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People v. Wiley

California Court of Appeal · Docket Nos. D015838, D016970, D017772 · 1994-05-04 · Published · 25 Cal. App. 4th 159 · 30 Cal. Rptr. 701 · 94 Cal. Daily Op. Serv. 3764 · 30 Cal. Rptr. 2d 701 · 94 Daily Journal DAR 7043 · 1994 Cal. App. LEXIS 527

The PEOPLE, Plaintiff and Respondent, v. GARY JOE WILEY, Defendant and Appellant

Area
criminal
Panel
Don R. Work (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:30Z · confidence high

The trial court convicted Wiley of multiple counts including two kidnappings and imposed concurrent sentences, dual enhancements, and specific restitution and credit orders. On appeal, the court affirmed the convictions but modified the judgment to stay the sentence for one kidnapping under Penal Code section 654, corrected the abstract of judgment for restitution, and affirmed the denial of additional custody credits.

Ruling reviewedStandardThe courtThe model
Imposition of concurrent sentences for kidnapping for robbery and kidnapping for ransom arising from a single transaction.
“Thus, the court erred in imposing concurrent determinate life terms on both count one and count two in case No. CR127397, each with concurrent five-year firearm-use enhancements.”
de novoerroragree with court
The court correctly applied the single objective test from Neal v. State of California (1960) 55 Cal.2d 11, as reaffirmed in People v. Latimer (1993) 5 Cal.4th 1203, to determine that both kidnappings were incident to the single goal of obtaining money. While multiple convictions were permitted under section 954, section 654 precluded multiple punishments for the same objective, making the concurrent sentencing an error of law.
Imposition of both a one-year prior prison term enhancement (section 667.5) and a five-year serious felony enhancement (section 667) based on convictions from the same prior case.
“We find the logic of Medina compelling and conclude the court did not err in imposing these enhancements.”
de novonot reachedagree with court
The court distinguished People v. Jones (1993) 5 Cal.4th 1142, which limited enhancements for a single conviction, by relying on People v. Medina (1988) 206 Cal.App.3d 986 to allow dual enhancements when the priors were 'separately brought and tried' or involved distinct counts within a joint trial. The court found Jones did not address these specific facts, thus upholding the trial court's reliance on Medina.
Reallocation of custody credits, specifically denying credits for time served awaiting trial in case CR127397 while serving a sentence in case ECR4446.
“Like the petitioner in Joyner, Wiley has failed to demonstrate his presentence custody within the meaning of section 2900.5 was attributable to anything other than case No. ECR4446.”
abuse of discretionnot reachedagree with court
The court applied In re Joyner (1989) 48 Cal.3d 487 and In re Rojas (1979) 23 Cal.3d 152 to hold that a defendant cannot receive credit for time spent in jail awaiting disposition of one proceeding while simultaneously serving a prison sentence for another. Since Wiley was serving a term for ECR4446 during the relevant period, he was not entitled to dual credits for CR127397.
Omission of $1,350 direct restitution to victim Crouder from the abstract of judgment.
“The abstract of judgment must be modified to reflect that order.”
de novoerroragree with court
The court found the abstract of judgment incomplete because it failed to include the ordered direct restitution to the victim. This was a ministerial error in the documentation of the sentence, requiring modification to reflect the court's original oral order.

