California Court of Appeals, Second District, Sixth Division
Superior Court County No. 1449328 of Santa Barbara Rick Brown, Judge
[Copyrighted Material Omitted]
Joyce E. Dudley, District Attorney, Jennifer Karapetian and Marguerite Clipper Charles, Deputy District Attorneys, for Plaintiff and Appellant.
David Andreasen for Defendant and Respondent.
GILBERT, P. J.
Penal Code Section 140, subdivision (a) makes it a crime to threaten a crime victim with violence. Here alleged threats were made in the lyrics of a so-called “rap song” distributed on the Internet. The magistrate dismissed a felony complaint against Anthony Murillo alleging two counts of threatening a crime victim. (§ 140, subd. (a).) The trial court issued an order denying the People's motion to reinstate the complaint. It decided as a matter of law that the lyrics were protected speech and did not constitute a criminal threat within section 140.
The People appeal. We reverse. Here, and in most cases, the trier of fact determines what constitutes a threat. (People v. Lowery (2011) 52 Cal.4th 419 [128 Cal.Rptr.3d 648, 257 P.3d 72].) We direct the superior court to enter a new order granting the motion and returning the case to the magistrate for resumption of proceedings.
An obvious question in this case is whether an alleged threat directed at specific persons is any less a threat when it is sung or spoken in a recording and played for an audience. Does it matter whether the alleged threat is on a work in a museum of modern art? Philosopher and media expert Marshall
McLuhan posited that the "medium is the message." That may be so, but here the trier of fact determines the nature of the message whatever the medium.
FACTUAL AND PROCEDURAL HISTORY
In April 2012, Jane Doe 1 and Jane Doe 2 reported to law enforcement that Shane Villalpando had raped them. Murillo, Villalpando, and the two rape victims were students at a private high school in Santa Maria. Following their complaints to authorities, Jane Doe 1 and Jane Doe 2 suffered harassment and bullying. The girls ...