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Name: People v. Orloff
Case #: B266933
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/25/2016

Trial court did not abuse its discretion by admitting evidence of prior uncharged criminal threats in case involving the same offense. Orloff, who is confined to a wheelchair, was convicted of making criminal threats (Pen. Code, § 422) and attempting by threats to deter an executive officer from performing his duties (Pen. Code, § 69). A strike prior as well as a prior serious felony enhancement were found true (Pen. Code, §§ 667, subds. (b)-(i), 667, subd. (a)). On appeal he challenged the trial court’s admission of evidence of prior uncharged threats he made against other persons. Held: Affirmed. Evidence Code section 352 allows the trial court to exclude evidence if its probative value is outweighed by its prejudicial effect. A court’s exercise of its section 352 discretion is reviewed for an abuse of discretion. Here, the prior threats were not “cumulative” evidence and were highly probative to show that Orloff committed similar acts against similar victims in similar circumstances. The other acts evidence also reflected that Orloff intended his statements to be taken as threats. None of the evidence was particularly inflammatory compared to the current charges and the jury was given a limiting instruction regarding the purpose for which the evidence could be used. There was no abuse of discretion.

There was sufficient evidence that defendant attempted by means of threats to deter an executive officer from performing his duties. Officer Kelly called Orloff during his investigation of a citizen’s complaint that Orloff threatened to harm or kill him. During the conversation, Orloff directed racial slurs at Kelly and told him he “was dead” if he kept up his inquiry. Kelly feared that Orloff might kill him. Orloff claimed this evidence was insufficient to prove he intended to deter the officer from performing his duty because the statements were not threats but merely a way of insisting the officer comply with his duty to have his facts straight. However, the evidence of racial slurs combined with Orloff’s statements the officer was “dead” if he kept up his inquiry, were sufficient to support the conviction.

There was sufficient evidence that defendant made a criminal threat against a pharmacy manager even though defendant is confined to a wheelchair. Masino worked as a manager for CVS Pharmacy. His store filled Orloff’s prescriptions for pain medication. On several occasions when Orloff was in the store he became disruptive and swore at the employees. Masino told Orloff he was no longer welcome at the store and needed to have his prescriptions transferred. Thereafter Orloff made several threatening calls to Masino, including one where he said “You’re dead” and hung up. Masino felt his life was at risk. A criminal threat requires evidence the defendant threatened to commit a crime which would result in great bodily injury or death to another person, intended the statement to be taken as a threat, and the statement is so unconditional, immediate, and specific as to convey a gravity of purpose and immediate prospect of execution. The statement must place the victim in reasonable sustained fear. Orloff claims that Masino knew he was in a wheel chair and therefore was not someone to be feared. But the manager reasonably believed Orloff could carry a gun. The conviction is supported by substantial evidence.

Orloff was not denied the effective assistance of counsel. Orloff alleged his attorney was ineffective in a number of respects, including his failure to offer evidence of Orloff’s mental illness. A claim of ineffective assistance of counsel (IAC) requires a showing that counsel’s performance was deficient and that the deficient performance resulted in prejudice to the defendant. (Strickland v. Washington (1984) 466 U.S. 668.) Where counsel’s trial tactics do not appear on the record, the reviewing court will not find IAC on appeal unless there could be no conceivable reason for counsel’s acts or omissions. “With considerable hindsight, present retained appellate counsel simply speculates how a different defense could have been presented.” The record reflects neither deficient performance nor prejudice.

The full opinion is on the court’s website here: