Non-Verbal Intimidation in California

June 15, 2017

In one of Seinfeld’s classic episodes, Kramer said 94% of communication is non-verbal. Whatever the merits of his claim, non-verbal threats don’t merit punishment, at least according to a recent opinion by the Supreme Court of California concerning the state’s statute criminalizing certain types of threats. Section 422 of the California Penal Code states:

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, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. Cal. Penal Code § 422 (West)

The ruling stems from a 2013 incident. Early that spring, a police officer was out with friends in Indio, home of the famous Coachella Music Festival, eating dinner. The off-duty cop noticed a woman he knew from high school and on his way back from using the lavatory smiled in her direction. Apparently, her heavily tattooed male companions were none too pleased with his grin, returning his smiles with glares. Eventually, they left, but as they entered their vehicle, one of the men, Mario Alberto Gonzalez, gesticulated towards the officer, making a JT hand sign. The officer understood the sign to refer to a notorious gang rather than Michael Jackson aficionado, part-time SNL star, and former boy band wonder Justin Timberlake.

Additionally, Gonzalez formed his hands into the shape of a gun and motioned. That wasn’t all. As they drove away, he also made a throat-slitting gesture while repeating the earlier hand signs.

In the aftermath, Gonzalez was arrested and charged with five counts of violating Section 422. However, he claimed that whatever they were, his gang, gun and throat slitting gestures were not recognized criminal threats under the statute since they were all non-verbal forms of communication.

The trial court agreed with him and dismissed the charges, but the Court of Appeal sided with the State by reversing the dismissal. Now, Gonzalez has been vindicated by California’s highest court.

In coming to its decision, the Supreme Court highlighted the need to interpret the statute in light of its legislative intent, focusing on the words of the Section 422 as ordinarily understood. Quoting to another case, on statutory interpretation the court noted:

“As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose…We begin by examining the statute’s words, giving them a plain and commonsense meaning.” People v. Gonzalez, No. S223763, 2017 WL 2376597, at *1 (Cal. June 1, 2017) quoting People v. Scott (2014) 58 Cal.4th 1415, 1421.

Since none of Gonzalez’s alleged criminal threats involved any written communication or electronic device, the court considered the statute’s use of the phrase “made verbally.” The State had argued that one can speak without words or sound, and Gonzalez’s actions should be understood as within the purview of Section 422.

The Court, relying on some its favorite dictionaries (American Heritage and Webster’s), noted that while verbal is not synonymous with oral, they are closely related. For several centuries, verbal has been understood to refer to the spoken word. Additionally, the Court was unfriendly to the idea that any symbolic gesture meant to convey a particular meaning should fall under the rubric of speech.

Yet, ultimately, the Court decided it did not need to decide if words or sounds are integral to a verbal threat because Gonzalez’s actions involved neither. In coming to its holding it did not deny that Gonzalez made threats, only that they are not the type of threats meant to be punished under Section 422. As it asserted clearly:

The People argue that defendant’s gun-to-the-sky gesture “was actually a prolonged course of conduct that escalated over several minutes, involved multiple gestures, and clearly communicated his non-audible verbal threat to harm the victims in this case.” The People assert that “when the entirety of respondent’s behavior is analyzed, respondent’s actions were undoubtedly threatening.” We have no doubt that defendant’s conduct could reasonably be construed as threatening. However, section 422 requires a specific type of threat, one made in the form of a statement “made verbally, in writing, or by means of an electronic communication device.” As discussed, even assuming “made verbally” could mean either made orally or made through words, defendant’s conduct here involved neither. For the reasons discussed, nothing in logic or reason allows us to interpret “made verbally” to include nonverbal conduct. People v. Gonzalez, No. S223763, 2017 WL 2376597, at *5 (Cal. June 1, 2017)

This is not the first time Section 422 has been found lacking. It was originally passed in the late 1970s, but found unconstitutional in 1981 and then repealed before a replacement passed in 1988. In 1998, it was amended to catch up with the advent of the age of the internet and mobile communications, also adding in the problematic “made verbally” language. The Court noted the significance of this change, discussing how other statutes had included conduct or particular types of behavior in addition to the spoken or written word when it intended to criminalize them.

It will be interesting to see how the legislature reacts, if at all, to this latest ruling.

The decision can be read on Westlaw at: 2017 WL 2376597

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