Opinion
B156749.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN KAMA LOMAKO, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
Justin Kama Lomako appeals a judgment following conviction of attempted voluntary manslaughter, with findings of personal firearm use and personal infliction of great bodily injury. (Pen. Code, §§ 664, 192, subd. (a), 12022.5, subd. (a), 12022.7 .) We affirm.
FACTS
Duane Dubin and Danelle Fisher shared a room in a house in Black Lake Canyon in rural San Luis Obispo County. Dubin, a methamphetamine user, had criminal convictions for vandalism, battery, resisting arrest, and brandishing a weapon. Lomako and his girlfriend, Jule Menard, shared another room in the house.
Menard moved from the Black Lake Canyon house in July 2001, and agreed to sell her station wagon to Dubin for $ 100. Menard gave Fisher the keys to the station wagon and stated that she did not want Lomako to obtain the keys. Menard did not return to the house with ownership papers to the vehicle, however, and Dubin did not pay her. Lomako "pestered" Dubin for the vehicle keys or the $ 100, but Dubin kept him "out of the loop." In early August 2001, Dubin became angry and frustrated with the situation and he smashed the vehicles windows with a sledgehammer.
During the late afternoon of August 16, 2001, Lomako met Grant Cochran, a former resident of the Black Lake Canyon house, in a market parking lot. Lomako "rambled" about broken windows and keys and threatened: "Tell [Dubin] if I dont get the keys Im going to blow him away."
In the early morning of August 17, 2001, Dubin arrived home, ate some breakfast, and went to sleep on the futon he shared with Fisher. A paper plate, food, and a steak knife had been placed near the futon after Fisher finished her dinner the prior evening.
Residents of the house were moving that day because a land conservancy had purchased the property. Shortly after Dubin fell asleep, Lomako awoke him and reminded him that the residents were moving. Dubin replied that he was "going to sleep [and] forget about the world."
Lomako left but returned shortly and asked for the keys to Menards vehicle. Angry at being awakened, Dubin informed Lomako that the vehicle "didnt involve him." As he began to stand, Dubin saw that Lomako was in a "crouch" position with his hand on a firearm in a waist holster. Dubin became angrier and dared Lomako to shoot him.
From a distance of approximately 17 feet, Lomako fired the gun repeatedly. The first bullet struck Dubin in the left shoulder. He fell to his knees and was shot a second and third time. Dubin then tried to turn sideways to present "a smaller target." Lomako shot him a fourth time, striking him in the arm. Dubin looked at Lomako and asked, "Why?" Lomako did not answer but shot Dubin a fifth time in the buttocks.
Fisher and Richard Martin, another person in the house that morning, testified that they heard four rapid gunshots, a pause, and then a final shot. Two employees of the land conservancy who were on the property, however, testified that the gunshots were rapid without pause.
Lomako left the room and telephoned the police emergency dispatcher. He reported that his "roommate came at [him] with a weapon" and had been shot.
Fisher and Martin rendered first aid to Dubin. Lomako returned to the room with the gun. He remarked to Dubin: "Hang in there, buddy." Lomako directed Fisher and Martin to leave the room and wait in the driveway. Frightened of Lomako and the gun, they left.
Sheriffs deputies arrived, recovered the firearm, and arrested Lomako. The firearm, a .45-caliber handgun, was loaded and ready to fire. In an interview with sheriffs deputies, Lomako stated that Dubin came at him with a knife similar to a steak knife. Lomako stated that he had asked for the keys to Menards vehicle and Dubin stated: "Fuck you, motherfucker, I11 give you something."
At times, Dubin carried a skinning knife. He also possessed a machete, a bayonet, and other knives in his room. He testified at trial that he did not hold a knife at the time of the shooting.
Lomako testified at trial that he received firearms instruction in the army and from private instruction. He learned close quarters combat training in the army, including to "empty [his] weapon of all rounds until [an adversary] is down on the ground." Lomako stated that he had seen Dubin "attack[] other people" and that Dubin had threatened him and the Menard family. On one occasion, Dubin threw a crate at him and "charged" him.
Lomako also testified that Menard asked him to obtain the keys to the station wagon from Dubin. He denied threatening to "blow [Dubin] away." When Dubin approached him with a knife that morning, Lomako fired the gun repeatedly. Lomako stated that his acts in firing the gun and afterward, were consistent with his military and firearms training. He denied that he paused before the final shot or that Dubin questioned why he was being shot.
Dubin suffered five gunshot wounds and required surgery to repair a wound to his liver. He has been hospitalized repeatedly for complications arising from the gunshot wounds and will require further orthopedic surgeries. (Pen. Code, § 12022.7 [great bodily injury enhancement].)
The jury acquitted Lomako of attempted murder and convicted him of attempted voluntary manslaughter. It found that he personally used a firearm during the crime and personally inflicted great bodily injury. (Pen. Code, §§ 664, 192, subd. (a), 12022.5, subd. (a), 12022.7.) The trial court sentenced Lomako to a prison term of eight years, six months.
Lomako appeals and contends: 1) the trial court erred by instructing with pattern self-defense and imperfect self-defense instructions that do not include a) knowledge of the victims antecedent threats and violent acts, and b) defendants military and firearms training; 2) the trial court erred by not instructing sua sponte concerning the relevance of Dubins prior threats and violent acts; and 3) he received ineffective assistance of counsel.
