In this post I am going to explain 3 situations where you can be charged in California under Penal Code 415 pc for disturbing the peace.
In fact, these are the guidelines I used as a prosecutor for these cases, and later on I will explain what types of defenses you can use to defend yourself against a charge of disturbing the peace.
Lets get started…
There are 3 situations that you can be charged and convicted under PC 415 for disturbing the peace:
A very common disturbing the peace charge is for fighting a person in a public place such as a bar or outside a bar after a challenge has been made.
What does the prosecution need to show to convict someone for PC 415(1)?
- You willfully and unlawfully engaged in a fight with another person, or
- You challenged another person to a fight, and
- Either the fight or challenge took place in a public location5
Are both people charged or only the instigator?
Both participants can be charged if they willfully engage in a fist fight or wrestling match.
What if the fight was in self-defense?
You can claim self-defense if:
- You had a reasonable belief that you or another person were about to suffer bodily harm6.
- And you had a reasonable belief that using force was the only way to protect yourself or the other person from suffering bodily harm7.
- And you used no more force than reasonably necessary to defend yourself8.
If challenged to a fight and you strike the first blow, you may also be charged unless you can show that you reasonably believed you were about to be struck because the other person took a swing at you or was brandishing a bottle and threatening you.
Can you go to jail for fighting in public?
A conviction for disturbing the peace carries a maximum of 90 days in jail.
For a person to be prosecuted for making unreasonable noise the conduct must have caused a “disturbance” or presented a danger of immediate violence or was to disrupt lawful activities and not for the purpose of communication9.
To be guilty of disturbing the peace, that person must meet the following elements:
- Caused loud and unreasonable noise10
- In a willful and malicious manner that disturbed another person, and
- Which noise was intended to do something unlawfully or to annoy or injure another person
This definition of “disturbance” protects certain speech.
If you are asked to turn down the music or to refrain from shouting and you do, then there may not be the element of malicious intent.
However, continuing to engage in such conduct despite repeated requests to stop may rise to the level of willfulness and maliciousness11.
Spouting offensive words does not necessarily rise to the level of disturbing the peace unless:
- The words used were “fighting words” which are inherently likely to provoke an immediate violent reaction12.
- And the words were spoken in a public place
What is the definition of “inherently likely to provoke an immediate violent reaction”?
There are certain words that most people know will provoke a violent reaction from someone such as calling a member of an ethnic group a certain pejorative name but they may not be words that are merely vulgar, rude or mean13.
These can rise to that level if you say them loudly, repeatedly and mockingly so as to provoke the person that you knew would be so affected.
Can you be arrested for yelling at police during an investigation?
Yes, if you are trying to impede the officer who is in the course of performing an official duty such as questioning a witness or detaining someone.
Also, if you are doing so loudly in a public place and the officer asks you to be quiet or leave and you refuse, then you may be guilty under PC 415. This may be for causing unreasonable noise or uttering offensive words, even if the officer was not provoked to immediate violence.
Can offensive words on t-shirts be considered disturbing the peace?
Offensive words on a T-shirt may or may not be likely to provoke an immediate violent reaction. If someone wore a T-shirt with a swastika on it to a synagogue or Jewish holiday gathering, it is not enough unless the wearer was conducting himself in a particularly mocking manner14.
Self-defense is one defense to PC 415(1)—fighting or challenging a person to a fight in a public place15. Others include:
Your intent was not malicious or willful
This includes the lack of intent to provoke violence16. If you spoke words that were angry while expressing a political opinion ( the subject of many fights) and had a reasonable belief that you spoke them with this in mind and not to provoke a violent response, then you may not be guilty.
The same is true for creating unreasonable noise if you were merely partying or celebrating with other people.
You were engaging in constitutionally protected conduct
Very often, police arrest protesters at political rallies or for counter-demonstrating. Common at these scenes are signs or even T-shirts with provocative words intended to annoy those who disagree with a particular position or opinion but they are also expressions of speech.
As such, they are protected speech under the First Amendment to the US Constitution.
When does a protest violate the First Amendment right to freedom of speech?
If there was loud cheering or shouting at a protest rally or demonstration, the courts will look to see if it was for communication as a means to persuade or inform or was intended to disrupt a “lawful endeavor.”
Clear and present danger
If the speech or language constituted a clear and present danger of imminent violence such as exhorting those in attendance to riot, rape and plunder, then it is not protected speech17. Otherwise, it comes under the protection of the right to freedom of speech even if it disturbs others.
You were falsely accused
These often arise in the context of domestic disputes, fights with neighbors or with intoxicated persons at bars who claim you challenged them to a fight or took a swing at them.
In such cases, you may need an attorney to investigate the matter by interviewing possible witnesses or presenting to the prosecutor evidence of past spiteful conduct toward you by an ex-partner or spouse or other individual who was motivated to falsely accuse you.
