California Penal Code 408 PC is the statute making it a misdemeanor crime for someone to participate in an unlawful assembly, which is two or more people gathering to do something illegal or a violent lawful act.
Related Penal Code 407 PC defines an unlawful assembly as “Whenever two or more persons assemble to do an unlawful act or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.” PC 408 says, “Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”
To convict you of unlawful assembly, a prosecutor must prove that you willfully participated, knew that the assembly was illegal, participated, and committed an act “willfully,” meaning it was on purpose.
Notably, when two or more people assemble to do a lawful act violently, it is not unlawful unless violence occurs or there is a clear and present danger of imminent violence.
Most people know that the First Amendment to the Constitution guarantees U.S. citizens the right to assemble peaceably. However, once a peaceful assembly turns violent, or there are criminal acts, it is considered a Penal Code 408 PC unlawful assembly.
These laws are supposed to help maintain public order and safety by prohibiting people from committing illegal acts when they assemble, disturb the peace, or engage in behavior threatening public safety. Simply put, PC 408 makes it a crime for people to participate in an unlawful assembly, meaning two or more gatherings to do something illegal or a lawful act violently.
What Is an Unlawful Assembly?
As noted, California Penal Code 407 PC defines an unlawful assembly as follows:
- Two or more people assembling to commit an unlawful act or
- Two or more people assembling to commit a lawful act in a "violent, boisterous, or tumultuous manner."
Notably, these above definitions allow law enforcement to charge you with unlawful assembly even if you are not committing another crime while assembled with others.
Suppose you lawfully assemble with others, but police consider it disruptive. In that case, you might still face criminal charges. Notably, however, when two or more people assemble for a violent act, it's not considered unlawful unless violence occurs or there is a clear and present danger of imminent violence.
Also notable is that you can still be charged with PC 408 unlawful assembly even if you did not commit a crime during the assembly but were participating with the group.
Suppose you participate in a lawful protest before a local station but start becoming boisterous and block traffic. In that case, you and others could be charged with violating PC 408.
What Must Be Proven for a Conviction?
To convict you of violating the unlawful assembly laws, the prosecution must prove, beyond a reasonable doubt, the following elements of the crime:
- You willingly participated in an assembly of two or more people,
- The primary purpose of the assembly was to commit a crime, breach the peace, or engage in conduct likely resulting in disturbance of the peace or was a public safety threat.
What Are Related Crimes?
Several California crimes are related to Penal Code 408 PC unlawful assembly, including the following:
- Penal Code 404 PC - Participating in a riot,
- Penal Code 404.6 PC – Inciting a riot,
- Penal Code 409 PC - Failure to disperse at riot,
- Penal Code 416 PC – Failure to disperse,
- Penal Code 415 PC – Disturbing the peace.
Penal Code 404 PC participating in a riot says, “(a) Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.
(b) As used in this section, disturbing public peace may occur in any place of confinement. Place of confinement means any state prison, county jail, industrial farm, road camp, city jail, industrial farm, road camp, juvenile hall, juvenile camp, juvenile ranch, or juvenile forestry camp.”
Penal Code 409 PC failure to disperse says, “Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor.”
What is the PC 408 Penalties?
PC 408 unlawful assembly is classified as a misdemeanor in California. If you are convicted, you could face the following penalties:
- Up to six months in a county jail,
- A fine of up to $1,000,
- Informal (summary) probation.
Notably, the judge can impose any or all penalties listed above, but depending on the case details and your criminal history, they could impose misdemeanor probation rather than jail time.
What Is the PC 408 Defenses?
If you're facing unlawful assembly charges, our Los Angeles criminal defense attorneys can use different strategies, as discussed below.
Maybe we can argue that there was a lack of intent. The prosecution must prove that you willingly participated in an assembly that was deemed unlawful, meaning it was assembled for an illegal act or a legal act done violently.
Perhaps we can prove that you did not have the required intent. Maybe we can show there was a lack of knowledge. Willful participation requires knowing that the assembly is unlawful.
Perhaps you were part of the assembly but did not know the assembly was doing something illegal. Maybe we can claim freedom of speech and assembly. Perhaps we can argue the First Amendment protected your actions.
Maybe we can argue there was police misconduct or no probable cause. Perhaps the police overacted and used excessive force. Possibly, the police violated your constitutional rights during an arrest or investigation. Perhaps we can file a motion to suppress evidence or negotiate to dismiss the charges. Contact our law firm for a free case evaluation. Cron, Israels & Stark has offices in Los Angeles, CA.