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Inciting a Riot (California Penal Code Section 404.6)

Accused of inciting a riot.
If you are accused of inciting a riot, you may face serious legal consequences.

When you think of the term “inciting a riot” you may imagine the leader of an angry crowd yelling encouragement as they lead the group towards a specific place or event. However, to be charged with incitement to riot you do not have to be a leader, nor does there have to be an angry mob. In fact, under California Penal Code Section 404 a riot can be defined as a group of as few as two people acting together in any use of force or violence, or threatening the use of force or violence, while having the immediate power to do so.

To be charged with incitement to riot under California Penal Code 404.6, you must only urge others to commit violent, forceful, or destructive acts while there is immediate danger of a riot. The punishments for this misdemeanor offense include hefty fines and a lengthy jail sentence.

Prosecution of Inciting a Riot (California Penal Code 404.6)

Under California Penal Code Section 404.6, the prosecution must prove beyond a reasonable doubt that you are guilty of the elements that define the crime of inciting a riot. 1 The elements of the crime are:

  1. You acted or engaged in conduct that encouraged a riot or urged others to commit acts of force or violence, or urged others to burn or destroy property;
  2. You acted at a time and place and under circumstances that produced a clear, present, and immediate danger that these acts or a riot would happen; and
  3. You intended to cause a riot.

Note that you do not have to participate in the riot to be charged with incitement to riot, you must only urge two or more people to do so. You can be charged with inciting a riot even if the rioting, destruction, burning, or violence does not occur. The main element of this crime is intent, and you only need to “intend” to cause a riot to be guilty of this crime.

An example of inciting a riot would be if a protester on a picket line during a union strike starting yelling for the other protesters to throw rocks and bust out the windows of the mill where they work.

However, if the protester had told the group the night before that they should do something so the owners know the workers “mean business”. Even if the next day the protesters break windows, cause destruction or become violent, the protester would not be guilty of inciting a riot. The protester did not urge the group to be destructive and when he/she spoke the words, there was no immediate danger of a riot.

Inciting a Riot Inside of a Prison or Jail

California Penal Code Section 404.6(c) declares that inciting a riot in a state prison or in a county jail is a misdemeanor. However if the riot results in anyone suffering serious bodily injury, the crime may be enhanced to a felony offense that is punishable under California Penal Code Section 1170(h) by a sentence in county jail of 16 months, or two or three years. 2

Defenses to an Incitement to Riot Charge

Defense to an inciting a riot charge.
If you did not engage in violent activity, you should not be convicted of inciting a riot.

The chaos that usually surrounds a riot often makes it very difficult for witnesses and police officers to identify who participated in the riot and who incited it. Your best defense will be determined by your California criminal defense attorney. That being said, some common defenses include:

  1. You had no intent. You did not have the required element of intent. If you did not intend to incite violence, acts of force, burning, destruction, or rioting then youshould not be found guilty of inciting a riot. Likewise, if you did not think that your words would provoke a group of two or more to immediately act in a forceful, violent, or destructive way then you should not be found guilty.
  2. You did not act in a violent manner. You were present at the riot but you did act or engage in riotous conduct. If the police misidentified you as someone who incited the crowd then you should not be convicted under California Penal Code Section 404.6.
  3. You did not incite violent acts. You urged the crowd to participate, but did not call for anyone to commit a violent or destructive act. You have the right to free speech, and urging the crowd to exercise their same rights to free speech is very different then inciting a riot and you should not be convicted of such.
  4. There was no immediate danger. You urged the crowd to act, however the circumstances were such that you believed there was no clear, present or immediate danger of a riot.If there was no immediate danger of the crowd turning forceful, violent, or destructive then you would not have violated one of the required elements of the crime and should not be convicted.

Penalties and Punishments for Inciting a Riot

Under California Penal Code Section 404.6(b) if you are convicted of inciting a riot you will face:

  • A fine of up to $1,000;
  • Up to a 364 day sentence in county jail; or
  • Both a fine and jail.

Crimes Related to Inciting a Riot

During a riot, there are a variety of charges that may be filed against participants in lieu of or in addition to inciting a riot charges. Some of the most common charges brought against those arrested include the following.

