CALCRIM No. 2736. Inciting a Riot in a Prison or Jail (Pen. Code, § 404.6(c))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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2736.Inciting a Riot in a Prison or Jail (Pen. Code, § 404.6(c))
The defendant is charged [in Count ] with inciting a riot [in a
(state prison/county jail)] [in violation of Penal Code section 404.6(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (did an act [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. The defendant acted at a time and place and under circumstances
that produced a clear, present, and immediate danger that (acts
of force or violence would happen/ [or] property would be
(burned/ [or] destroyed));
3. When the defendant acted, (he/she) intended to cause a riot;
4. As a result of the defendant’s action [or conduct], a riot occurred
[in a (state prison/county jail)];
AND
5. The riot resulted in serious bodily injury to someone.
Ariot occurs when two or more people, acting together and without legal
authority, disturb the public peace by using force or violence or by
threatening to use force or violence with the immediate ability to carry
out those threats. [A disturbance of the public peace may happen in any
place of confinement, including a (state prison/ [or] county jail).]
Aserious bodily injury means a serious impairment of physical condition.
Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).
[To commit acts of force or violence means to wrongfully [and unlawfully]
apply physical force to the property or person of another.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The defendant may admit to the fact that the incident occurred in a state prison or
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county jail. (Pen. Code, § 404.6(d).) If the defendant makes such an admission, the
court should delete all bracketed references to state prison or county jail. If the
defendant does not make such an admission, the court should give the bracketed
portions referring to state prison or county jail.
AUTHORITY
• Elements. Pen. Code, § 404.6(c).
• Riot Defined. Pen. Code, § 404.
• Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004)
118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
• Force or Violence Defined. See People v. Lozano (1987) 192 Cal.App.3d 618,
627 [237 Cal.Rptr. 612]; People v. Bravott (1986) 183 Cal.App.3d 93, 97 [227
Cal.Rptr. 810].
• Statute Constitutional. People v. Davis (1968) 68 Cal.2d 481, 484-487 [67
Cal.Rptr. 547, 439 P.2d 651].
• Terms of Statute Understandable. People v. Jones (1971) 19 Cal.App.3d 437,
447 [96 Cal.Rptr. 795].
RELATED ISSUES
Defendant Must Urge Others
To be guilty of inciting a riot, the defendant must urge others to commit acts of
force or property destruction. (People v. Boyd (1985) 38 Cal.3d 762, 778 [215
Cal.Rptr. 1, 700 P.2d 782]; In re Wagner (1981) 119 Cal.App.3d 90, 106 [173
Cal.Rptr. 766].) Thus, in In re Wagner, supra, 119 Cal.App.3d at p. 106, the court
held that the evidence was insufficient to establish incitement to riot where the
defendant was observed throwing rocks at the police. (Ibid.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 17.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.21 (Matthew Bender).
2737-2744. Reserved for Future Use
CALCRIM No. 2736 CRIMES AGAINST GOVERNMENT
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