Filed 6/1/17



       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Appellant,  )
                                     )                              S223763
           v.                        )
                                     )                        Ct.App. 4/2 E059859
MARIO ALBERTO GONZALEZ,              )
                                     )                        Riverside County
           Defendant and Respondent. )                    Super. Ct. No. INF1300854
____________________________________)


        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

1       The facts are taken from the preliminary hearing. An investigating officer
testified as to the victims‘ accounts of the incident. (See Cal. Const., art. I, § 30,
subd. (b); People v. Batts (2003) 30 Cal.4th 660, 670.)



                          SEE CONCURRING OPINION
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.




2      Penal Code sections 186.22, subdivision (b)(1), 667.5, subdivision (b).
3      Penal Code section 995, subdivision (a)(2)(B).
4      Subsequent references are to the Penal Code unless noted.
5      The court dismissed two other counts not at issue here.



                                         2
                                 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; see People v. Konow (2004) 32 Cal.4th 995, 1025.)
―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.) ― ‗ ―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.) ―[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; see People v. Gonzalez (2014) 60 Cal.4th
533, 537.)
       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

                                          3
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

                                          4
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; see People
v. Toledo (2001) 26 Cal.4th 221, 228-229; 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.


6     ―Conduct‖ is defined as ―all active and passive behavior, both verbal and
nonverbal.‖ (Evid. Code, § 125.)



                                           5
       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 or her safety or the safety of his or her immediate family.‘ ‖ (Assem. Com.
on Judiciary, Analysis of Sen. Bill No. 1796 (1997-1998 Reg. Sess.) as amended
June 25, 1998, p. 3; see also Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 1796 (1997-1998 Reg. Sess.) June 23, 1998, p. 4.) The bill author urged that
―[t]here is a growing consensus in California that current stalking and harassment
laws need to be expanded to also include electronic communication.‖ (Sen. Com.
on Public Safety, Analysis of Sen. Bill No. 1796 (1997-1998 Reg. Sess.) as
amended Mar. 30, 1998; see also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Sen. Bill No. 1796 (1997-1998 Reg. Sess.) as amended Apr.
28, 1998.) In addition to Penal Code section 422, the bill amended Civil Code
section 1708.7 (tort of stalking), and Penal Code sections 646.9 (crime of stalking)
and 653m (telephone calls with intent to annoy) to cover contact through an



                                          6
electronic communication device. (See Stats. 1998, ch. 825, §§ 2-5, pp. 5160-
5165.)
         There seems little doubt that the Legislature‘s 1998 amendment was
primarily focused on expanding the reach of Penal Code section 422 to include
electronic communications. However, the Legislature‘s choice to explicitly
describe a threat ―made verbally‖ must be given significance. After the
amendment, Penal Code section 422‘s express reference to a statement ―made
verbally‖ seems to exclude nonverbal conduct, at least when such a statement is
not in writing or made via an electronic communication device.7 Simply put, the
People‘s position would require us to read ―verbally‖ to include ―nonverbally.‖
Yet, as Evidence Code section 225 demonstrates, the Legislature fully understands
how to define the reach of a statute more broadly in keeping with its intent. Here,
it did not do so.
         Indeed, the Legislature faced this very distinction in another statute
proscribing threats. Following the 1995 bombing of an Oklahoma City federal
building, the Legislature enacted the Hertzberg-Alarcon California Prevention of
Terrorism Act, which contained several provisions related to weapons of mass
destruction. (See § 11415 et seq.; Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Assem. Bill No. 140 (1999-2000 Reg. Sess.) as amended
Sept. 2, 1999, pp. 7-8.) Section 11418.5, subdivision (a) criminalized threats ―to
use a weapon of mass destruction, 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,

7      We have no occasion to decide here whether nonverbal symbols sent in
writing or by an electronic device would qualify as a threat under section 422.



