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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

TERRI DEE BOYD,

Defendant and Appellant.

2d Crim. No. B326779

(Super. Ct. No. 19F-07926)

(San Luis Obispo County)

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.
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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 
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estimated the physical fight lasted no longer than two or three 

minutes. 

Busick asked her daughters to “[b]reak it up.” Bristulf 

returned to the kitchen, and he saw appellant holding Myrick by 

the hair, forcing Myrick’s head down. Bristulf said, “Girls, break 

it up.” Appellant let go of Myrick, grabbed the bubbling frying 

pan, and “swung it like a baseball bat at [Bristulf’s] face.” The 

cooking side of the pan—containing bacon, hash browns, and 

grease—struck the right side of Bristulf’s face, from ear to cheek. 

He walked out of the house and called 911. An ambulance took 

Bristulf to the hospital. During the ride, he received fentanyl for 

pain. Bristulf later developed an infection near his ear. He 

testified he had “looked like a monster.” At the time of trial, 

Bristulf was unsure whether he had any visible injury to his face. 

Defense Evidence

Appellant testified her relationship with Myrick had 

always been problematic. Appellant supported herself by making 

art pieces, and Myrick had thrown one (the picture frame) away. 

On the day of the altercation, appellant was cooking breakfast

when Myrick came into the house and started screaming at 

appellant. Appellant said she would call 911. Myrick blocked

appellant from reaching the phone and grabbed her hair. Myrick

hit appellant in the neck and banged appellant’s head against a

bar. Appellant admitted to grabbing Myrick’s hair, but she 

denied hitting Myrick. Appellant did not remember biting 

Myrick and questioned whether Myrick even sustained a bite on

her cheek. Appellant could not recall whether she used the fork 

during the altercation. At one point, “while all hell was breaking 

loose,” the frying pan began to smoke. Appellant grabbed the 

pan, and its contents “went everywhere.” Appellant did not 
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purposefully throw grease onto Bristulf, nor did she hit him with 

the frying pan. 

Verdicts and Sentencing Hearing

The jury acquitted appellant on the charge of assault with 

a deadly weapon (hot pan with grease) (§ 245, subd. (a)(1))

against Bristulf but convicted her on the lesser included offense 

of simple assault (count 1). The jury also convicted appellant of 

battery with serious bodily injury against Bristulf (count 2) and 

simple battery against Myrick (count 3).

On count 2, the court suspended imposition of sentence and 

placed appellant on three years of formal probation. The court 

ordered appellant to serve 120 days in county jail. As to the 

misdemeanor counts 1 and 3, the court sentenced appellant to 

credit for time served. 

The court also ordered fines and fees to be paid as directed 

by the probation department, including: (1) a $300 felony 

restitution fine (§ 1202.4, subd. (b) and (d)); (2) a $300 

misdemeanor restitution fine (ibid.); and (3) an unspecified 

statutory fine of $1,000, suspended if no probation violation.

DISCUSSION

Unanimity Instruction

Appellant contends the trial court erred by failing to 

instruct on unanimity as to count 3—the simple battery against 

her sister Myrick. We disagree.

“In a criminal case, ‘the jury must agree unanimously the 

defendant is guilty of a specific crime. [Citation.] Therefore, 

cases have long held that when the evidence suggests more than 

one discrete crime, either the prosecution must elect among the 

crimes or the court must require the jury to agree on the same 

criminal act.’” (People v. Covarrubias (2016) 1 Cal.5th 838, 877-
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878.) This requirement “‘is intended to eliminate the danger that 

the defendant will be convicted even though there is no single 

offense which all the jurors agree the defendant committed.’” 

(People v. Russo (2001) 25 Cal.4th 1124, 1132.)

However, “no unanimity instruction is required if the case 

falls within the continuous-course-of-conduct exception, which 

arises ‘when the acts are so closely connected in time as to form 

part of one transaction’ . . . .” (People v. Jennings (2010) 50 

Cal.4th 616, 679.) This exception “‘applies when the defendant 

offers essentially the same defense to each of the acts, and there 

is no reasonable basis for the jury to distinguish between them.’” 

(People v. Williams (2013) 56 Cal.4th 630, 682.)

We review this instructional issue de novo. (See People v. 

Sorden (2021) 65 Cal.App.5th 582, 616.)

The continuous-course-of-conduct exception applies here. 

Appellant’s acts of grabbing Myrick’s hair, hitting her, biting her, 

and stabbing her with a fork all occurred within a compressed 

timeframe. Myrick estimated the physical fight lasted no longer 

than two or three minutes. Appellant’s conduct formed a single 

transaction. (See, e.g., People v. Mota (1981) 115 Cal.App.3d 227, 

233-234 [acts of sexual violence spanning approximately one hour 

a continuous crime].) Moreover, appellant did not offer “‘entirely 

different’” defenses to each act of violence against Myrick. 

