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Name: People v. Gonzalez
Case #: E059859
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/09/2014
Subsequent History: Review Granted 3/18/2015: S223763

A criminal threat (Pen. Code, § 422) may be committed by gesture alone; no verbal statement or writing is required. Gonzalez was charged with five counts of criminal threats with gang allegations, disobeying an injunction, and challenging another to fight in a public place. Priors were alleged. The defense moved to set aside the criminal threats and public fighting counts because appellant made no threat, orally or in writing. Over prosecution objection that no oral statement was required, the court granted the motion. The prosecution appealed. Held: Reversed. The charges arose when Gonzalez, who was with a group of gang members, directed threatening hand gestures, including “gun fingers,” “throat slashing,” and gang signs towards a group of off-duty police officers and their friends. No words were exchanged between the two groups. As stated in People v. Franz (2001) 88 Cal.App.4th 1426, the various dictionary definitions of “verbal,” render the language of section 422 ambiguous. In Franz, the Third District found that the 1998 amendments to section 422 and to the stalking statute (Pen. Code, § 646.9), whereby a “pattern of conduct” was added to section 646.9, but not to section 422, reflected that the Legislature did not intend to include mere conduct within the coverage of section 422. The court here found the Franz court’s comparison between the criminal threats and stalking statutes inapt, because the stalking statute criminalizes a pattern of physical conduct that is designed to harass. The 1998 amendment to section 422, which added “verbally, in writing, or by means of any electronic communication device” after the word “statement,” did not restrict the pre-amendment language, which included nonverbal conduct. The amendment was intended only to include electronic communications within the ambit of the statute.