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Failure to Disperse Law & Defense
PC 409 & 416

Information on the crime of failure to disperse is found at California penal code sections 409 and 416. To disperse means to scatter a crowd by spreading out or leaving an area. The crimes of failure to disperse and unlawful assembly are similar, but different crimes. For ore information on unlawful assembly, please see PC 407 & 408.

The Law

PC 409: 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 failure to disperse (Abbr.).  
P.C 416 (a):If two or more persons assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being desired or commanded to disperse by a public officer, the persons so offending are guilty of failure to disburse (Abbr.).
The Penalties
PC 409 and 416(a) are charged as misdemeanor crimes. If found guilty of either PC 409 or 416(a), the defendant may face up to 180 days in jail.
Probation Sentence: Probation is a period of supervision instead of jail. A probation sentence is not guaranteed in any failure to disperse case, but it is also not uncommon, especially if the defendant was not on probation at the time he or she failed to disperse.
Work Release: Work release is a form of manual labor that is intended to serve as an alternate jail. Work release usually includes picking up trash or working at a morgue or animal shelter, but there are other forms of work release than may be imposed for persons with physical disabilities. House arrest,, also called electronic monitoring, may also be imposed as an alternative to a jail sentence..
Good Behavior Credits: If the defendant is convicted of the crime of fail to disperse, and he or she is sentence to jail or work release, then the defendant may have his or her sentence reduced by up to fifty percent (50%) for good behavior while in jail or while on work release.. This is also known as day for day credit. For example, If the defendant is ordered to serve twenty days in the county jail, then the defendant will be release after ten days, so long as those ten days in jail were served while the defendant was on go his or her good behavior.
Bail Issues: The schedule bail amount for failure to disperse in San Bernardino County is $5,000. This means that unless the judge reduces or increases the defendant's bail after a charge of PC 409 or 416(a),, the defendant must pay $,5,000 to be release from jail pending the resolution of his or her case.
Note: A release on the defendant's own recognizance (OR), otherwise known as a release without the need for bail is common, but not guaranteed, in failure to disperse cases where no damage to property was caused.. 
CIMT: Failure to disperse, charged under penal codes 409 and 416, are not crimes involving moral turpitude (usually important for immigration or professional licensing concerns).
In addition to the punishments listed above, if found guilty of PC 409 or 416(a), the defendant could face any of these other penalties: fines and monetary penalties, restitution, criminal protective orders (CPO) denial of the right to enter the armed forces, and more.
Common defenses in failure to disperse cases include: insufficient evidence to prove the defendant caused any damage (in PC 416(a) cases where damage to property is alleged), mistake of fact, jury nullification, self-defense, defense of others, and more.
Note: when property is damaged in cases of failure to disperse, the prosecutor must show that the defendant, individually, was responsible for the property damage, not the that the crowd in general was responsible for property damage.

If you have been arrested or charged with failing to disperse, or PC 409 or 416(a), contact out criminal defense lawyers today for a free consultation. Our criminal defense lawyers offer weekend appointments and services in Spanish. Call Today!



Quick Legal Reference​

Crime: Failure to Disperse

Code: PC 409 & 416 (CalCrim No. 2686 & 2687)

Wobbler: No. PC 409 & 416 is not a wobbler. This means that PC 409 is only charged as a misdemeanor.​


Incarceration: ​PC 409 & 416  jail sentence up to 180 days.

Probation: Probation may be available in PC 409 & 416 cases. Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.​

Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.

Strike: PC 409 & 416 is not a strike offense listed in California's Three Strikes law.

Credits: 50% good conduct credits available.

CIMT: PC 409 & 416 is not a crime involving moral turpitude.


Bail: $5,000 (San Bernardino County)​

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