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Name: People v. Powers
Case #: B218687
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 03/02/2011

The crime of making annoying phone calls (Pen. Code sec. 653m, subd. (a)), requires proof of the use of threatening language towards the recipient, or the use of obscenities in a lewd manner. Appellant was convicted of four misdemeanor counts of making annoying telephone calls to employees of Cold Stone Creamery based on recorded messages where he called to complain about being “ripped off” by the store because he did not receive his full order. Appellant used profanities and sexually-related terms in his messages, although not lewdly, and threatened to “wage war” against other store customers once he became more physically fit. Appellant argued there was insufficient evidence to sustain the convictions. The appellate court agreed. First, the messages did not intrude on the privacy interest of a specific target, and the purpose of the statute is to protect the privacy rights of individuals. Except in rare cases, the court doubted whether a person whose job it is to receive consumer complaints could be the victim of this crime. Additionally, while appellant’s profanities were derived from sexually-related terms (such as the F word), they were not used in a lewd manner, but rather as verbs and adjectives to express his frustration. (Accord In re C.C. (2009) 178 Cal.App.4th 915.)