptr. 766].
• 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, § 15.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, §§ 144.21, 144.22 (Matthew Bender).
RELATED ISSUES
Penal Code Sections 409 and 416(a)
Penal Code section 409 applies to any person remaining at an unlawful assembly
following an order to disperse, whether or not that person is involved in the violent
or illegal activity. (Dubner v. City and Co. of San Francisco (9th Cir. 2001) 266
F.3d 959, 967–968; In re Bacon (1966) 240 Cal.App.2d 34, 49 [49 Cal.Rptr. 322].)
Refusal to disperse is also punishable under Penal Code section 416(a). Penal Code
section 416(a) applies only to those who have the specific intent to commit violent
or unlawful acts but does not require that the gathering meet the definition of riot,
rout, or unlawful assembly. (Dubner v. City and Co. of San Francisco (9th Cir.
2001) 266 F.3d 959, 967–968; In re Wagner (1981) 119 Cal.App.3d 90, 110–111
CRIMES AGAINST GOVERNMENT CALCRIM No. 2687
571
0101
[173 Cal.Rptr. 766].) Use this instruction only for a charge of violating Penal Code
section 416(a). If the defendant is charged under Penal Code section 409, give
CALCRIM No. 2686, Refusal to Disperse: Riot, Rout, or Unlawful Assembly.
CALCRIM No. 2687 CRIMES AGAINST GOVERNMENT
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0102