P. v. Wozniski
Filed 9/19/13 P. v. Wozniski CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DARIO JOSEPH WOZNISKI,
Defendant and
Appellant.
H037538
(Monterey
County
Super. Ct.
Nos. SS110113 &
SS091047)
Defendant
Dario Joseph Wozniski appeals a judgment following a jury trial during which he
was convicted of five felony counts related to a
in his sentencing, because his conviction for
lesser included offense to assault with intent to commit oral copulation by
force or fear or sexual penetration by force or fear. (Penal Code, §§ 220, 21a, 288a, subd.
(c)(2).)
Statement of the Facts and Case
In January
2011, the victim in this case, John Doe, was homeless, and slept in a tented
area behind a shopping center. Defendant
also was homeless, and shared another tent with his friend, Donde Hearne. Doe and defendant would hang out together and
drink beer near their tents.
On January 14, 2011, Doe was at his
girlfriend, Regina LeVel’s house drinking beer and Schnapps. The two had an argument, and LeVel asked Doe
to leave. Doe left and went to the
wooded area behind the shopping center.
Doe stopped at defendant’s tent and joined defendant, Hearne and two
women who were visiting. The group sat
around a table and drank alcohol. The
women left after 15 minutes.
After a
while, defendant became aggressive with Doe.
Defendant gripped Doe’s neck in a chokehold, and forced Doe to walk with
him into the woods for about 25 to 30 feet from where they were
sitting. Defendant pushed Doe down and
pepper sprayed him. Defendant then
kicked Doe on the side of his face and pepper sprayed him again. Doe tried to sit up and get up from the
ground, but defendant continued to push him down.
After
dragging defendant away from where they were drinking, defendant took Doe into
a tent. While there, defendant unzipped
Doe’s pants and pulled them down, and then performed oral sex on Doe. Doe continued to try to sit up and to resist,
but each time, defendant punched him.
Doe saw Hearne approach the tent, and say, “That’s enough, Dario.†Defendant pushed Hearne away. When the police arrived, defendant and Hearne
were still arguing.
LeVel
called Doe on his cell phone prior to the assault. Doe picked up the phone, and kept it
connected, so LeVel was able to hear the entire interaction between Doe and
defendant. LeVel heard Doe say, “Please
don’t hurt me. I love you guys.†LeVel then heard movement, and hear Doe
choking. Defendant said, “Now I have you
where I want you. I could kill you if I
wanted to, Brother. You know that,
don’t you?†LeVel heard defendant tell
Doe to lick his penis. Defendant also
said to Doe, “[p]ut your finger in my ass and lick it and tell me if you like
it.†Doe continued to ask Doe not to hurt him. LeVel heard hits and kicks, and
heard Doe crying when he told defendant, “Yes, yes, that’s what I want. Okay.
Okay. That’s what I want.â€
Following
the phone call, LeVel called 911 to report the sexual assault. Before the sexual assault, defendant told
LeVel that he wanted Doe “to do me.â€
LeVel knew that defendant was not joking, and was sexually interested in
Doe.
Defendant
was charged in a seven-count information with assault with intent to commit a
lewd and lascivious act/penetration of genitals with a foreign object (§ 220;
count one), forcible oral copulation (§ 288a, subd. (c)(2); count two), false
imprisonment with violence (§ 237, subd. (a); count three), use of tear gas or
tear gas weapon (§ 12404.7, subd. (g); count four), prevention or
dissuasion of a witness (§ 136.1, subd. (a)(1); count five), resisting an
executive officer (§ 69; count six), and misdemeanor resisting a peace officer
(§ 148, subd. (a)(1); count seven).
Defendant
was tried by a jury in August 2011. The
jury found defendant guilty of counts one, three, five and seven. As to count two, the jury found defendant
guilty of the lesser included offense of attempted forcible oral copulation. The jury found defendant not guilty of counts
four and six. The court sentenced
defendant to seven years in state prison, and defendant timely appealed.