Authorities

  • relied: Neal v. State of California (1960) 55 Cal.2d 11 — Section 654 permits punishment for only one of multiple offenses which are incident to a single objective as determined by the intent and objective of the actor.
  • relied: People v. Latimer (1993) 5 Cal.4th 1203 — Reaffirmed the doctrine of Neal v. State of California regarding the single objective test for section 654.
  • relied: People v. Jones (1993) 5 Cal.4th 1142 — Only the greatest of two enhancements (prior prison term and serious felony) may be imposed on a single serious felony conviction resulting in a prison term.
  • relied: People v. Medina (1988) 206 Cal.App.3d 986 — Supports the imposition of dual enhancements when the priors are based on convictions from a joint trial or separately brought proceedings, distinguishing from the single conviction rule in Jones.
  • relied: In re Joyner (1989) 48 Cal.3d 487 — A defendant may not receive credit for time spent in jail awaiting disposition of criminal proceedings during the period a defendant is also serving a prison sentence on another conviction.
  • relied: In re Rojas (1979) 23 Cal.3d 152 — Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.
  • relied: In re Culbreth (1976) 17 Cal.3d 330 — Cited by appellant regarding firearm enhancements, but the court noted it was overruled prospectively in People v. King, making it inapplicable to the current sentencing issues.
  • relied: People v. King (1993) 5 Cal.4th 59 — Overruled In re Culbreth prospectively, affecting the application of firearm enhancement laws.

The appellate opinion: sound — The opinion is sound because it correctly applies the single objective test from Neal and Latimer to resolve the section 654 issue, and accurately distinguishes Jones from Medina to uphold the dual enhancements. It also correctly applies Joyner and Rojas to the complex custody credit calculation, ensuring no double counting of time served.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court convicted Wiley of kidnapping for ransom, kidnapping for robbery, robberies and firearm possession, imposed concurrent life terms on both kidnap counts with firearm enhancements, imposed both a one-year prison-prior and a five-year serious-felony enhancement arising from the same earlier case, entered various restitution orders, and later reallocated custody credits entirely to the earlier case. The Court of Appeal upheld the dual kidnap convictions but stayed the second kidnap term and its enhancement under section 654, found the restitution errors harmless or correctable in the abstract, upheld the dual prior enhancements under Medina, upheld the credit reallocation under Rojas and Joyner, and otherwise affirmed.

Ruling reviewedStandardThe courtThe model
Conviction of both kidnapping for robbery (§ 209(b)) and kidnapping for ransom (§ 209(a)) arising from a single transaction against one victim
“Section 954 permits multiple convictions where two or more different offenses are committed together in their commission.”
de novocorrectagree with court
The two subdivisions of section 209 have different elements and neither is a lesser included offense of the other; the court also found the robbery-kidnap concluded before the extortion detention began. Section 954 permits multiple convictions for different offenses in a single transaction, so the ruling is supported.
Imposition of concurrent life terms with firearm enhancements on both kidnap counts
“Thus, the court erred in imposing concurrent determinate life terms on both count one and count two in case No. CR127397, each with concurrent five-year firearm-use enhancements.”
de novoerror (law misapplied)agree with court
Both kidnaps were incident to a single objective of obtaining Crouder's money, so under Neal and Latimer section 654 bars punishment for both even where sentences are concurrent; staying the second term is the correct remedy.
Imposition of a $500 restitution fine on resentencing of case ECR4446, increasing the earlier $200 fine
“However, the abstract of judgment does not reflect any restitution fine attributable to the previous case, case No. ECR4446. Thus, Wiley has not been harmed by this error.”
de novoharmless error (procedure)disagree with court
The People conceded the court lacked power to increase the earlier fine, yet the Court of Appeal treated the error as harmless solely because it did not appear in the abstract. Under People v. Mesa the oral pronouncement is the judgment and controls over the abstract, so the proper course was to strike or correct the fine rather than rely on the abstract's omission.
Oral order that direct victim restitution be paid from prison wages under § 2085.5, and omission of the $1,350 Crouder restitution from the abstract
“However, because the court’s oral error was not transcribed in the abstract of judgment, Wiley suffers no harm.”
de novoharmless error (procedure)unsure
Nystrom correctly establishes section 2085.5 does not reach direct victim restitution, and ordering the abstract corrected to include the $1,350 is proper. But again the court's harmlessness rationale rests on the abstract rather than on the oral pronouncement that constitutes the judgment, which is inconsistent with Mesa; the practical outcome is nonetheless defensible.
Imposition of both a one-year § 667.5(b) prison-prior enhancement and a five-year § 667(a) serious-felony enhancement based on different counts from the same earlier case and a single prison term
“We find the logic of Medina compelling and conclude the court did not err in imposing these enhancements.”
de novocorrectunsure
Jones bars dual enhancements where the prison term and serious felony are the same prior offense; here the enhancements rest on different counts, which supports distinguishing Jones. However, the single prison term was served for all three burglaries including those underlying the § 667 enhancement, so Jones's rationale arguably extends to these facts, and the opinion's analysis of that point is conclusory.
Reallocation of all presentence custody credits (872 days) to case ECR4446 and none to case CR127397
“Like the petitioner in Joyner, Wiley has failed to demonstrate his presentence custody within the meaning of section 2900.5 was attributable to anything other than case No. ECR4446.”
mixedcorrectunsure
Rojas and Joyner support denying dual credit for time spent serving a sentence in another case and placing the burden on the defendant to show custody was attributable to the new charges. But ECR4446 was resentenced as a subordinate consecutive term within an aggregate sentence under section 1170.1, and the opinion does not explain why credits attributable to that case would not simply reduce the aggregate term rather than be lost, leaving the result uncertain.
Imposition of separate firearm-use enhancements under § 12022.5(a) on both kidnap counts (Culbreth claim)
“we need not address Wiley’s contention it was error to impose separate firearm-use enhancements under section 12022.5, subdivision (a).”
unclearnot reachedagree with court
Because the court stayed the count two term and its enhancement under section 654, the Culbreth issue became moot; declining to reach it is appropriate.

