PEOPLE v. GONZALEZ

Respondent’s Petition for Review

Cal.January 13, 2015

6223763 SUPREME COURTNO. SUPREME COURT raLeED IN THE SUPREME COURTOF THE STATE OF CALIFORNIA JAN 13 2015 Frank A. McGuire Clerk Deputy DCAFourth District, Div. 2 Appeal No. E059859 THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, Vs. MARIO ALBERTO GONZALEZ, Riverside County Superior Court No. INF1300854 Defendant and Respondent. N e N e s e e e e e e e e e e e e e e e e APPEAL FROM THE SUPERIOR COURT OF RIVERSIDE COUNTY Honorable William S. Lebov, Judge PETITION FOR REVIEW FROM PUBLISHED DECISION OF THE COURT OF APPEAL, FOURTH APPELLATEDISTRICT, DIVISION TWO JENNIFER A. GAMBALE(CA Bar#174170) Gambale & Gambale 111 Pacifica, Suite 120 Irvine, CA 92618 TEL: (949) 825-6533 Attorney for Defendant and Respondent By appointmentofthe Court of Appeal under the Appellate Defenders,Inc. independentcase system. SUPREME COURTNO. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE ) STATE OF CALIFORNIA, ) DCAFourth District, Div. 2 ) Appeal No. E059859 Plaintiff and Appellant, ) ) vs. ) ) MARIO ALBERTO GONZALEZ, ) Riverside County Superior ) Court No. INF1300854 Defendant and Respondent. ) ) APPEAL FROM THE SUPERIOR COURT OF RIVERSIDE COUNTY Honorable William S. Lebov, Judge PETITION FOR REVIEW FROM PUBLISHED DECISION OF THE COURT OF APPEAL, FOURTH APPELLATEDISTRICT, DIVISION TWO JENNIFER A. GAMBALE(CA Bar#174170) Gambale & Gambale 111 Pacifica, Suite 120 Irvine, CA 92618 TEL: (949) 825-6533 Attorney for Defendant and Respondent By appointmentofthe Court ofAppeal under the Appellate Defenders,Inc. independent case system. TABLE OF CONTENTS TABLE OF AUTHORITIES .......... 2 eee cece erect ene e eee eees iil PETITION FOR REVIEW ........--- cece eee cee renee tee e renee eee neees 2 ISSUE PRESENTED ...........-0- cece eee eee ee tee eee enn aenes 3 1. WHETHERA CRIMINAL THREAT CAN BE COMMITTED BY A MERE GESTURE ALONE AND WITHOUT THE EXCHANGEOF ANY WORDS, ORAL OR WRITTEN, BETWEEN THE TWO PARTIES? 2... cc cece eee ce eee eee eet e eee e eens 3 NECESSITY FOR REVIEW ........- 0-0 ce cece eee e te neeee eee een e te eenes 3 STATEMENT OF THE CASE.......... 202 cece cece eee ene 5 STATEMENTOF FACTS ........-0 0 ce cee cece eee nent eee eee e eee ners 6 ARGUMENT .......... 00 eee cee ee eee eee reenter e eee eee neeas 6 I. REVIEW IS REQUIRED TO DETERMINE WHETHERA CRIMINAL THREAT CAN BE COMMITTED BY A MERE GESTURE ALONE AND WITHOUT THE EXCHANGE OF ANY WORDS, ORAL OR WRITTEN, BETWEEN THE TWO PARTIES .. 0... c ccceee nee teen e een eens 6 CONCLUSION .........-- 0 cece cee ence eect eensbbe e eee ee eee 13 WORD COUNT CERTIFICATE ......... 06. eee cece ee eee cere neces 14 PROOF OF SERVICE BY MAIL ......... 0. ce cee eee cere eee eee eee 15 PROOF OF ELECTRONIC SERVICE.... 0.0.6... cece eee eee teen eee 16 APPENDIX A oo.eeeee eee e nent e ene e ene 17 ii TABLE OF AUTHORITIES CASES: People v. Franz (2001) 88 Cal.App.4th 1426 ..............- seen eee 3, 4, 8-11 STATUTES: Evid. Code, § 225 2.0... cece cc cece eee e eee rete nent enees 8 Pen. Code, § 422, subd. (a) ...... 0...ccceee ee nee eens 3,7 Pen. Code, § 76 00... cccceeee nee ene teen eeeees 11-12 JURY INSTRUCTIONS: CALCRIM 1300 2.0.0... cece cee eee ence enn nee eee een e sees 7 ADDITIONAL AUTHORITIES: Sen. Bill No. 1796 (1997-1998 Reg. SeSS.) ..... 0.0 c ccc ee eee e eee eee 4,7, 8,11-13 Stats. 1998, ch. 825, §3 0... c cece cece cece cece cece eeeee teen eeeees 4,7, 8,13 Stats. 1998, ch. 825 $1... cece cece cece cece eee e cette nent eee e nee ees 11, 12 Stats. 1998, ch. 825 §§2,4,5 00.0... cece cece cece cece eee e etter ee eeeeees 12 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE ) STATE OF CALIFORNIA, ) ) Plaintiff and Appellant, ) ) vs. ) ) MARIO ALBERTO GONZALEZ, ) ) Defendant and Respondent. ) ) PETITION FOR REVIEW TO: THE HONORABLETANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE AND HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Mario Alberto Gonzalez, defendant and respondent, hereby respectfully petitions this court for review following the published decision of the Court of Appeal, Fourth Appellate District, Division Two(per Richli, Acting P. J.), reversing the judgmentof the superior court. A copyofthe opinion, filed December9, 2014,is attached as Appendix A. (Cal. Rules of Ct., rule 8.504(b).) Nopetition for rehearing was filed. Review is sought pursuant to California Rules of Court rule 8.500 (b)(1) to settle an important question of law and provide uniformity of decision. ISSUE PRESENTED 1. WHETHERACRIMINAL THREAT CAN BE COMMITTED BY A MERE GESTURE ALONE AND WITHOUT THE EXCHANGE OF ANY WORDS, ORAL OR WRITTEN, BETWEEN THE TWO PARTIES? NECESSITY FOR REVIEW Petitioner never said a word. He neveruttered a sound or made any verbal noise whatsoever. Despite this fact, he was charged with five counts of criminal threats, all because he pointedhis finger to the sky — not toward any person — and allegedly simulated a gun with his handas he droveout ofa parkinglot. Review is appropriate and necessary in this case to resolvea split in authority among the appellate courts regarding whether actions alone, such as the one undertaken by petitioner, can constitute the crime of criminal threats. In 1988, Penal Code Section 422, subdivision (a)' was amended to read: Any person whowillfully threatens to commit a crime whichwill result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by meansofan electronic communication device,is to be taken as a threat, even ifthere is no intent of actually carrying it out, which, on its face and under the circumstancesin whichit is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity ofpurpose and an immediate prospect of execution ofthe threat, and thereby causesthat person reasonablyto 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 imprisonmentin the state prison. (Emphasis added.) All further statutory references are to the Penal Code, unless otherwise stated. 