People v. Ominsky CA2/1

Filed 5/18/23 P. v. Ominsky CA2/1
Opinion following recall of remittitur
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B312573
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. SA102236)
v.
DANIEL OMINSKY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jeffrey W. Korn, Temporary Judge. (Pursuant
to Cal. Const., art. VI, § 21.) Affirmed.
Katharine Eileen Greenebaum, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stacy Schwartz and Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
A jury convicted defendant and appellant Daniel Ominsky
of one count each of criminal threats (Pen. Code, § 422, subd.
(a)),1 felony vandalism (§ 594, subd. (a)), and attempting to
dissuade a witness (§ 136.1, subd. (a)(2)). The trial court imposed
a suspended sentence of 16 months in prison and placed Ominsky
on two years of probation, one of the terms of which was to serve
180 days in jail. The court also imposed $2,905.23 in victim
restitution, as well as several fines and assessments.
Ominsky contends that the trial court erred by failing to
instruct the jury on the lesser-included offense of attempted
criminal threats. He also contends that his trial attorney
rendered ineffective assistance by failing to contest the amount of
restitution, which he claims should have been reduced by $300.
We conclude that any error in the jury instructions was harmless,
and that Ominsky has failed to prove ineffective assistance of
counsel. Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
The enmity between Ominsky and Erick Paiz, Jr., dated to
2007, when Paiz testified in court about an incident in which a
friend of Ominsky’s stabbed Paiz. Shortly thereafter, Ominsky
began calling Paiz a snitch whenever he encountered him.
Ominsky’s verbal attacks escalated in 2018 and 2019 to the point
that Paiz found them intolerable. One day in July 2019, Paiz
confronted Ominsky in a park. They threw punches at one
another, and when Ominsky grabbed a knife he had concealed
behind a park bench, Paiz picked up a chunk of concrete that had
1Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
detached from the sidewalk. Paiz hit Ominsky with the piece of
concrete, knocking him to the ground, and walked away. A few
months later, Ominsky parked his car in front of Paiz’s house, got
out, flicked a lit cigarette at Paiz, and said, “when I see you on
the streets I’m gonna get you.”
The situation came to a head on the afternoon of
December 9, 2019, when Paiz returned home from buying gas for
use in his work as a welder and saw Ominsky parked across the
street. Paiz parked his father’s van in the driveway and started
unloading it. Ominsky waved at Paiz and told him to come
toward him, but Paiz replied, “You come over here.” Ominsky got
out of his car, said that Paiz had disrespected him, and added,
“Let’s run it.” Paiz thought Ominsky wanted a fist fight and told
Ominsky he was busy, but would fight him later. Ominsky said,
“Man, if I had a gun [I’d] shoot you.” Paiz laughed nervously and
said, “It’s cool.”
Ominsky started walking toward Paiz and said, “Fuck it.
I’m gonna stab you.” Ominsky pulled out a knife, and Paiz
backed up toward the garage, which was at the back of the
property, as quickly as he could while holding a welding tank.
Ominsky pointed the knife at Paiz. Paiz kept moving backwards,
believing that if he turned his back, Ominsky would stab him.
Paiz yelled at his father and a friend who were in the backyard,
asking them for a weapon to use against Ominsky. When he got
their attention, he yelled that Ominsky “is in the front and he is
for real trying to stab me.”
When Ominsky reached the van, he stopped pursuing Paiz
and began punching the passenger side of the vehicle. Paiz saw
Ominsky punch the windows of the van several times. Ominsky
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then turned to walk back toward his car, scratching the side
panels of the van with his knife as he went.
Paiz made his way to the back yard. According to Paiz’s
father, Paiz looked “really scared.” Paiz’s father ran to the front
of the house, where he saw Ominsky making a U-turn and
driving away. Paiz grabbed a wrench and followed his father to
the front yard, but by the time he got there, Ominsky was gone.
Paiz’s wife, Cristina Martinez, was pulling up to the property in
her car just as Ominsky was leaving. Paiz’s father told her to call
the police, and she did so over Paiz’s objection. Martinez
described Paiz as appearing “pretty shooken [sic] up,” and “a
little pale.”