Authorities

  • relied: Neal v. State of California (1960) 55 Cal.2d 11 — Section 654 permits punishment for only one of multiple offenses incident to a single criminal objective, determined by the actor's intent and objective.
  • relied: People v. Latimer (1993) 5 Cal.4th 1203 — Reaffirmed the Neal intent-and-objective test for section 654.
  • relied: People v. Nystrom (1992) 7 Cal.App.4th 1177 — Section 2085.5 does not authorize deduction of direct victim restitution from prison wages.
  • relied: People v. Medina (1988) 206 Cal.App.3d 986 — Both a prison-prior enhancement and a serious-felony enhancement may be imposed where they rest on different convictions from the same proceeding.
  • relied: People v. Jones (1993) 5 Cal.4th 1142 — Where the same prior offense qualifies for both § 667 and § 667.5 enhancements, only the greatest enhancement may be imposed; distinguished as not addressing separate convictions.
  • relied: In re Rojas (1979) 23 Cal.3d 152 — Section 2900.5 does not authorize credit where the pending proceeding has no effect on the defendant's liberty.
  • relied: In re Joyner (1989) 48 Cal.3d 487 — A defendant may not receive presentence credit for jail time while also serving a prison sentence on another conviction; defendant bears the burden to show custody was attributable to the new charges.
  • missed: People v. Mesa (1975) 14 Cal.3d 466 — Where the oral pronouncement of judgment conflicts with the abstract of judgment, the oral pronouncement controls; the abstract is not the judgment.

The appellate opinion: sound with gaps — The core holdings on multiple convictions under section 954, the section 654 stay, and the credit allocation under Rojas and Joyner are supported by the cited Supreme Court authority. The opinion, however, treats conceded sentencing errors as harmless merely because they were not transcribed in the abstract, contrary to the rule that the oral pronouncement controls, and its distinction of Jones in favor of Medina is conclusory given that a single prison term covered all the burglary counts.

How this analysis was made · dispute it

Opinion — Work

Opinion

WORK, J.

