Opinion
A164108
05-10-2024
THE PEOPLE, Plaintiff and Respondent, v. ERIC LANCE DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 41999572
SIMONS, ACTING P. J.
Eric Lance Davis (appellant) appeals his convictions, following a jury trial, of multiple counts related to sexual abuse and domestic violence against his former girlfriend, Jane Doe 1. We reject appellant's challenges, agree with the People that the trial court imposed an unauthorized sentence, and remand for resentencing.
PROCEDURAL BACKGROUND
A June 2021 amended information charged appellant with the following offenses against Jane Doe 1: forcible oral copulation (Pen. Code, § 287, subd. (c)(2)(A); count 1), inflicting corporal injury on a person with a past or present dating relationship (§ 273.5, subd. (a); count 2), forcible rape (§ 261, subd. (a)(2); count 3), sexual penetration by a foreign object (§ 289, subd. (a)(1)(A); count 4), sodomy by force (§ 286, subd. (c)(2)(A); count 5), and false imprisonment by violence (§§ 236, 237, subd. (a); count 6). As to the sexual offenses (counts 1, 3, 4, and 5), the information alleged special circumstances that appellant committed qualifying offenses against more than one victim (§ 667.61, subd. (e)(4)), and that he administered a controlled substance to the victim in the commission of the offense (§ 667.61, subd. (e)(6)).
All undesignated statutory references are to the Penal Code.
The amended information alleged additional counts against other victims: battery on K.H., Jane Doe 1's daughter (§§ 242, 243, subd. (a); count 7), and forcible oral copulation of Jane Doe 2 (§ 287, subd. (c)(2)(A); count 8). In July 2021, a jury acquitted appellant of sexual penetration by a foreign object as to Jane Doe 1 (count 4), battery on K.H. (count 7), and forcible oral copulation of Jane Doe 2 (count 8). The jury found appellant guilty of all remaining charges. As to counts 1, 3, and 5, the jury found true the controlled substance allegations, and found not true the multiple victim allegations.
An additional charge was dismissed on the People's motion.
In October 2021, the trial court sentenced appellant to 15 years to life in prison, plus a consecutive aggregate prison term of 16 years.
FACTUAL BACKGROUND
Jane Doe 1 and Appellant's Relationship
Jane Doe 1 and appellant began dating in 2008. Starting about five months into their relationship, appellant began to physically harm Jane Doe 1, choking her and engaging in "rough" sex. She asked him to stop but he continued. Between 2011 and 2021, appellant gave Jane Doe 1 black eyes, a broken nose, and other injuries. Sometimes he forced her to orally copulate him. In or around 2018, appellant tied her naked to a bed and "tazed" her multiple times. A witness testified that, in 2018, he saw appellant drag Jane Doe 1 in a parking lot using a chokehold. Jane Doe 1's adult daughter, who lived with Jane Doe 1 for part of her relationship with appellant, testified she saw appellant push, punch, and verbally threaten Jane Doe 1 multiple times over the years.
An expert on intimate partner violence testified victims respond to abuse and sexual assault in different ways, including by minimizing the abuse, and that some abusers cycle through periods of charming behavior followed by increasing irritability and then abuse.
Jane Doe 1 and appellant began using methamphetamine together around 2014. In 2019, she agreed to try gamma hydroxybutyrate acid, commonly referred to as GHB, a nervous system depressant that can cause loss of consciousness and at one point was categorized as a "date-rape" drug. Although that was the only time Jane Doe 1 knowingly took GHB, she suspected appellant gave her GHB without her knowledge because there were occasions where she "felt like I had lost a day or passed out" and afterwards felt the same as she had after taking GHB. Appellant kept GHB in his bedside drawer.
July 12, 2020
Around July 1, 2020, appellant moved into Jane Doe 1's home.
