By Ross Todd, From The Recorder

SAN FRANCISCO — Weeks after the U.S. Supreme Court ruled in a similar case, a California appeals court on Wednesday reinstated criminal charges against a man accused of threatening two sexual assault victims in a rap song posted online.

A three judge panel of the Second District Court of Appeal reversed a lower court decision that found the lyrics were protected speech and that they didn’t constitute a threat under state law.

Presiding Judge Arthur Gilbert wrote that lyrics including “hunting down all these snitches” and “I’ll have your head just like a [deer]” could have been understood as a real threat against the two underage girls, who were identified in the song by name.

“Does it matter whether the alleged threat is on a work in a museum of modern art?” Gilbert wrote. “Philosopher and media expert Marshall McLuhan posited that the ‘medium is the message,’ ” Gilbert continued. “That may be so, but here the trier of fact determines the nature of the message whatever the medium.”

Santa Barbara County District Attorney Joyce Dudley, whose office is prosecuting the case, called the decision “very significant,” especially coming so soon after the Supreme Court’s decision in Elonis v. United States, which also dealt with alleged online threats.

“We really have to redefine what constitutes a threat,” Dudley said. “Most people have access to a computer or a smartphone, which means they’re subject to potential threats all the time.”

Anthony Murillo, an aspiring rapper from Santa Maria who went by “Lil A,” posted a song called “Moment for Life Remix” on the website Reverbnation in September 2013. Murillo wrote on his personal Facebook account that the song was dedicated to his friend Shane Villalpando who was then serving jail time on two convictions for unlawful sex with a minor.

Murillo’s lyrics referred to Villalpando’s two victims and called them “snitches” among other names. In the song, Murillo rapped, “I said go and get the Feds, ’cause you gonna end up dead/You gonna be laying on that bed, ’cause I’m coming for your head.”

After one of the victims heard the song, her mother contacted law enforcement, and Murillo was charged with two felony counts under California Penal Code Section 140, which makes it illegal to “willfully” threaten to use force against a crime victim.

In May 2014, Santa Barbara County Superior Court Judge Rick Brown held that though the song’s lyrics were “vulgar” and “misogynistic,” they did not amount to a willful threat to use force against the victims.

But in Tuesday’s decision, Gilbert disagreed. His opinion pointed out that Murillo’s Reverbnation page included a photograph of him holding a shotgun. “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,” Gilbert wrote.

Although both sides addressed the Supreme Court’s June decision in Elonis, it didn’t factor in Wednesday’s ruling. Gilbert wrote that the Elonis decision dealt with the state of mind required for conviction under the federal statute and didn’t apply to the state law at issue in Murillo’s case.

Murillo’s lawyer, David Andreasen, said Wednesday that his client hadn’t yet decided on whether to seek review by the California Supreme Court. “I don’t believe the decision forecloses any First Amendment defense Mr. Murillo may have at trial,” he said.

For more on this story go to: http://www.therecorder.com/id=1202732855002/Court-Revives-Gangster-Rap-Threat-Case#ixzz3griaKIgS