Discussion
Defendant
asserts on appeal that he could not be convicted on counts one and two because
count one is a lesser included offense of count two. In addition, defendant argues the abstract of
judgment should be modified to reflect the correct number of credits.
included offense
Defendant was convicted after trial
of assault with intent to commit oral copulation by force or fear or sexual
penetration by force or fear in count one, and as to count two, defendant was
convicted of the lesser included offense of attempted forcible oral
copulation. (§§ 220, 21a, 288a, subd.
(c)(2).) At sentencing, defense counsel
argued that multiple punishment on both count one and two would be a violation
of section 654. The court disagreed,
finding that counts one and two were not the same conduct. The court stated, “[I]t was a long series of
acts by the defendant. And to say that a
person can commit numerous violations against someone’s body, but only be
convicted of one sexual assault, there is no provision for that.†The court noted further that section 220 as
charged in count one refers to “assault with intent to commit mayhem, rape,
sodomy, or oral copulation.†Finally,
the court stated, “I think there were other attempted sex acts testified to.â€
Although defense counsel argued
that the punishment should have been stayed pursuant to section 654, on appeal,
defendant asserts he cannot be convicted of both counts one and two, because
they are based on the same conduct.
According to section 954, “[a]n accusatory pleading may charge two
or more different offenses connected together in their commission, or different
statements of the same offense . . . .
The prosecution is not required to elect between the different offenses
or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged . . . .†This rule has an exception in limited
circumstances, where one offense is a necessarily included lesser offense of
the other. Then, the lesser offense
should be dismissed by the trial court.
(See People v. Pearson (1986)
42 Cal.3d 351, 355.) “Although the
reason for the rule is unclear, the court has long held that multiple
convictions may not be based on
necessarily included offenses.
[Citations.]†(
An offense is a lesser included
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.†(
117, italics added.) Thus, “an offense
is necessarily included within a charged offense if under the statutory
definition of the charged offense it cannot be committed without committing the
lesser offense, or if the charging allegations of the accusatory pleading
include language describing the offense in such a way that if committed as
specified the lesser offense is necessarily committed.†(In re
Giovani M. (2000) 81 Cal.App.4th
1061, 1065-1066.)
Here, the trial court was correct
in its determination that count one was not a lesser included offense to count
two. The two charged crimes were
distinct, and the evidence supports a finding that they were based on different
conduct. Specifically, count one charged
defendant with assault with intent to commit oral copulation by force or fear
object by force or fear. In count two,
defendant was convicted of attempted forced oral copulation. The evidence at trial demonstrates a number
of acts by defendant that could satisfy these crimes. Doe said defendant forced him down and orally
copulated him. LeVel said she heard
defendant kicking and punching Doe, and telling Doe to lick his penis, and to
put his finger in this anus. In
addition, when the police arrived at the scene, defendant came out of the tent
and was pulling his own pants up, further supporting the contention that oral
copulation of Doe was not the only sexual act that occurred.
Here, count one is not a lesser
included offense of count two.
Specifically, the statutory definition of attempted oral copulation can
be committed without committing assault with intent to commit penetration with
a foreign object. (See
the court’s finding that the crimes were separate and distinct.
Modification
of Abstract of Judgment
Defendant
asserts the abstract of judgment must be modified to reflect the proper number
of credits. Specifically, defendant
argues he was entitled to 285 actual days of credit, but was only awarded 284
days at his sentencing.
The
Attorney General concedes that based on the date defendant was arrested and the
date he was sentenced, January 14, 2011, and October 25, 2011 respectively,
defendant is entitled to 285 days of actual credit. (See, e.g., People v. Bravo (1990)
219 Cal.App.3d 729, 735 [custody credit should be computed from the date of
arrest to the day of sentencing, and should included all days of custody,
including the day of sentencing].)
Disposition
The
abstract of judgment is modified to reflect 285 days of actual credit. As so modified, the judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
Penal Code unless otherwise noted.
