Wednesday, December 10, 2014
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C.A. Says Threats Charge May Be Based on Hand Gestures
By a MetNews Staff Writer
Nonverbal communication, such as threatening hand gestures, may form the basis of a criminal threats charge, the Fourth District Court of Appeal ruled yesterday.
Div. Two reinstated charges against Mario Alberto Gonzalez, who was arrested following a March 2013 incident in which he allegedly threatened several persons, including off-duty police officers, by flashing gang signs and employing a slashing gesture, at and in front of a Cathedral City restaurant.
Gonzalez was charged with five counts of violating Penal Code §422, the threats statute, and count each of violating an injunction, challenging another to a fight, and engaging in criminal activity for the benefit of a street gang. According to the preliminary hearing testimony, the incident began when one of the officers, after getting up to use the restroom, noticed that a former high school classmate was sitting next to several tattooed men, including Gonzalez.
One of the men had a “JT” tattoo, which the officer recognized as referring to the Jackson Terrace gang. As they left the restaurant, two of the men stared at the officers and their companions, and, when their car passed the front of the eatery, the defendant made a Jackson Terrace gang sign with his hand and pointed his finger in the air toward the ceiling, allegedly simulating a gun.
Two of the officers said they saw the gesture and feared for the safety of themselves, their friends and people at the restaurant. One of those officers said he spotted the defendant’s vehicle again on the street in front of the restaurant, and that the defendant again flashed the gang symbol, and also simulated a gun with his hands and made a slashing motion across his neck.
A magistrate dismissed all of the charges except violating an injunction, to which the defendant pled guilty.
Prosecutors appealed solely as to the criminal threats charges.
Writing for the Court of Appeal, and concluding that there was probable cause to try the defendant for making criminal threats, Justice Betty Richli explained that conduct need not be verbal in order to constitute a “statement” under §422, which provides, in part:
“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished….”
Richli cited People v. Franz (2001) 88 Cal.App.4th 1426, which held that a threatening hand gesture, accompanied by a “shushing” noise, constituted a criminal threat.
“In this case, we find that it would be absurd to interpret the language of section 422 to exclude non-verbal and threatening gestures – such as flashing gang signs and simulating a pistol with hands – under the ambit of making criminal threats under that section, simply because defendant did not making a ‘shushing’ sound or other noise,” she wrote. The issue, she said, is one of context, not whether the defendant did not did not make a verbal utterance.
The case is People v. Gonzalez, E059859.
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