3 (Sen. Bill No. 1796 (1997-1998 Reg. Sess.) §3; Stats. 1998, ch. 825, §3.) The purpose ofthe amendmentwas to“clarify that [section 422] applies to threatening statements madeverbally, in writing, or by means ofan electronic communication device.” (Ibid.) In People v. Franz (2001) 88 Cal.App.4th 1426, the Third District Court of Appeal examinedthelegislative intent behind the 1988 amendment and concluded section 422 requires a criminalthreat be “‘made verbally,’ i-e., that defendant orally made some noise or soundthat was capable of conveying meaning.” (People v. Franz, supra, 88 Cal.App.4th at p. 1442, emphasis added.) Franz continued, “gestures, unaccompanied by verbal sound, do not qualify as verbal statements under section 422” and could not alone support a defendant’s conviction for making a criminalthreat. (/d., at p. 1439.) The Court ofAppeal in the present case disagreed with the Third Appellate District’s analysis in Franz and instead concluded “it would be absurd to interpret the language ofsection 422 to exclude non-verbal andthreatening gestures — such as flashing gang signs and simulating a pistol with hands — under the ambit of making criminal threats under that section, simply because defendant did not making[sic] a. . _ soundor other noise.” (Opn., p.13.) This departure from the holding in Franz has createda split in authority as to what constitutes the crime ofcriminalthreats. Theissue presented here is extremely significant as the Fourth District Court of Appealhas essentially, by it opinion, created a new class ofcriminal threats — those that can be committed without every orally uttering or conveying by written word a threat to another party. This Court should, therefore, grant review to provide uniformity of decision in the lower courts. STATEMENT OF THE CASE An information filed on June 17, 2013 charged petitioner, Mario Gonzalez, with five felony counts ofmaking criminal threats [Counts 1 through 5], in violation of section 422, two misdemeanor counts of challenging anotherperson to fight in a public place [Counts 6 and 7], in violation of section 415, subdivision (I), and one misdemeanor countofdisobeying the termsofan injunction [Count8], in violation of section 166, subdivision (a), subsection (10). (CT: 112-117.) The information further alleged that Counts 1 through 7 were committed for the benefit of a criminalstreet gang,in violation of section 186.22, andthat petitioner suffered three prior felony convictionsasprior prison terms, within the meaning of section 667.5, subdivision (b), and a prior serious and violent felony conviction within the meaningofsections 667, subdivision ( c) and (e)(1) and 1170.12, subdivision (c)(1). (CT: 112-117.) On August 9, 2013 petitioner filed a Motion to Set Aside the Information pursuantto section 995. (CT: 122-130.) On August 23, 2013 the court granted the motion and dismissed counts 1 through 7. (CT: 147; RT: 7.) Thereafter, petitioner pled guilty to Count 8. (CT: 149; RT:9.) On October 22, 2013 the people filed a notice of appeal from the dismissal of counts | through 7 on August 23, 2013. (CT: 156.) STATEMENT OF FACTS? On March24, 2014,petitioner and several of his friends were eating dinnerat the same restaurant as several off duty Cathedral City police officers and their friends. Oneofthe police officers recognized a woman seatedat petitioner’s table and smiled at her. The woman smirked back. The two groups continued to exchange looks while they ate. Petitioner and his group finished their meal andleft the restaurant. When he reached the parking lot, petitioner entered the right, front passenger side of a Ford Excursion. As the vehicle began to exit, petitioner made a gang sign with his hands and then pointed his finger to the ceiling, allegedly simulating a gun. Hedid notpoint his finger at any ofthe officers or their friends, who wereallstill seated inside the restaurant. No words were ever exchanged — orally or written — between the two groups. ARGUMENT L REVIEW IS REQUIRED TO DETERMINE WHETHERA CRIMINAL THREAT CAN BE COMMITTEDBY A MERE GESTURE ALONE AND WITHOUT THE EXCHANGE OF ANY WORDS, ORAL OR WRITTEN, BETWEEN THE TWO PARTIES. >. The facts are taken from the Court of Appeal opinion filed December 9, 2014. 