In the early morning hours of July 12, Jane Doe 1 was in bed. Appellant came in, pinned her to the bed with his knees, and released liquid into her mouth from a metal straw he had been holding behind his back. She tried to spit out the liquid but appellant slapped her. Appellant forced her to perform oral sex and then, as she was almost passing out, had vaginal intercourse with her. He turned her onto her stomach and she felt a sharp pain in her buttocks or anus, which she thought was an injection. He then engaged in anal sex. The entire attack lasted multiple hours, during which time appellant hit Jane Doe 1 in the face four times and Jane Doe 1 asked appellant to stop multiple times.
When the attack ended, Jane Doe 1 texted her adult daughter, K.H., and asked her to come get her. When K.H. arrived, Jane Doe 1's face appeared bruised and she was holding an ice pack to her face. K.H. testified that when she told appellant Jane Doe 1 was leaving, he threw a carton of milk at K.H. and pushed her. K.H. called 911 and appellant left the premises.
An officer arriving at the scene and a nurse who conducted a sexual assault examination that day testified Jane Doe 1 had numerous bruises and abrasions on her arms, legs, and face. The metal straw appellant put in Jane Doe 1's mouth contained a chemical that converts to GHB inside the body.
About five days later, appellant called Jane Doe 1 sounding "frantic," and said police had surrounded Jane Doe 2's house looking for him and he had just escaped. Jane Doe 1 paid for an Uber to pick up him and bring him to her house, and the next morning she drove him to Jane Doe 2's house to collect his belongings.
Jane Doe 2
Jane Doe 2 dated appellant off and on for about three years. Towards the end of their relationship, he became physically abusive and forced her to engage in sexual acts. Jane Doe 2 testified that on the morning of July 1, 2020, she woke up to find appellant forcing her to orally copulate him, and that he slapped her when she told him to stop. Afterwards, appellant left and Jane Doe 2 called the police. Jane Doe 2 was using methamphetamine daily during this time period and admitted it impacted her memory.
Some days later, appellant came to Jane Doe 2's home. He told her he had given Jane Doe 1 "some GHB" and wanted Jane Doe 2 to remove it from his car. Police came looking for appellant and Jane Doe 2 lied, telling them he was not there, because she was scared of him getting mad at her.
Defense Case
Appellant testified in his own defense. He began dating Jane Doe 1 around 2008. They both cheated on each other and regularly argued about infidelity. They began using methamphetamine together in 2015. They also used GHB together; appellant never gave Jane Doe 1 GHB without her knowledge.
Appellant admitted slapping Jane Doe 1 and throwing things at her, but denied punching or tasing her. Jane Doe 1 was often physically violent with him. Appellant never forced Jane Doe 1 to engage in sexual acts.
On July 12, 2020, they had consensual sex. Appellant took GHB and offered some to Jane Doe 1. When she asked what it was, he answered "water," a street name for GHB. She opened her mouth and he gave her a small amount, which she then spit out and said she did not want. He did not try to give her any more GHB, and they continued having sex.
When he woke up, K.H. was at the house and he asked her to leave, but he did not strike her or throw anything at her. After K.H. said she was calling the police, appellant packed his things and went to Jane Doe 2's house.
Appellant's relationship with Jane Doe 2 began in 2017. They used methamphetamine regularly. Appellant denied forcing Jane Doe 2 to engage in any sexual acts.
Prosecution's Rebuttal
Jane Doe 3 was appellant's younger sister. In 1994, when she was 18 years old and he was approximately 24 years old, she and appellant were both living at their parents' home. One night, she asked appellant for help with an earache. After he made various attempts to help her, Jane Doe 3 asked appellant for a pain pill and he gave her one, possibly a Valium. She fell asleep in his room but woke up in hers, with moisture on her inner thigh and "blitz" memories of appellant "being on top of" her.
In 2017, she discussed the incident with appellant, who told her to "get over it" and that her "not getting over it was putting him in a place where he couldn't get over it either."
DISCUSSION
I. Amended Information
Appellant argues the trial court erred in granting the People's motion, filed on the first day of jury selection, to amend the information to add the controlled substance special circumstance allegations. We affirm.