Participating in a Riot (California Penal Code Sections 404 and 405)

California Penal Code Section 404 defines a riot as two or more people who use force, violence, threaten to use force or violence without authority of law, or disturb the peace, while accompanied by immediate power of execution. 3

Unlike the crime of inciting a riot, this crime requires that you were indeed active in the disturbance, used force or violence, or actively threatened the use of force or violence.

California Penal Code Section 405 defines the punishment for participating in a riot. Under this law, if you are found guilty of this misdemeanor crime, you will face:

  • A fine of up to $1,000
  • A sentence of up to 364 days in county jail; or
  • Both a fine and a jail sentence.

Refusal to Disperse (California Penal Code Sections 409 and 416)

If you are present at an unlawful assembly or a riot when police issue an order to disperse and you fail to leave, you could be arrested for refusal to disperse under California Penal Code Section 409. 4 California Penal Code Section 416 makes this offense a misdemeanor.

Unlawful Assembly (California Penal Code Sections 407 and 408)

An assembly that does not incite violence is not illegal.
If the assembly is not violent, you should not be charged with unlawful assembly

An unlawful assembly is defined in California Penal Code Section 407 as the assembly of two or more people to do an unlawful act, or to do a lawful act in a violent, boisterous, or tumultuous manner. 5 Unlawful assembly is a misdemeanor offense. You do not have to engage in violence or an unlawful act to be charged with unlawful assembly, you only have to be part of the gathering.

It is important to note that your First Amendment rights protect you from being convicted of unlawful assembly if the assembly is peaceful, and you did not gather to commit a violent or unlawful act.

Disturbing the Peace (California Penal Code Section 415)

Under California Penal Code Section 415, it is illegal to:

  • Fight or challenge someone to fight in a public place;
  • Maliciously and willfully disturb others with loud or unreasonable noise; or
  • Use offensive words in public if they are likely to provoke a violent reaction.

According to the law, anyone who is convicted of disturbing the peace faces up to 90 days in county jail, a fine of up to $400, or both fine and jail. 6

Frequently Asked Questions about Inciting a Riot under California PC 404.6

Rioting, inciting a riot, unlawful assembly, and disturbing the peace are California crimes governed by rather vague laws. Many of our clients have difficulty understanding what conduct could constitute a violation of these laws.

Here we answer some of the most frequently asked questions about California P.C. 404.6.

I was at a worker’s rally when the police tried to move our group. I yelled “Stop them” and the crowd started throwing rocks and cans at the police line. Can I be convicted for inciting a riot?

You can be convicted for inciting a riot if the prosecutor can prove that the mindset of the crowd presented a clear, present and immediate danger of a riot, and prove that you intended to incite the crowd to engage in violence or destruction. If you did not intend to urge the crowd to commit the violence, then you should not be convicted. However, you should will need to hire an experienced California criminal defense attorney to build a strong defense in your case.

I attended a large protest that was supposed to be peaceful but the crowd got violent. I was arrested for inciting a riot, but I had no idea that some members of the crowd were becoming violent. I only intended to protest and encourage others to join the protest. Can I be convicted for inciting a riot?

One of the required elements of the crime of inciting a riot is intent. If the prosecutor fails to prove that you intended for the crowd to turn violent, then you should not be convicted of inciting a riot. Of course, you will need a skilled attorney to defend you.

Can I be arrested for inciting a riot if I dared three of my friends to break the windows out of an abandoned building?

While you would need to review the specifics of the case with your criminal defense attorney, the act of throwing rocks to break windows as an act of vandalism is quite different than inciting violent or destructive acts. If the sole purpose of your actions was simply to throw rocks and break windows, you should not be convicted for inciting a riot. However, you may be convicted of vandalism.

Accused of Inciting a Riot? Call Wallin & Klarich Today

Call the inciting a riot attorneys at Wallin & Klarich today.
The attorneys at Wallin & Klarich will fight to protect your freedom.

If you or a loved one has been charged for inciting a riot, it is critical that you speak to an experienced criminal defense attorney as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience in successfully defending persons charged with incing a riot and related crimes. Our attorneys will fight to get you the best possible outcome in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich Southern California criminal defense attorney near you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


1. [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=404.6.]

2. [http://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml]

3. [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=404.]

4. [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=409.]

5. [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=407.]

6. [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=415.]

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