Filed 2/27/23 P. v. Ominsky CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL OMINSKY,

Defendant and Appellant.

 B312573

 (Los Angeles County

 Super. Ct. No. SA102236)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Jeffery 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.

_____________________
2

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 

1 Unless otherwise specified, subsequent statutory 

references are to the Penal Code.
3

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 
5

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 
6

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.)
7

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.)
8

“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 

4 The 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.
9

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 818

make 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.)
10

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 
11

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 
12

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.