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The People v. David Thomas Powers

March 2, 2011


(Super. Ct. No. F427065) (San Luis Obispo County)

The opinion of the court was delivered by: Yegan, J


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)).*fn1 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 ordered him to pay certain fines.

Facts and Procedural History

In the fall of 2008, appellant made frequent telephone calls to the Cold Stone Creamery's customer service telephone line. The calls were not answered by a live person. Instead, appellant left lengthy recorded messages. In his calls, appellant said he was a devotee of the Cold Stone Creamery and frequented the store for over a year before he started complaining. He called himself a "big customer" saying that he has gone to the store on approximately 400 occasions in a year. He always identifies himself by his full name and leaves a telephone number in the event that someone would like to discuss his complaints. His tone alternates between praise with laughter and belligerency using profanity. He is particularly fond of pumpkin flavored ice cream. But in all of the messages, his theme is constant: he claims that he is being shorted, "ripped off," when he is buying a 48 ounce quantity of ice cream and is receiving less than that. He also complains that other customers in the store bother him. He has a penchant for the "F" word and says, "I have the right to complain." Not surprisingly, no one telephoned appellant to discuss his complaints. Instead, a complaint was made to the police.

In January 2009, appellant was charged with one felony count of making criminal threats against a Cold Stone Creamery employee, (§ 422) and several misdemeanor counts of making annoying telephone calls to a Cold Stone Creamery employee. The trial court found appellant incompetent for trial and he was committed to a state hospital for treatment. After his competency was restored, the felony charge was dismissed. Appellant agreed to a court trial and stipulated that recordings and transcripts of his telephone messages could be admitted into evidence. Appellant testified in his own defense. After listening to the recordings, the trial court found appellant guilty of four misdemeanors, as alleged in counts 5, 6, 8 and 9 of the complaint.

The Telephone Messages

Count 5 relates to the message appellant left at about 1:00 a.m. on October 8, 2008. In the beginning of this message, he complains that the container of ice cream he bought was not completely full, but he also states that he "really enjoy[ed]" the employees at the store. Appellant states that he had complained to the police about getting ripped off, but they didn't do anything. His experience at the store was "ninety-nine percent good[,]" but other customers threatened him. They made "some pretty serious comments" and "if they don't let up . . . then I get around to some of my four-letter words . . . . I don't need any of their fuckin' bullshit. You know they're breaking some very, very serious laws and the police department over there, I guess they think it's cute."

Appellant states that "war's been waged" on him for years and the police have arrested him "over how I stood up to somebody who did nothin' but, uh, terrorize me, traumatize me, or uh, do their best to do that." He says that "sometimes in my life it's led to me to kill police officers and deputy sheriffs and sometimes the clowns that work for the FBI . . . . I ever have problem with them and I'll take my fist and beat their faces in just like I would anybody else . . . ." If the police come to arrest appellant, "then I blow their brains out just like I would anybody else." He calls the other customers "trash" and wishes someone would "do somethin' about it." Appellant says that, if he gets more physically fit, he will "seriously just wage war on everybody with my fists. And they will not win. They've never won. They can't win. Like I said, I did all kinds of things in my life. One was -- I was the world heavyweight champion in boxing for so many years that yeah, it didn't matter what name I used, I -- I rarely used my real name[,]" because he would get arrested by a police officer, "and I'd just wage war on his face. So good luck. Thank you very much."*fn2

Count 6 relates to the message appellant recorded on October 27, 2008. In this shorter message appellant says, "I love your ice cream. I love everything about it. But every now and then, like I said, again tonight I got waited on and ripped off." He complains that he did not get all of the ice cream and "fixin's" he paid for. The staff was either "tellin' the truth or they're fuckin' lyin', you know, and I don't need to be patronized. And you know, I'm not bothered by it in the least, other than I'm gonna call you and keep tellin' you that nobody's done anything about the fact that I keep getting' ripped off." Appellant also complains about other customers playing a game with him and threatening him. "And so I'm continuin' to tell 'em, 'fuck you.' And, if it's a man, I tell him he's got mother for a fuckin' slut. And I don't regret it and I'm not gonna apologize for it if your employees would stop rippin' me off or I'm gonna continue to tell the customers that threaten me, 'fuck you.' And, if they got a mother, she's a fuckin' slut. Thank you very much."

Count 8 relates to the message appellant left on November 30, 2008: "Cold Stone Creamery customers are supposed to do their job. They're not supposed to let people flounder and feel helpless and hopeless and worthless and then turn around and lash out or commit a crime somewhere and then show up and then show up tryin' to be people's heroes." Appellant complains that he was "ripped off" again because an employee did not give him the correct number of brownies with his order. He thought this happened because another employee was there with some of her friends and they were saying things like, "It's okay to rape women; it's okay to do this; their dads are police officers, they're [sic] older brothers, whatever. I couldn't care less. I'm just there to get my ice cream. I pay for it; I go on my way. I bring it home and eat it. I wouldn't be caught dead eatin' there, not with the kind of fuckin' trash that stands around on the customer side of the counter and makes the threats they do and nobody does anything about it." Appellant claims that the police department is "dirty, underhanded[,]" and that police officers "will kill people, they will steal from people, and they will rape women and that's really wrong. So please try not to help that trash like Lizzie has and anybody else like Dennis and some of those other fuckin' assholes. Thank you very much."

Count 9 relates to the message appellant left on December 1, 2008. The tone of this call is similar to that of the November 30 message. Appellant again complains about other customers threatening him and influencing the way store employees prepare his ice cream. Appellant also complains that he got "ripped off" again because he did not get the number of brownies he paid for. He ended the call by saying, "Whoever's in charge over there is a ...

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