Powers

An employee who listens to consumer complaints should have a thick skin. He or she might reasonably expect to hear complaints just like the ones in this case, i.e., complaints laced with references to bovine excrement, body parts and other vulgarities derived from sexually related terms. If the complaint is by telephone, the call recipient can be a crime victim (Pen. Code, § 653m, subd. (a)). 1 Alternatively, the caller may not threaten to inflict injury on the employee or use obscene language lewdly. Here, appellant made annoying telephone calls to a customer comment line using an abundance of vulgarities derived from sexually related terms, but not lewdly. He did not threaten to harm the recipient of his consumer complaints. Thus, as we shall explain, he did not violate section 653m, subdivision (a).

David Thomas Powers was convicted in a court trial of four misdemeanor counts of making annoying telephone calls to a customer comment telephone line maintained by the corporate office of Cold Stone Creamery. The trial court placed appellant on probation, ordered him to serve 540 days in county jail, with credit for 225 days of actual custody and 110 conduct credits, and…