June 5, 2017

Gestures Alone Are Not Considered to be Criminal Threats.

Under Penal Code Section 422, it is a crime to threaten infliction of great bodily injury or death on another “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 . . . .” (Pen. Code, § 422, subd. (a).). 

EasternPromisesIn People v. Gonzalez, a group of off-duty police officers were sitting by the window in a restaurant. Several men with gang tattoos who were also dining at the restaurant stared the officers in a “confrontational way.” The tattooed men then left the premises. As they drove off, the SUV stopped next to the window.  Defendant made a gang hand sign and manually simulated a pistol pointed upward.  The officers considered the pistol gesture a threat.  The SUV driver then ran finger across his neck, made a hand sign, and simulated a gun, which he pointed at the officers. 

Because the gestures were not conveyed in “writing” or “by means of electronic communication device”, the sole issue is whether they constitute a statement made “verbally.” Now the question becomes, what does “verbal” mean? While the words verbal and oral are closely related. Verbal connotes the use of words. Oral means spoken in the sense that the mouth is used to articulate words and sounds. 

Defendant states that he did not communicate “verbally” because he neither made a statement orally nor did he use any words. Government argues that “made verbally” does not require an element of sound, and defendant’s gestures were “clearly example of verbal communication” because a “word can be spoken without sound.”

The Court looked over several amendments to the statute, which at one point included language: “…statement is to be taken as a threat.” “Statement” was later defined as oral, written verbal expression, or nonverbal conduct. In 1998, the legislature amended the statute to include “electronic communication,” to combat an increase in cuber-stalking cases. The Court further stated that a statute defining “terrorist threats” clearly knew that verbal excluded non-verbal conduct.  The legislature knows how to make a statutes applicable to nonverbal communications, and it did not do it here. 

There is no doubt that the conduct the defendant engaged in was threatening, however it falls outside the statute because it was a non-verbal conduct. 

If you’d like to read the full text of the case, click here.