Friday, March 20, 2015
S.C. to Decide if Threats Charge May Be Based on Hand Gestures
By KENNETH OFGANG, Staff Writer
The California Supreme Court has agreed to decide whether nonverbal communication, such as threatening hand gestures, may form the basis of a criminal threats charge.
The justices, at their weekly conference in San Francisco Wednesday, voted unanimously to review the ruling of the Fourth District Court of Appeal, Div. Two, in People v. Gonzalez (2014) 232 Cal. App. 4th 151.
The Court of Appeal 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 one 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…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. Even without an accompanying sound, she said, such gesture may be deemed a threat, depending on context.
In other conference action, the justices:
•Left standing a ruling, in an unpublished opinion of this district’s Div. Three, affirming the dismissal of a suit against the state by the family of a 17-year-old girl struck and killed by a car on a highway. The plaintiffs sought to hold the state responsible for the negligence of two California Highway Patrol officers who, despite the girl being in an intoxicated state, allowed her to wander by foot into the night, after she approached and asked for their help.
Then-Los Angeles Superior Court Judge Lee Edmon, who was sitting on assignment in Div. Three at the time and is now presiding justice of that division, wrote the opinion.
Edmon said that while the “facts of this case are undeniably tragic,” the parents can have no redress against the state, either for violation of federal civil rights or for negligence, based on the officers’ failure to save their daughter from harm.
The presiding justice said the officers, who called a cab for the teenager, which she refused to take, could not be held liable for what the plaintiffs said was “reckless disregard for the dangers to Sophia as she stumbled deeper into a high-crime area in the wrong direction.”
The jurist said the “officers and the State could be liable only if they took some affirmative action to place Sophia in danger or to heighten her vulnerability to existing danger,” and that the plaintiffs alleged no such action in their complaint.
The case is Esmaili v. California, B246247.
•Agreed to decide whether a clause in a real estate option agreement, providing for recovery of attorney fees by the prevailing party in a “legal action or any other proceeding…brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement,” applied to a party that prevailed on its affirmative defense that the option agreement constituted a novation, extinguishing a prior agreement between the parties. The First District’s Div. Two said that it did, in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2014) 231 Cal. App. 4th 805.
•Ordered the disbarment of San Francisco attorney Patrick A. Missud for conduct that included repeated violations of a stipulated order in Nevada litigation that required him to remove facts about the case from his various websites and to cease making attacks on defendants, their counsel, and the Nevada judiciary. The State Bar Court Review Department also noted that Missud had engaged in years of vexatious litigation against the defendants and had filed papers attacking State Bar Court judges and prosecutors, disrespectfully and without factual or legal basis.
The case was decided by only two of the three Review Department judges, who noted that all other hearing and review judges had been disqualified.
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