Gary Joe Wiley appeals a judgment in which he was convicted of kidnapping for ransom (Pen. Code, 1 § 209, subd. (a)), kidnapping for robbery (§ 209, subd. (b)), possessing a firearm by a felon (§ 12021, subd. (a)), and three counts of robbery (§211) with five weapon enhancement allegations (D016970), a separate judgment convicting him of being a felon in possession of a firearm (§ 12021, subd. (a)) (D015838) and an order in which the court reallocated credits for time served as between the judgments in the previous cases (D017772). We have consolidated the cases in this appeal.

Wiley directs his most substantive contentions to his convictions rising from the kidnaps and robberies, arguing it was error to convict him of two kidnaps, for ransom and for robbery, when the incidents arose out of a single action and, in any event, it was error to impose concurrent sentences for both in violation of section 654 and in imposing separate firearm use enhancements under section 12022.5, subdivision (a) in violation of the holding of In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23], overruled prospectively in People v. King (1993) 5 Cal.4th 59, 79 [19 Cal.Rptr.2d 233, 851 P.2d 27]. For the reasons which follow, we conclude it was proper to convict Wiley of both kidnapping for robbery and kidnapping for ransom *162 in a transaction involving a single victim, but that section 654 precludes imposing multiple sentences where those crimes were directed toward a single goal. Accordingly, sentencing on one kidnap and its enhancement must be stayed.

Wiley’s remaining arguments criticize various restitution and custody credit orders and attack the court’s imposing both a one-year enhancement (§ 667.5) imposed for a prior prison term, served concurrently with that of a conviction for a different serious felony charged and tried in the same proceeding, for which the court imposed a separate five-year enhancement (§ 667). We conclude neither the enhancement statutes, nor the holding of People v. Jones (1993) 5 Cal.4th 1142 [22 Cal.Rptr.2d 753, 857 P.2d 1163], preclude the imposition of dual enhancements under these facts. We reject his remaining sentencing contentions.

I

During one of Wiley’s many crime sprees, he committed several robberies at automated teller machines (ATM’s). While attempting to rob Kevin Crouder who was utilizing an ATM in El Cajon, the plan went array when the machine failed to dispense any money. To avoid detection by other persons who arrived on the scene, Wiley forced Crouder into Crouder’s vehicle and drove forward approximately 100 feet. He then forced Crouder at gunpoint to drive through the drive up ATM again. When he did so, the ATM refused to dispense any money or to disgorge Crouder’s ATM card. In fear that Wiley would carry out his threat to shoot him, Crouder agreed to call his wife so she could bring $300, the amount Wiley demanded. In response to Crouder’s call to his wife’s workplace, she drove to an ATM only to find her card had expired. When she drove to the location where Wiley and Crouder waited, she was advised her husband would be held until she drove to her Alpine home to retrieve her current ATM card and obtain the money for his release. She departed and Crouder and Wiley then drove from El Cajon to Alpine to meet her and make the exchange. Crouder was rescued by sheriff’s deputies who had been alerted.

For this caper, Wiley was convicted of kidnapping for robbery for the activities occurring in El Cajon culminating with Crouder’s final inability to obtain money from the ATM, and of kidnapping for ransom because Wiley detained Crouder at gunpoint while attempting to extort money for his release. Wiley contends this was an impermissible division of a single crime into multiple offenses, citing People v. Bright (1991) 227 Cal.App.3d 105, 109 [277 Cal.Rptr. 612], and numerous other authorities. He is incorrect. Kidnapping for robbery and kidnapping for ransom involve different *163 elements and different statutes. (Compare § 209, subd. (a) with § 209, subd. (b).) Section 954 permits multiple convictions where two or more different offenses are committed together in their commission. Here, the kidnapping for robbery terminated before the detention for extortion began. Although the commission of these offenses occurred during the same general transaction, section 954 expressly permits multiple convictions. On the other hand, both offenses were incident to one objective, obtaining Crouder’s money illegally. The California Supreme Court has recently reaffirmed the doctrine of Neal v. State of California (1960) 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], which interprets section 654 as permitting punishment for only one of multiple offenses which are incident to a single objective as determined by the intent and objective of the actor. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208 [23 Cal.Rptr.2d 144, 858 P.2d 611].) Thus, the court erred in imposing concurrent determinate life terms on both count one and count two in case No. CR127397, each with concurrent five-year firearm-use enhancements. Accordingly, the court is directed to stay the term imposed on count two and its enhancement pursuant to section 654 on remand.

