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Can a Hand Gesture be a Criminal Threat Under Penal Code Section 422?

On March 24, 2013, an off-duty Cathedral City police officer went to a restaurant to get dinner with a couple of friends. After the officer was seated he noticed a table with several tattooed men who kept staring at him menacingly. One of the men at the table, Mario Alberto Gonzalez, had a visible gang tattoo on the back of his neck. As the group of men left the diner Gonzalez made a hand sign of the “JT” gang and simulated a gun with his hand, which he pointed at the officer’s group.


Gonzalez was charged with five counts of making a criminal threat, one for each person at the officer’s table. Under California Penal Code Section 422 “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 . . . shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”


The question in this case was whether a hand gesture is a verbal statement under California Penal Code Section 422. The Supreme Court of California held that no, it is not. Even though the simulated gun was clearly intended to be a threat and the officers took it as a threat, more than a mere hand gesture is required to violate Penal Code Section 422.  There are many situations you can think of that would be hand gestures, like a throat slashing movement, that clearly are threatening but under Gonzalez you can’t be prosecuted under this code section for the conduct.  


After this recent case of People v. Gonzalez person in California who is charged with making a criminal threat using hand gestures has a very strong defense. This is another example of why having an experienced criminal law attorney who is knowledgeable about recent changes in the law is so important. Hiring the best criminal defense attorney is the only way to ensure you are getting the best legal representation for your case.


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