                                            7
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, which results in an isolation, quarantine, or
decontamination effort . . . .‖ (Stats. 1999, ch. 563, § 1, pp. 3938-3939.) This
provision was patterned after, and closely mirrored, the post-1998 version of
section 422, including that the statement be ―made verbally, in writing, or by
means of an electronic communication device.‖ (See Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 140 (1999-2000 Reg. Sess.) as amended Feb.
25, 1999, pp. 6-8.)
       In 2002, the Legislature amended Penal Code section 11418.5 to expressly
include a reference to Evidence Code section 225. Penal Code section 11418.5,
subdivision (a) now states in relevant part: ―Any person who knowingly threatens
to use a weapon of mass destruction, with the specific intent that the statement as
defined in Section 225 of the Evidence Code or a statement made by means of an
electronic communication device, is to be taken as a threat . . . .‖ One committee
report explained the change: ―Existing law limits the threat to use a WMD to a
verbal or written statement or a statement made by means of an electronic device.
This bill adds non-verbal conduct or communication by incorporating the
definition of ‗statement‘ in the Evidence Code.‖ (Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 1287 (2001-2002 Reg. Sess.) as amended May 7, 2002,
pp. 6-7, italics added.) Another committee report observed the bill ―amends the
WMD credible threat crime to provide that a ‗statement‘ conveying a threat may
be any form of communication, including conduct, as described in Evidence Code
section 225.‖ (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1287 (2001-
2002 Reg. Sess.) as amended April 25, 2002, p. M.)



                                          8
       The Legislature was made aware that the precise language of Penal Code
section 422 at issue here, which appeared verbatim in the prior version of Penal
Code section 11418.5, excluded nonverbal conduct. Thereafter, the weapons of
mass destruction statute was expanded to include a reference to Evidence Code
section 225. The Legislature declined to make a similar amendment to Penal Code
section 422. In 2000, the Los Angeles County District Attorney sponsored a bill
to amend Penal Code section 422 to expressly reference Evidence Code section
225. According to the sponsor, the bill ― ‗would correct an unintended narrowing
of California‘s ―Terrorist Threat‖ law that occurred with the passage of SB 1796
(Leslie) of 1998. As originally enacted, California‘s ―Terrorist Threat‖ law made
it unlawful to make any statement to another person threatening to commit a crime
against that person that would result in death or great bodily injury. The word
―statement‖ was unqualified in California‘s original ―Terrorist Threat‖ law. As
such, under Evidence Code section 225, threatening statements included those
made either (a) orally or in writing or (b) by the non-verbal conduct of a person
intended by him as a substitute [for] written expression. The 1998 amendments of
the ―Terrorist Threat‖ law to cover threats made via an ―electronic communication
device‖ had the unintended effect of eliminating threats made by nonverbal
communication.‘ ‖ (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 2650
(1999-2000 Reg. Sess.) as amended May 26, 2000, p. 3.) The sponsor argued it
was important to correct this ― ‗drafting error‘ ‖ because ― ‗many non-verbal
threatening gestures, such as the ―throat slash,‖ a simulated noose jerk of the neck,
or a hand pointing like a gun are often as threatening, or more threatening, than
oral or written threats, particularly in gang cases.‘ ‖ (Ibid.)
       It is ordinarily true that ― ‗[w]e can rarely determine from the failure of the
Legislature to pass a particular bill what the intent of the Legislature is with
respect to existing law.‘ ‖ (People v. Mendoza (2000) 23 Cal.4th 896, 921.)

                                           9
However, the Legislature‘s consideration of, and failure to pass, an amendment of
Penal Code section 422 to reference Evidence Code section 225, coupled with its
passage of the very same amendment as to Penal Code section 11418.5 two years
later, suggests the Legislature (a) was aware that the ―made verbally‖ language
excluded nonverbal conduct, and (b) intended that nonverbal conduct may qualify
as a statement under section 11418.5 but not section 422.
       The People point to an uncodified portion of the chaptered law containing
section 422‘s 1998 amendment, which stated: ―It is the intent of this act to clarify
that electronic communications are included in the actions that can constitute the
crimes of harassment and stalking. It is not the intent of the Legislature, by
adoption of this act, to restrict in any way the types of conduct or actions that can
constitute harassment or stalking.‖ (Stats. 1998, ch. 825, § 1, p. 5160, italics
added.) An ―uncodified section is part of the statutory law‖ and ― ‗properly may
be utilized as an aid in construing a statute.‘ ‖ (Carter v. California Dept. of
Veterans Affairs (2006) 38 Cal.4th 914, 925.) However, it is only an aid. Even
assuming this statement was intended to apply to section 422, it cannot be used to
contradict the actual words used by the Legislature.
       Defendant relies principally upon People v. Franz (2001) 88 Cal.App.4th
1426 (Franz). Franz went to his girlfriend‘s house, forced his way inside, and
struck her. He also repeatedly struck a visitor, Zook. While a responding officer
was speaking to Zook, Franz stood behind the officer. He looked at Zook and his
companion, put his index finger in front of his lips, and ran his thumb across his
neck. Zook testified he ―understood defendant was threatening to ‗cut my throat‘
if Zook said anything to the officer.‖ (Id. at p. 1436.) Franz was convicted of two
criminal threats counts.
       As relevant here, Franz argued on appeal that the evidence was insufficient
because he did not make ―a verbal, written, or electronic statement, as required by