(People v. Covarrubias, supra, 1 Cal.5th at p. 880.) During 

summation, appellant’s counsel argued self-defense without 

clearly distinguishing between the different acts. The jury’s 

verdict signifies a total rejection of that defense. Appellant’s 

“multiple acts constitute[d] a single criminal event.” (People v. 

Napoles (2002) 104 Cal.App.4th 108, 116.) No unanimity 

instruction was required. 
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While acknowledging “this is a continuous course of 

conduct fact pattern,” appellant argues a unanimity instruction 

was still necessary. Appellant relies upon cases requiring the 

instruction where, as here, the prosecutor argued discrete acts. 

(People v. Hernandez (2013) 217 Cal.App.4th 559, 571; People v. 

Norman (2007) 157 Cal.App.4th 460, 466.) However, the 

continuous-course-of-conduct exception did not apply in those 

cases. That exception does apply here. “‘“Neither instruction nor 

election are required . . . if the case falls within the continuous 

course of conduct exception.”’” (People v. Leonard (2014) 228 

Cal.App.4th 465, 491.) 

$1,000 Unspecified Statutory Fine

Appellant contends, and the People concede, the trial court 

was required to provide a statutory basis for the $1,000 fine. We 

agree. The “failure to specify the amount and statutory basis for 

each fine . . . is a ‘legal error[] at sentencing’ that can be reviewed 

on appeal ‘“regardless of whether an objection or argument was 

raised . . . .”’” (People v. Hartley (2016) 248 Cal.App.4th 620, 

637.) On remand, the court must specify the $1000 fine’s 

statutory basis.

Ability to Pay Fines and Fees

Citing People v. Dueñas (2019) 30 Cal.App.5th 1157,

appellant argues that because she lacked the ability to pay, the 

trial court erred by imposing fines and fees. Even assuming the 

fines and fees implicate due process as suggested in Dueñas, 

appellant was obliged to create a record demonstrating her 

inability to pay. (Cf. People v. Aviles (2019) 39 Cal.App.5th 1055, 

1074.) While counsel orally indicated appellant lacked the ability 

to pay, appellant did not request an evidentiary hearing. The 

consequently paltry record cannot support striking all fines and 
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fees. However, appellant may raise an ability to pay claim on 

remand. We express no view on the merits of any such claim.

Multiple Punishments Under Section 654

The misdemeanor simple assault (count 1) and felony 

battery with serious bodily injury (count 2) stemmed from the 

same physical act—namely, appellant swinging the frying pan at 

Bristulf. Thus, section 654 prevents punishment under both 

counts. (People v. Corpening (2016) 2 Cal.5th 307, 312.) 

To the extent the trial court erred in failing to stay the

term of credit for time served imposed on count 1, the issue is 

moot because appellant has already served that term. Staying it

would have no ameliorative effect. Remand on this issue would 

be an idle act. (People v. Coelho (2001) 89 Cal.App.4th 861, 889 

[“[R]eviewing courts have consistently declined to remand cases 

where doing so would be an idle act that exalts form over 

substance . . .”].) Citing expanded discretion under section 654 

after Assembly Bill No. 518, appellant argues we must remand 

for the court to decide whether to stay punishment on count 1 or 

count 2. (Stats. 2021, ch. 441, § 1, p. 6435.) We are convinced

beyond a reasonable doubt that the trial court would not stay the 

punishment on count 2 to impose credit for time served on count 

1. (Cf. People v. Berdoll (2022) 85 Cal.App.5th 159, 165.) The 

court already declined to impose only credit for time served.

However, because restitution fines are punishment, section 

654 precluded the court from considering both counts 1 and 2 in 

setting the restitution fines. (People v. Le (2006) 136 Cal.App.4th 

925, 934.) The court imposed a felony restitution fine pursuant to 

count 2. It appears the court also considered count 1 in setting

the misdemeanor restitution fine at $300, given that $300 equals 

the typical statutory minimum for a misdemeanor restitution fine 
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($150) multiplied by the number of appellant’s misdemeanor 

convictions (two). (See § 1202.4, subd. (b)(1).) Thus, we will 

strike that fine. On remand, the court will impose any 

misdemeanor restitution fine without considering count 1.

DISPOSITION

The judgment is modified to strike the $300 misdemeanor 

restitution fine. The matter is remanded 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. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

CODY, J.

We concur:

GILBERT, P. J.

YEGAN, J.
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Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Andrea Keith, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri, Supervising Deputy 

Attorney General, and Nikhil Cooper, Deputy Attorney General, 

for Plaintiff and Respondent.