I Hate Always Being Right

On Cinco de Mayo, a very important day in history, my birthday, I wrote a Law Review about People v. Gonzalez — critical of the Court of Appeal’s decision — concluding “a bit of a stretch…” The Justices of the California Supreme Court apparently read the Law Review and reversed the Court of Appeal.  I’m modestly self-conscious about always being right. 

John Doe

As suspicious as it looks, there really is an officer John Doe.  He and other Cathedral City police officers saw some bad-looking dudes sporting “JT” tattoos signifying they were part of the Jackson Terrace criminal street gang.  One of the members who had an impressive criminal record (three State prison priors), Mario Alberto Gonzalez, flashed the JT gang hand symbol, then simulated a pointed gun with his hand, and finally made a slashing motion across his neck – all for the viewing pleasure of officer Doe.  (I wonder what his parents were smoking when on his birth certificate they wrote, “John Doe.”)

To Protect the Innocent

To protect officer Doe, we would normally not use his real name, but in this case, he is already protected with a name like John Doe.

Conviction

Gonzalez was charged with making a criminal threat in violation of section 422 of the California Penal Code.

The trial court originally dismissed the criminal threat allegations but the Court of Appeal reversed, concluding Gonzalez indeed threatened Officer Doe.  Off to prison for Gonzalez.  Maybe.

A Verbal Threat

Not to bore you for the second time, but section 422 reads:  “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.”

As I am sure you recall, the Court of Appeal found that Gonzalez’ hand gestures were intended to convey a threat of injury or death and as such they were a threatening “statement.”  As noted, I felt that was a stretch given the specific language in the Code.

California Supreme Court

The California Supreme Court agreed, writing “While the conduct was clearly threatening, the threat was not ‘made verbally’ as required by section 422.”

The People’s argument that Gonzalez used American Sign Language as a symbol for “gun” did not help because he did not use the American Sign Language sign for a gun.  Gonzalez used “stick-em-up” gang language.

Call to Legislature

The Supreme Court looked at the Code language and not just Gonzalez’ priors (which may have influenced the Court of Appeal to convict), and ruled against Cathedral City, adding that the Legislature remains free to “include symbolic gestures within the ambit of section 422,” i.e. add symbolic gestures as a criminal threat.

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 porter@portersimon.com or www.portersimon.com.  

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