Filed 6/24/24 P. v. Wilson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA EDWARD WILSON,

Defendant and Appellant.

F086073

(Super. Ct. No. DF016678A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John D. 

Oglesby, Judge.

Monica McMillan, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, 

Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Jeffrey D. 

Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.
2.

INTRODUCTION

Joshua Edward Wilson, appellant, was convicted of two counts of battery by a 

prisoner on a nonprisoner and attempted aggravated battery by gassing, with three prior 

strike convictions. He appeals from a sentence of 11 years. Appellant argues a statement

he made to a correctional officer was elicited in violation of Miranda,

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that Penal Code 

section 6542should apply to two of his counts, and that his counsel was ineffective 

during sentencing for failing to argue the latter. The People concede section 654 applies 

to counts 1 and 3 of appellant’s conviction, and we therefore vacate the sentence and 

remand the matter for resentencing. The judgment is otherwise affirmed. 

PROCEDURAL HISTORY

On April 8, 2022, the Kern County District Attorney filed an information charging 

appellant with two counts of battery by a prisoner on a nonprisoner (§ 4501.5; counts 1 &

2) and two counts of attempted aggravated battery by gassing (§§ 664, 4501.1; counts 3 

& 4), with three prior strike convictions (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)). 

The victim alleged in counts 1 and 3 was Cory Layshot, and the victim alleged in counts

2 and 4 was Stephanie T. The district attorney alleged three circumstances in aggravation 

as to each count.

On November 29, 2022, a jury convicted appellant of counts 1 through 3, and 

acquitted appellant on count 4. In a bifurcated proceeding, the trial court found true 

appellant’s prior strikes and the alleged aggravating circumstances.

On February 2, 2023, the trial court granted appellant’s Romero3 motion and 

struck two prior strike convictions. The court sentenced appellant to the upper term of 

1 Miranda v. Arizona (1966) 384 U.S. 436.

2 Statutory references are to the Penal Code. 

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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four years, doubled, on count 1, a consecutive two-year term on count 2, and a 

consecutive one-year term on count 3, for an aggregate term of 11 years.

STATEMENT OF FACTS

On June 26, 2021, Layshot, a correctional officer at Wasco State Prison in Kern 

County, was escorting appellant to a temporary holding cell. Appellant had just been 

involved in an altercation where he was battered by two other inmates and he was angry.

After Layshot placed appellant in the temporary holding cell and was securing the 

lock, he heard the sound of someone spitting, and saw saliva come from the cell. What 

Layshot described as a “good sized amount” of saliva landed on his pant leg. At trial, 

Layshot recreated the sound by pursing his lips and imitating a spitting noise.

Although Layshot did not see appellant spit the first time because he was focused 

on securing the lock to the holding cell, he did see appellant lean back and begin spitting 

several times afterward. Appellant spit toward Layshot and other staff, hitting psychiatric 

technician Stephanie as she was passing the holding cell. Spit landed on Stephanie’s

upper back and shoulder area. Stephanie testified that she was returning to her office 

after responding to an unrelated “code” out on the yard when spit flew out of the holding 

cell next to her office and landed on her shoulder.

Layshot retrieved a spit hood and opened the cell to secure it on appellant’s head 

and face. Layshot and correctional officer Heriberto Aguauio then tried to secure the 

holding cell, but appellant stuck his foot out to keep the cell door from closing.

Correctional sergeant Matthew Moyes was charged with decontaminating 

appellant because appellant had been previously exposed to pepper spray grenades.

4

Appellant was evaluated by a nurse for injuries, Moyes conducted an unclothed body 

search, and appellant was offered a shower and new clothes. Appellant then asked if he 

4 The record is unclear whether appellant was exposed to these grenades during the 

fight with the other inmates, or during the spitting incident.
4.

was going back to the housing unit he was originally assigned to. Moyes responded that 

he was not, he was going to administrative segregation. Appellant asked why. Moyes 

said, “[W]ell, did you spit on an officer and a nurse?” Appellant responded, “ ‘Yeah. I 

f[***]ing spit on that cop and nurse, and I would do it again.’ ”

DISCUSSION

I. Appellant’s Statement Was Not Acquired in Violation of Miranda

Appellant argues his statement, that he “ ‘spit on that cop and nurse,’ ” was elicited 

in violation of Miranda. Appellant contends that he was in custody and the question 

posed by Moyes was an interrogation. Therefore, appellant concludes the trial court 

erroneously allowed the statement be admitted as evidence. We disagree, and find 

although appellant was in custody, the question by Moyes was not an interrogation; 

therefore, the statement was not procured in violation of Miranda and was properly 

admitted as evidence. 