" '[S]ection 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination....' [Citation.] 'The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.'" (People v. Hamernik (2016) 1 Cal.App.5th 412, 424.) The evidentiary showing required is probable cause, which means" 'a reasonable person could harbor a strong suspicion of the defendant's guilt.'" (People v. Consiglio (2022) 86 Cal.App.5th 615, 630.)
Appellant argues the evidence at the preliminary hearing was insufficient to show appellant administered GHB or any other controlled substance. At the preliminary hearing, Jane Doe 1 testified that appellant entered her bedroom holding "something behind his back," which turned out to be a metal straw with "his thumb at the end of it." He forced the straw into her mouth and released "liquid." Jane Doe 1 tried to spit the liquid out and told appellant," 'Don't drug me.'" Appellant responded," 'shut up,'" or" '[b]e quiet.'" Within five to ten minutes, Jane Doe 1 began to feel "[s]leepy, kind of groggy, [and] out of it." She had not used any drugs or alcohol the previous day or that evening. Jane Doe 1 testified she believed the liquid in the straw was GHB. She had knowingly tried GHB once before and, based on that use, she "learned that I had been given that without my knowledge before." She testified that she "felt the effects of it" shortly after appellant released the liquid into her mouth.
Appellant does not dispute that GHB is a controlled substance within the meaning of the special circumstance. (See § 667.61, subds. (e)(1), (e)(6) [special circumstance applies when "[t]he defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75"]; § 12022.75, subd. (b)(1) [prohibits administration of "any controlled substance listed in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code to the victim" during the commission of specified offenses]; Health & Saf. Code, § 11056, subd. (c)(11) [listing GHB].)
Appellant fails to establish the trial court abused its discretion in finding probable cause. Jane Doe 1 testified she had knowingly taken GHB before; she began to feel "effects" shortly after appellant forced liquid in her mouth; and she believed the liquid was GHB. This testimony gives rise to the reasonable inferences that Jane Doe 1 knew what taking GHB felt like and that she felt that way after appellant administered the liquid. In addition, appellant's failure to refute Jane Doe 1's accusation that he "drug[ged]" her "may be considered as a tacit admission." (People v. McDaniel (2019) 38 Cal.App.5th 986, 998 [" '" '[W]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.'"' "].) Accordingly, we find no error in the court's order allowing the People to amend the information.
Because of this conclusion, we need not and do not decide whether any such error would have also constituted a due process violation, as appellant contends, or whether appellant forfeited this constitutional claim.
II. Jane Doe 3's Testimony
Appellant challenges the admissibility of the testimony of appellant's sister, Jane Doe 3, and the trial court's denial of his mistrial motion on related grounds. We affirm.
A. Additional Background
The People first moved to admit Jane Doe 3's testimony during jury selection. The prosecutor represented she had only become aware of the testimony a few days earlier when Jane Doe 3 contacted her. The People argued the testimony was admissible under Evidence Code 1108 and was more probative than prejudicial. Defense counsel argued the alleged incident was too remote, not similar enough to the charged crimes, and highly prejudicial. Defense counsel also argued that, if the court ruled the testimony admissible, counsel would seek a continuance to allow time to investigate.
The court determined the evidence was more prejudicial than probative under Evidence Code section 352, but cautioned that its ruling could change "if the defense really opens the door in such a way that makes these things relevant," and advised defense counsel to "begin to prepare for the possibility that these allegations may surface in one form or another against your client." When defense counsel sought clarification as to what would open the door, the court stated, "There are many ways that you can attack [Jane Doe 1 and 2's] credibility without opening the door.... [If] the defendant took the stand and said he had never done anything like this before in his life[,] [t]hat's obviously opening the door....[¶] What can happen between proper cross-examination of the witnesses and my other extreme example, there are so many things I can't really advise.... [Y]ou would have to, in a very direct way, address the witnesses with some questions that clearly makes these things relevant. But . . . I can't go through all the hypotheticals with you."
