Q: I have two questions: We were at the beach, and a dispute broke out with a guy nearby. He said we stepped on his towel, got sand on his food, and he threatened to “take me out.” He made a number of hostile gestures. We thought he was going to attack, in fact that he was crazy, so we moved to another, distant location. But, is what that guy did criminal?
L.A., Hawthorne
Ron Sokol
A: Freedom of expression is a protected right, pursuant to the First Amendment of the United States Constitution. California Penal Code Section 422, however, makes it a crime to: (a) threaten a person with immediate harm, (b) when it was intended the statement be understood as a threat, and (c) the statement is communicated with a serious intention to carry it out, (d) the victim feared for his or her own safety, or that of his or her immediate family, and (e) the victim’s apprehension was reasonable.
Two examples of a criminal threat: A jilted boyfriend texts his ex that he is going to set fire to her apartment. Another, while holding a gun an individual threatens to shoot another person.
The combination of hostile gestures, and the verbal threat you describe, may indeed have risen to the level of an illegal threat. Not sure if anyone was nearby to report it to, or if a cell phone call would have been helpful. Getting promptly to a distant location was smart.
Q: My other question: If someone makes gestures they are coming after you, or is going to hit or choke you, is that criminal? No words, just the way they act.
L.A., Hawthorne
A: Conviction for a criminal threat based on gestures alone is (a bit to my surprise) rather challenging. On point is the California Supreme Court decision in The People v. Mario Alberto Gonzalez.
There, an off-duty police officer was dining with friends. He saw a former high school classmate, smiled at her and she smirked in response. Several men seated there had gang tattoos, and stared at him in a “confrontational way.” One of them (Mr. Gonzalez), had “JT” tatted on the back of his head. He and his companions continued staring in a menacing manner, but eventually left the restaurant. The off-duty officer was at a window booth which looked onto the parking lot. Mr. Gonzalez was in the front seat of an SUV, and, as the vehicle drove past, he made a JT hand sign, and also manually simulated a pistol pointed upward. The officer recognized the JT hand sign as a symbol of a particular gang and considered the pistol gesture to be a threat. He and some of those with him were, in fact, frightened by this conduct.
One of the charges thereafter brought against Mr. Gonzales was for making a criminal threat. The court analyzed the matter, and concluded that the gestures alone fell “outside the purview of (Penal Code) section 422.” The Court stated that while the conduct was indeed threatening, it was not made verbally as required by Section 422. For the California Supreme Court, the conduct did not constitute a verbal communication merely because Mr. Gonzalez intended to convey an idea through his actions.
Bottom line, the Court did not want to extend Section 422 to “an apparently limitless variety of conduct.” The use of the word “verbally” in the statute was one of the court’s focuses. It is noteworthy, however, that the court left open that one could argue in other matters that conduct which is intended (and understood) to convey verbal information may be a violation of Section 422.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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