A. Background 

During motions in limine, the prosecution sought to introduce appellant’s 

statement to Moyes that appellant “ ‘spit on that cop and nurse.’ ” The prosecution

acknowledged appellant had not been Mirandized but argued the conversation with 

Moyes was not an interrogation.

Appellant argued he was obviously in custody while being asked questions that 

would elicit an incriminating response, he was not Mirandized, and it was essentially an 

admission.

The trial court initially ruled: 

“It’s an interesting statement as recited by [the prosecution] because

the officer is initially responding I think to a question of, why are you 

taking me? Where are we going? And the officer is explaining to him—the 

explanation could have been, you have to go to [administrative segregation] 

because you spit on someone, and this one was, you have to go to 

[administrative segregation]. You spit on someone, didn’t you? And,
5.

again, it’s a response to the question, not so much an interrogation of the 

reason for the move, and that makes it an interesting one. So I’m going to 

take it under submission.”

Subsequently, the trial court ruled:

“The Court does not find that that was an interrogation. The 

defendant was in custody at the time, was—essentially the officer was 

answering a question or making a point to the defendant rather than by 

declaration or simply by a question to the defendant to make a point to him 

based upon an issue that he had initiated, and, as such, I don’t find it a 

custodial interrogation. It is admissible.”

Following Moyes’s testimony, the trial court added: 

“On my ruling admitting the statement that just came in by this 

sergeant, I left something out in my ruling, and that came out in the cases 

[the prosecution] submitted to me. 

“Going back on these cases—which some of the cases I think 

submitted were from the 60’s from [the prosecution], both of the cases 

commented that the Supreme Court—California Supreme Court looked at 

the difference between custodial officers and investigative officers in the 

custodial setting. And part of my determination that the statement was 

admissible was that it was my view on the information presented to me that 

this was not part of an investigative interrogation of the defendant, but 

simply an administrator of custodial handling of the defendant of moving 

him after this particular incident. That plays into the Court’s ruling.... I 

didn’t articulate earlier, but as soon as he was testifying, I thought I should 

put that on the record rather than hide that factor.”

B. Legal Standard

Pursuant to Miranda, “the prosecution may not use statements, whether 

exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless 

it demonstrates the use of procedural safeguards effective to secure the privilege against 

self-incrimination. By custodial interrogation, we mean questioning initiated by law 

enforcement officers after a person has been taken into custody or otherwise deprived of 

his freedom of action in any significant way.” (Miranda v. Arizona, supra, 384 U.S. at 

p. 444.) 
6.

In defining an “interrogation,” the United States Supreme Court has said, 

“[T]he term ‘interrogation’ under Miranda refers not only to express 

questioning, but also to any words or actions on the part of the police (other 

than those normally attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating response from the 

suspect. The latter portion of this definition focuses primarily upon the 

perceptions of the suspect, rather than the intent of the police. This focus 

reflects the fact that the Miranda safeguards were designed to vest a suspect 

in custody with an added measure of protection against coercive police 

practices, without regard to objective proof of the underlying intent of the 

police. A practice that the police should know is reasonably likely to evoke 

an incriminating response from a suspect thus amounts to interrogation. 

But, since the police surely cannot be held accountable for the 

unforeseeable results of their words or actions, the definition of 

interrogation can extend only to words or actions on the part of police 

officers that they should have known were reasonably likely to elicit an 

incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301–

302; fns. omitted.)

“Not every question directed by an officer to a person in custody amounts to an 

‘interrogation’ requiring Miranda warnings. The standard is whether ‘under all the 

circumstances involved in a given case, the questions are “reasonably likely to elicit an 

incriminating response from the suspect.” ’ [Citation.] This is an objective standard. 

‘The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The 

relationship of the question asked to the crime suspected is highly relevant. [Citation.]’ ” 

(People v. Wader (1993) 5 Cal.4th 610, 637.) 

On review of the trial court’s ruling, “ ‘we accept the trial court’s resolution of 

disputed facts and inferences, and its evaluations of credibility, if supported by substantial 

evidence. We independently determine from the undisputed facts and the facts properly 

found by the trial court whether the challenged statement was illegally obtained. 

[Citations.]’ ” (People v. Case (2018) 5 Cal.5th 1, 20.)
7.

