Law Review: A lesson in non-verbal conduct
May 8, 2017
You've probably been asking yourself whether non-verbal conduct may constitute a "statement" under California penal codes. I've been wondering the same thing. If I went up to Truckee's esteemed Police Chief Rob Leftwich and did the "slit the throat" hand gesture and pointed my finger pistol (thumb up, index finger pointed forward) at Chief Rob, have I threatened a crime?
Given that Chief Rob is quite a bit bigger than I am (and he carries), mine is a hypothetical question. It ain't going to happen. But it did take place in Cathedral City.
Jackson Terrace street gang
On March 24, 2013, Officer John Doe and other off-duty Cathedral City police officers were in a restaurant. Several supposedly unsavory looking males at the next table brandished "JT" tattoos and stared at Officer Doe in an "intimidating way." The "JT" tattoos signified they were part of the Jackson Terrace criminal street gang.
Officer Doe, being a policeman, stared right back.
No dessert, thank you
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As the JT gang members left the restaurant, one member, Mario Alberto Gonzalez, flashed the JT gang hand symbol, simulated a pointed gun with his hand and made a slashing motion across his neck — all at Officer Doe.
The female officers feared for their safety according to a Court of Appeal Opinion. They all skipped dessert. I myself would have pretended I didn't see a thing and finished dessert.
No words were exchanged between the two groups. Remember that.
Charged with making a criminal threat
Cathedral City charged Gonzalez with making a criminal threat in violation of section 422 of the California Penal Code. Here are the key portions of section 422, pay particular attention to the word "statement": "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, 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 … shall be punished."
The question for the court was whether the non-verbal hand gestures constituted a "statement" under section 422. What do you think?
The court looked to another case where a government informant was sent a dead, tongueless rat. Was that a threatening statement? Reminds me of a certain horse's head in bed.
Court makes the final statement
The trial court ruled against Cathedral City concluding that hand gestures alone are not "statements" under section 422.
The court of appeal reversed and ruled against Gonzalez, who will be doing plenty of time in state prison given his history of priors. The court looked at the intent of section 422 finding that the hand gestures were intended to convey a threat of injury or death and as such they were a "statement." The court found the intent of section 422 prevailed over the not so perfect language in the code. A bit of a stretch one could argue given the requirement of a "statement made verbally [or] in writing."
Gonzalezes intimidating conduct was a statement clearly communicated to Officer Doe. Goodbye Gonzalez.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com. Like us on Facebook.