People v. Gonzalez, 218 Cal. Rptr. 3d 150

At a restaurant an off-duty police officer and companions were menaced by an SUV driving by; defendant made hand gestures including a pistol gesture, a throat-slash motion, and a "JT" gang sign. Victims were frightened.
Defendant was charged with five counts of making criminal threats under Penal Code § 422 (one count per person), plus gang and prior enhancements. He moved under Penal Code § 995 to set aside the threats counts.
The trial court granted the § 995 motion and dismissed the § 422 counts; the Court of Appeal reversed. The People appealed to the California Supreme Court.
§ 422 (post-1998) penalizes willful threats "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..." The question was whether nonverbal gestures qualify as a "statement made verbally."
The Supreme Court held that nonverbal conduct (gestures) that do not involve words or written/electronic communication falls outside § 422 as currently written, and reversed the Court of Appeal's decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a hand gesture unaccompanied by words can be a "statement made verbally" under Penal Code § 422	Gestures that communicate a threat (even without sound) are "verbal"; a word can be spoken without sound and non‑audible behavior can convey verbal meaning	Section 422 requires a statement made verbally, in writing, or by electronic device; gestures are nonverbal and thus not covered	Held: "Made verbally" does not encompass nonverbal conduct absent words or written/electronic communication; gestures here fall outside § 422
Whether legislative history or related statutes imply § 422 should cover nonverbal conduct	The 1998 amendment did not intend to narrow conduct covered; analogies to stalking/gang cases suggest gestures should be covered	The statutory text—"made verbally"—and the Legislature's later explicit incorporation of Evid. Code § 225 in other threat statutes show nonverbal conduct was excluded from § 422	Held: The Legislature’s choice of wording is significant; because it later amended a related WMD statute to include Evid. Code § 225 but did not amend § 422, the court will not read § 422 to include nonverbal conduct; legislative change (not judicial construction) required to expand scope

People v. Mirmirani, 30 Cal.3d 375 (discussing prior invalidated terrorism statutes and legislative response)
People v. Franz, 88 Cal.App.4th 1426 (Cal. Ct. App.) (addressed whether gestures can satisfy § 422 requirements)
People v. Laiwa, 34 Cal.3d 711 (explaining standards of review for § 995 proceedings)
People v. Konow, 32 Cal.4th 995 (procedural and review principles cited)
United States v. O'Brien, 391 U.S. 367 (1968) (limit on treating conduct as speech when person intends to express an idea)