People v. Cayton CA4/3

Filed 10/3/23 P. v. Cayton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061645

v. (Super. Ct. No. 17NF1570)

JOSEPH RAYA CAYTON, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Heather B. Arambarri and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. * * * A jury convicted Joseph Raya Cayton of sexual penetration of an incompetent victim (count 1) and sexual battery on an institutionalized victim (count 2).

The trial court sentenced him to six years in state prison on count 1, which provided for the longer potential term, and stayed sentence on count 2 pursuant to Penal Code section 654.1 Cayton’s sole contention on appeal is that his case must be remanded for resentencing because the court failed to exercise its discretion under the newly amended version of section 654.2 We agree remand is appropriate but for a different reason: The court failed to impose sentence on count 2—resulting in an unauthorized absence of sentence that must be corrected. On remand, the trial court must impose a sentence on count 2 and then decide which count to stay execution of sentence. In all other respects, the judgment is affirmed. FACTS The victim, an adult woman, was born with Down syndrome and “severely disabled.” She was living at a residential care facility for people with developmental disabilities. One morning, an employee of the facility found blood smeared in the victim’s diaper, near “her private parts.” A sexual-assault exam of the victim revealed the presence of semen in her vulva. A DNA test of the semen matched a DNA sample taken from Cayton, who had been working at the facility the night before the victim was found with blood in her diaper. A jury found Cayton guilty of sexual penetration of an incompetent victim (§ 289, subd. (b); count 1) and sexual battery on an institutionalized victim (§ 243.4, subd. (b); count 2). In July 2022, without objection, the trial court sentenced Cayton on count 1 to the midterm of six years in state prison. The court explained, “Count 1 was selected as the principal term because it provides for the longest potential term of