Metropolitan News-Enterprise


Friday, August 26, 2016


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C.A. Upholds Disabled Man’s Criminal Threats Conviction




The victim’s knowledge that the defendant was confined to a wheelchair did not preclude a finding that he reasonably feared the defendant would make good on a threat of violence, the Court of Appeal for this district ruled yesterday.

“A person confined to a wheelchair is capable of making a criminal threat,” Justice Kenneth Yegan wrote for Div. Six. “…We have compassion for a person confined to a wheelchair.  However, pain and suffering does not give license to threaten people.”

The court affirmed the conviction of Sergius Apostolos Orloff of Ventura on charges of making a criminal threat and obstructing an officer.

The obstruction charge resulted from a phone conversation between a police officer and the defendant, who suffers from a job-related spinal injury. The officer, David Kelley, had previous contacts with Orloff—who was sentenced to 180 days in jail several years ago for threatening to harm workers’ compensation judges—and was investigating a complaint he had threatened someone else.

Bad Language

According to a transcript introduced in evidence, Orloff told Kelley to “[g]ets [sic] your facts together” and repeatedly referred to the officer using an expletive, as well as an epithet for African Americans, to which the officer responded “Wow.”

He then told Kelley he would be “a dead n—- if you keep this s—- up.”

Kelley testified that he knew Orloff was disabled, but considered his comments a credible threat because he was capable of shooting a gun “to hurt, injure, kill someone,” including the officer.

The victim of the charged criminal threat in the current case, Dennis Masino, was the manager of a CVS pharmacy where Orloff had filled prescriptions. He banned Orloff from the store in February 2014 for verbally abusing other employees on multiple occasions, and said he would transfer his prescription “to any pharmacy he wants,” according to testimony.

A short time later, Masino said, he received two phone calls from Orloff about 90 minutes apart. The first time, he told the manager to “expect something when you least expect it,” and the second he said “you’re dead.”

Threat Reported

Masino said he took the threat seriously, reporting it to his district manager and then to police. He also said he began taking new security precautions at the store.

While he knew Orloff was confined to a wheelchair, he explained, “[a]nybody could carry a gun.”

The defendant was found guilty on both counts. Ventura Superior Court Judge Nancy Ayers placed him on four years’ probation, including 365 days in jail.

Yegan, writing for the Court of Appeal, said there was substantial evidence the defendant attempted to deter Kelley from doing his job by saying what he did in response to the officer telling him that he was investigating a threat to a citizen.

There was, he continued, also enough evidence to support the guilty verdict on the criminal threats charge. “Masino reasonably believed that, despite appellant’s disability, he could carry and fire a gun,” Yegan wrote, saying the trier of fact was not required to accept the defense assertion that the death threat was merely “an angry utterance by a disgruntled customer” who was having trouble filling his prescription for pain medication.

Previous Case

The justice went on to say that there was no error in admitting evidence of the threats made by Orloff in connection with his workers’ compensation case, including telling a secretary that the WCJ “better have a policeman available” and that if he didn’t get what he wanted out of the case, he would make the judge “feel what it was like to be him and have a cervical discectomy.” He also left a phone message threatening that the secretary and two WCJs “were going to meet members of the Russian Mafia.”

Yegan agreed with prosecutors that the prior threats were admissible as pattern evidence or to show specific intent, and that the trial judge “did not exceed the bounds of reason” by ruling that the evidence was more probative than prejudicial.

“The evidence showed that, when appellant was frustrated by persons in positions of authority, he responded by making threats of violence,” the justice said, adding that the trial judge gave a proper limiting instruction.

Threats against citizens, peace officers, and judges, he declared, “strike at the heart of government and will not be tolerated.”

The case is People v. Orloff, B266933.


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