Overruling not one but two Santa Barbara Superior Court Judges, an appellate court panel from Ventura ruled that the gangsta-rap lyrics written and performed by Orcutt rapper Anthony “Lil A” Murillo do not qualify as protected by free speech but “constitute a true threat” and “could be understood to convey a serious expression of intent to commit an act of unlawful violence.” The lyrics in question referred angrily and violently to Jane Does 1 and 2, two high school girls who testified they had been raped by Murillo’s best friend Shane Villalpando in 2012, when Murillo, Villalpando, and at least one of the victims were attending St. Joseph’s High School, a private Catholic prep school, together. A jury found Villalpando guilty on three counts of sexual intercourse with a minor, and he was sentenced to one year behind bars. Murillo, upset that his “nigga” had been unjustly accused and convicted, wrote and performed “Moment for Life Remix” and posted it on the song-sharing website ReverbNation.com.
In his tape, Murillo called out the two young women by name and rapped in apparent reference to the two Does, “I’m fucking all these bitches, hunting down all these snitches; shit you know we have no fear, I’ll have your head just like a deer … It will be hanging on my wall … I said go and get the Feds cuz your gonna end up dead.”
Murillo referred to the song on his Facebook page and provided links to the ReverbNation site. Jane Doe 2 heard about the posting, and after listening to it several times — the sound quality was poor and multiple attempts were required for the words to be made out — she called her mother, who in turn called law enforcement. Eleven days later, Murillo was arrested for making threats against two crime victims, each offense a felony. The case went before Judge Patricia Kelly last March in a preliminary hearing, and Kelly dismissed the charges. Kelly termed the song “harassing” but said, “I don’t see that this meets the element for the defendant willfully threatening to use force or violence against Jane Doe 1 or Jane Doe 2.”
In response, prosecuting attorney Jennifer Karapetian availed herself to a legal maneuver almost never attempted; she filed papers to have Kelly’s ruling reversed, and Judge Rick Brown heard arguments last May. Brown said he found the song “vulgar” and “misogynistic,” but like Kelly he did not believe it constituted a genuine threat. Brown ruled that the song was more an expression of frustration than of true threat, adding, “The intent of the song is rhyming rather than threat.” Brown cited the fact that Murillo posted his song on social media — not directly to either of the Does mentioned in his conclusion.
Karapetian then filed papers with the Court of Appeal, Second Appellate District in Ventura. If Murillo made the same statements via text message or email, she argued, the two judges would have ruled that they were threats. “The results shouldn’t be any different merely because the threats are in song.” As for intentionality, she argued, Murillo typed up his lyrics, posted them on a public website, and advertised them via Facebook and Twitter. She noted that on one Facebook page, Murillo is seen posing with a shotgun and that when he visited Villalpando in jail, he spoke boastfully of brandishing an Airsoft gun during a parking lot confrontation.
Defending Murillo at the appellate court level was attorney David Andreasen, who questioned how threatening the song could have been if it took law enforcement officers 11 days to arrest Murillo. He cited statements made by Jane Doe 2’s mother expressing more concern that her daughter might hurt herself than of the prospect of Murillo exacting revenge. Andreasen noted that both Jane Does had moved from Orcutt — citing abuse and harassment from peers in retaliation against their accusations and testimony — and that there was no way Murillo would have known how to find Jane Doe 2. Andreasen pointed out that the offending lyrics didn’t appear until the end of the song, which was clearly an expression of frustration rather than intent to harm. If the song is taken in its full context, he insisted, no reasonable person could regard it as a serious threat. “The First Amendment protects parody, rhetorical hyperbole, and loose figurative or hyperbolic language,” he wrote, “even when that language is offensive to the listener.”
None of that flew with the panel of three appellate court justices. In their ruling, they cited a precedent-setting case that establishes that Murillo need not be able to carry out his threat or that the threat be immediate for it to still constitute a threat against a witness.
Attorneys for Murillo insist he’s a good kid and point out that the shotgun referred to by the prosecutor was only a plastic toy. Neither would comment on what they might do next, but they do have 40 days to file a request for review with the California Supreme Court. Otherwise, the case will go to court for arraignment in two weeks.