The People moved a second time to admit Jane Doe 3's testimony after defense counsel's cross-examination of Jane Doe 1, arguing the questioning suggested Jane Doe 1 and Jane Doe 2 fabricated their accusations against appellant to get back at him for cheating on them. The People argued this questioning made Jane Doe 3's testimony substantially more relevant because she had no relationship with Jane Doe 1 or 2 and no motive to fabricate accusations against appellant. The court agreed with the People's characterization of the defense questioning: "it's very clear in your questioning [of Jane Doe 1] that you've suggested to the jury . . . that her testimony is the result of jealousy, . . . [and that] her anger led her to form an alliance with Jane Doe 2 to engage in fabrication.... And that at some point in time, the two of them discovered that they were both being used and they decided to make these allegations. That's the suggestion in the cross-examination." The court further agreed with the People that this line of questioning made Jane Doe 3's testimony "more relevant than it used to be earlier in the case" because she was a witness with whom Jane Doe 1 and 2 "have not had an opportunity to fabricate" allegations.
Defense counsel elicited testimony that Jane Doe 1 suspected appellant was cheating on her with Jane Doe 2, obtained Jane Doe 2's phone number and tried to contact her, saw Jane Doe 2 at appellant's house on multiple occasions, and threw a plate through a window at Jane Doe 2's house. Defense counsel further elicited testimony that Jane Doe 1 and Jane Doe 2 had exchanged text messages after appellant was arrested, and Jane Doe 2 may have texted her information about Jane Doe 2's allegations against appellant.
Defense counsel represented, "I will not be making any argument to the jury that this was a conspiracy" between Jane Doe 1 and 2. The court, relying on this representation but with the caveat that the issue was a "very close call," ruled the evidence would remain excluded "at this point in time." However, the court cautioned defense counsel that, while she was "not limited from" continuing to suggest Jane Doe 1 and 2 conspired to make up the allegations against appellant, "if you question a witness in the future along the same lines, the Court may revisit this" evidentiary ruling.
The People moved a third time to admit Jane Doe 3's testimony after appellant's direct examination. The People argued defense counsel's questioning continued to suggest Jane Doe 1 and 2 conspired to fabricate the accusations against appellant. Following argument on the motion, the court ruled the testimony admissible. The court reiterated that in previous discussions on the issue, it had stated the evidence "was relevant to refute claims that the two alleged victims had colluded or conspired to fabricate evidence," and that the balancing of the probative value with the potential for prejudice was very close. The court explained that defense counsel's direct examination of appellant asked about "the interaction between Jane Doe 1 and Jane Doe 2, a clear reference to earlier elicited testimony about the possible collusion and recent fabrication between those witnesses. They once were jealous of each other and didn't like each other. And now they get along with each other. There must be recent fabrication or collusion." The court found the probative value now outweighed the potential for prejudice, but prohibited the People from using the word "incest" in connection with the testimony.
On direct, appellant testified Jane Doe 1 contacted Jane Doe 2 during his relationship with Jane Doe 1, which Jane Doe 2 was not happy about; Jane Doe 1 vandalized Jane Doe 2's house; and there were additional incidents in 2019 or 2020 when the two women interacted.
After the court's ruling but before Jane Doe 3 testified, appellant moved for a mistrial on the ground that the evidence was highly prejudicial. The court denied the motion. Appellant renewed the motion on the same grounds following Jane Doe 3's testimony. The court again denied the motion.
B. Admissibility
"Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type, and essentially allowing such evidence to be used in determining whether the defendant is guilty of the current sexual offense charge." (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096.) "To determine whether [Evidence Code] section 1108 evidence is admissible, trial courts must engage in a 'careful weighing process' under [Evidence Code] section 352. [Citation.] 'Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.'" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823-824.) We review the trial court's determination that the evidence was admissible for abuse of discretion. (Id. at p. 824.)