6 The facts ofthe present case are undisputed. Petitioner said not a word and uttered not a sound to anyofthe alleged victims. As will be shown,the crime of criminalthreats requires that a threatening statement be madeeitherorally, in writing, or by electronic communication. A simple gesture will not suffice. Because petitioner said nothing, he did not commit and could not have committed any criminal threat. Section 422, subdivision (a) provides: Anyperson whowillfully 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 ofan electronic communication device, is to be taken as a threat, even ifthere 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 personthreatened, a gravity ofpurpose and an immediate prospect of execution ofthe threat, and thereby causesthat person reasonably to be in sustained fear for his or her ownsafety 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. (Emphasis added.) CALCRIM 1300defines a verbal threat as one that is made orally. (Emphasis added.) The Court of Appeal’s opinion in the instant case, allowing for the punishment of non-auditory conduct, is supported by neither the plain languageofthe statue nor the statute’s legislative history. The requirement that a criminal threat be madeorally or in writing was added by amendmentto section 422 in 1998. (Sen. Bill No. 1796 (1997-1998 Reg. Sess.) §3; Stats. 1998, ch. 825, §3.) The purpose of the amendment was to “clarify that [section 422] applies to threatening statements made verbally, in writing, or by means ofan electronic communication device.” (Ibid., emphasis added.) Prior to the amendment, the statute simply prohibited any “statement” made to be taken as a threat. (Ibid.) A “statement”is not necessarily limited to verbal or written communications. For example, as defined by Evidence Code section 225, a “statement” means any “oral or written verbal expression”or “nonverbal conductofa person intended by him as a substitute for oral or written verbal expression.” By adding the modifying language “verbally, in writing, or by means of an electronic communication device” after the word “statement” in its 1998 amendment, the legislature madeclear its intent to criminalize only those threatening statements made orally, in writing, or by electronic communication and not any non-verbal statement or gesture. Prior to the decision in the present case, People v. Franz, supra, 88 Cal.App.4th 1426 was the only published opinion that addressed whether a criminal threat could be committed by mere gesture alone. Franz concluded it could not. That facts ofFranz were as follows: Defendant followed his formergirlfriend home, gained entry to her house, and assaulted her. He also assaulted two friends who were with her. Upon breaking away from defendant, the girlfriend called 911 andthe police arrived. An officer interviewed the two friends while defendant, who was not in custody, stood behind. As the witnesses spoketo the officer, defendant looked directly at them, made hand gestures and said “shush,” shook his head, and ran his handacrosshis throat. After the police left, defendanttold the friends not to say a word. He was convicted ofmaking criminal threats against each ofthe twofriends. (Id., at pp. 1436-1437.) Onappeal, defendantargued his convictions for criminal threats had to be reversed because insufficient evidence was presented that he made a verbal statement. The Franz court was called upon to determine whether non-verbal conduct could support a conviction for criminalthreats under section 422. After reviewing dictionary definitions ofthe word “verbal,” related statutes, the definition of “statement” in the Evidence Code, and even the effect of sign language, Franz concludedthat conduct alone could not support a conviction under section 422. To the contrary, Franz held section 422 requires a criminal threat to be “madeverbally,’ i.e., that defendantorally made some noise or soundthat was capable of conveying meaning.” (People v. Franz, supra, 88 Cal.App.4th at p. 1442, emphasis added.) Franz continued, “gestures, unaccompanied by verbal sound, do not qualify as verbal statements under section 422” and could not alone support a defendant’s conviction for making a criminal threat. (/d., at p. 1439.) In reaching its holding, the Franz court first considered, then rejected, various definitions ofthe word “verbal.” (People v. Franz, supra, 88 Cal.App.4th at p. 1440.) Becauseofthe differing dictionary definitions ofthe word “verbal,” Franz foundthe language of section 422 was ambiguousand turned to “other aids of interpretation” outside the dictionary definitions. (Jbid.) For example, Franz reviewedotherstatutes, including section 646.9, subd.(g) (the “stalking” statute), and concludedthe Legislature knew how “to makea statute applicable to nonverbal communication,” and the omission “of any reference to ‘conduct’ in section 422 suggests the Legislature did not intend for communicative conductto be penalized in that statute.” (People v. Franz, supra, 88 Cal.App.4th at p. 1440.) Franz acknowledgedthat Evidence Code 225 defined a “[s]tatement” to include nonverbal conduct intended “as a substitute for oral or written verbal expression.” (/d., at p. 1441.) However, Franz held the definition of “statement” in the Evidence Code did not apply to the interpretation of section 422 for the following reason: [While it is true that Evidence Code section 225 providesthat a “statement” may mean nonverbal conduct, it is equally true that the Evidence Codeapplies, “[e}xcept as otherwise providedbystatute...” Here, as pertinent, section 422 expressly providesthat 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 Codestatute further demonstrates that the Legislature knows how to define nonverbal conduct, as a means of communication, when it wants