Paiz’s father took the van to a body shop, which gave him
an estimate of $2,905.23. The bill included $2,605.23 to repair
the scratches caused by the knife, and $300 to repair a dent on
the side panel. Paiz and his father both testified that there had
been no damage to that side of the vehicle before Ominsky
attacked it.
Police officers arrested Ominsky almost two months later,
on January 25, 2020, searched him, and found a knife in his
pocket similar to the knife Paiz described. Martinez and Paiz’s
father both testified that they heard Ominsky outside their home
two days later, on January 27. According to Martinez, Ominsky
was parked outside of the house in his car. He yelled, “I’m going
to kill you. I’m going to shoot you. I’m going to get you, you
fuckin’ snitch.” He began making U-turns in the car, screeching
his tires and burning rubber. He yelled, “I just got out of jail. I’m
on bail, you fuckin’ snitch. I’m going to get you. I’m going to
shoot you.” Paiz’s father testified that Ominsky yelled, “I’m
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gonna come and get you, you and your father. I’ll put a bullet in
your head.”2
DISCUSSION
A. There Was No Prejudicial Error in the Trial Court’s
Failure to Instruct the Jury on Attempted Criminal
Threat
Ominsky contends his criminal threats conviction should be
reversed because the trial court erred by failing to instruct the
jury on attempted criminal threats, which he describes as a lesser
included offense of criminal threats.3 We need not decide
2 For his actions on January 27, 2020, after being released
from jail, the People charged Ominsky with attempting to
dissuade a witness. The charge of criminal threats was based
solely on his earlier actions on December 9, 2019.
3 Courts, including our Supreme Court, have referred to
attempted criminal threats as a “lesser included offense” of
criminal threats, albeit without analysis. (E.g., People v.
Chandler (2014) 60 Cal.4th 508, 513; People v. Toledo (2001) 26
Cal.4th 221, 226; In re Sylvester C. (2006) 137 Cal.App.4th 601,
607.) We assume for the purposes of this argument that this is
correct. If not, Ominsky would have no right to an instruction on
the lesser offense. (See People v. Birks (1998) 19 Cal.4th 108, 136
[defendant has no “unilateral entitlement to instructions on
lesser offenses which are not necessarily included in the
charge”].) “ ‘Under California law, a lesser offense is necessarily
included in a greater offense if either the statutory elements of
the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that
the greater cannot be committed without also committing the
lesser.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142,
154, fn. 5.) “ ‘An attempt to commit a crime consists of two
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whether the trial court erred because Ominsky has failed to show
that the lack of an instruction prejudiced him.
Ominsky did not request such an instruction, but “[t]he
trial court has a duty to instruct the jury sua sponte on all lesser
included offenses if there is substantial evidence from which a
jury can reasonably conclude the defendant committed the lesser,
uncharged offense, but not the greater. [Citations.] The duty
exists even when the lesser included offense is inconsistent with
the defendant’s own theory of the case and the defendant objects
to the instruction. [Citations.] This instructional requirement
‘ “prevents either party, whether by design or inadvertence, from
forcing an all-or-nothing choice between conviction of the stated
offense on the one hand, or complete acquittal on the other.
elements: a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.’ As a consequence,
when the completed offense is a general intent crime, an attempt
to commit that offense does not meet the definition of a lesser
included offense under the elements test because the attempted
offense includes a specific intent element not included in the
complete offense.” (People v. Ngo (2014) 225 Cal.App.4th 126,
156, fn. omitted, quoting § 21a.) On the other hand, when the
completed offense requires a specific intent, the definition of
attempt “does not add a specific intent element not already
included under the definition of the completed offense.
Accordingly, the attempted crime is distinguished from the
completed crime only by the failure to complete the actus reus,
and the attempted offense is a lesser included offense under the
elements test.” (Id. at p. 157.) The completed offense of criminal
threats includes one element involving specific intent. It requires
“that the defendant made the threat ‘with the specific intent that
the statement . . . is to be taken as a threat.’ ” (People v. Toledo,
supra, 26 Cal.4th at p. 228, quoting § 422.)