II

Wiley contends the court erred in various ways when imposing restitution fines on the various combined sentences. At the time Wiley was sentenced in case No. CR127397, arising out of the multiple robberies and kidnaps, the court also had to resentence Wiley in case No. ECR4446, in which he had earlier received and was serving a three-year term. The court used the previous judgment as a subordinate term and imposed the middle term of eight months. However, the court also had previously imposed a restitution order of $200. When articulating the previous judgment as a subordinate term in case No. CR127397, the court ordered a restitution fine of $500, an order the People concede was in excess of the court’s jurisdiction since it had no power to increase the restitution fine imposed as part of the sentence by the earlier court. However, the abstract of judgment does not reflect any restitution fine attributable to the previous case, case No. ECR4446. Thus, Wiley has not been harmed by this error.

On the other hand, the court ordered a $500 restitution fine pursuant to Government Code section 13967 in connection with the sentences imposed in case No. CR127397, to be paid forthwith or from his prison wages pursuant to section 2085.5. In addition, the court ordered a $45 restitution fine paid to robbery victim Adam Krachman and $1,350 direct restitution to Crouder. Although the court orally ordered these direct restitutions to also be paid out of prison wages pursuant to section 2085.5, that direction is not *164 included in the abstract of judgment. The People concede section 2085.5 does not apply to direct restitution to a victim. (People v. Nystrom (1992) 7 Cal.App.4th 1177, 1183 [10 Cal.Rptr.2d 94].) However, because the court’s oral error was not transcribed in the abstract of judgment, Wiley suffers no harm. However, the abstract of judgment is incomplete in that it does not include the $1,350 direct restitution fine payable to Crouder. The abstract of judgment must be modified to reflect that order.

Ill

Wiley was charged with and found to have suffered three prison priors (§ 667.5, subd (b)) and two serious felony priors (§ 667) alleged to have been “separately brought and tried” (§ 667, subd. (a)). One prison prior was based upon a burglary of an inhabited dwelling, for which he was convicted on a plea of guilty to a multiple count information (CR71558) on February 8, 1985. Wiley received and served a single prison term for the three first degree burglaries charged in the information in case No. CR71558. This prison prior was referred to in the information as the burglary charged in count one of that information. The court imposed a one-year enhancement for that prison prior. In addition, the court imposed a single five-year serious felony enhancement for Wiley’s conviction of counts three and five 2 of that same information, each of which, like Wiley’s conviction in count one, was for burglarizing an inhabited dwelling.

At sentencing, the probation officer recommended the prior prison term enhancement based on case No. CR71558 be stayed based on case law which held section 654 prohibited multiple enhancements where the prior prison term and the serious felony prior enhancements were based on the same conviction. At sentencing, the court noted there was a split in case law at that time and elected to impose both enhancements as approved in People v. Medina (1988) 206 Cal.App.3d 986, 992 [254 Cal.Rptr. 89]. Our Supreme Court has recently concluded only the greatest of these two enhancements may be imposed on a single serious felony conviction resulting in a prison term. (See People v. Jones, supra, 5 Cal.4th at p. 1152.) Wiley urges the rationale in Jones precludes the imposition of a prison prior enhancement for a term served when a serious felony enhancement is imposed for a conviction of a separate crime where the two convictions resulted from a joint trial. Nothing in Jones supports Wiley’s view, and that decision does not address Medina or analogous facts. We find the logic of Medina compelling and conclude the court did not err in imposing these enhancements.

