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Name: People v. Murillo
Case #: B257429
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 07/22/2015

Magistrate erred by dismissing felony complaint alleging that defendant threatened crime victims (Pen. Code, § 140, subd. (a)) where a reasonable listener could have construed rap song posted on the Internet to constitute a true threat to the victims. Murillo’s friend Villalpando was convicted of having unlawful sex with two minor high school girls. Murillo, angry about his friend’s conviction, produced a rap song in which he named the victims and threatened to kill them. He posted the song on the Internet and it was downloaded and played many times. Based on this posting, Murillo was charged with two counts of threatening to use force or violence against a crime victim (Pen. Code, § 140, subd. (a)). After a preliminary hearing, the magistrate dismissed the felony charges. The prosecution moved to reinstate the complaint (Pen. Code, § 871.5) but the superior court declined to reinstate, finding the rap song protected speech and not a threat under section 140. The prosecution appealed. Held: Reversed. In People v. Lowery (2011) 52 Cal.4th 419, 427, the court construed section 140 as “as applying only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence.'” (Quoting Virginia v. Black (2003) 538 U.S. 343, 359.) Here, for purposes of the preliminary examination, there was sufficient evidence to believe that Murillo was guilty of the charged offenses based on this standard. In the song, Murillo gave the first and last names Villalpando’s victims and threatened to kill them, calling them “snitches.” Additionally, the website where he posted the song contained a photo of him holding a shotgun and there was evidence that one of the girls was frightened and upset after hearing the song.