In what circumstances will a defendant be charged with conspiracy to disturb the peace under section 407.7 of the California Criminal Code?

^7. Defendant claims that the prosecutor should have charged him with conspiracy to disturb the peace. He argues that such a charge would have avoided the "dual theories of liability" presented under the charge of conspiracy to unlawfully assemble under section 407. He maintains that, by charging both prongs of unlawful assembly as the target of the alleged conspiracy, the prosecutor "opened the door for a possible conviction for a non-criminal conspiracy." We need not respond to these arguments because we have already determined that the prosecution presented the jury with a legally valid theory of criminal liability. In any event, it was the prosecutor who had discretion regarding whom to charge and what charges to bring. (People v. Birks (1998) 19 Cal.4th 108, 134.)