Murillo

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 modem art? Philosopher and media expert Marshall…