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Hence, the rule encourages a verdict, within the charge chosen by
the prosecution, that is neither ‘harsher [n]or more lenient than
the evidence merits.’ ” ’ [Citations.]” (People v. Brothers (2015)
236 Cal.App.4th 24, 29-30.)
“We review the trial court’s failure to instruct on a lesser
included offense de novo [citations] considering the evidence in
the light most favorable to the defendant.” (People v. Brothers,
supra, 236 Cal.App.4th at p. 30.) “[T]he failure to instruct sua
sponte on a lesser included offense in a noncapital case is, at
most, an error of California law alone, and . . . is not subject to
reversal unless an examination of the entire record establishes a
reasonable probability that the error affected the outcome.”
(People v. Breverman, supra, 19 Cal.4th at p. 165.)
To prove a defendant guilty of making a criminal threat in
violation of section 422, “the prosecution must establish all of the
following: (1) that the defendant ‘willfully threaten[ed] to commit
a crime which will result in death or great bodily injury to
another person,’ (2) that the defendant made the threat ‘with the
specific intent that the statement . . . is to be taken as a threat,
even if there is no intent of actually carrying it out,’ (3) that the
threat . . . was ‘on its face and under the circumstances 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 prospect of execution of the threat,’
(4) that the threat actually 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 the threatened person’s
fear was ‘reasonabl[e]’ under the circumstances.” (People v.
Toledo, supra, 26 Cal.4th at pp. 227-228.)
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“The crime of attempted criminal threat encompasses
situations where a defendant intends to commit a criminal threat
‘but is thwarted from completing the crime by some fortuity or
unanticipated event.’ [Citation.]” (People v. Chandler, supra, 60
Cal.4th at p. 515.) The fortuity or unanticipated event may take
several forms, one of which occurs “if a defendant, . . . acting with
the requisite intent, makes a sufficient threat that is received
and understood by the threatened person, but, for whatever
reason, the threat does not actually cause the threatened person
to be in sustained fear for his or her safety even though, under
the circumstances, that person reasonably could have been placed
in such fear, the defendant properly may be found to have
committed the offense of attempted criminal threat.” (People v.
Toledo, supra, 26 Cal.4th at p. 231.)
Ominsky argues that the court was required to instruct the
jury on attempted criminal threats because a reasonable jury
could have found that Ominsky’s threat did not cause Paiz to feel
“sustained fear,” as required by section 422, subdivision (a).
According to Ominsky, Paiz was under threat from Ominsky only
for a moment before Ominsky turned away and began
vandalizing the van. In addition, Ominsky points out that
shortly after the incident, Martinez told a 911 operator that Paiz
was not hurt, “just a little shooken up,” and claims that Paiz did
not appear to be afraid during a police interview recorded about
one-half hour4 after the incident. He also notes that Paiz
testified that he “didn’t see a reason to” call the police after the
4The transcript of Martinez’s 911 call, made just after
Ominsky left Paiz’s home, states that it was recorded at 3:11 p.m.
The transcript of the police body camera video indicates that it
was recorded at 3:42 p.m. the same day.
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incident. Finally, Ominsky points out that when the trial court
denied his motion to dismiss the case for insufficient evidence, it
expressed some skepticism as to whether the evidence showed
that Paiz felt sustained fear.
We need not decide whether there was substantial evidence
to support an instruction on attempted criminal threats because
even if so, Ominsky has not shown he was prejudiced by the lack
of an instruction. It is true that the prosecution must show the
victim felt fear for “a period of time that extends beyond what is
momentary, fleeting, or transitory” (People v. Allen (1995) 33
Cal.App.4th 1149, 1156), but this does not imply a great length of
time. “ ‘ “Fifteen minutes of fear . . . is more than sufficient to
constitute ‘sustained’ fear for purposes of . . .section 422.” ’
[Citation.] Indeed, ‘[w]hen one believes he [or she] is about to die,
a minute is longer than “momentary, fleeting, or transitory.” ’
[Citation.]” (People v. Brugman (2021) 62 Cal.App.5th 608, 634.)
