A threat that is communicated through nonverbal conduct falls outside the scope of the criminal threats statute (Pen. Code, § 422). Gonzalez was charged with five counts of criminal threats with gang allegations, as well as other offenses and priors. The charges arose when Gonzalez, while 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. The defense’s motion to set aside the criminal threats counts was granted. The prosecution appealed. The Court of Appeal reversed. The California Supreme Court granted review. Held: Reversed. It is a crime to threaten the infliction of great bodily injury or death on another with the specific intent that the statement be taken as a threat, under circumstances where the threat is unconditional, immediate and unequivocal so as to convey a gravity of purpose and immediate prospect of execution, such that the person threatened is placed in sustained fear for his safety (Pen. Code, § 422). Section 422 was amended in 1998 to require that the statement be “made verbally or in writing or via an electronic communication device.” Because Gonzalez’s gestures were not in writing or made via an electronic communication device, the question is whether they constitute a statement “made verbally.” In People v. Franz (2001) 88 Cal.App.4th 1426, the Third District concluded 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 nonverbal conduct within the scope of section 422. The Legislature’s use of the phrase “made verbally,” as well as the legislative history of section 422, and related statutes pertaining to threats and threatening conduct, reflect that a threat made through nonverbal conduct falls outside the scope of section 422.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S223763.PDF