Because PC 415 can be charged as an infraction or as a misdemeanor with lesser penalties than other misdemeanor offenses, it is often a charge that is offered in return for a guilty plea if the defendant has been charged with a more serious offense.
Charges where a possible plea down to disturbing the peace may be available
- Prostitution or solicitation pc 647(b),
- Simple assault pc 240,
- Minor domestic battery incidents pc 243(e)(1),
- Public urination or lewd conduct pc 647(a) in public or
- Criminal threats pc 422 often can have these charges reduced to disturbing the peace .
Even if pleading to a misdemeanor rather than infraction, it does not carry the same ignominy as a domestic battery or lewd conduct charge.
What kind of offense is disturbing the peace?
A violation of PC 415 is either an infraction or a misdemeanor18.
The prosecution has the discretion to charge either way depending on:
- The nature of the conduct,
- Where it was committed,
- The maliciousness and willfulness exhibited and
- If there existed the intent to harm someone or just annoy them.
The prosecutor will also consider the defendant’s criminal record or if this is a repeat violation.
If you plead guilty to an infraction then you must pay a fine of up to $250 and it is not recorded on your public record.
Aggravating factors that increase the penalties for penal code 415 pc.
Committing the offense on school grounds.
- This would make the offense a misdemeanor20 and if the defendant committed some other offense, such as an assault in combination with disturbing the peace on school grounds then the defendant could face a 2nd violation, then the defendant could face a minimum jail sentence of 10 days up to a maximum of 6 months and a fine up to $1000.
- The 3rd violation on school grounds merits a minimum of 90 days in jail21.
Resisting Arrest—Penal Code 148(a)
Resisting arrest under penal code 148(a) PC occurs when you interfere with, delay or obstruct a peace officer who is in the course of conducting an official task or duty.
This can include:
- Giving a false name to an officer,
- Loudly and obscenely encouraging a person who is being arrested to resist the officer or
- Resisting an officer who is putting handcuffs on you.
If you scream obscenities, challenge an officer to a fight or even loudly argue with an officer in a public place and continue despite being warned to calm down or to leave, then you may be charged with disturbing the peace as well as resisting arrest in this context.
Resisting arrest is a misdemeanor with a penalty of up to 12 months in county jail and/or a fine up to $1000.
You could face trespassing charges, a misdemeanor, along with disturbing the peace in some situations.
Trespass can be charged as a misdemeanor with up to 6 months in jail and/or a fine of up to $1000, or as an infraction that carries a fine only of up to $250. However, it is a felony if you threaten to injure someone and then enter their home or business.
Creating a Public Nuisance—PC 272 and 273a
Conduct that is injurious to health or that obstructs the use of property or is otherwise offensive to the senses constitutes the crime of public nuisance. A large number of people need to be affected or the offensive conduct interferes with the public’s use of public property such as a park or street.
An example of either disturbing the peace or creating a public nuisance is playing very loud music on an urban or suburban street or at a park. Unlawful assembly that blocks a city street could also be charged with either offense22
Creating a public nuisance is a misdemeanor with penalties of up to 6 months in jail and/or a fine up to $1000.
- Penal Code 415 – Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. [↩]
- The words “malice” and “maliciously” import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.. Pen. Code, § 7(4 [↩]
- Loud and Unreasonable Noise Deﬁned. In re Brown (1973) 9 Cal.3d 612, 618–621 [108 Cal.Rptr. 465, 510 P.2d 1017] [↩]
- California Penal Code 415(3) pc -Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction. [↩]
- California Penal Code 415(1). [↩]
- CALCRIM 3470 [↩]
- See CALCRIM 3470 [↩]
- See CALCRIM 3470 [↩]
- People v. Superior Court (Commons) (1982), 135 Cal.App.3d 812, 817 [↩]
- CALCRIM 2689 [↩]
- People v. Vaughan (1944) 65 Cal.App.2d Supp. 844, 851. [↩]
- In re Alejandro G. (1995) 37 Cal.App.4th 44, 47. [↩]
- Jefferson v. Superior Court (1975) 51 Cal.App.3d 721, 724 [↩]
- Cohen v. California (1971) 403 U.S. 15, 23 [↩]
- CALCRIM 3470 – same as above [↩]
- In re John V. (1985) 167 Cal.App.3d 761, 770. [↩]
- In re John V. (1985) 167 Cal.App.3d 761, 767-68. [↩]
- California Penal Code 17 subdivision (d): A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint. Penal Code 415 – California’s disturbing the peace law is listed in California Penal Code 19.8 [↩]
- California Penal Code 415 PC – disturbing the peace [↩]
- California Penal Code 415.5 – Disturbing the peace at a school. [↩]
- See Same California Penal Code 415.5 [↩]
- Prosecutors may choose to charge a defendant with Penal Code 272, 273a rather than penal code 415 pc – disturbing the peace. [↩]