DISCUSSION
I.
Lomako claims the trial court improperly instructed with pattern instructions on self-defense and imperfect self-defense. He contends the instructions do not expand the phrase "a reasonable person in a similar position" to include his knowledge of Dubins threats and violence and his military and firearms training. (People v. Pena (1984) 151 Cal. App. 3d 462, 475-476, 198 Cal. Rptr. 819 [absent requested instruction concerning the effect of the victims antecedent threats, jurors could believe pattern instructions precluded them from considering how threats affected defendants perception of immediate danger].) Lomako argues the instructional error is prejudicial under Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, because it concerns an element of the crime.
Lomako has waived this argument because he did not request amplification or clarification of the instructions. (People v. Sanders (1995) 11 Cal.4th 475, 533, 905 P.2d 420.) " A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (Ibid.) The trial court is not obligated to revise or improve accepted and correct jury instructions without request from counsel. (People v. Kelly (1992) 1 Cal.4th 495, 535, 822 P.2d 385; People v. Daya (1994) 29 Cal.App.4th 697, 714 ["Defendant is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, [or] refine standardized jury instructions"].)
Here the trial court instructed with complete and correct pattern instructions regarding self-defense and imperfect self-defense. The trial court permitted abundant evidence of Dubins antecedent threats and violent acts and defense counsel argued the effect of this evidence during summation. "It is unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give the defendants position full consideration." (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1665.) Moreover, for reasons discussed in II., post, Lomako has not suffered prejudice.
II.
Lomako argues that the trial court erred by not instructing sua sponte regarding the relevance of Dubins previous threats and violent acts to principles of self-defense. He asserts that such instruction is a general principle of law applicable to the case. Lomako points to the requested instruction in People v. Spencer (1996) 51 Cal.App.4th 1208, 1219, as a sample instruction concerning a defendant "acting more quickly and taking harsher measures for his . . . own protection" against one who has threatened or assaulted him or others previously. Lomako contends the error is prejudicial because it concerns a failure to instruct on an element of the crime.
The trial court properly admitted evidence of Dubins threats and assaults against Lomako and others. (People v. Spencer, supra, 51 Cal.App.4th 1208, 1220.) Had Lomako requested an instruction regarding the relevance of this evidence, the trial court would have been obliged to so instruct. (Ibid.) Nevertheless, the trial court had no duty to sua sponte instruct with a pinpoint instruction.
A pinpoint instruction relates "particular facts to a legal issue in the case or pinpoints the crux of a defendants case . . . ." (People v. Saille (1991) 54 Cal.3d 1103, 1119, 820 P.2d 588.) "[Pinpoint instructions] are required to be given upon request when there is evidence supportive of [defendants] theory, but they are not required to be given sua sponte." (Ibid.)
In any event, Lomako suffered no prejudice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. (People v. Humphrey (1996) 13 Cal.4th 1073, 1085, 921 P.2d 1 [Watson standard of review where trial court instructed jury not to consider evidence of battered womens syndrome]; People v. Spencer, supra, 51 Cal.App.4th 1208, 1221 [Watson standard of review where court refuses requested instruction relating victims antecedent threats to defendants use of self-defense].) The jury received proper self-defense instructions, including an instruction to decide all factual questions by considering the evidence presented at trial. (CALJIC No. 1.03; People v. Gonzales, supra, 8 Cal.App.4th 1658, 1665.) Lomakos attorney also discussed the evidence of antecedent threats and violent acts during summation. Moreover, there is no reasonable probability of a more favorable verdict — acquittal — given the evidence that Lomako, armed with a loaded firearm, entered Dubins room without invitation, awoke him, and broached a subject about which the two had disagreed. Lomako proceeded to empty his firearm into Dubin, even though Dubin had fallen to the floor. Lomakos right to defend himself, if it existed at all under these circumstances, ended when Dubin fell to the floor and spun around to the wall after having been shot numerous times. (CALJIC Nos. 5.52 & 5.53; People v. Parrish (1985) 170 Cal. App. 3d 336, 352, 217 Cal. Rptr. 700.)
III.
Lomako asserts that he received ineffective assistance of counsel because his attorney did not request a pinpoint instruction concerning Dubins antecedent threats and violent acts. He argues that had the instruction been requested and given, it is reasonably probable the jury would have acquitted him by reason of self-defense.
To establish the ineffective assistance of counsel, defendant must establish that counsels performance did not meet an objective standard of reasonableness under prevailing professional norms and that he suffered prejudice thereby. (Strickland v. Washington (1984) 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052; In re Gay (1998) 19 Cal.4th 771, 789-790, 968 P.2d 476.) Prejudice is established by showing that there is a reasonable probability that, but for counsels unprofessional conduct, the result would be different. (Strickland v. Washington, supra, 466 U.S. 668, 694.)
Alternatively, defendant may establish that, due to counsels inadequacy, the prosecutions case was not subject to adversarial testing. (United States v. Cronic (1984) 466 U.S. 648, 658-659, 80 L. Ed. 2d 657, 104 S. Ct. 2039; In re Gay, supra, 19 Cal.4th 771, 790.) For reasons already discussed, Lomako cannot meet his burden of establishing prejudice. (II., ante.) His ineffective assistance of counsel claim is without merit.
The judgment is affirmed.
We concur: COFFEE, J., and PERREN, J.