to. (bid.) Franz reviewedtheentirety ofthe record and ultimately held defendant’s conviction was supported by substantial evidence. Franz found defendant’s “shushing” noise, heard by at least one ofthe witnesses, “constitute[d] substantial evidence of a verbal ‘statement,’ the import ofwhich was amplified by the 10 throat-slashing gesture to constitute a threatto kill ifthe victim talked to the police.” (Franz, supra, 88 Cal.App.4th at p. 1446.) The Court ofAppeal in the present case disagreed with the analysis in Franz. In doingso, the court relied heavily on a single statement madeby the Legislature in enacting the 1988 amendment whichread: “‘It is the intentofthis act to clarify that electronic communications are included in the actions that can constitute the crimes of harassmentandtalking. It is not the intent ofthe Legislature, by adopting ofthis act, to restrict in any way the types ofconductor actions that can constitute harassmentor stalking.’ (Sen. Bill No. 1796 (1997-1998 Reg. Sess.) Stats 1998, ch. 825, § 1, italics added.)” (Opn., p. 11.) Based on this single statement, the court concluded that since non-verbal conduct apparently constituted a criminal threat prior to the 1988 amendmentthatit still constituted a threat after the amendment, despite the Legislature’s intent to clarify that a “statement,” for purposes of section 422, was a threat made “verbally, in writing, or by meansofan electronic communication device,” and not simply a gesture. (Ibid..) The Court ofAppeal’s analysis is flawed for several reasons. First, as stated in Franz, the Legislature knows how to specifically penalize conduct. (People v. Franz, supra, 88 Cal.App.4th at p. 1440.) In fact, the Legislature has specifically penalized non-verbal conduct in not only the criminal stalking statute, as pointed out in Franz, but also in code section 76 which punishes criminal threats madeto public officials. 1] (See Section 76, subd. (b)(5) [‘““Threat’ means a verbal or written threat or a threat implied by a pattern of conduct or a combination ofverbal or written statements and conduct made with the intent and the apparentability to carry out the threat so as to cause the person whois thetarget ofthe threat to reasonably fear for his or her safety or the safety of his or her immediate family,” emphasis added].) Therefore,if the Legislature intended for section 422 to cover non-verbal conduct they certainly knew how penalize such conduct. Failing to specifically include non-verbal conduct in their amendmentto section 422 demonstrates the Legislature intended not to criminalize mere conduct as opposed to oral or written statements. In addition, Senate Bill 1796 added languageto four different statutes in an effort to penalize cyberbullying: civil stalking, criminalstalking, criminal harassing phonecalls, and criminal threats. (See Sen. Bill No. 1796 (1997-1998 Reg. Sess.) §3; Stats. 1998, ch. 825 §1.) Prior to the amendment, the two stalkingstatutes and the criminal harassmentstatute already contained language that expressly penalized non- verbal conduct. (Sen. Bill No. 1796 (1997-1998 Reg.Sess.) §3; Stats. 1998, ch. 825 §§2, 4, 5.) The Legislature’s statement that is was not trying to restrict the types of conduct that could constitute stalking or harassment appears to apply only to the stalking and harassmentstatutes that already specifically penalized non-verbal conduct, and not to the criminal threats statute which did not. To the contrary, the Legislature did something very different when it amended section 422. Instead ofjust 12 adding language that would punish cyberbullying as it had in the stalking and harassmentstatutes, the Legislature completely redefined statement to mean a threat that is made verbally, in writing, or by electronic communication device. (Sen. Bill No. 1796 (1997-1998 Reg. Sess.) §3; Stats. 1998, ch. 825 §3.) The Court ofAppeal’s analysis ofthe Legislative history, is, therefore, flawed. The opinion ofthe Court ofAppealin the present case creates a split in authority among the appellate courts as to what constitutes the crime of criminal threats. Petitioner, therefore, respectfully requests this court grant review to resolve this issue. CONCLUSION For the reasonsset forth above, petitioner Mario Gonzalez respectfully requests this Court grant review in this matter. Dated: January 12, 2015 ennifér A. Gambale Attorfeyfor petitioner Mario Gonzalez 13 WORD COUNT CERTIFICATE I hereby certify, under penalty of perjury, the attached Petition for Review contains 3,327 words, as determined by the computer program usedto prepare this document. Dated: January 12, 2015 I¢nnifet A. Gambale ttornegyfor petitioner Mario Gonzalez 14 PROOF OF SERVICE BY MAIL I, JENNIFER A. GAMBALE,declare as follows: I am over the ageof 18 years and not a party to this action. My business address is 111 Pacifica, Suite 120, Irvine CA 92618. On January]&, 2015, I served the attached PETITION FOR REVIEW (CASE # E059859) by placing a true copy thereof in an envelope addressedto the persons named belowatthe addressset out immediately below each respective name, and by sealing and depositing said envelope in the United States Mail, with postage thereon fully prepaid. Clerk ofthe Superior Court Aimee J. Larsen Riverside County 78-365 Highway 111, Suite 392 Larsen Justice Center