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. B2 66933 (Super. Ct. No s. 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. S imilar 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 ma king a criminal threat (Pen. Code, § 422) 1 and 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 mean ing 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, t he trial court dismissed the
stri ke and sentenced appellant to prison for eight years, eight months . It suspended

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

execution of the se ntence and placed appellant on probation for 48 months on condition that he serve 365 days in county jail.

Appellant contends: (1) the evidence is insuf fic ient 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 sa me 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 “ t hreats of bodily harm or death.” He telephonically spoke with appellant and the following conversation ensued:

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

“ [Kelley]: Wow.

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

“ [Kelley]: Yeah.

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

“ [Kelley]: Okay, Mr. Orloff.

“ [Appella nt]: Hey, you’ re a fuckin ’ dead n igger 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 d uring 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 w hole 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 req uest, 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 appella nt was confined to a wheelchair, he believed that the death threat was credible be cause appellant could pull the “trigger” of a firearm “to hur t, 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 t imes that [appellant] was in the store, he got disruptive, started swearing at [Masino ’ s ] staff and calling them
names.” He was “

ju st being very abusive verbally.” He threatened “ to get [Masino] fired for [hi s] incompetency and being rude.”

In Februar y 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 appe llant 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 some thing 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 repli ed, “You're dead,” and hung up.

Masino understo od 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 sev eral months after ward, 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 Det er 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 of ficers “ such as polic e officers or deputy sheriffs.” ( In re Manuel G. (1997) 16 Cal.4th 805, 818

- 819.) The4

crime “ requires a specific intent to inter fere with the executive officer’ s performance of
his duties [citation] . . . .” ( People v. Gutierrez (20 02) 28 Cal. 4th 1083, 1153

- 11 54 ; 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

reaso nable, credible, and of solid value

— from which a reasonable trier of fact could
find the defendant gu ilty beyond a reasonable doubt.” ( People v. Stanley (1995) 10 Cal.4th 764, 792 .) “ The test is not whether guilt is established beyond a reasonable
doub t. [ 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 9 13, 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 eviden ce 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 n igger 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 h is duty of investigating a citizen ’ s complaint that appellant ha d made “ t hreats 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 p erformance of a lawful duty ” because his thr eat 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 insu fficient to support his conviction
of m aking a criminal threat in violation of section 422. To prove this crime, “ the5

prosecution must establish all of the fol lowing: (1) that the defendant ‘ willfully threaten[ed] to commit a crime whic h will result in d eath or great b odily injury to another

pers on,’ (2) that the defendant made the threat ' with the specif ic intent that the statement .

. . is to be taken as a threat, even if there is no inte nt of actually carrying it out,' (3) that
the threat . . . was ‘ on its face and under the circumsta nces 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 prosp ect of execution of the threat,’ (4)
that the threa t actuall y 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 th e threatened

person ’s fear was ‘ reas onabl[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 appella nt as someone not to be fea red.” A reasonable trier of fact could find that appellant ’s threat conveyed to Masino “‘ a gravity of purpose and an immediate prosp ect of execution of the threat’” and that Masino’ s fear for his safety

“ was ‘reasonabl[e]’ under the circumstances.” ( Peop le 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 cust omer frustrated that he was not allowed to obtain

a pre scribed 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 teache r] 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 had6

made a criminal thre at 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.) “ App ellant’ 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, “Yo u’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 defendan t 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 mus t 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 pro secution 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, 1 534.)

Appellant was charged with a single act of threatening Masino. Appel lant 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 teleph one call that appellant made approximately 90 minutes before the “ You're dea d ” call . In the first call, appellant told Masino to “ expect some thing 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. 1 534.)7 Effective Assistance of Counsel Appellant maintains that he was denied his constitutional right to ef fective
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
medication s taken to treat it, appellant “ did not have the specific intent to d eter Officer Kelley from [the] p erformance of his lawful duties” ; (3) “ to bring out the history of the relationship betwe en Officer Kelley and appellant ” ; (4 ) “ to distinguish Penal Code § 69
from Penal Code § 422” ; and (5) to present the defe nse that he di d not threaten O fficer 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 d eficient. . . . Second, [appellant] must show that the deficient perf ormance 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.) A ppellant’ s claims of deficient performance involve counsel’ s tactical decisions. “‘“‘ Re viewing courts defer to counsel’ s reasonable tactical decisions in examining a claim of ineffective as sistance of
counsel [citation], and there is a “ s trong presumption that counsel ’ s conduct falls within the wide range of reasonable professiona l assistance.”’ [Citations.]

. . . [W] e have explained that ‘ courts should not second

- guess reasonable, if diff icult, 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 cont ext 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 co unsel ’ s acts or omissions. [Citations.]” ( People v. Weaver (2001) 26 Cal.4th 876, 9 26 .) “ Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on8

appeal affirmatively discloses that counsel had no rational tact ical 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 omi ssion. [Citation.]” ( People v.
Fosselman (1983) 33 Cal. 3d 572, 581

- 5 82 .)

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 bu rden of proving prejudice

as a ‘de monstrable reality,’ not simply speculation as to the effect of the errors or omi ssions of counsel. [Citation.]” ( People v. Williams (1988) 44 Cal. 3d 883, 937 .) To prove prejudice, appellant “ must show that there is a reasonable pr obability that, but fo r counsel’ s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to under mine confidence in the
outcome.” ( Strickland v. Washington
, supra , 466 U.S. at p. 694.) We do not lac k 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 clai m 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, a ppellant left a message for Judge Carero that “if he didn’ t get what he wanted, he was going to jum p out of his [wheel] chair and confront Judge Carero , . . . [and] make Judge Carero
feel what it was like to be him and hav e 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 me et members of the Russian Mafia” who “ were going to make9

sure [the y] did what [appellant] wanted.” Appellant said “ that he wasn ’ t goi ng 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.”

I n 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 severi ty and the langua ge . . . 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 b ehaving or conformin g with hi s 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 secti on 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 cont ends that “ [a]dmission of the 2008 threats was cumulative and unnecessary because each charge [in the instant case] . . . offered
sufficient evidence for the . . . un contested issues .” Appellant argues that he was prejudiced by the “ Russian Mafia ” threat because it showed that, although he w as disabled, his threats could “ b e 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 200 8 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. ”

Evide nce Code section 352 provides, “ The court in its discre tion may exclude evidence if its probative value is substantially outweighed by the probability that
it s admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ” “ A trial court’ s exercise of d iscretion under Evidence
Code section 352 will not be reversed unless it ‘ exceeds the bounds of reason, all of the10

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 sh ow that appellant had “‘ committed similar distinctive acts of misconduct against similar
victims under si milar 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 pr obative to show that appellant “ mad e the threat [against Masino]

‘ with the specif

ic 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 partic ularly 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 instructi on. ( People v. Lindberg
, supra , 45 Cal. 4th at p. 26 [trial court ’ s instruction on limited purpose of e vidence of uncharged robberies “eliminated any danger ‘ of confusing the
iss ues, or of misleading the jury’” ].)

We reject appellant ’ s claim that the limi ting 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

ap plied generally to evidence of “ other offense s 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 inadequat e and misleading is forfeited on appeal. [Citation.]” ( People v. Souza (2012) 54 Cal. 4th 90, 120 .)11 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.
CE RTIFIED 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, Attorne y 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.