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Criminal Threats without an Oral or Written Threat? Yes

Terrorist threats, also known as criminal threats, occur when someone willfully threatens to commit certain crimes and intends that the statement, “made verbally, in writing, or by means of an electronic communication device,” be perceived as a threat.  

However, it is a fundamental principle of the law that statutory language should not be applied literally if doing so would result in “absurd consequences which the Legislature did not intend.”  The framework of how a law should be applied was put to the test in the case of Mario Gonzalez. 
Brief Synopsis: Criminal threats may be committed without defendant saying or writing anything, but by making other communicative conduct that is threatening, i.e. using hand signals for a gun and hand signals for a gang and then glaring at someone, while slashing his finger across his neck. Penal Code addressing restitution does not limit restitution payment to named victims in the complaint.
In Gonzalez’s case, out of Riverside Superior Court, several off-duty Cathedral City police officers were eating dinner at a restaurant.  One of the police officers got up to use the restroom.  As he was walking back to the restroom, he smiled at a woman who he recognized from high school.  She was sitting with “several male Hispanic adults, all of whom had tattoos.”

When the police officer returned from the restroom, he passed the same table and noticed that several of the males were staring at him.  One of the males had a tattoo which said “JT” on his hand.  Because the police officer knew the local crime situation, he recognized that “JT” stood for the Jackson Terrance criminal street gang.

art 429 - old riverside courthouseOld Riverside Courthouse

As the officer’s former friend left the restaurant, the males with tattoos left with her.  As they left, they glared over at the police officer.  The males then exited the restaurant and the police officer watched them through a window.  The gang members looked back at the police officer, staring directly at him.

When the gang members knew they had the attention of the police officer, the gang member made their gang sign so the officers could see.  Defendant Mario Gonzalez pointed his finger in the air, simulating a gun, which the officers understood as a threat.

The gang members then got in their car and drove by the restaurant in their Ford Excursion.  Mario Gonzalez then looked straight at the police officer in the restaurant, through the window.  Gonzalez made the JT gang symbol again and pointed his finger upward in the sky again.  He then simulated holding a gun with his two hands and made a slashing motion across his neck.

Mario Gonzalez was later arrested and charged with five counts of criminal threats (Penal Code § 422), with a special allegation of violating Penal Code § 186.22(b)(1)(B), which means he did so to promote, further or assist in criminal conduct by a criminal street gang.  The complaint also alleged that Gonzalez had a prior strike for voluntary manslaughter and assault with a firearm.  He also had three prior state prison sentences under Penal Code §667.5(b).

Defendant later filed a motion to set aside the information to dismiss all counts.  The judge granted the motion.  The District Attorney then appealed.

The appeal was filed in the Fourth Appellate District.  The court of appeal reversed (2014 DJDAR 16253], ruling that in People v. Mario Alberto Gonzalez, the crime of criminal threats could be committed by a non-verbal gesture alone and that an oral statement was not required.

The Fourth Appellate District Court noted from the outset that its role in construing statutes is to ascertain the intent of the Legislature so as to effect the purpose of the law. People v. Jefferson (1999) 21 Cal. 4th 86, 94.

The court of appeal distilled down the issue to whether non-verbal conduct can constitute “a statement” under Penal Code § 422.  The appellate court noted that there was only one reported decision in California that addressed this issue and it was People v. Franz (2001) 88 Cal. App. 4th 1426.  In Franz, the court acknowledged that “verbal” could include a verbal symbol and therefore “verbal” as used in Penal Code § 422 is “ambiguous.”  Franz, at 1440.

The Fourth Appellate Court then noted that criminal threats are similar to stalking, criminalized at Penal Code § 646.9.  In section 646.9, “a pattern of conduct intended to imply a threat” is a crime.  It is conduct which is intended to harass and cause anxiety, fear and worry.

The appellate court then noted that in 1988, the Legislature amended section 422 to include electronic communications as a statement to effectuate the statute’s intent.

Consequently, the appellate court agreed with the prosecutor that non-verbal conduct, such as that committed by Mr. Gonzalez, could constitute a criminal threat.  Thus, the trial court’s ruling was reversed and the case went back to the Riverside Superior Court for further proceedings. 

The citation for the Fourth Appellate District Court ruling discussed above is People v. Mario Alberto Gonzalez (4th App. Dist., 2014) 232 Cal.App.4th 151.

For more information about the issues in this case, click on the following articles:
  1. What are Criminal Threats and the Defenses to this Charge? 
  2. Are Criminal Threats Protected Speech Under the First Amendment?  Appeals Court Say No.
  3. Conviction Reversed for Mailing Criminal Threats.
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