Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 2008014907
Law Offices of Steve Pell, Steve Pell, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Sergius Orloff appeals from the judgment entered following his plea of guilty to one felony count of making criminal threats and one misdemeanor count of making annoying telephone calls. (Pen. Code, §§ 422, 653m, subd. (a).) The trial court suspended imposition of sentence and placed him on probation with terms and conditions requiring him, among other things, to serve 180 days in the county jail. Orloff contends the jail term imposed as a condition of his probation constitutes cruel and unusual punishment under our state and federal constitutions. We affirm.
All further statutory references are to the Penal Code.
The facts recited are taken from the probation report.
As a result of a work-related spinal cord injury, Orloff suffers from chronic back pain, anxiety disorder, and personality disorder. He was awarded a permanent disability rating of 100 percent on his worker's compensation claim, but was dissatisfied with the worker's compensation administrative law procedures requiring that 15 percent of the award be withheld for attorney's fees.
Orloff made annoying telephone calls to the administrative worker's compensation representatives beginning in 2006. From March 10, through April 8, 2008, in telephone and electronic communications, he repeatedly threatened Administrative Law Judge William Carrero, Judge David Brotman, and Judge Carrero's secretary, Belinda Doleman. On April 3, 2008, he left a voicemail message which included a threat for both Judge Carrero and Ms. Doleman. His message stated: "Hey listen you little witch Belinda... you tell Judge Carrero I'm going to be at the next fucking hearing. I've had it with the both of you. And I'm going to lay into Judge Carrero like he's never had mouth assault in his life. That crooked son-of-a-bitch has already been before (sic), and he's going to get nailed... and I mean nailed hard."
During March 10 through April 8, 2008, he repeatedly contacted Ms. Doleman by telephone and electronic communication, threatening bodily injury and harm to her, her family, and her property. One such call stated: "Now I've had it with your corruption... I've had it with this. You get in my way bitch... and I swear to God you're going to wish that you never worked there. Now I've had it. I'm not going to put up with your crap any longer. You have that man call me or I swear to God I'll keep calling and then when I get to that hearing... you better believe he's going to need a policeman in there. Because I'm going to give him a mouthful. And that's not even where it's going to start... you have no idea where it's going to end."
On March 27, 2008, Orloff placed a telephone call to the Ventura County Sheriff's Department and stated he possessed a "CCW license" (conceal/carry weapon) and would not hesitate to use a firearm if deputies went to his home.
On April 6, 2008, appellant left multiple voicemail messages for Judge Carrero, stating he would "jump out of that wheelchair, and straight across his bench... and break his legs." On another occasion he mentioned Judge Carrero, Judge Brotman, and Ms. Doleman were going to meet the members of the Russian Mafia. He stated: "You messed with the wrong Russian, a Russian that has lots of contacts within California, who knows who to contact and knows what to do."
Orloff was arrested and charged with three felony counts of making criminal threats and three misdemeanor counts of making annoying telephone calls. He admitted placing the telephone calls because he was upset by the pain of his physical impairment and agreed the telephone calls and voicemail messages were threatening.
In July of 2008, Orloff pleaded guilty to one count of making a criminal threat (§ 422), and one count of making annoying telephone calls (§ 653m, subd. (a)). In a written plea agreement, he agreed that the trial court could consider the police and probation reports to find a factual basis for the plea.
The trial court suspended imposition of sentence, placed Orloff on formal probation for 36 months on various terms and conditions, including that he serve 180 days in jail. The court dismissed the remaining charges. The court concluded the jail condition was warranted based, in part, on Orloff's criminal record for similar offenses and poor performance on probation. The probation report revealed that, in 2003, he suffered a misdemeanor conviction for violating section 653m, subdivision (c), after he made annoying or threatening phone calls to his neighbors. In 2008, he was again convicted of the same offense after he placed several increasingly hostile phone calls and sent fax transmissions to representatives of Health Quest Home Care due to his dissatisfaction with their service. He was again placed on probation and ordered to serve 180 days in jail. (The jail sentence was apparently stayed.) He was on probation for less than one year when he committed the current offenses.
