Inciting a Riot – California Penal Code § 404.6 PC

What Is California Penal Code § 404.6 PC?

California Penal Code § 404.6 PC makes it a crime to willfully urge, instigate, or advocate for others to engage in force, violence, or unlawful conduct that is likely to produce a riot. The law applies even if a riot never actually happens — what matters is whether the prosecution can prove both intent and that a riot was likely to occur as a result of your words or actions.

It’s important to understand that PC 404.6 is not meant to punish lawful protest or protected political expression. The First Amendment protects a wide range of speech, even speech that others might find controversial or offensive. The difference between legal protest and criminal incitement often comes down to intent and context — and that is where many cases fall apart under closer legal scrutiny.

Because this statute can be applied in high-pressure, chaotic situations, police and prosecutors sometimes misinterpret heated statements, chants, or gestures as “incitement.” This makes it critical to have a Los Angeles criminal defense attorney who understands how to challenge overbroad applications of the law, argue for your constitutional rights, and show when the prosecution’s evidence fails to meet the high legal standard required for conviction

Elements of Inciting a Riot Under California Penal Code 404.6

To secure a conviction for inciting a riot, the prosecution must prove all of the following beyond a reasonable doubt:

• Willful and knowing conduct – You intentionally urged, instigated, or encouraged others to commit acts of force, violence, or unlawful conduct. Casual remarks, accidental statements, or words taken out of context do not meet this standard.

• Clear and present danger – Your actions created an immediate and substantial risk that a riot would occur. A “riot” means two or more people acting together to use force or violence, or to destroy property. The law does not require that a riot actually happened — only that it was likely under the circumstances.

• Intent or recklessness – You acted with the purpose of causing a riot, or with reckless disregard for the likelihood that your actions would lead to one. Recklessness means you were aware of the risk and chose to ignore it.

If the prosecution cannot prove even one of these elements, the charge should not result in a conviction. Because intent and “clear and present danger” are often based on interpretation rather than hard evidence, these cases can be successfully challenged with a strong defense.

Is Inciting a Riot a Felony or Misdemeanor in California?

If you’ve been arrested or are under investigation, one of the first questions you may ask is: is inciting a riot a felony? Or is it a misdemeanor? The answer depends entirely on the specific facts of the case.

In California, inciting a riot is usually charged as a misdemeanor, but prosecutors can elevate it to a felony if the situation involves serious harm, prior criminal history, or coordinated intent to cause disruption. Understanding how prosecutors make that decision can have a major impact on the outcome of your case.

What determines whether inciting a riot is a felony or misdemeanor?

The District Attorney evaluates each case individually, looking at:

• Whether property was damaged or people were injured

• If you allegedly encouraged violence in a deliberate or coordinated way

• Whether your record includes prior convictions for similar offenses

For example: If someone posts a call to action on social media urging others to “storm the building” — and people do — that could support a felony charge for inciting a riot. But if someone is shouting slogans in a protest crowd and gets arrested with no violence or damage involved, that same charge may stay a misdemeanor, or be dropped entirely.

So, inciting a riot — felony or misdemeanor — depends not just on what happened, but how it’s interpreted by prosecutors. And with the right defense, charges can sometimes be reduced or dismissed early in the process.

Penalty for Inciting a Riot in California

Under California Penal Code 404.6, inciting a riot is typically charged as a misdemeanor. However, in certain cases involving aggravating circumstances — such as prior convictions or violence during the alleged incident — it may be elevated to a felony offense.

Misdemeanor Penalties

• County Jail: Up to 1 year

• Fines: Up to $1,000

• Informal Probation: May include community service, counseling, or stay-away orders

Felony Penalties

• County Jail: Up to 3 years (under California’s realignment law)

• Fines: Up to $10,000

• Formal Probation: With strict supervision and court-imposed conditions

Whether you are charged with a felony or misdemeanor often depends on the prosecutor’s discretion and the specific facts of your case. Working with an experienced Los Angeles criminal defense attorney can significantly influence how the charges are filed — and whether they can be reduced or dismissed altogether.

Additional Consequences

• A permanent criminal record

• Immigration risks for non-citizens (including deportation or denial of naturalization)

• Loss of professional licenses or certifications

• Increased difficulty with employment background checks

Legal Defenses to PC 404.6 Charges

Being accused of inciting a riot does not automatically mean you will be convicted. These cases often hinge on interpretation, and there are several strong legal defenses that can be used to fight the charges:

• First Amendment protection – Your words were part of lawful political expression, protest, or public debate, and did not cross the line into unlawful incitement.

• No clear and present danger – What you said or did was not likely to produce a riot in the immediate circumstances.

• No intent to incite – You did not act with the specific purpose or recklessness required under the statute.

• Mistaken identity – Police or witnesses wrongly identified you as the person who made the statements or gestures.

• Insufficient evidence – The prosecution cannot prove every element beyond a reasonable doubt.

Speak With a Los Angeles Criminal Defense Attorney

If you’ve been arrested or charged with inciting a riot under PC 404.6, your future, reputation, and freedom are on the line. Prosecutors in Los Angeles take these cases seriously, and even a misdemeanor conviction can leave you with a permanent criminal record, jail time, and lasting personal or professional consequences.

At The Law Offices of Arash Hashemi, we examine every piece of evidence — from video footage and audio recordings to social media posts, police reports, and witness statements — to find inconsistencies, expose weaknesses in the state’s case, and protect your rights at every stage of the process. With over 20 years of criminal defense experience, Attorney Arash Hashemi knows how to challenge riot-related charges and fight for the best possible outcome.

Call our office today for a free, confidential consultation. We represent clients throughout Los Angeles County and are ready to act quickly to safeguard your freedom and protect your future.

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