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Name: In re Maria D.
Case #: B231186
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 09/13/2011

The misdemeanor of incitement to riot (Pen. Code, sec. 404.6, subd. (a)), does not punish attempted lynching, which is a felony violation of sections 664 and 405a. A group of men were detained with their hands placed on a patrol car, and Maria’s boyfriend was resisting placement in a patrol car. Maria gestured to the men to join her as she approached the detaining officer exclaiming, “f*** you pigs . . . let him go.” The lynching statute prohibits the taking of any person from the lawful custody of a peace officer by means of a riot. An attempt requires the specific intent to free a person. In contrast, the incitement of a riot requires the specific intent to cause a riot. The maxim that a special statute controls over a more general statute does not apply here. The statute punishing incitement to riot does not address punishment for an attempt to free another from police custody. The objectives of the two statutes are different. In this case it was only necessary to prove that Maria had the specific intent to commit a lynching and took a direct but ineffectual act toward its commission.