Cal.Sup.Ct.;
S223763

The California Supreme Court reversed a court of appeal decision. The court held that a threat made through nonverbal conduct fell outside the scope of Penal Code §422, which addresses criminal threats.

Three police officers and friends found themselves seated at a restaurant not far from a group of gang members. As the gang members left the restaurant, one of them, Mario Gonzalez, flashed a gang sign at the officers, and then made a gesture simulating a gun. Two of the officers saw the gesture and understood it to be a threat. They feared for the safety of themselves, their friends and people at the restaurant. Gonzalez was apprehended and charged with making criminal threats, in violation of Penal Code §422. He moved to dismiss the charges, arguing that because his hand gestures were not a statement “made verbally,” they could not constitute criminal threats as defined by §422. The trial court agreed and dismissed the charges.