Filed 8/25/2016

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

SERGIUS APOSTOLOS ORLOFF,

 Defendant and Appellant.

2d Crim. No. B266933

(Super. Ct. Nos. 2013020074, 2014008755)

(Ventura County)

A person confined to a wheelchair is capable of making a criminal threat. 

Here the threats were directed to a peace officer and a pharmacy manager. Similar prior 

threats were directed to workers’ compensation judges. We have compassion for a 

person confined to a wheelchair. However, pain and suffering does not give license to 

threaten people.

Sergius Apostolos Orloff appeals from the judgment entered after a jury 

had convicted him of making a criminal threat (Pen. Code, § 422)1and attempting, by 

means of a threat, to deter an executive officer from performing his duties. (§ 69.) The 

trial court found true allegations that he had been convicted of a prior serious felony 

within the meaning of section 667, subdivision (a)(1), and a prior serious or violent 

felony within the meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-(i), 

1170.12, subds. (a)-(d).) In the exercise of its discretion, the trial court dismissed the

strike and sentenced appellant to prison for eight years, eight months. It suspended 

 

1 Unless otherwise stated, all statutory references are to the Penal Code.
2

execution of the sentence and placed appellant on probation for 48 months on condition 

that he serve 365 days in county jail. 

Appellant contends: (1) the evidence is insufficient to support his 

convictions; (2) as to the criminal threat charge, the trial court erroneously failed to 

instruct the jury sua sponte that it must unanimously agree on the same specific criminal 

act; (3) appellant was denied his constitutional right to effective assistance of counsel; 

and (4) the trial court erroneously admitted evidence of his prior uncharged threats 

against other persons. We affirm.2

Threat to Deter Officer Kelley from Performing His Duties

Officer David Kelley had prior police contacts with appellant and was 

aware of his disability. He was investigating a citizen’s complaint that appellant had 

made “threats of bodily harm or death.” He telephonically spoke with appellant and the 

following conversation ensued:

“[Appellant]: Gets [sic] your facts together, nigger.

“[Kelley]: Wow.

“[Appellant]: You’re a fuckin’ nigger.

“[Kelley]: Yeah.

“[Appellant]: Yeah, and you’re a fuckin’ nigger. Gets your facts together 

you fuckin’ asshole.

“[Kelley]: Okay, Mr. Orloff.

“[Appellant]: Hey, you’re a fuckin’ dead nigger if you keep this shit up.”

 

2 Our summary of the facts is based solely on the evidence presented to the jury. 

Appellant’s summary of the facts in his opening brief includes facts that were not 

admitted in evidence during the jury trial: facts in the preliminary hearing transcript, the 

probation report, a police report, and a declaration for an arrest warrant. This is 

improper. In determining whether the evidence is sufficient to support appellant’s 

convictions, “‘we must resolve the issue in the light of the whole record - - i.e., the entire 

picture of the defendant put before the jury . . . .’” (People v. Johnson (1980) 26 Cal.3d 

557, 577, first italics in original, second italics added.) We deny appellant’s request, filed 

on February 16, 2016, to take judicial notice of the transcript of a 911 call made by 

Dennis Masino on February 25, 2014. Neither the transcript nor the recording of the call 

was before the jury. 
3

Even though Officer Kelley knew that appellant was confined to a 

wheelchair, he believed that the death threat was credible because appellant could pull the 

“trigger” of a firearm “to hurt, injure, kill someone.” He was afraid that appellant might 

shoot him. 

Threat Made Against Pharmacy Manager Masino

Dennis Masino worked as a store manager for CVS Pharmacy. His store

filled appellant’s prescriptions for pain medication. “[A] couple times that [appellant] 

was in the store, he got disruptive, started swearing at [Masino’s] staff and calling them 

names.” He was “just being very abusive verbally.” He threatened “to get [Masino] fired 

for [his] incompetency and being rude.” 

In February 2014 Masino told appellant that he was no longer welcome at 

the store and that his prescription would be transferred “to any pharmacist that he wants.”

But appellant insisted that Masino had “to give him his medications.” 

On February 25, 2014, Masino received two telephone calls from appellant. 

In the first call, appellant said to “expect something when you least expect it.” About 90 

minutes later, Masino received the second call. Masino said, “This is Dennis. How may 

I help you?” Appellant replied, “You're dead,” and hung up. 

Masino understood the threat to mean that his “life [was] at risk.” He was 

more scared than he had been in his entire life. He immediately called his district 

manager, who told him to call 911. For several months afterward, he took “extra 

precautions” while working at the store. Masino knew that appellant was in a wheelchair. 

But he considered appellant’s death threat credible because “[a]nybody could carry a 

gun.”

