238 Cal. App. 4th 1122
Cal. Ct. App.2015Background
- Victims (Jane Doe 1 & 2) reported that Shane Villalpando raped them; Villalpando was later convicted and jailed.
- Anthony Murillo, a friend of Villalpando and a rapper known as "Lil A," posted a song "Moment for Life Remix" online that named the victims, used profanities, said "fuck snitches," and included lines such as "you're gonna end up dead" and "I'm coming for your head, bitch."
- The song was publicly posted on Reverbnation (photo of Murillo with a shotgun visible), downloaded and streamed thousands of times; Jane Doe 2 heard it, was frightened, and her mother contacted police.
- Murillo was arrested and charged with two counts of threatening a crime victim (Pen. Code § 140(a)); at the preliminary hearing the magistrate dismissed the complaint for lack of evidence of a willful threat.
- The People moved to reinstate under Penal Code § 871.5; the superior court denied the motion, concluding the song was closer to protected speech; the People appealed.
- The Court of Appeal reversed, holding a reasonable listener could view the lyrics as a "true threat" under People v. Lowery, so the magistrate erred as a matter of law in dismissing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether publicly posted song lyrics naming victims and promising violence can constitute a criminal threat under Pen. Code § 140(a) | Lyrics were a serious expression of intent to commit violence; §140 requires only general intent and need not be communicated directly to victim | Lyrics were protected speech (rap); no willful intent to threaten or to carry out violence | Reversed dismissal — a reasonable listener could interpret lyrics as a true threat; magistrate erred as a matter of law |
| Whether the trial court properly denied reinstatement under § 871.5 by treating the lyrics as protected speech | People argued magistrate misapplied law and evidence supports probable cause | Murillo argued speech protection and lack of willful threat precluded reinstatement | Superior court's denial reversed; reinstatement motion should have been granted and matter returned to magistrate |
Key Cases Cited
- People v. Lowery, 52 Cal.4th 419 (Cal. 2011) (section 140 applies to "true threats" a reasonable listener would understand as serious expressions of intent to commit unlawful violence)
- People v. Chandler, 60 Cal.4th 508 (Cal. 2014) (standards for assessing threatening statements under state law)
- People v. Shrier, 190 Cal.App.4th 400 (Cal. Ct. App. 2010) (procedure and scope of review for prosecutor's § 871.5 motion to reinstate a dismissed complaint)
- Correa v. Superior Court, 27 Cal.4th 444 (Cal. 2002) (purpose and limited function of the preliminary examination in establishing probable cause)