Filed 9/19/13 P. v. Wozniski CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037538
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS110113 &
                                                                     SS091047)
             v.

DARIO JOSEPH WOZNISKI,

         Defendant and Appellant.



         Defendant Dario Joseph Wozniski appeals a judgment following a jury trial during
which he was convicted of five felony counts related to a sexual assault. On appeal, he
asserts the trial court erred in his sentencing, because his conviction for attempted
forcible oral copulation is a 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).)1
                                  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.


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             All further statutory references are to the Penal Code unless otherwise noted.
        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.”

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       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.” 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.
       Lesser 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.

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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.”
       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.]” (Ibid.)
       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.” (People v. Birks (1998) 19 Cal.4th 108, 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

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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 or
sexual penetration with a foreign 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 In re Giovani M.,
supra, 81 Cal.App.4th at pp. 1065-1066.) There was ample evidence at trial to support
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

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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.




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