People v. Boyd CA2/4

Filed 7/24/14 P. v. Boyd CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B249472

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA058381) v.

KENDALL K. BOYD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Modified and affirmed. Doreen Boxer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Chung Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

Kendall K. Boyd appeals from the judgment entered after his conviction of disobeying a criminal protective order (count 1), stalking (count 2), criminal threats (count 3), burglary (count 4), and dissuading a witness (count 5). He argues the court was required to give a unanimity instruction on count 3, the sentence imposed on counts 1 and 5 should have been stayed because the counts were based on the same conduct as count 4, and, alternatively, the sentence on count 5 should have been stayed because the count was based on conduct used to elevate count 1 to a felony. We conclude a unanimity instruction on count 3 was not required, but the sentence on counts 1 and 5 should be stayed. We modify the judgment accordingly and affirm it as modified.

FACTUAL AND PROCEDURAL SUMMARY Lasherrill Reeves dated defendant on and off for several years. The relationship was abusive, but Reeves remained intimate with him even after it ended. They had two children together, born in 2003 and 2010. In June 2011, defendant pled no contest to domestic violence under Penal Code section 273.5, subdivision (a),1 and a criminal protective order was issued against him. On June 9, 2012, defendant showed up at Reeves’s house and refused to leave until she gave him her phone number. After she complied, he left briefly, only to call her on the phone and threaten that if she called the police, he would “make it worth his while if he was going to have to go to jail.” He then went back, pounded on the door, and rang the bell until Reeves called the police. Defendant pled no contest to a misdemeanor violation of the protective order, stemming from this incident. Between June 2012 and January 2013, defendant repeatedly called Reeves. When she changed her phone number, he would show up at her house and demand her new number. When he called her on the phone, he would threaten to ‘“make [her] life a living hell”’ and to ‘“see [her] dead before [she] took his children out of his life.”’ In mid- December 2012, defendant brought gifts for the children. When Reeves reminded him of