California Law Regarding Criminal Threats


With so many tragic mass shootings in recent years, law enforcement is under pressure. There are allegations that the FBI failed to investigate information they received about the recent Parkland, Florida shooter and that some of the responding officers did not act to stop the shooter. Law enforcement has a tough job. Should they act on every suspicion? Should we turn our schools into highly patrolled police zones?

A week after the Parkland school shooting, the prestigious Harvard Westlake school in Los Angeles was closed after a former student, Jonathan Martin, who had also been a football player for the NFL, posted a photo on Instagram showing a rifle with #HarvardWestlake and #MiamiDolphins text on the gun.   Mr. Martin was arrested for the post.

There have been numerous threats on schools, prompting law enforcement to respond to each one of these threats. Even when it was reported that two students were overheard that they wanted to “shoot up” a Los Angeles area high school, law enforcement rushed in and arrested the two. Virtually every day there is news that the police have arrested someone who made a threatening post on social media, called in threats, or were heard making threats. Often when the police act on these reports, guns are found on the arrestee’s person or in their home. In the case of Mr. Martin, he reportedly had at least one gun in his possession. In another recent arrest of an L.A. area 17-year-old who made threats against a high school in Whittier, law enforcement found two assault weapons, two handguns, and 90 high-capacity magazines at the home the boy shared with his father.

In California, it is against the law to verbally, in writing, or by electronic communication threaten great bodily injury or death. (Penal Code section 422.) Does a social media picture of a gun with the name of school written on it, such as the Instagram posted by Mr. Martin qualify as an unlawful threat? That might be a hard one to prosecute. The law requires that the threat be made with the specific intent communication be taken as a threat. Therefore, some who is overheard saying, “I’d like to blow up this school,” would probably not be in violation of this statute.

And because Penal Code section 422 specifically requires a verbal, in writing, or electronic communication, gestures do not qualify as a violation of this section. So said the California Supreme Court in a 2017 case, People v. Gonzalez (2017) 2 Cal.5th 1138. In that case, the defendant had made a gang sign with his hand and also simulated a pistol pointed upward; no words were spoken. The defendant’s attorney filed for a dismissal of the section 422 charge on the grounds that the gestures did not satisfy the requisite elements of section 422 and the trial court agreed. However, the People (prosecutor) sought appellate review and the appellate court sided with the People, thereby reversing the trial court’s dismissal of the charge. The defendant sought review in California’s Supreme Court. The decision handed down by the Supreme Court reinstated the dismissal of the charge. As of now, this interpretation of section 422 is the law unless the Legislature amends section 422 to include gestures.

The Gonzalez case is a good example of a potential defense when all the elements of a crime do not appear to be satisfied. Even though the appellate court disagreed on this one, the Supreme Court ultimately agreed that a gesture is not a criminal threat, at least as the statute is currently written. Sometimes what looks like an obscure or technical argument turns out to be a successful defense.

Orange County criminal defense attorney has many years’ experience looking for every defense angle. He can be reached at his Irvine office by calling 949-474-8008 or emailing him at Feel free to contact him for a complimentary consultation on your criminal matter.