Under this definition, the evidence was overwhelming that
Paiz felt sustained fear as a result of Ominsky’s threat. Ominsky
highlights the trial court’s comment on the strength of the
evidence of sustained fear, which came in the context of deciding
Ominsky’s motion under section 1118.1 to dismiss the case. We
are aware of no law indicating that we should defer to such
comments while considering a separate legal issue (namely,
whether there is a reasonable probability the jury would have
convicted Ominsky of a lesser offense if the jury had been
instructed on one). Indeed, cases discussing the analysis of
harmless error under People v. Watson (1956) 46 Cal.2d 818make clear it is the responsibility of the “appellate court” to
independently to review the evidence. (See, e.g., People v.
Breverman, supra, 19 Cal.4th at p. 177.)
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With regard to the trial evidence, Paiz testified that he
believed at the time that Ominsky was likely to stab him. His
father testified that when Paiz reached the back yard, his skin
was white and he appeared to be very afraid. Martinez testified
that when she saw him shortly after Ominsky left, Paiz appeared
“pretty shooken up,” and “a little pale.” The jury most likely
would have interpreted Paiz’s request that his wife not call the
police not as a signal that he was unafraid, but rather as a
reflection of Paiz’s belief that it “is the worst to be known as a
snitch.” Because sustained fear need not have long duration,
Paiz’s apparent composure during his interview with police more
than 30 minutes after the incident is of minimal relevance.
Given this evidence, Ominsky has not shown that “it is
reasonably probable a more favorable result would have been
obtained” had the court instructed the jury on attempted criminal
threats. (People v. Beltran (2013) 56 Cal.4th 935, 955.) Here,
“the evidence supporting the existing judgment is so relatively
strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.”
(People v. Breverman, supra, 19 Cal.4th at p. 177.)
B. Ominsky Has Not Shown Ineffective Assistance of
Counsel on the Issue of Restitution
At the sentencing hearing, Ominsky’s attorney stipulated
to $2,905.23 in victim restitution. This was based on the body
shop’s estimate of the cost to repair the van, which included $300
to repair a dent in the side panel, and $2,605.23 to repair the
scratches from Ominsky’s knife. Ominsky contends that there
was no evidence that he caused the dent, and that his attorney
rendered ineffective assistance of counsel by failing to request
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that the court reduce the amount of restitution by $300. We
reject this claim because the record before us is insufficient to
show that Ominsky’s attorney acted unreasonably.
“To prevail on an ineffective assistance of counsel claim, the
defendant must show that (1) ‘counsel’s performance fell below a
standard of reasonable competence’ and (2) ‘prejudice resulted.’
(People v. Anderson (2001) 25 Cal.4th 543, 569 . . . ; see
Strickland v. Washington (1984) 466 U.S. 668, 687-688 . . . .)
Thus, ‘[e]ven where deficient performance appears, the conviction
must be upheld unless the defendant demonstrates prejudice, i.e.,
that, “ ‘ “but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” ’ ” ’ ” (People v. Le (2006) 136 Cal.App.4th 925, 935.)
“When examining an ineffective assistance claim, a
reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance. It is particularly difficult
to prevail on an appellate claim of ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57
Cal.4th 986, 1009.)
This case demonstrates why a habeas petition is often
preferable to a direct appeal for deciding a claim of ineffective
assistance of counsel. Most of the evidence at trial regarding
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damage to the van focused on the scratches, and there was little
testimony regarding the dent. The prosecutor asked Paiz if he
noticed any dents in the van that were not there before the
incident, but Paiz answered that he did not concentrate on the
condition of the van until later. Paiz testified that he saw
Ominsky hitting the van with his fists, but it is not clear whether
Paiz saw Ominsky hit the van anywhere other than its windows.
Both Paiz and his father testified that there was no damage to
the passenger side of the van before Ominsky punched and
slashed it, but in both instances the witnesses were focused
primarily on the scratches from the knife.
On the basis of the record before us, we cannot exclude the
possibility that Ominsky did not cause the dent, and his attorney
was deficient in failing to request a reduction in the amount of
restitution. But it is also possible that Ominsky did cause the
dent when he was punching the van, and that his attorney chose
not to challenge the amount of restitution because he knew it
would be a futile exercise. We “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” (People v. Maury (2003) 30
Cal.4th 342, 389; accord, Strickland v. Washington, supra, 466
U.S. at p. 689.) Given the ambiguities in the testimony, the
record before us is insufficient to overcome that presumption.
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DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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