People v. Orloff
206 Cal. Rptr. 3d 755
| Cal. Ct. App. | 2016Background
- Defendant Sergius Orloff, a person confined to a wheelchair, was convicted by a jury of making a criminal threat (Pen. Code § 422) and attempting, by threat, to deter an executive officer from performing duties (Pen. Code § 69). The trial court found a prior serious felony and a Three Strikes allegation true, dismissed the strike, and sentenced him to 8 years 8 months, suspended for probation with 365 days in county jail.
- Officer David Kelley investigated a citizen complaint and received a phone call from Orloff in which Orloff said, “Hey, you’re a fuckin’ dead nigger if you keep this shit up.” Kelley, aware Orloff used a wheelchair, testified he feared Orloff could shoot him.
- CVS manager Dennis Masino received two calls on Feb 25, 2014: one telling him to “expect something when you least expect it,” and a later call in which Orloff said, “You’re dead.” Masino, who knew Orloff used a wheelchair, testified he was terrified and took extra precautions at work.
- The prosecution admitted prior uncharged threats Orloff made in 2008 against workers’ compensation judges and staff (including a “Russian Mafia” remark) to show intent, common scheme, and modus operandi; the jury received a limiting instruction.
- On appeal Orloff challenged (1) sufficiency of evidence for both convictions, (2) failure to give a unanimity instruction for the § 422 charge, (3) ineffective assistance of trial counsel, and (4) admission of prior uncharged threats under Evid. Code § 352. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for § 69 (attempt to deter officer) | Evidence (threat to Kelley) shows Orloff intended to deter a peace officer investigating complaints | Orloff lacked specific intent to deter; threat just insisted officer get facts straight | Affirmed — reasonable juror could find specific intent to deter from the death threat to Kelley |
| Sufficiency of evidence for § 422 (criminal threat to Masino) | The plain statement “You’re dead” caused sustained, reasonable fear and conveyed immediate prospect of execution | Orloff’s disability made the threat not credible and was an angry utterance, not a criminal threat | Affirmed — threat was unequivocal, caused sustained, reasonable fear despite wheelchair use |
| Sua sponte unanimity instruction for § 422 | Prosecution showed one act (the death call) and an earlier ambiguous call; no election made | Orloff argued jury must unanimously agree on which act constituted the charged threat | No unanimity instruction required — earlier ambiguous call (“expect something…”) was not a separate criminal threat |
| Admission of prior uncharged threats (Evid. Code § 352) | Prior threats showed modus operandi, intent, and were probative of specific intent and credibility | Orloff argued undue prejudice, confusion, and reliance on the ‘‘Russian Mafia’’ remark to overcome his disability | Affirmed — trial court did not abuse discretion; probative value outweighed prejudicial impact and limiting instruction cured risk |
Key Cases Cited
- In re Manuel G., 16 Cal.4th 805 (Cal. 1997) (definition of executive officer includes peace officers)
- People v. Gutierrez, 28 Cal.4th 1083 (Cal. 2002) (§ 69 requires specific intent to interfere with officer duties)
- People v. Toledo, 26 Cal.4th 221 (Cal. 2001) (elements of criminal threat under § 422)
- In re Ricky T., 87 Cal.App.4th 1132 (Cal. Ct. App. 2001) (ambiguous, adolescent threats may be insufficient for § 422)
- People v. Melhado, 60 Cal.App.4th 1529 (Cal. Ct. App. 1998) (unanimity instruction/election principles when multiple acts shown)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance standard)
- People v. Lindberg, 45 Cal.4th 1 (Cal. 2008) (admission of uncharged crimes and use of limiting instruction)
- People v. Walker, 139 Cal.App.4th 782 (Cal. Ct. App. 2006) (similar-act evidence probative for intent and modus operandi)