Public nuisance crimes are found at California Penal Code sections 370 through 373a. Below is a brief discussion of the laws, the penalties, and the common defenses associated with public nuisance crimes.
Public Nuisance Laws
Definition of Public Nuisance: Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance (PC 370).
PC 371: An act which affects an entire community or neighborhood, or any considerable number of persons, as specified in the last section, is not less a nuisance because the extent of the annoyance or damage inflicted upon individuals is unequal.
PC 372: Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor (PC372).
PC 373a: Each person who maintains, permits, or allows a public nuisance to exist upon his or her property or premises, and each person occupying or leasing the property or premises of another who maintains, permits, or allows a public nuisance to exist on the property, after reasonable notice in writing from a health officer, district attorney, city attorney, or city prosecutor to remove, discontinue, or abate the public nuisance has been served upon the person, is guilty of a misdemeanor. The existence of the public nuisance for each and every day after the service of the notice is a separate and distinct offense, and it is the duty of the district attorney, or the city attorney or city prosecutor of any city the charter of which imposes the duty upon the city attorney or city prosecutor to prosecute state misdemeanors, to continuously prosecute all persons guilty of violating this section until the nuisance is abated and removed (PC373a).
Note: Notice to abate a public nuisance means that the defendant was informed of the public nuisance, in writing, by an official from either the health department, the fire department, the police department, code enforcement, a district attorney, or the city attorneys’ office.
In order for the district attorney to prove that the defendant is guilty of PC 372 or 373a, the district attorney must prove that the defendant:
Knew of the public nuisance
Had the ability to safely abate the public nuisance
Willfully failed to abate the nuisance after proper notice
The nuisance was a “public” nuisance (See definition above)
Note: A person who leases or rents property that is the subject of a public nuisance has the duty to abate the nuisance if he can safely do so (PC 372).
Examples: A public nuisance might be found in the following situations:
Collection of trash that smells and/or is unsightly
Creation of a public fire hazard
Operating a loud mechanic’s garage out of home
Operating a kennel in a neighborhood (noisy and smelly)
Operating an illegal gaming business
Dangerous structure (i.e. unfenced public pool, etc.)
Public Nuisance Penalties
PC 372 and 373a are both classified as misdemeanors offenses. A misdemeanor offense is one that is less severe than a felony, but more severe than an infraction. In San Bernardino County, public nuisance is charged as PC372-M or PC373a-M.
PC 372 & 373a Jail Sentence: If found guilty of a public nuisance offense, the defendant could face up to a 180days in county jail.
Note: Maintaining a public nuisance (PC 373a) may be charged for every day the defendant fails to abate the public nuisance.
Probation Sentence: A probation sentence is a period of supervision as opposed to an actual jail sentence. A probation sentence is allowed in both PC 372 and 373a cases, but a probation sentence is not guaranteed in any criminal case. Whether or not a defendant receives a probation sentence after a conviction for public nuisance depends largely on the defendant’s criminal history, the circumstances of the allegations, the harm cause to victims (if any), the amenability of placing the defendant on probation, and more.
Note: A probation sentence in a PC 372 or 373a crime is conditioned upon the defendant fulfilling “terms of probation.” The terms of probation are monitored by the court in a public nuisance probation sentence (informal probation). Failure to abide by the terms of probation will result in a violation of probation charge (See Probation Violations).
Fines, Fees, & Restitution: A defendant found guilty of either PC 372 or 373a may be ordered to pay up to $1,000 in fines. This is in addition to court fees necessary to cover court security and other costs. These fines and fees are in addition to any cost associated with the use of the public defenders’ services (if defendant does not have a private attorney), and it does not include any restitution that the defendant may be ordered to pay (See Restitution).
Other Penalties: In addition to the penalties listed above, if found guilty of public nuisance under PC 372 or 373a, the defendant may face additional penalties, including, but not limited to, the following: immigration consequences, military service consequences, professional licensing consequences, civil lawsuits, criminal protective orders (CPO), violation of probation or parole (if defendant was on probation or parole at the time his offense), and more.
Note: Creating or maintain a public nuisance is not considered a crime of moral turpitude. Also, gun rights are generally not affected with any conviction of PC 372 or PC 373a.
Public Nuisance Common Defenses
Some of the defenses incorporated against a public nuisance allegation include, but are not limited to, the following: statute of limitations (one year), coerced confessions, insufficient evidence (see below), mistake of fact (about ability to abate nuisance), jury nullification, illegal search and seizure, and more.
Insufficient Evidence: Insufficient evidence is not a true defense to a criminal allegation. Rather, insufficient evidence means that the defendant does not have enough evidence to prove, beyond a reasonable doubt, every element of the offense. If the district attorney cannot prove every element of the alleged offense beyond a reasonable doubt, then the criminal allegations should be dismissed. For purposes of PC 372 and 373a, the prosecutor must prove all of the following:
In terms of a PC 372 or PC 373a allegation, insufficient evidence to prove every element of the offense would mean that the district attorney cannot prove that the defendant:
Created or maintained a public nuisance (large enough group of persons affected), and/or
The defendant was served with proper notice to abate the nuisance
The defendant had the duty and ability to safely abate the nuisance,
The nuisance was not limited in time, scope, or duration such that it is not considered an “ongoing” nuisance, and
The alleged nuisance was offensive to the senses of the average person.
Diversion: Diversion is a criminal court procedure whereby the defendant’s criminal prosecution is “diverted” (avoided or circumvented) if the defendant complies with certain probation-like conditions. Diversion is not always an option in PC 372 or 373a case. Whether diversion is available in any public nuisance case depends largely on the facts of the case and the defendant’s criminal history.
Also, diversion, if offered, is usually offered only as a plea bargain option for the defendant. In other words, the defendant must plea guilty to have his case subsequently diverted. For example, the defendant agrees to plead guilty to a PC 372 charge and comply with probation-like conditions in exchange for a dismissal at a later time (after the diversion conditions are fulfilled). For more information, see Diversion in Criminal Court.
Post-Conviction Options
After a conviction for a public nuisance crime the defendant may have some post-conviction options, including, but not limited to, the following: appeal the misdemeanor conviction, motion to withdraw a guilty plea, expunge the conviction, modify the probation sentence, and more.
Note: If the defendant was cited for public nuisance under PC 372 or 373a, but the defendant was not criminal charged, or the defendant was criminally charged but found not guilty at trial, or the defendant’s criminal charge was dismissed pursuant to PC 1385, then defendant might have his criminal arrest record sealed and destroyed.
To learn more about the California public nuisance laws, or PC 372 and PC 373a, contact our team of experienced and dedicated criminal defense attorneys. Our criminal attorneys offer free consultations for all misdemeanor and felony cases in San Bernardino and Riverside County, including allegations arising out of the cities of Fontana, Rialto, Colton, San Bernardino, Yucaipa, Rancho Cucamonga, Ontario, Victorville, Hesperia, Highland, Redlands, and more. We are available seven days a week to assist you. Call today!
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PC 372 & 373a Related Crimes
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