La Quinta, CA 92253 46-200 Oasis Street Indio, CA 92201 Attn: Hon. William S. Lebov Office ofthe District Attorney Clerk, Court ofAppeal 3960 OrangeStreet Fourth Appellate District Riverside, CA 92501 Division Two Attn: Kelli Catlett 3389 Twelfth Street Riverside, CA 92501 A Copywas also Sent to Respondent . declare under penalty ofperjury of thg lawsofthe state of California that the foregoXg is true and correct. Executed this Nth day of January, 2015.p ju A 15 PROOF OF ELECTRONIC SERVICE Furthermore,I, Jennifer Gambale, declare that on January(#®, 2015, at approximately 8:00 a.m.,I electronically served from my electronic notification address PETITION FOR REVIEW (CASE# E059181)to the following entities and electronic notification addresses and that the transmissions were reported as complete and without error: APPELLATE DEFENDERS INC,e-service-criminal@adi-sandiego.com OFFICE OF THE ATTORNEY GENERAL, ADIEService@doj.ca.gov I declare under penalty ofperjury ofthe laws ofthe state of California that the and correct. Executed thif1s&th day of January, 2015. 16 APPENDIX A COURT OF APPEAL OPINION DATED DECEMBER9, 2014 17 Filed 12/9/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Appellant, E059859 V. (Super.Ct.No. INF1300854) MARIO ALBERTO GONZALEZ, OPINION Defendant and Respondent. APPEAL from the Superior Court ofRiverside County. William S. Lebov, Judge. (Retired Judge of the Yolo Super. Ct. assigned by the Chief Justice pursuantto art. VI, §6 of the Cal. Const.) Reversed. Paul E. Zellerbach, District Attorney and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant. Gambale & Gambale and Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Respondent. I INTRODUCTION On April 11, 2013, a felony complaint charged defendant and respondent Mario Alberto Gonzalez (defendant) with (1) five counts of violating Penal Code! section 422 (criminalthreats) (counts 1 through 5), all of whichalso specially alleged violations of section 186.22, subdivision (b)(1)(B) (that defendant had the specific intent to promote, further and assist in criminal conduct by gang member); and (2) one countviolating section 166, subdivision (a)(10) (disobeying the terms of an injunction) (count 6). The complaintalso alleged that defendant had suffered a prior serious felony conviction for violating section 192, subdivision (a) (voluntary manslaughter), and section 245, subdivision (a)(2) (assault with a firearm), under section 667, subdivisions(a), (c), and (e)(1), and section 1170.12, subdivision (c)(1). The complaint further alleged that defendant suffered three prior offenses with state prison sentences under section 667.5, subdivision (b). Defendant was arraigned the same day. Heenteredpleas ofnot guilty to all charges and deniedall special allegations. On June 17, 2013, an information charged defendant with all of the counts previously alleged in the complaint, as well as two additional counts for misdemeanor violations of section 415, subdivision(1) (challenging another to fight in a public place). These counts also contained special allegations for violations of section 186.22, subdivision (d) (specific intent to promote, further and assist in criminal conduct by gang 1 All statutory references are to the Penal Code unless otherwise specified. 2 members). On June 18, 2013, defendant was arraigned on the information. He entered pleas of not guilty to all charges and deniedall special allegations. On August 9, 2013, defendantfiled a motion to set aside the information and dismiss all counts alleging violations of section 422 (criminalthreats) and 415 (challenging anotherto fight in a public place). On August 21, 2013, the People filed an opposition to defendant’s motion. On August 23, 2013,the trial court held a hearing on the motion. Thereafter, the court granted defendant’s motion and dismissed counts | through 7 — all of the counts charging violationsof sections 422 and 415, and the related allegations. That same day, defendantpled guilty to count 8, a violation of section 166, subdivision (a)(10) (disobeying the terms of an injunction). On October 22, 2013, the People filed a notice of appeal. On appeal, the People contendthatthe trial court erred in granting defendant’s motion to dismiss counts 1 through 5 (criminal threats).2 For the reasons set forth below, we agree with the People. Therefore, we shall reverse the order setting aside the charges and remandthe matter for further proceedings. Il STATEMENT OF FACTS On March 24, 2013, several off-duty Cathedral City police officers (John Doe1, John Doe 2, Jane Doe 1) and friends (Jane Doe2, Jane Doe3) were eating dinner at a restaurant when one officer, John Doe 1, got up from thetable to use the restroom. On 2 The People do not challenge the dismissal of counts 6 and 7 (challenging anotherto fight in a public place). his way, John Doe 1 recognized another patron, Melanie Franco, and smiledat her. Franco smirked back. As John Doe | approachedthetable, he realized that Franco, whom he knew from high school, was sitting with several male Hispanic adults,all of whom hadtattoos. One of them was the defendant. When John Doe 1 returnedto his table, he noticed that a couple of the males eating with Franco werestaring at him. They looked at John Doe 1 andhistable in an “intimidating way.” John Doe 1 then realized thatat