Sufficiency of the Evidence Regarding

Attempt to Deter an Executive Officer 

Appellant claims that the evidence is insufficient to support his conviction 

of attempting, by means of a threat, to deter an executive officer from performing his 

duties. (§ 69.) The term “‘executive officer’” includes peace officers “such as police 

officers or deputy sheriffs.” (In re Manuel G. (1997) 16 Cal.4th 805, 818-819.) The 
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crime “requires a specific intent to interfere with the executive officer’s performance of 

his duties [citation] . . . .” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154; see 

also People v. Lopez (2005) 129 Cal.App.4th 1508, 1530.)

“[W]e review the whole record in the light most favorable to the judgment 

to determine whether it discloses substantial evidence — that is, evidence that is 

reasonable, credible, and of solid value — from which a reasonable trier of fact could 

find the defendant guilty beyond a reasonable doubt.” (People v. Stanley (1995) 10 

Cal.4th 764, 792.) “The test is not whether guilt is established beyond a reasonable 

doubt. [Citations.]” (In re Roderick P. (1972) 7 Cal.3d 801, 808.) “We must presume in 

support of the judgment the existence of every fact that the trier of fact could reasonably 

deduce from the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.) 

“[W]e do not reweigh the evidence, resolve conflicts in the evidence, draw inferences 

contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]” (People v. 

Little (2004) 115 Cal.App.4th 766, 771.) “The conviction shall stand ‘unless it appears 

“that upon no hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.)

Appellant said to Officer Kelley, “Hey, you’re a fuckin’ dead nigger if you 

keep this shit up.” Viewing this statement in the light most favorable to the judgment, we 

conclude that a reasonable trier of fact could find beyond a reasonable doubt that 

appellant was attempting to deter Officer Kelley from performing his duty of 

investigating a citizen’s complaint that appellant had made “threats of bodily harm or 

death.” Accordingly, substantial evidence supports appellant's conviction. We reject

appellant’s argument that he “lacked the specific intent to deter the performance of a 

lawful duty” because his threat merely “insists that the officer comply with a legal duty to 

have his facts correct.” 

Sufficiency of the Evidence to Support Criminal 

Threat as to the Pharmacist

Appellant claims that the evidence is insufficient to support his conviction 

of making a criminal threat in violation of section 422. To prove this crime, “the 
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prosecution must establish all of the following: (1) that the defendant ‘willfully 

threaten[ed] to commit a crime which will result in death or great bodily injury to another 

person,’ (2) that the defendant made the threat 'with the specific intent that the statement . 

. . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that 

the threat . . . was ‘on its face and under the circumstances in which it [was] made, . . . so 

unequivocal, unconditional, immediate, and specific as to convey to the person 

threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) 

that the threat actually caused the person threatened ‘to be in sustained fear for his or her 

own safety or for his or her immediate family’s safety,’ and (5) that the threatened 

person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” (People v. Toledo

(2001) 26 Cal.4th 221, 227-228.)

Here, the criminal threat was appellant’s statement to Masino, “You’re 

dead.” The threat was made over the telephone. Appellant asserts: “What differentiates 

this case from a true criminal threat is that the threat was issued over the phone by a 

person known by its recipient to be disabled.” “Each time Masino saw appellant in the 

store he was in his motorized wheelchair.” “Masino’s knowledge of appellant’s 

disability shows Masino knew appellant as someone not to be feared.” A reasonable trier 

of fact could find that appellant’s threat conveyed to Masino “‘a gravity of purpose and 

an immediate prospect of execution of the threat’” and that Masino’s fear for his safety

“was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo, supra, 26 Cal.4th at p. 

228.) Masino reasonably believed that, despite appellant’s disability, he could carry and 

fire a gun.

Appellant also contends that his threat, “You’re dead,” was no more than 

“an angry utterance by a disgruntled customer frustrated that he was not allowed to obtain 

a prescribed pain medication . . . .” In support of his contention, appellant cites In re 

Ricky T. (2001) 87 Cal.App.4th 1132. There, a teacher opened a classroom door, which 

struck a 16-year-old student. The student “cursed [the teacher] and threatened him, 

saying, ‘I’m going to get you.’” (Id., at p. 1135.) The appellate court concluded that the 

evidence was insufficient to support the juvenile court’s finding that the student had 
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made a criminal threat in violation of section 422. The court reasoned: “[T]he remark 

‘I’m going to get you’ is ambiguous on its face and no more than a vague threat of 

retaliation without prospect of execution. [Citation.]” (Id., at p. 1138.) “Appellant’s 

statement was an emotional response to an accident rather than a death threat that induced 

sustained fear. . . . Students who misbehave should be taught a lesson, but not, as in this 

case, a penal one.” (Id., at p. 1141.) Here, in contrast, appellant’s statement, “You’re 

dead,” was a death threat that induced sustained fear. Unlike Ricky T., appellant’s threat 

was not merely “an angry adolescent’s utterances.” (Ibid.)