Thereafter, Orloff moved to modify the terms of his probation to vacate the custody condition. He contended that the local jail was unable to provide the specific treatment his physicians had prescribed. One of his treating physicians recommended that he receive a combination of aqua therapy, acupuncture, and massage therapy twice weekly for 12 weeks. He argued that a jail sentence imposed on a defendant who has severe physical and psychological defects constitutes cruel and unusual punishment. His motion was documented by various medical records. The trial court denied his motion, but stayed Orloff's jail condition for six months (to April 15, 2009) to accommodate his treatment.
According to the probation report, in 2000, he was diagnosed with cervical spine spondyolotic myelopathy. He has had ten operations and is on 12 different medications for pain, anxiety, and depression. He is currently handicapped from the spinal cord injury and receives aqua therapy and acupuncture as a method of pain management.
DISCUSSION
Appellant contends that the jail condition of his probation constitutes cruel and unusual punishment under the state and federal Constitutions. We disagree.
Orloff waived this issue for appellate review by failing to object to the conditions of probation imposed at the sentencing hearing. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
"The grant of probation is, of course, qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither 'punishment' (see § 15) nor a criminal 'judgment' (see § 1445). Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation]." (People v. Howard (1997) 16 Cal.4th 1081, 1092; Petersen v. Dunbar (9th Cir. 1966) 355 F.2d 800, 802 ["Under California law jail detention may be ordered as a condition of probation... and when so ordered it is not regarded as punishment; it is regarded as part and parcel of the supervised effort toward rehabilitation which probation constitutes"]; see People v. Mancebo (2002) 27 Cal.4th 735, 754;.)
Even assuming, arguendo, that Orloff has not waived this issue for review and a probation condition could be considered "punishment," his contention fails. A sentence is cruel or unusual under California law if "'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Norman (2003) 109 Cal.App.4th 221, 230, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) In making the determination, "Lynch suggests three areas of focus: (1)the nature of the offense and the offender; 2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and 3) a comparison with the punishment imposed for the same offense in different jurisdictions." (Norman, at p. 230; citing Lynch, at pp. 425-427.)
The jail condition of Orloff's probation is not cruel and unusual punishment. He was 46 years old when he committed the current offenses, had two prior convictions for similar offenses, and was on probation for making annoying telephone calls when he committed the current, similar offenses. Prior attempts at rehabilitation and deterrence were clearly unsuccessful. Consequently, the terms and conditions of his probation were properly based on his current crimes, recidivist behavior, and lack of regard for rehabilitation. (See, e.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1432; People v. Cooper (1996) 43 Cal.App.4th 815, 825-826.)
Further, Orloff's suspended sentence and probation conditions fall well within the statutory sentencing provisions. Felony convictions for making criminal threats may be punished by 16 months, two years, or three years in state prison. (§§ 18, 422.) A person convicted of making annoying phone calls may be sentenced to county jail for up to six months. (§§ 19, 653m.) Orloff has not demonstrated that his suspended sentence and probation conditions are disproportionately harsh either to sentences imposed for more serious crimes in California or compared to recidivist sentences imposed by other states.
Finally, Orloff's sentence is not cruel and unusual under federal law which creates only a "narrow proportionality principle" in noncapital cases. (Ewing v. California (2003) 538 U.S. 11, 20.) "The gross disproportionality principal reserves a constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538 U.S. 63, 77.) The steps of the analysis under federal constitutional law are virtually identical to those applied under the state Constitution, and "the federal Constitution affords no greater protection than the state Constitution." (People v. Martinez (1999)71 Cal.App.4th 1502, 1510; Lockyer, at pp. 73-77.)
Orloff suggests that the Ventura County jail cannot accept him as an inmate and this substantiates his claim that the jail condition constitutes cruel and unusual punishment. The record on appeal reveals that, prior to the hearing on Orloff's motion to modify the terms of his probation, a representative of the Ventura County Sheriff's Department advised the trial judge that medical staff at the jail could not determine whether Orloff was fit for its facility because the Department had not yet received information from Orloff's physicians. In response to this advisement, the trial judge continued the hearing for one week and ultimately stayed Orloff's jail condition for six months (until April 15, 2009) to enable him to obtain certain treatment.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.