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Unlawful Assembly Law & Defense

PC 407 & 408

The law on the California crime of unlawful assembly is found at California penal code sections 407, 408, & 409. There are several other closely associated crimes related to unlawful assembly, such as rioting, and disturbing the peace and more.

PC 407 Unlawful Assembly Defined: An unlawful assembly, according to PC 407, means two or more people assembled together to commit a crime or to commit a lawful act but in a violent manner.

Crowds of people that present a clear and present danger to the community because of the violent nature of the crowd may be found to have unlawfully assembled.

PC 408 Participate in an Unlawful Assembly: To participate in the unlawful assembly is a crime filed under PC 408. Knowing that the assembly is unlawful is proved by circumstantial evidence: Violent protesters, looters, rioters, and crowds shouting at each other is self-evident that the assembly is not lawful.

PC 409 Refuse to Disperse: Refusing to disperse an unlawful assembly or riot when ordered to do so is also a crime and is charged under penal code 409.

The commonly charged unlawful assembly crime is filed as PC 408 (participate in an unlawful assembly). To be found guilty of PC 408,  the district attorney will need to prove beyond a reasonable doubt that the defendant willfully participated in an unlawful assembly and the he or she knew that the assembly was unlawful when he or she participated.

To act willingly means that the defendant did the act on purpose.

Punishment

Misdemeanor Crimes: Unlawful assembly (PC 407), participating in an unlawful assembly (PC 408), and refusing to disperse and unlawful assembly or riot (PC 409), are all charged as misdemeanors in California.

Jail: If found guilty of PC 407, 408, or 409, the defendant may face up to one hundred eighty (180) days in jail (maximum).

Probation Sentence: A probation sentence is period of supervision instead of jail. Probation sentences are allowed in unlawful assembly cases, but they are not guaranteed. Whether or not a defendant receives a probation sentence after a conviction for PC 407, 408, or 409, depends largely on the harm caused during the unlawful assembly, how active the defendant was in the unlawful assembly, the defendant's criminal history, the terms of any plea agreement, and more.

Work Release: An order to perform work release is not uncommon as a term of probation or as an alternate to a jail sentence in unlawful assembly cases. Work release is a type of manual labor that usually includes picking up trash around jails or highways; however, non-manual work release might be available for persons with physical disabilities. House arrest is also another alternative to jail in some cases. House arrest means the defendant must stay at his or her house for a particular length of time. House arrest is also called electronic or GPS monitoring.

CIMT: Unlawful assembly filed under PC 408 is not considered a crime involving moral turpitude. In other words, participating in an unlawful assembly is not considered to be morally wrong or involve deceit.

Bail: $5,000 (San Bernardino 2020). Bail is an amount of money deposited to the court that serves as assurance that the defendant will attend court as ordered is he or she is allowed to be released from custody during the court process. If the defendant does not attend court as ordered then he or she could forfeit the money deposited with the court. Bail is usually handled through a bail agent.

Additional penalties upon a conviction for unlawful assembly include court fines and penalties, probation terms, restitution, stay-away orders, possible loss of immigration status or professional licensing, and more.

Defenses

 

common defenses and defense strategies to PC 408 charges include: plea bargain for a probation sentence or suspended sentence, a reduction of the unlawful assembly charges to lesser charges, or a sentence that requires only work release or home confinement sentence (electronic ankle bracelet monitoring), insufficient evidence, statute of limitations (1 year), emergency, mistake of fact, and more.

 

If you have been charged with a violation of California's unlawful assembly laws per PC 407, 408, & 409, contact criminal defense attorneys for a free consultation. Our defense lawyers will answer all of your questions and discuss your defense options. Call today!

909-913-3138​

Closely Related Crimes

  • Riot PC 404(a)

  • Rout PC 406

  • Disturb an Assembly or Meeting PC 403

Quick Reference​ Sheet

Crime: Participation in an Unlawful Assembly

Code: PC 408 (CalCrim No. 2685 & 2686)

Wobbler: No. PC 408 is not a wobbler. This means that PC 408 is always charged as a misdemeanor.

Incarceration:PC 408 jail sentence up to 180 days.

Probation: Probation is allowed in PC 408 cases (assuming other crimes or enhancements that bar a probation sentence are not present). 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 408 is not a strike offense listed in California's Three Strikes law.

Credits: 50% good conduct credits available.

CIMT: PC 408 is not a crime involving moral turpitude.

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Bail: $5,000 (San Bernardino County)

Note: More penalties, direct or indirect, may apply. This info is created for that purpose only; accuracy not guaranteed. No attorney/client relationship is formed by use of this info. If arrested or charged with a crime contact a criminal defense lawyer without delay. 

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