                                          10
section 422 . . . .‖ (Franz, supra, 88 Cal.App.4th at p. 1439.) Citing a dictionary
definition, Franz asserted ― ‗verbal‘ means consisting of or using words only and
not involving action.‖ (Id. at p. 1440.) The People countered that ―nonverbal
conduct may constitute a ‗statement‘ within the meaning of section 422‖ and may
include ―a verbal symbol.‖ (Ibid.) The Court of Appeal agreed with Franz. It
reasoned that ―the Legislature knows how to make a statute applicable to
nonverbal communication‖ (id. at p. 1440), noting ―the Legislature‘s express
inclusion of ‗conduct‘ in the stalking statutes . . .‖ (id. at p. 1441). Franz
acknowledged the broader definition of ―statement‖ in Evidence Code section 225
but concluded it did not assist the People: ―Here, as pertinent, section 422
expressly provides that the ‗statement‘ must be ‗made verbally.‘ The Penal Code
definition controls. Indeed, because Evidence Code section 225 expressly refers
to ‗nonverbal conduct of a person intended by him as a substitute for oral or
written verbal expression,‘ the Evidence Code statute further demonstrates that the
Legislature knows how to define nonverbal conduct, as a means of
communication, when it wants to.‖ (Franz, at p. 1441.)8
       The Legislature has elsewhere acknowledged the difference between verbal
communication and nonverbal conduct. For example, the stalking statute defines a
―credible threat‖ as ―a verbal or written threat, including that performed through
the use of an electronic communication device, or a threat implied by a pattern of
conduct or a combination of verbal, written, or electronically communicated
statements and conduct.‖ (§ 646.9, subd. (g).) The offense of threatening a public

8      Franz also suggested that ―made verbally‖ under section 422 required proof
that ―defendant orally made some noise or sound that was capable of conveying
meaning.‖ (Franz, supra, 88 Cal.App.4th at p. 1442.) As noted ante, we need not
decide here whether ―made verbally‖ requires the making of a sound or use of
words as defendant‘s conduct here involved neither.



                                          11
official similarly defines a threat as ―a verbal or written threat or a threat implied
by a pattern of conduct or a combination of verbal or written statements and
conduct.‖ (§ 76, subd. (c)(5).) Indeed, the Legislature considered both the
criminal threats and stalking statutes together as the 1998 cyberstalking bill
amended both provisions.
       In sum, we conclude that a threat made through nonverbal conduct falls
outside the scope of section 422 as currently written. This conclusion gives
significance to the Legislature‘s use of the phrase ―made verbally,‖ as well as the
language and legislative history of section 422 and related provisions pertaining to
threats and threatening conduct.

       B. Application to This Case
       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.
       Although the People suggest that American Sign Language recognizes a
similar hand gesture to that employed by defendant as the symbol for ―gun,‖ the
suggestion does not assist them. Nothing in the record below demonstrated that



                                          12
the defendant actually used the American Sign Language sign for ―gun.‖ While
the conduct was clearly threatening, the threat was not ―made verbally‖ as
required by section 422.9 As the high court has stated with respect to symbolic
speech in the First Amendment context, ―[w]e cannot accept the view that an
apparently limitless variety of conduct can be labeled ‗speech‘ whenever the
person engaging in the conduct intends thereby to express an idea.‖ (United States
v. O’Brien (1968) 391 U.S. 367, 376; see Rumsfeld v. Forum for Academic and
Institutional Rights, Inc. (2006) 547 U.S. 47, 65-66.) Similarly here, defendant‘s
conduct did not constitute a verbal communication merely because he intended to
convey an idea through his conduct.
       Our conclusion is based on the manner in which the statute is drafted.
Should the Legislature choose to include symbolic gestures within the ambit of
section 422, it remains free to do so.




