CHEAVES

A jury convicted appellant Frederick Bernard Cheaves of two counts of maliciously and falsely reporting the planting of a bomb in violation of Penal Code section 148.1, subdivision (c), and the trial court sentenced him to four years and eight months in state prison.

Appellant appeals on the grounds that: (1) his conviction violates federal due process in that the persons to whom appellant made false bomb threats are not persons who fall within the parameters of section 148.1, subdivision (c); and (2) the trial court committed prejudicial error by failing to instruct on the lesser included offense of calling the 911 emergency line with the intent to annoy or harass.

FACTS

A. Prosecution Evidence

On July 29, 2002, at approximately 5:40 p.m., Susan Lepre, who was working as a 911 operator, received a call from a man stating he had placed a bomb in the Los Angeles Times building earlier in the day. She generated an incident report that was transmitted to police officers electronically.

On the same day and at about the same time, Patrick Butler was working as a security guard in the Los Angeles Times building, stationed in a booth at the entrance to the building’s…