least one of the males had a “JT” tattoo on his hand. Becauseofhis professional and personal experiences, John Doe | knew a “JT”tattoo stood for Jackson Terrace, a criminal street gang. John Doe 1 continued to watch the table and eventually saw Franco andthe males leave the restaurant. Asthey left, the males continued to stare in John Doe 1’s direction; he stared back. John Doe | watched through the restaurant window and saw the two males enter a white, Ford Excursion that was parked the restaurant’s parking lot. The car backed out of its space and toward John Doe 1’s vehicle. John Doe 1 thoughtthat the occupantsofthe Excursion possibly recognized his car or were checkingthelicense plates to see what car he drove. The Excursion then pulled forward and out of the lot. As it passed the front window ofthe restaurant, the right, front passenger, later identified as defendant, made a Jackson Terrace gang sign with his hand. Healso pointedhis finger in the air toward the ceiling, allegedly simulating a gun. John Doe 1 and John Doe 2 saw the gesture and feared for the safety of themselves, their friends and peopleat the restaurant. John Doe 1 next spotted the Excursion on Indio Boulevardin frontof the restaurant. Defendant and his group looked toward John Doe 1 andhis colleaguesat the table in the window. Thedriver of the vehicle made the JT gang hand symbolagain. In addition, the driver simulated a gun with his hands and madea slashing motion across his neck. John Doe 1 knew thatflashing the gang sign in that context had the intended meaning of identifying the location as Jackson Terraceterritory, and understood the flashing of the gang sign followed by the gesturing of a gun and slashingofthe throat, coupled with the totality of the previous conduct, to be a threat to him andhis fellow officers at the table. John Doe 1’s fellow officers, John Doe 2 and Jane Doe 1, also immediately recognized defendantandhis party as potential gang members becauseoftheir visible and identifiable tattoos, and because of the gang symbols they subsequently directed at the officers. As a result, all three officers understood the actions by defendant, specifically the repeated flashing of the gang symboland the purposeful staring, in combination with the simulated shooting and throat slashing hand gestures directed at them to be threats. These actions caused the officers to be fearful for their imminent safety. In addition to the three officers, there were two other people with John Doe | at the time of the incident. Jane Doe2, a police dispatcher, and Jane Doe3, a civilian. Both Jane Doe 2 and Jane Doe 3 witnessed the exchange between John Doe | and defendant. Both Jane Does 2 and 3 becameafraid and uncomfortable when defendant andhis party began staring at their table. Like the officers, both of them understood the actions of 5 defendantto be threats. Both Jane Does 2 and 3 feared for their safety. In fact, Jane Doe 3 left the restaurant because she wasafraid and feared that something was going to happen to them. No words were exchanged between the two groups. ii ANALYSIS The People contendthatthe trial court erred in granting defendant’s motion to dismiss counts | through 5 (criminal threats) under section 955. We agree. On August 9, 2013, defense counsel filed a motion to set aside counts | through 7 of the information under section 995.3 In her motion, counsel argued that counts 1 through 5 must be dismissed because there was no evidence that Gonzalez made any threat, orally or in writing. On August 21, 2013, the People filed an opposition arguing that a criminalthreat could be committed by a non-verbal gesture alone, and that an oral statement was not required. On August 23, 2013, the trial court conducted a hearing on the matter. The court, in granting defendant’s motion, stated, “[Section 422] . . . just doesn’t cover the conduct. Nor does 415. Staring is not challenging a fight. ...[{]] You can refile. You can get the propersection, you can charge 422 again,but I just don’t see this as making a criminal threat.” 3 Becausethe People only appeal the court’s order setting aside counts 1 through 5 (criminal threats), we shall limit our discussion to counts | through 5. 6 A defendant may be held to answer felony charges only if the evidence presented showsthat “there is some rational ground for assuming the possibility that an offense has been committed and that the accusedis guilty ofit.” (People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1127 (Lujan).) The standard ofproofis “sufficient cause,” which is generally equivalent to the reasonable or probable cause necessary to justify an arrest, but which need not be sufficient to support a conviction. (People v. Casillas (2001) 92 Cal.App.4th 171, 178.) On review by appeal from an ordersetting aside the information on the ground that the defendant was committed without reasonable or probable cause, the reviewing court directly reviews the determination of the magistrate holding the defendantto answerrather than the ruling of the superior court. (Lujan, supra, 73 Cal.App.4th atp. 1127.) When the relevant facts are undisputed, the question ofreasonable or probable cause is legal conclusion subject to independent appellate review. (People v. Superior Court (Bell) (2002) 99 Cal.App.4th 1334, 1339.) The relevant facts in this case are undisputed. We,therefore, shall independently review this case. In this case, neither defendant nor his cohorts said a word or uttered a sound to John Doe | or any ofthe other four individuals with him. Defendant and his cohorts, however, made gang and other non-verbal threatening gestures. Therefore, the question at issue is whether defendant can be prosecuted for making criminal threats under section 422 when defendant did not say anything verbally, in writing or by electronic means to John Doe| or his friends. Our role in construing the statutes is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) “<*Denal Code sections must generally be construed “‘according to the fair import of their terms, with a view toeffect its objects and to promote justice.’”’ [Citations.] [{] ‘Consistent with that general principle, appellate courts first examine the languageof the code section to determine whether the words used unequivocally express the Legislature’s intent. Ifno ambiguity, uncertainty, or doubt aboutthe meaningofthe statute appear, the provisionis to be applied according to its terms without further judicial construction. [Citations.] [{] When the languageofthe section is on its face ambiguousor leaves doubt,... the court must resort to extrinsic aids to ascertain the purpose behindthe statute and give the provision a judicially created meaning commensurate with that purpose. [Citation.]’ [Citations]”’ [Citation.]” (People v. Franz (2001) 88 Cal.App.4th 1426, 1440 (Franz); see also People v. Avila (2000) 80 Cal.App.4th 791, 796.) Finally, when a statute defining a crime or punishmentis susceptible to two reasonable interpretations, we will “ordinarily adoptthat interpretation more favorable to the defendant.” (People v. Avery (2002) 27 Cal.4th 49, 57; see also People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312-313.) However, “although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penalstatute in defendant’s favorif it can fairly discern a contrary legislative intent.” (People v. Avery, supra, at p. 58.) Thestatute at issue in this case is section 422 (criminalthreats). It provides: “Any person whowillfully 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 ofan 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 whichit is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity ofpurpose 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 . . .” (§ 422, subd. (a), emphasis added.) Wemustfirst determine if the words used in section 422 are unequivocal. Here, the crux of the appeal is whether nonverbal conduct may constitute a “statement” under section 422. This issue was discussed in Franz, supra, 88 Cal.App.4th 1426. In Franz, the court held that “section 422 requires a verbal statement, not mere conduct.” (/d. at p. 1439.) This holding, however, is dicta since the Franz court foundthat the defendant in Franz did make a verbal statement by making a “shushing”noise. (Franz, supra, 88 Cal.App.4th at p. 1447-1448.) This shushing noise, coupled with the defendant’s throat- slashing gesture supported defendant’s conviction under section 422. (id. at p. 1448- 1449.) Nonetheless, since Franz, is the only published case that discusses whether nonverbal conduct may constitute a “statement” under section 422, we shall look further into the analysis set forth under Franz. In reachingits conclusion, the Franz court acknowledgedthat “verbal” could include a verbal symbol, and also could mean ‘consisting of or using words only and not involving action.” (/d. at p. 1440.) The court, therefore, concludedthat “[iJn light of these differing dictionary definitions of ‘verbal,’ it is apparent the language of section 422 is ambiguous, and weshall turn to other aids of interpretation.” (Jbid.) On this point, we agree with the Franz court that the term “verbal”is unclear. The court then noted that that the Legislature knew how to make section 422 applicable to nonverbal communications by comparing section 422 tothestalking statute. Thecourt stated, “the 1988 enactment that amended section 422 also amendedstalking statutes that expressly define ‘threat’ to include a verbal or written threat ‘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); Civ. Code, § 1708.7; Stats. 1988, ch. 825.) The omission of any reference to ‘conduct’ in section 422 suggests the Legislature did not intend for communicative conductto be penalizedin that statute.” (Franz, supra, 88 Cal.App.4th at p. 1440.) Therefore, the third appellate district ultimately foundthat “in light of the Legislature’s express inclusion of ‘conduct’ in the stalking statutes, and its omission from section 422, we have a doubtthat is reasonable andrealistic that the Legislature intended to include mere conduct within the ambit of section 422.” (Franz, supra, 88 Cal.App.4th at p. 1441.) Wefind the Franz court’s comparison of section 422 with the stalking statute to be unsound. We acknowledgethat the 1988 enactment amendedboth section 422 and the stalking statute. However,the fact that the Legislature did not include “conduct”in 10 section 422 is to no avail. Thestalking statute, section 646.9, specifically criminalizes conduct, not just verbal threats, as in section 422. Weagree with an analysis set forth in Valparaiso University’s law review article: “Stalking, by