People v. Orloff

• Decision Date: 17 July 2017
• Docket Number: 2d Crim. No. B275795
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SERGIUS APOSTOLOS ORLOFF, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. SERGIUS APOSTOLOS ORLOFF, Defendant and Appellant.

2d Crim. No. B275795

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

July 17, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 2013020074)

(Ventura County)

Sergius Apostolos Orloff appeals from an order revoking his probation and imposing a previously suspended prison sentence of eight years, eight months. We affirm.

Procedural Background

After a jury trial, appellant was convicted of making 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 meaning of section667, 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 court dismissed the strike and sentenced appellant to prison for eight years, eight months. It suspended execution of the sentence and placed him on probation on condition that he serve 365 days in county jail. Appellant appealed. We affirmed the judgment. (People v. Orloff (2016) 2 Cal.App.5th 947.)

In September 2015 appellant's probation was modified to prohibit him from contacting the Humane Society. In March 2016 he was charged with the following violations of probation: (1) with the intent to annoy or harass, he made repeated telephone calls to two probation officers in violation of section 653m, subdivision (b); (2) while incarcerated in the Ventura County jail, he broke a glass window in his cell door in violation of section 4600, subdivision (a); and (3) he contacted the Humane Society.

After an evidentiary hearing, the trial court found that appellant had committed the charged violations of probation. It revoked probation and imposed the previously suspended prison sentence of eight years, eight months.

Facts Underlying Probation Violations

In early January 2016 appellant telephoned the Humane Society in Ventura and left two voicemails for its employee, Tracy Vail. The "language" of the voicemails "was foul." Appellant threatened to report Vail's actions to "animal control" and to "seek restitution against" her. He complained that "Humane Society staff members had committed libel against him." He said that he would "be filing charges against the Humane Society."

On January 28, 2016, appellant's probation officer, Lisa Byrne, and another officer conducted a search of appellant's home. Appellant was in a wheelchair. During the search, appellant "became very agitated and upset. He began accusing [the officers] of threatening him, of hurting his service dog." The officers "were unable to get him to calm down. [They] were unable to get a word in between his rants of anger." The officers decided to leave the residence.

When Byrne returned to her office, she "discovered an entire full voicemail box with messages from [appellant]. Each one was at least two minutes long. . . . [H]e spoke until the machine cut him off." Appellant complained that Byrne had been "abusive" during the home search. "He threatened to contact Homeland [S]ecurity, the FBI, threatened to file charges against [her], to sue [her]." He said that Byrne had "disrespected him, . . . tor[n] his house up, [and] hurt his dog." "He told [Byrne] that he would be investigating [her], that he would hand [her] over on a silver platter. And basically he repeated the same thing [in] each and every message."

On her next work day, Byrne's voicemail box was again full with messages from appellant. "He spoke in each one until the machine cut him off. He said essentially the same things. He accused [Byrne] of using excessive force. He told [her] that . . . he would sue [her]. That [she] would be getting a bill from his veterinarian for assaulting his dog. [¶] He said he's launched an investigation with internal affairs, and that he's hired a[] private investigator." The messages "made [Byrne] concerned about [her] personal safety."

Christopher Martinez was a Senior Deputy Probation Officer who supervised Byrne. One of his "primary"responsibilities was "to field complaints concerning officers under [his] supervision." On his voicemail, he received 14 messages from appellant. They began on January 28 and continued through February 1, 2016. Each message was about two to three minutes long. Appellant said "he was gonna be digging up dirt on Lisa Byrne." She was not welcome in his home. If she came there, he would "call her every four-letter word i[n] the books until she starts to treat him better." Appellant claimed that Martinez was "terrorizing him" and was "crooked." He threatened to take legal action against Martinez. He said he was going to call Homeland Security and the FBI. Martinez testified: "[O]ne of the things that stood out to me was . . . saying that he has . . . won previous lawsuits, and he did have money to be able to do this. And then he also said that . . . my behavior was unacceptable and I will be dealt with." (Italics added.) This "rattled" Martinez and caused him to fear for his safety. He considered arming himself and discussed with Byrne whether she should arm herself.

In March 2016 appellant was incarcerated in the Ventura County jail. Martin Nunes, a deputy sheriff, heard appellant banging on the door of his cell. Nunes walked to appellant's cell and saw a "spider crack" in the door's glass window. Appellant said "he broke the window because he wanted to get [the deputy's] attention." In his reply brief appellant acknowledges that he broke the window with his "walker."

Lack of Notice

At the conclusion of the probation violation hearing, the court stated, "I . . . find there's sufficient evidence to believe that you failed to submit to a search [i.e., the January 28, 2016 probation search of appellant's home], and that the attempt tosearch was aborted by your conduct[,] [w]hich is another violation of your terms." Appellant claims: "The court's finding that [he] violated probation by failure to submit to a search must be vacated because there was no written notice that failure to submit to a search constituted a . . . violation of probation." (Capitalization omitted.)

The lack of notice was harmless beyond a reasonable doubt because the court found that appellant had committed the charged probation violations, which warranted the revocation of probation. "Thus, affording [appellant] a new probation revocation hearing would be a futile act . . . ." (People v. Arreola (1994) 7 Cal.4th 1144, 1162.)

Substantial Evidence: Violation of Section 653(m), Subdivision (b)

Appellant contends that there is no substantial evidence to support the trial court's finding that he violated section 653(m), subdivision (b), which provides: "Every person who, with intent to annoy or harass, makes repeated telephone calls . . . to another person is . . . guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls . . . made in good faith or during the ordinary course and scope of business."

"The standard of proof required at a probation violation hearing is a preponderance of the evidence to support the violation. [Citations.]" (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.) This standard "'simply requires the trier of fact "to believe that the existence of a fact is more probable than its nonexistence . . . ."'" (In re Angelia P. (1981) 28 Cal.3d 908, 918.) We "view the evidence in the light most favorable to respondent and presume in support of the [trier of fact's finding] the existence of every fact the trier couldreasonably deduce from the evidence. [Citations.]" (People v. Reilly (1970) 3 Cal.3d 421, 425.)

Ample evidence supports the trial court's finding that appellant committed a violation of section 653(m), subdivision (b). Appellant relies on People v. Powers (2011) 193 Cal.App.4th 158, but it is distinguishable. Unlike appellant, the defendant in Powers was not charged with violating section 653(m), subdivision (b). Instead, he was charged with making phone calls during which he had used obscene language or had threatened to inflict injury with intent to annoy in violation of section 653(m), subdivision (a).² The recipient of the calls was an employee at the corporate office of Cold Stone Creamery. The employee's job was to listen to consumer complaints. In reversing the defendant's conviction, this court concluded: "The [telephone] messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant's language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion. [Citation.]" (People v. Powers, supra, at p. 166.)

Appellant's phone calls to the probation officers were not "annoying rants concerning customer service" made to persons "whose job it is to receive consumer complaints." (People v. Powers, supra, 193 Cal.App.4th at p. 166.) It is reasonable to infer that the probation officers had "a right to privacy" against appellant's intrusive and threatening calls. (Ibid; see also People v. Hernandez (1991) 231 Cal.App.3d 1376, 1384 ["The purpose of section 653m is to deter people from making harassing telephone calls with the intent to annoy and thus, to secure an individual's right to privacy against unwanted intrusion"].)

We reject appellant's contention that...