C. Analysis

Appellant argues Moyes’s question was not a neutral inquiry, but a direct question 

reasonably likely to elicit an incriminating response. Appellant contends he had not 

initiated any conversation or questioning about whether he had committed the suspected 

offense, and Moyes had pivoted the conversation in that direction.

The People argue, in turn, that Moyes’s question was rhetorical. The trial court 

appears to have interpreted Moyes’s question in a similar manner. The court commented

Moyes could have responded, “[Y]ou have to go to [administrative segregation] because 

you spit on someone,” as well as “[Y]ou have to go to [administrative segregation]. You 

spit on someone, didn’t you?” If Moyes’s response was not an inquiry, it necessarily 

would not be reasonably likely to elicit an incriminating response since it was not 

intended to elicit any response at all. However, whether or not Moyes’s question was 

rhetorical is not dispositive in this case, because even if it was an inquiry, not every 

question by a custodial officer amounts to an interrogation. (People v. Wader, supra, 5 

Cal.4th at p. 637.)

In People v. Morse (1969) 70 Cal.2d 711 (Morse), a jail deputy was engaged in 

unrelated duties when he passed by the defendant’s cell and saw the defendant’s cellmate 

garroted by a woven chord. (Id. at p. 720.) The deputy called for assistance, and while 

he and another officer attempted to revive the cellmate, the deputy spoke with the 

defendant as the defendant was lying on his bed. (Ibid.) The deputy asked, “ ‘Joe, did 

you do this?’ ” The defendant nodded his head in the affirmative and said, “ ‘Yeah.’ ” 

The deputy asked, “ ‘Why?’ ” and the defendant replied, “The sonofab[**]ch wouldn’t 

pay his debts.’ ” The deputy asked, “ ‘What did he owe you?’ ” The defendant 

immediately answered, “ ‘Cigarettes.’ ” (Ibid.) 

The Supreme Court found no Miranda violation. The court concluded,
8.

“[T]he conversational episode took place in a time period of perhaps 

a few seconds and in a setting devoid of ‘inquisitorial techniques.’ [The 

deputy,] although a uniformed deputy sheriff, was in fact a jailer whose 

duties at the time were custodial, not investigative. He was not specifically 

assigned to [the] defendant or to [the] defendant’s cell block, having been 

on duty on the floor below and having volunteered to bring medicine to 

another prisoner on the fifth floor. We note that here, while [the] defendant 

was in custody in the general sense in which all prisoners are deemed to be 

in custody, he was not yet in custody for the particular offense. The general 

atmosphere of the setting discloses a preoccupation on the officers’ part 

with reviving the victim rather than with interrogating a suspect. [The 

deputy] and his companion were kneeling by [the victim’s] body outside 

[the] defendant’s locked cell; [the] defendant was not in face-to-face 

conversation with them but lying on his bunk. The questions were put to 

him by [the deputy] while the latter was desperately attempting to 

resuscitate the victim and were couched in a context of stupefied 

wonderment, not of incisive inquiry. The answers were offered 

immediately—one gets the impression almost laconically—without any 

pressure from the questioner. We cannot detect in such an exchange any of 

the marks of an accusatory process. We are satisfied that no process of 

interrogation had been undertaken.” (Morse, supra, 70 Cal.2d at pp. 723–

724.) 

In People v. Quicke (1969) 71 Cal.2d. 502 (Quicke), officers discovered the 

defendant on top of the deceased victim in the back of a car. (Id. at p. 510.) The officers 

handcuffed the defendant and placed him in the back seat of their patrol car. An officer

asked the defendant if he knew the victim was dead, and the defendant said, “ ‘Yes, for 

the last two hours I have known it.’ ” (Ibid.) The officer then asked if the defendant 

wanted to tell him what happened, and the defendant said yes, and confessed to killing 

the victim. (Id. at pp. 510–511.) 

In determining whether the defendant’s confession was elicited in violation of 

Miranda, the Supreme Court considered “ ‘the total situation which envelops the 

questioning by considering such factors as the length of the interrogation, the place and 
9.

time of the interrogation, the nature of the questions, the conduct of the police and all 

other relevant circumstances.’ ”

5

 (Quicke, supra, 71 Cal.2d at p. 513.) 

The court found “the ‘time of the interrogation’ was the moment of the discovery 

of the murder and coincident with the arrest of [the] defendant. The ‘place’ of the 

interrogation was the scene of the rape, not police headquarters or remote from the 

discovery of the murder and the immediate investigation of it. As to the ‘nature of the 

questions,’ the record discloses only the preliminary question of the officer as to ‘what 

had happened.’ We do not find a long series of probing queries which were designed to 

elicit incriminating statements. The ‘length of the interrogation’ was comparatively 

short; it consisted almost entirely of a narration of the defendant.” (Quicke, supra, 71 

Cal.2d at pp. 513–514.) 

The Supreme Court concluded “this confession did not arise ‘from the use of 

inquisitorial techniques in seeking to prove the charge against the accused out of his own 

mouth’ [citation], but rather because ‘defendant volunteered immediately after his arrest 

to tell the police “what happened,” and proceeded to do so without solicitation by the 

officer present.’ ” (Quicke, supra, 71 Cal.2d at p. 514.) 

Much like the deputy in Morse, in this case Moyes was aiding appellant to 

decontaminate from a pepper spray grenade and was escorting him to administrative 

segregation when appellant struck up the conversation at issue. Moyes’s duties at the 

time were custodial, not investigative. Likewise, appellant was in custody, but not yet in 

custody for the particular offense of spitting at Layshot and Stephanie.

And while there was no ongoing medical emergency like in Morse, the atmosphere 

of the setting in this case was not one of “incisive inquiry.” (Morse, supra, 70 Cal.2d at 

p. 724.) Appellant started and continued the conversation with Moyes while being 

5 The court noted that the defendant was clearly in custody. (Quicke, supra, 71 

Cal.2d at p. 513.) 
10.

escorted to administrative segregation, and when Moyes asked appellant whether he spat 

on the officer and nurse, appellant offered an immediate and verbose response without 

any further pressure from Moyes.

Finally, much like in Quicke, there was no series of probing queries which were 

designed to elicit incriminating statements—the length of the “interrogation” was

incredibly short. (Quicke, supra, 71 Cal.2d at pp. 513–514.) In fact, it was a single 

question. In Morse, the deputy asked three questions, and in Quicke, the officer asked 

two. (Morse, supra, 70 Cal.2d at p. 720; Quicke, supra, 71 Cal.2d at pp. 510–511.) The 

questions in Morse were also much more incriminating—the deputy not only asked the 

defendant whether he killed the cellmate but followed up by eliciting details about the 

defendant’s motive. (Morse, supra, 70 Cal.2d at p. 720.) Nonetheless, the questions in 

Morse were deemed not an interrogation. 

In whole, we conclude Moyes’s question did not amount to an interrogation for 

purposes of Miranda, and the trial court properly admitted appellant’s statement that he 

“ ‘spit on that cop and nurse’ ” as evidence.

II. Section 654 Applies to Either Count 1 or Count 3

Appellant argues that counts 1 and 3 comprise an indivisible course of conduct and 

therefore are subject to section 654’s proscription against double punishment. The 

People concede that section 654 applies to either count 1 or count 3. We therefore vacate 

appellant’s sentence and remand the matter for resentencing. 

Section 654 provides in relevant part, “An act or omission that is punishable in 

different ways by different provisions of law may be punished under either of such 

provisions, but in no case shall the act or omission be punished under more than 

one provision.” (§ 654, subd. (a).)

“ ‘Section 654 does not preclude multiple convictions but only multiple 

punishments for a single act or indivisible course of conduct. [Citation.]’ ‘The 
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proscription against double punishment in section 654 is applicable where there is a 

course of conduct which ... comprises an indivisible transaction punishable under more 

than one statute .... The divisibility of a course of conduct depends upon the intent and 

objective of the actor, and if all the offenses are incident to one objective, the defendant 

may be punished for any one of them but not for more than one.’ ” (People v. Coleman 

(1989) 48 Cal.3d 112, 162.) 

Appellant was convicted of count 1, battery by a prisoner on a nonprisoner, and 

count 3, attempted aggravated battery by gassing. Both counts arose from appellant 

spitting multiple times on or at Layshot. As noted by both appellant and the People, 

while appellant engaged in multiple acts of spitting, the evidence shows the offenses were 

incident to one intent and objective, to spit on Layshot, with no intervening 

circumstances. Therefore, section 654 prohibits appellant from being punished for both 

counts 1 and 3.

Because we find section 654 applies, vacate appellant’s sentence, and remand the 

matter for resentencing, we need not address appellant’s ineffective assistance of counsel 

during sentencing claim.

DISPOSITION

The sentence is vacated and the case remanded for a full resentencing, with 

direction that the trial court stay the sentence on count 1 or count 3 pursuant to 

section 654, subdivision (a). The judgment is otherwise affirmed.