People v. Gonzalez

• Decision Date: 01 June 2017
• Docket Number: S223763
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Appellant, v. Mario Alberto GONZALEZ, Defendant and Respondent.

2 Cal.5th 1138

394 P.3d 1074

218 Cal.Rptr.3d 150

The PEOPLE, Plaintiff and Appellant,

v.Mario Alberto GONZALEZ, Defendant and Respondent.

S223763

Supreme Court of California

Filed June 1, 2017

Paul E. Zellerbach and Michael A. Hestrin, District Attorneys, and Kelli M. Catlett, Deputy District Attorney, for Plaintiff and Appellant.

Jennifer A. Gambale, Irvine, under appointment by the Supreme Court, for Defendant and Respondent.

Corrigan, J.

Under Penal Code section 422, it is a crime to threaten infliction of great bodily injury or death on another "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...." (Pen. Code, § 422, subd. (a).) The question here is whether defendant's conduct, which included a hand gesture unaccompanied by words or sound, qualifies as a "statement, made verbally." We conclude it does not and reverse the Court of Appeal's contrary judgment.

I. FACTS AND PROCEDURE

On March 24, 2013, an off-duty Cathedral City police officer was dining with friends at a restaurant in Indio.¹ Walking to the restroom, he saw Melanie Franco, a former high school classmate, sitting nearby. He smiled; she smirked in response. Returning to his table, he noticed that Franco's several male companions displayed gang tattoos and stared at him in a "confrontational way." One of those men was defendant Mario Alberto Gonzalez, who had "JT" tattooed on the back of his head. Franco's companions eventually left while continuing to stare menacingly. The officer's group sat at a window booth facing the parking lot. The tattooed men got into an SUV, with defendant in the front passenger seat. As the vehicle drove past the restaurant window, defendant made a "JT" hand sign and manually simulated a pistol pointed upward. The officer recognized the "JT" sign as a symbol of the Jackson Terrace gang, and considered the pistol gesture as a threat. The SUV stopped in front of the restaurant. The SUV driver then ran his finger across his neck, made a "JT" hand sign, and simulated a gun, which he pointed at the officer's group. The officer and some of his companions were frightened by the gestures.

Defendant was held to answer on five counts of making a criminal threat, one count for each person at the officer's table. Other allegations included gang enhancements and the service of three state prison priors.² Defendant sought to set aside the criminal threats counts.³ He argued that, because his hand gestures were not a statement "made verbally," they could not constitute criminal threats as defined by Penal Code section 422.⁴ The court agreed and dismissed the criminal threat allegations.⁵ Defendant pled guilty to a separate misdemeanor. The People sought review and the Court of Appeal reversed the dismissal.

II. DISCUSSION

As noted, this case involves an appeal after the trial court granted defendant's motion under section 995 to set aside the criminal threats counts. "[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate...." (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278 ; see People v. Konow (2004) 32 Cal.4th 995, 1025, 12 Cal.Rptr.3d 301, 88 P.3d 36.) "Insofar as the Penal Code section 995 motion rests on issues of statutory interpretation, our review is de novo." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072, 103 Cal.Rptr.3d 767, 222 P.3d 214.) " ‘ "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. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning." ’ " (People v. Scott (2014) 58 Cal.4th 1415, 1421, 171 Cal.Rptr.3d 638, 324 P.3d 827.) "[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible." (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632, 181 Cal.Rptr.3d 1, 339 P.3d 295 ; see People v. Gonzalez (2014) 60 Cal.4th 533, 537, 179 Cal.Rptr.3d 1, 335 P.3d 1083.)

Section 422, subdivision (a) 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, 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." (Italics added.)

Because defendant's gestures were not conveyed "in writing" or "by means of an electronic communication device," the sole issue is whether they may constitute a statement "made verbally." (§ 422, subd. (a).) Dictionary definitions of "verbal" include "[o]f, relating to, or associated with words," and "[e]xpressed in spoken rather than written words; oral." (American Heritage Dict. (4th ed. 2000) p. 1910; see also Webster's 3d New Internat. Dict. (2002) p. 2542; Random House Webster's College Dict. (2001) p. 1451.) Indeed, one dictionary cautioned in a usage note: "Verbal has been used since the 16th century to refer to spoken, as opposed to written, communication, and the usage cannot be considered incorrect. But because verbal may also mean ‘by linguistic means,’ it may be ambiguous in some contexts." (American Heritage Dict., supra , at p. 1910.) "Oral" is defined as "uttered by the mouth or in words: SPOKEN." (Webster's Collegiate Dict. (11th ed. 2003) p. 872.) While the terms "verbal" and "oral" are closely related, they remain distinct. "Verbal" connotes the use of words. "Oral" means spoken in the sense that the mouth is used to articulate words or sounds.

Defendant contends that his gestures did not qualify as a statement "made verbally" because he neither made a statement orally nor did he use words. The People argue that "made verbally" does not require an element of sound, and defendant's gestures were a "clear example of verbal communication" because "a word can be spoken without sound."

As we explain further below, we need not resolve here whether "made verbally" requires either the use of words or an oral utterance. Because defendant's conduct here involved neither , we conclude it falls outside the purview of section 422.

A. "Statement" Under Section 422 Excludes Nonverbal Conduct

The Legislature originally enacted section 422 in 1977. The statute proscribed threats made "with intent to terrorize another," defining "terrorize" as creating "a climate of fear and intimidation by means of threats or violent action causing sustained fear for personal safety in order to achieve social or political goals." (Former §§ 422, 422.5 ; Stats. 1977, ch. 1146, § 1, pp. 3684-3685.) After these provisions were struck down as unconstitutionally vague, the Legislature repealed them. (People v. Mirmirani (1981) 30 Cal.3d 375, 382-388, 178 Cal.Rptr. 792, 636 P.2d 1130 ; see People v. Toledo (2001) 26 Cal.4th 221, 228-229, 109 Cal.Rptr.2d 315, 26 P.3d 1051 ; Stats. 1987, ch. 828, § 28, p. 2587.)

Penal Code section 422 was reenacted in 1988 as part of the California Street Terrorism Enforcement and Prevention Act. As relevant here, the provision applied to "[a]ny 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 is to be taken as a threat...." (Stats. 1988, ch. 1256, § 4, pp. 4184-4185.) Although Penal Code section 422 did not otherwise define "statement," the Evidence Code defines the term as "(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.) This definition, which has been part of our Evidence Code since its enactment in 1965 (Stats. 1965, ch. 299, § 2, p. 1299), thus includes the actual use of spoken or written words, as well as conduct⁶ intended as a substitute for the actual use of words.

In 1998, Penal Code section 422 was amended to insert the language at issue here, requiring a relevant statement to be "made verbally, in writing, or by means of an electronic communication device...." (Stats. 1998, ch. 825, § 3, p. 5161.) The 1998 amendment was part of a bill intended to combat "cyberstalking." A committee report explained: "This bill seeks to make ‘cyberstalking’ punishable under current harassment and stalking laws. Cyberstalking is a new high-tech version of stalking. At its worst, cyberstalking can become ‘real world’ stalking, with potentially dangerous and even deadly consequences. Cyberstalking can take the form of threatening, obscene, or hateful e-mail; pages; faxes; and voice mail messages. [¶] Specifically, this bill amends law relating to stalking, terrorist threats, and telephone harassment, as well as the tort of stalking. By adding ‘electronic communication’ to these code sections, it will not matter if the harasser is capable of carrying out the threat—it will be enough that the target believes the threat to be credible and ‘had reasonable fear for his...