*165 IV

During the combined sentencing on June 4, 1992, Wiley was awarded 637 days’ time-served credits for case No. CR127397 and 240 days’ credit against the subordinate 8-month term for case No. ECR4446. In a later hearing, the trial court reallocated the credits in awarding a total of 872 days for case No. ECR4446 and 0 days for case No. CR127397. Wiley claims that because his ultimate sentence term for case No. ECR4446 was only 8 months for 240 days, it is unfair to deny him custody and conduct credits for the 257 days’ actual custody between September 20, 1991, and June 4, 1992, in which he was jailed and awaiting trial for the crimes charged in case No. CR127397. Thus, he contends the court erred in denying him 257 actual custody credits plus 129 days of conduct credit.

The superior court was faced with a convoluted fact situation regarding credits. From August 16, 1990, through August 18, 1990, Wiley was jailed pending prosecution in case No. ECR4446. After three days he was released. He was rearrested on parole revocation for the activity underlying case No. ECR4446 and served 309 days from September 11, 1990, through July 16,1991. From July 16, 1991, through July 21, 1991, he served 11 days waiting prosecution in case No. ECR4446. From September 20, 1991, through November 6, 1991, Wiley was in custody on both case No. ECR4446 for which he was sentenced to three years imprisonment on November 6, 1991, and while awaiting prosecution, trial, and sentence on the offenses charged in case No. CR127397. Between September 20, 1991, and June 4, 1992, Wiley’s custody was never attributable solely to charges contained in the information in case No. CR127397.

In In re Rojas (1979) 23 Cal.3d 152 [151 Cal.Rptr. 649, 588 P.2d 789], the Supreme Court concluded “[s]ection 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” (Id. at p. 156.) In In re Joyner (1989) 48 Cal.3d 487 [256 Cal.Rptr. 785, 769 P.2d 967], the Supreme Court held that section 2900.5 has not been shown to have been intended to maximize the concurrency of terms imposed. Although Joyner involved a California term imposed concurrent to ones imposed by courts of other states, it clearly holds that a defendant may not receive credit for time spent in jail awaiting disposition of criminal proceedings during the period a defendant is also serving a prison sentence on another conviction. (48 Cal.3d at p. 492.)

After Wiley’s November 6, 1991, sentence in case No. ECR4446, he was serving a prison term for that conviction and not entitled to dual credits in case No. CR127397. Between September 20, 1991, and November 6, 1991, *166 Wiley does not demonstrate he could have obtained a release from jail by posting bail or otherwise in case No. ECR4446. Like the petitioner in Joyner, Wiley has failed to demonstrate his presentence custody within the meaning of section 2900.5 was attributable to anything other than case No. ECR4446. That in retrospect Wiley accumulated custody credits in excess of those which directly reduce his term in case No. ECR4446 is not a reason to permit him to benefit under section 2900.5 for terms imposed for offenses charged in case No. CR127397.

The judgment in case No. ECR4446 is affirmed. The judgment in case No. CR127397 is modified by staying the concurrent sentence and enhancement imposed for the kidnap charged in count two. The superior court is directed to modify the abstract of judgment in accordance with this opinion and to further modify to include the $1,350 victim restitution ordered paid to Crouder. As modified, the judgment in case No. CR127397 is affirmed. 3 Finally, the reallocation credit order is affirmed.

Kremer, P. J., and Todd, J., concurred.

Appellant’s petition for review by the Supreme Court was denied August 11, 1994. Mosk, J„ and Kennard, J., were of the opinion that the petition should be granted.

1

All statutory references are to the Penal Code unless otherwise specified.

2

The court’s reference to imposing the single five-year enhancement for both serious felony priors (count three and count five) is unexplained. However, Wiley does not complain and it seems harmless.

3

Because we stay the concurrent sentence and enhancement imposed for the kidnap charged in count two in case No. CR127397, we need not address Wiley’s contention it was error to impose separate firearm-use enhancements under section 12022.5, subdivision (a).

Cites, in this corpus

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