Appellant argues the alleged incident, occurring more than 25 years before the charged crimes, was too remote to be probative. He further contends it is not sufficiently similar to overcome this remoteness because of differences in the nature of the relationships and the use of force, and because the certainty of Jane Doe 3's accusations is low in light of her vague memory and the absence of corroborating evidence.
We agree with the trial court that the admissibility question was a very close call, particularly because of the age of the alleged incident with Jane Doe 3. "Remoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses.' [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, . . . significant similarities between the prior and the charged offenses may 'balance[] out the remoteness.' [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses." (People v. Branch (2001) 91 Cal.App.4th 274, 285.)
While there are differences between the charged crimes and Jane Doe 3's testimony, as appellant argues, the similarities became more significant after the defense's questioning raised the suggestion that Jane Doe 1 and 2 worked together to fabricate the allegations against appellant. The suggestion was not wholly speculative, as there was ample evidence that Jane Doe 1 and 2 knew of each other while they were dating appellant, knew how to contact each other before July 2020, and communicated after appellant's arrest. Although, as appellant argues, the People had already been permitted to introduce evidence of uncharged sexual offenses, these were introduced exclusively through the testimony of Jane Doe 1 and Jane Doe 2 about previous sexual assaults appellant committed against them. Therefore, the significance of Jane Doe 3's testimony-an alleged sexual assault victim with no connection to Jane Doe 1 or 2 and no apparent motive to fabricate the allegation-was substantial, despite the remoteness of the alleged incident and the presence of some differences with the charged crimes. In light of our deferential standard of review, the trial court's determination that the similarity outweighed the remoteness was within the bounds of reason.
Appellant also argues the incestuous nature of the alleged incident was highly inflammatory. We are not persuaded that it was substantially more inflammatory than some of the other sexual offenses alleged, which included tying Jane Doe 1 to a bed naked and "taz[ing]" her "about 25 times," and "shackl[ing]" her arms and legs to a pole. The trial court did not abuse its discretion in determining that the inflammatory nature of the alleged incident did not outweigh its probative value.
Finally, appellant's contention that he was prejudiced by "the late discovery and admission of the evidence" is unpersuasive in light of defense counsel's awareness from the beginning of trial that the evidence might be deemed admissible.
In sum, the trial court's determination that Jane Doe 3's testimony was admissible was not an abuse of discretion.
C. Mistrial Motions
Appellant also argues the trial court erred in denying his mistrial motions. We disagree.
"' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" [Citation.] A motion for a mistrial should be granted when"' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." '" '" (People v. Edwards (2013) 57 Cal.4th 658, 703.)
Appellant argues the trial court "made a definitive ruling that defense counsel could attack the credibility of the complaining witnesses without opening the door to the admission of Jane Doe 3's testimony" and subsequently "reversed its prior ruling." The contention misstates the record: the trial court explicitly stated it could not specify all lines of questioning that would open the door to the admission of the testimony, and squarely put defense counsel on notice that the evidence might be admissible if defense questioning made it more relevant. (Cf. People v. Hall (2018) 23 Cal.App.5th 576, 593-594 ["In this case, the trial court abused its broad discretion when, after defendant elected to take the stand in reliance on the court's ruling excluding evidence of the 2010 misdemeanor knife incident, the court reversed itself and admitted evidence of the incident, despite repeatedly finding the evidence was likely to prove prejudicial and misleading."].)
Appellant also argues he complied with the trial court's ruling made during the People's case-in-chief that the evidence would not be admitted as long as the defense did not ask questions suggesting Jane Doe 1 and 2 conspired to fabricate their accusations. We disagree. The trial court stated the issue was a "very close call" and cautioned that if defense counsel asked questions "in the future along the same lines, the Court may revisit this." The defense then continued to ask questions about communications between Jane Doe 1 and Jane Doe 2. The trial court's subsequent ruling that Jane Doe 3's testimony was admissible did not render the trial unfair.
