APPEAL from an order of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed. (Super. Ct. No. SCE281374).
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Ida Bleich appeals from the trial court's denial of her petition for a judicial finding of factual innocence (Pen. Code,*fn2 § 851.8), following the dismissal of charges that she made a terrorist threat (§ 422) and stalked the victim (§ 646.9). We affirm the trial court's order.
A. The Cell Phone Threat and Appellant's Arrest*fn3
Basil Abdulahad was a pharmaceutical technician employed by CVS Pharmacy. Appellant, a pharmacist, acted as Abdulahad's supervisor for six months, until he transferred to another CVS pharmacy in El Cajon, California. During the time she was Abdulahad's supervisor, appellant had occasion to call Abdulahad on his cell phone and drive him to work.
On June 7, 2008, at 3:18 a.m., Abdulahad received a message stored on his cell phone's voice mail. The message, which was laden with profanities,*fn4 accused Abdulahad of trying to sleep with the caller's girlfriend and purported to describe Abdulahad's activities on a recent night.*fn5 The caller threatened to slit Abdulahad's throat and put him in a body bag. The caller also indicated knowledge of where Abdulahad lived.
Abdulahad immediately believed the caller's voice sounded like appellant's voice, although he was not 100 percent sure. He played the message for his mother, and she, too, believed it was appellant's voice. Abdulahad, who listened to the message that afternoon, was frightened by it. Over the preceding few months, appellant began acting oddly toward him. She insisted Abdulahad allow her to pick him up at home and drive him to work. After he stopped accepting rides to work from appellant, she began harassing him, telling him to work harder and faster and at times acting jealous and hateful towards him. Sometimes she would degrade him or yell at him and then turn to customers or employees and smile. She began cutting his hours at work. When confronted by Abdulahad, appellant told him that she wanted him fired. Abdulahad was certain appellant would be able to carry out the threat or have one of her sons or family members carry it out for her. An hour after hearing the message, Abdulahad went to the police station to report the threat.
When El Cajon Police Officer Darren Ehlers interviewed Abdulahad on June 9, 2008, Abdulahad was visibly shaken. He was exhibiting fear and nervousness, and was trembling. He produced the cell phone with the threat on it and told Ehlers he believed the voice belonged to appellant, his supervisor. Ehlers listened to the tape and he thought it sounded like a female with a slow, rumbling, rambling voice. From his experience and training, it sounded like the person was either drunk or high on prescription drugs. At the time Ehlers did not know appellant worked at a pharmacy and had access to drugs.
Ehlers had Abdulahad make a written statement. Then, using a cassette-recording device he brought with him, Ehlers made an audio tape of the cell phone message. To make the audiotape, Ehlers placed Abdulahad's cell phone on "speaker phone" and recorded the message as it played. The cell phone caused some feedback in the recording device. After making the recording, the cell phone was returned to Abdulahad, who wanted it in case he needed to make an emergency call.
Ehlers met Officers Hays and Stoller at the CVS pharmacy where appellant worked. Abdulahad drove there separately and remained outside because he was too frightened to go into the store. The officers contacted Josephine Cavada, an assistant manager at the CVS pharmacy, and asked her to step outside, listen to the threat and see who she thought might have left the message. Cavada was given Abdulahad's cell phone and listened to the message recorded there. Cavada's eyes "went big and round" and she stated, "That's Ida. These are some serious threats. That definitely sounds like Ida to me."*fn6
After identifying appellant's voice, Cavada stated she had additional concerns. She noted appellant's harassment of Abdulahad, which included cutting back his hours for no apparent reason. In addition, customers expressed their belief appellant was stealing their pills and manipulating their narcotic prescriptions. There were also customer complaints about appellant yelling and cursing at customers and employees. Cavada was concerned because she believed appellant was working lengthy hours and was at the same time working at another pharmacy.
Following Cavada's identification of appellant's voice, Ehlers asked Cavada to bring appellant to the store office. Appellant was very defensive. She said that she was being "set up" before Ehlers said anything to her. Ehlers told appellant he was investigating threats made against an employee, but did not give her a name. Appellant responded by denying any wrongdoing and stating she "never threatened [Abdulahad]." Appellant also asked the officer if he had a recording of the threat and said the officer would have to prove it. Ehlers believed appellant's voice resembled that of the caller.
After conferring with one of the other officers and taking into account the totality of circumstances, which included the combination of a serious death threat and stalking, Ehlers arrested appellant. When Ehlers went outside and told Abdulahad of appellant's arrest, Abdulahad asked for a restraining order. Ehlers transported Abdulahad to the police station so that Ehlers could obtain an emergency protective order. Officers Hays and Stoller accompanied appellant to the police department for processing.
Before she was taken to the police station, appellant told Ehlers she did not have a purse or cell phone at the pharmacy. When Ehlers and Abdulahad arrived at the police station, Officer Hays told Ehlers that appellant had a cell phone at the pharmacy. Hays was sent back to the pharmacy to retrieve it in case it was the phone used to convey the threat. A few minutes after ...