Alleged Failure to Give a Unanimity Instruction

“When an accusatory pleading charges the defendant with a single criminal 

act, and the evidence presented at trial tends to show more than one such unlawful act, 

either the prosecution must elect the specific act relied upon to prove the charge to the 

jury, or the court must instruct the jury that it must unanimously agree that the defendant 

committed the same specific criminal act. [Citation.] The duty to instruct on unanimity 

when no election has been made rests upon the court sua sponte. [Citation.] . . . [T]he 

principle has emerged that if the prosecution shows several acts, each of which could 

constitute a separate offense, a unanimity instruction is required. [Citation.]" (People v. 

Melhado (1998) 60 Cal.App.4th 1529, 1534.)

Appellant was charged with a single act of threatening Masino. Appellant 

argues that the evidence shows two criminal acts, but the prosecution did not elect the 

specific act relied upon and the trial court failed to give a unanimity instruction. One act 

was a clear death threat - “You’re dead.” The other act was a telephone call that 

appellant made approximately 90 minutes before the “You're dead” call. In the first call, 

appellant told Masino to “expect something when you least expect it.” This vague, 

ambiguous statement cannot constitute a separate criminal threat in violation of section 

422. Thus, the court was not required to instruct sua sponte on unanimity. (People v. 

Melhado, supra, 60 Cal.App.4th at p. 1534.)
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Effective Assistance of Counsel

Appellant maintains that he was denied his constitutional right to effective 

assistance of counsel because counsel failed (1) to introduce evidence of appellant’s 

mental illness; (2) to present the defense that, because of his mental illness and

medications taken to treat it, appellant “did not have the specific intent to deter Officer 

Kelley from [the] performance of his lawful duties”; (3) “to bring out the history of the 

relationship between Officer Kelley and appellant”; (4) “to distinguish Penal Code § 69 

from Penal Code § 422”; and (5) to present the defense that he did not threaten Officer 

Kelley.

The standard for evaluating a claim of ineffective counsel is set forth in 

Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]: 

“First, [appellant] must show that counsel's performance was deficient. . . . Second, 

[appellant] must show that the deficient performance prejudiced the defense.”

To establish deficient performance, appellant must show that counsel’s 

“performance fell below an objective standard of reasonableness under prevailing 

professional norms.” (In re Cudjo (1999) 20 Cal.4th 673, 687.) Appellant’s claims of 

deficient performance involve counsel’s tactical decisions. “‘“‘Reviewing courts defer to 

counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of 

counsel [citation], and there is a “strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.”’ [Citations.] . . . [W]e have 

explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions 

in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed 

reversible, and counsel’s decisionmaking must be evaluated in the context of the 

available facts.’”’ [Citation.]” (People v. Coffman (2004) 34 Cal.4th 1, 86.)

“In the usual case, where counsel’s trial tactics or strategic reasons for 

challenged decisions do not appear on the record, we will not find ineffective assistance 

of counsel on appeal unless there could be no conceivable reason for counsel’s acts or 

omissions. [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 926.) “Reviewing 

courts will reverse convictions on the ground of inadequate counsel only if the record on 
8

appeal affirmatively discloses that counsel had no rational tactical purpose for his act or 

omission. In all other cases the conviction will be affirmed and the defendant relegated 

to habeas corpus proceedings at which evidence dehors the record may be taken to 

determine the basis, if any, for counsel's conduct or omission. [Citation.]” (People v. 

Fosselman (1983) 33 Cal.3d 572, 581-582.)

Appellant has failed to carry his burden of showing that there could have 

been no conceivable reason for trial counsel’s allegedly deficient tactical decisions. With 

considerable hindsight, present retained appellate counsel simply speculates how a 

different defense could have been presented. In any event, appellant has failed to carry 

his burden of showing prejudice. Appellant “must carry his burden of proving prejudice 

as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or 

omissions of counsel. [Citation.]” (People v. Williams (1988) 44 Cal.3d 883, 937.) To 

prove prejudice, appellant “must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) We do not lack 

confidence in the outcome. The evidence against appellant is overwhelming.

Prior Uncharged Threats

Appellant claims that the trial court erroneously admitted evidence of his

prior uncharged threats against other persons. Appellant made the threats in 2008 while 

litigating his workers’ compensation claim before Judge Carero. Appellant telephoned

Judge Carero’s secretary, Belinda Doleman, and left a message “that he was going to get 

the fucking judge, that [the judge] better have a policeman available.” Later, appellant 

left a message for Judge Carero that “if he didn’t get what he wanted, he was going to 

jump out of his [wheel]chair and confront Judge Carero, . . . [and] make Judge Carero 

feel what it was like to be him and have a cervical discectomy . . . .” Appellant also said 

“something to [the] effect” that he was going “to break Judge Carero’s legs.” A few days 

later, appellant left a message that Judge Carero, Doleman, and David Brotman, another 

judge, “were going to meet members of the Russian Mafia” who “were going to make 
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sure [they] did what [appellant] wanted.” Appellant said “that he wasn’t going to call 

anymore because [the judges and the secretary] weren’t going to hear from him and that 

no one was going to hear from [them] either.” 

