The People v. Wozniski CA6

Filed 9/19/13 P. v. Wozniski CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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.

1 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.”