9      The concurring opinion suggests defendant‘s ―JT‖ hand sign was verbal
because it ―unmistakably communicated the name of defendant‘s gang‖ and it
related to and was ― ‗associated with [the] words‘ Jackson Terrace.‖ (Conc. opn.
of Werdegar, J. at p. 1.) Although the record reflects that the officer, through his
experience, recognized the hand sign as a symbol of the Jackson Terrace gang,
there was no testimony describing the actual gesture used. Accordingly, there is
no way to determine that the gang sign was any different from the gun or throat-
slash gesture. For the reasons noted here and in the concurrence, we need not
resolve definitively the various ways in which a gesture may be proven to
constitute a statement ―made verbally.‖



                                         13
                           III. DISPOSITION
     We reverse the Court of Appeal‘s judgment.
                                                  CORRIGAN, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                    14
                CONCURRING OPINION BY WERDEGAR, J.

     I generally concur in the court‘s opinion, including the conclusion that ―a
threat made through nonverbal conduct falls outside the scope of [Penal Code]
section 422 as currently written.‖ (Maj. opn., ante, at p. 12.)
     Whether or not defendant in fact made a verbal threat, however, seems
debatable. Defendant‘s hand signs for ―gun‖ and ―throat slashing‖ were
pantomimes — imitative gestures or manual simulations rather than verbal
communications. But defendant‘s ―J.T.‖ hand sign unmistakably communicated
the name of defendant‘s gang — ―Jackson Terrace‖ — to the officer, who was
familiar with the sign from having grown up in Indio, the gang‘s territory. That is,
the J.T. hand sign may be considered verbal because it ―relat[es] to‖ and is
―associated with [the] words‖ ―Jackson Terrace.‖ (American Heritage Dict. (4th
ed. 2000) p. 1910.) That arguably verbal information, read together with
defendant‘s weapon gestures, conveyed a specific and immediate threat. Nothing
in Penal Code section 422 (hereafter section 422) requires that the entirety of a
threat be verbal. To illustrate, the verbal statement, ―I want your money,‖ of itself
harmless, is a threat when the speaker displays a weapon. (Cf. In re George T.
(2004) 33 Cal.4th 620, 635 [―A communication that is ambiguous on its face may
nonetheless be found to be a criminal threat if the surrounding circumstances
clarify the communication‘s meaning.‖].)
     The People, however, have not argued that defendant‘s J.T. hand sign was
verbal in a way that distinguishes it from his gestures depicting weapons. Instead,
the People argue more broadly that section 422 encompasses ―nonaudible
behavior‖ that ―adequately communicate[s]‖ a threat. The court‘s opinion
explains why the People‘s proposed interpretation lacks merit. Because it lacks
merit, and because the People have not made the argument I have outlined, I agree
with the court‘s decision to reinstate the superior court‘s order dismissing the
counts charging defendant with violations of section 422. As we have observed,
― ‗ ―[o]ur adversary system is designed around the premise that the parties know
what is best for them, and are responsible for advancing the facts and arguments
entitling them to relief.‖ ‘ ‖ (People v. Sandoval (2015) 62 Cal.4th 394, 445,
quoting Greenlaw v. United States (2008) 554 U.S. 237, 244.) Nevertheless,
nothing in the court‘s opinion prevents the People from arguing in a future case,
should the facts support the argument and the People choose to make it, that
conduct actually intended and understood to convey verbal information violates
section 422. (See, e.g., maj. opn., ante, at pp. 13–14 [concerning American Sign
Language].)
                                                  WERDEGAR, J.




                                          2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzalez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 232 Cal.App.4th 151
Rehearing Granted

__________________________________________________________________________________

Opinion No. S223763
Date Filed: June 1, 2017
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: William S. Lebov*

__________________________________________________________________________________

Counsel:

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

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




*Retired judge of the Yolo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kelli M. Catlett
Deputy District Attorney
3960 Orange Street
Riverside, CA 92501
(951) 955-5400

Jennifer A. Gambale
111 Pacifica, Suite 120
Irvine, CA 92618
(949) 825-6533