its nature, is a pattern of prohibited physical conduct that is designed to harass or place another in a constantstate of fear or paranoia, whereas terrorist threat is a credible communication of imminent peril designed to place another into a present state of apprehension of bodily harm. To compare and analogize the statutory construction of these two sections is an error. The actus reus prohibited by law for these crimes are different; therefore, statutory language describing the prohibited conduct would naturally prohibit different forms ofphysical action.” (Greer & Modell, When a Threat is Not a Threat: Why Persons Who Are Deaf or Hard ofHearing Are Left Unprotected by California Penal Code Section 422 and How the Courts Could Rectify It (2011) 45 Val. U. L-Rev 1297, 1304.) In this case, as provided above, in 1988, the Legislature amended section 422 to add the phrase “made verbally, in writing, or by meansofan electronic communication device,” in the first paragraph in an effort to define statement. The Legislature, in enacting this amendment,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 talking. It is not the intent ofthe Legislature, by adopting ofthis act, to restrict in any way the types ofconductor actions that can constitute harassmentor stalking.” (Sen. Bill No. 1796 (1997-1998 Reg. Sess.) Stats 1998, ch. 825, § 1, italics added.) Prior to the amendmentin 1988, a concurring opinion in People v. Mendoza (1997) 59 Cal.App.4th 1333 (Mendoza), stated that “section 422 does not require the 11 threat be literal or even verbal. Sending a governmentinformanta dead, tonguelessrat maywell violate section 422.” (Id. at p. 1347, originalitalics.) Although the court in Franz acknowledged the concurring opinion, it dismissed the case because “Mendoza predates the 1988 amendmentto section 422[.]” (Franz, supra, 88 Cal.App.4th atp. 1442.) Lookingat the legislative intent behind the 1988 amendment, however,it is clear that the Legislature added amendedsection 422 to include electronic communications in section 422, not to restrict the pre-amendmentlanguage of section 422. Although the statement made in Mendoza, supra, 49 Cal.App.4th 1333, was in a concurring opinion,it makes sense. As explained by the court, “[i]f the communication, by whatever means, was intended to convey and did convey an unequivocal, unconditional, immediate, and specific threat of great bodily injury or death, the statute has been violated.” (/d. at p. 1347.) In the respondent’s brief, defendant acknowledgesthata ““statement’is not necessarily limited to verbal or written communications. For example, as defined by Evidence Code section 255, a ‘statement’ meansany‘oral or written verbal expression’ or ‘nonverbal conductof a person intended by him as a substitute for oral or written verbal expression.” Nonetheless, defendant argues that the 1988 amendment, in adding “verbally, in writing, or by means of an electronic communication device’ after the word ‘statement’ in its 1998 amendment, the legislature madeclear its intent to criminalize only those threatening statements madeorally, in writing, or by electronic communication and not any non-verbal statement or gesture. Thus, while a hand gesture might have qualified as a criminal threat prior to the 1998 amendment, a non-verbal 12 gesture cannotqualify as a criminal threat as the amended law stands now.” However, as discussed above, the Legislature, in adopting the 1998 amendment, madeclear that the intent of the amendment was to include electronic communications,notto restrict the pre- amendmentlanguage of section 422. Moreover, wenotethat “““it is a settled principle of statutory interpretation that languageofa statute should not be given a literal meaning if doing so would result in absurd consequences whichthe Legislature did not intend.” [Citations.] Thus, “the intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” [Citation.]”’” (Calatayud v. State ofCalifornia (1998) 18 Cal.4th 1057, 1064-1065, quoting People v. Pieters (1991) 52 Cal.3d 894, 898-899.) In this case, we find that it would be absurd to interpret the language of section 422 to exclude non-verbal and threatening gestures — such as flashing gang signs and simulating a pistol with hands — under the ambit of making criminalthreats under that section, simply because defendant did not making a “shushing” soundor othernoise. Threats are judged in their context and not solely on the specific words that were spoken. “{AJll of the circumstances can and should be considered in determining whether a terrorist threat has been made.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.) “A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstancesclarify the communication’s meaning. [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 635.) As evidenced by the legislative notes, the intent of the 1988 amendmentwastoincludeelectronic communications under section 422 to keep up with the digital age, not to limit the 13 languageofsection 422. Therefore, we hold that the intimidating conduct by defendant satisfies the communication requirement undersection 422. IV DISPOSITION Thetrial court’s order setting aside the charges is reversed. The case is remanded for further proceedings. CERTIFIED FOR PUBLICATION RICHLI Acting P. J. Weconcur: KING J. MILLER J. 14