In arguing that the prior uncharged threats were admissible, the prosecutor 

declared: “This is the modus operandi of [appellant]. He gets upset about something and 

he begins to make threats that are taken as credible because of the severity and the 

language . . . used.” The trial court ruled that the evidence was admissible to show 

appellant’s “intent when he made the threats” as well as “common scheme or plan, and 

what happens when [he] becomes upset with people who are not behaving or conforming 

with his expectations . . . .” The trial court concluded that, pursuant to Evidence Code 

section 352, the “probative value” of the evidence outweighed its prejudicial impact. The 

prior uncharged threats resulted in appellant’s 2008 conviction of violating section 422, 

but the jury was not informed of the conviction. 

Appellant maintains that the trial court abused its discretion “under 

Evidence Code § 352 because the probative value of the 2008 threats was far outweighed 

by [their] prejudicial effect.” He contends that “[a]dmission of the 2008 threats was 

cumulative and unnecessary because each charge [in the instant case] . . . offered 

sufficient evidence for the . . . uncontested issues.” Appellant argues that he was 

prejudiced by the “Russian Mafia” threat because it showed that, although he was 

disabled, his threats could “be carried out by somebody else.” Thus, “[t]he Russian 

Mafia threat was the only threat that could cause a reasonable sustained fear given 

appellant’s disability.” Furthermore, “the 2008 Russian Mafia threat confused the issues 

and misled the jury because appellant did not allege to Masino or Officer Kelley that he 

had connections that could carry out a threat on his behalf.”

Evidence Code section 352 provides, “The court in its discretion may 

exclude evidence if its probative value is substantially outweighed by the probability that 

its admission will . . . create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” “A trial court’s exercise of discretion under Evidence 

Code section 352 will not be reversed unless it ‘exceeds the bounds of reason, all of the 
10

circumstances being considered.’ [Citation.]” (People v. Tran (1996) 47 Cal.App.4th 

759, 771.)

The trial court’s ruling did not exceed the bounds of reason. The prior 

uncharged threats were not “cumulative” evidence. They were highly probative to show 

that appellant had “‘committed similar distinctive acts of misconduct against similar 

victims under similar circumstances.’ [Citation.]” (People v. Walker (2006) 139 

Cal.App.4th 782, 803.) The evidence showed that, when appellant was frustrated by 

persons in positions of authority, he responded by making threats of violence. The prior 

threats were also probative to show that appellant “made the threat [against Masino]

‘with the specific intent that the statement . . . [was] to be taken as a threat.’” (People v. 

Toledo, supra, 26 Cal.4th at p. 228.) In addition, the prior threats were probative to show 

that appellant made the death threat against Officer Kelley in an attempt to deter him 

from performing his duties. (§ 69.) “[N]one of the uncharged conduct was particularly 

inflammatory compared to” the death threats against Masino and Officer Kelley. (People 

v. Lindberg (2008) 45 Cal.4th 1, 25.)

Appellant’s concern that the Russian Mafia threat “confused the issues and 

misled the jury” is unwarranted. The jury was instructed on the limited purpose for 

which the prior threats were admitted. We presume that the jury followed the instruction. 

(People v. Lindberg, supra, 45 Cal.4th at p. 26 [trial court’s instruction on limited 

purpose of evidence of uncharged robberies “eliminated any danger ‘of confusing the 

issues, or of misleading the jury’”].)

We reject appellant’s claim that the limiting instruction was misleading 

because it specifically referred only to the threats against Doleman and Judge Brotman 

and did not mention the threats against Judge Carero. The instruction made clear that it 

applied generally to evidence of “other offenses of criminal threats that were not charged 

in this case,” which included the threats against Judge Carero. In any event, appellant 

“did not object to or request amplification of the instructions provided and accordingly 

his claim that they were inadequate and misleading is forfeited on appeal. [Citation.]” 

(People v. Souza (2012) 54 Cal.4th 90, 120.)
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Conclusion

The law does not countenance threats of bodily harm against citizens, peace 

officers, or judges. This is true whether the threats are clear or veiled. Threats against 

peace officers or judges are directed not only to the individual but also to the public 

office that the individual occupies. Such threats strike at the heart of government and 

will not be tolerated.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
Nancy Ayers, Judge

Superior Court County of Ventura

______________________________

Scott H. Bentley, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney 

General, for Plaintiff and Respondent.