People v. Boyd CA2/6

Filed 7/25/24 P. v. Boyd CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B326779 (Super. Ct. No. 19F-07926) Plaintiff and Respondent, (San Luis Obispo County)

v.

TERRI DEE BOYD,

Defendant and Appellant.

Terri Dee Boyd appeals following a trial at which the jury found her guilty of simple assault (Pen. Code1, § 240; count 1); battery with serious bodily injury (§ 243, subd. (d); count 2); and simple battery (§ 242; count 3). Appellant contends the trial court erred by: (1) failing to instruct on unanimity as to count 3; (2) not staying the sentence on either count 1 or 2 pursuant to section 654; (3) not staying the misdemeanor restitution fine for

1 All undesignated statutory references are to the Penal

Code.

count 1 pursuant to section 654; and (4) imposing fines and fees when appellant had no ability to pay. Appellant further contends remand for resentencing is necessary because the trial court imposed a $1,000 fine without citing a statutory basis. We conclude no unanimity instruction was required. We consider the section 654 issue to be moot, except as to the $300 misdemeanor restitution fine, which we will strike. We will remand with direction for the trial court to (1) impose any misdemeanor restitution fine without considering count 1; and (2) specify the statutory basis for the $1,000 fine. On remand, appellant may request an ability to pay hearing. FACTUAL AND PROCEDURAL BACKGROUND Prosecution Evidence Appellant lived in a home with her mother, Betty Busick. Kellie Myrick, who is appellant’s sister, and Myrick’s boyfriend David Bristulf were renovating a small “granny home” on the same property. One day, Myrick threw away a picture frame she found on the granny home’s deck. The frame belonged to appellant, who became upset. The next morning, Myrick and Bristulf went to the main home to visit Busick for breakfast. Appellant was cooking bacon and hash browns in a frying pan, and she was holding a fork. Appellant and Myrick began arguing. Busick called Bristulf into the living room so appellant and Myrick could “sort it out.” After about a minute of verbal argument, the encounter escalated into a physical fight. Appellant hit Myrick, who hit back. Appellant used the fork to stab Myrick in the neck, back, and three times in the left arm. Appellant grabbed Myrick’s head, brought it to her face, and bit Myrick’s cheek. Myrick recalled that appellant had Myrick’s hair in both hands. Myrick