Because we reject appellant's contentions that the trial court reversed its prior rulings regarding Evidence Code sections 352 and 1108, we need not and do not decide whether the evidence was also admissible pursuant to Evidence Code section 1103.
In sum, the trial court did not abuse its discretion in denying appellant's motions for mistrial.
III. Sentence
Appellant was convicted of three sex offenses against Jane Doe 1: oral copulation by force (count 1); rape by force (count 3); and sodomy by force (count 5). The jury also found true as to each of these offenses an allegation that appellant administered a controlled substance in the commission of the offense (§ 667, subd. (e)(1)), providing an enhanced sentence of 15 years to life (§ 667, subd. (b)). The court found section 654 did not apply to stay any of these underlying counts because appellant "had separate, independent motives and objectives in each of these crimes." However, the court did apply section 654 to stay execution of the controlled substance enhancement as to counts 3 and 5 because appellant only committed one act of administering a controlled substance. The court sentenced appellant to 15 years to life on count 1, and consecutive 8-year terms on counts 3 and 5.
The People contend the section 654 stay of the enhancements was unauthorized. (See People v. Johnson (2015) 234 Cal.App.4th 1432, 1457, fn. 12 ["The People may challenge an unauthorized sentence at any time, and may do so on a defendant's appeal."].) We agree and will remand for resentencing.
Section 667.61, subdivision (h), provides: "Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section." (Italics added.) As appellant notes, there is a split among courts of appeal as to whether the italicized language encompasses the stay of execution of a sentence pursuant to section 654. People v. Caparaz (2022) 80 Cal.App.5th 669 (Caparaz) held that it did, reasoning, "A stay is a type of suspension" and to construe the provision to apply only to suspensions related to a grant of probation would "render[] the phrase 'nor shall the execution or imposition of sentence be suspended for' meaningless." (Id. at p. 689.) Caparaz also found this construction consistent with the underlying legislative purpose "to impose the greatest punishment possible for offenses covered by the law." (Id. at p. 689 &fn. 27.)
People v. Govan (2023) 91 Cal.App.5th 1015 (Govan) disagreed. Govan conceded that "a stay under section 654 has the effect of suspending a sentence until a specific contingency, that is, until the sentence imposed on another count is served," but nonetheless found the statutory phrase" 'execution or imposition of sentence be suspended'" to be "unique to a grant of probation." (Id. at pp. 1032-1033.) Govan considered the legislative history of section 667.61, finding the Legislature's purpose of" 'increas[ing] the punishment for forcible sex offenses'" to "stand[] in contrast to that of section 654, which prohibits punishment for two crimes arising from a single, indivisible course of conduct." (Govan, at p. 1034.) Govan also relied on a legislative analysis characterizing the bill as expanding the list of convictions for which the law" 'prohibits probation, '" with no mention of section 654 stays. (Govan, at p. 1034.)
We note that the same statutory phrase appears elsewhere in the Penal Code, and that courts have reached different conclusions as to whether the phrase as used in other statutes encompasses section 654 stays. (E.g., People v. Barela (1983) 145 Cal.App.3d 152, 157-158 [where § 1203.06 prohibits" 'suspen[sion]'" of" 'the execution or imposition of sentence,'" "A stay of sentence which has been imposed is not expressly covered by the language of section 1203.06. The stay is a commonly used procedure which assures, in part, that a defendant who commits and is convicted of more than one offense does not escape punishment in the event conviction on one of the counts is reversed on appeal."]; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1313 & fn. 5 [where § 12022.53 prohibits" 'suspen[sion]'" of" 'the execution or imposition of sentence,'" "the express language of the statute indicates the Legislature's intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties"].)
We agree with Caparaz that a stay is a type of suspension, and further agree with that court that the plain language is dispositive. Accordingly, we will remand the matter to the trial court for resentencing without staying any section 667.61 enhancements.
DISPOSITION
The judgment is reversed and remanded for resentencing. In all other respects, it is affirmed.
WE CONCUR: BURNS, J., CHOU, J.