P. v. Dodds

Filed 6/14/06 P. v. Dodds CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed.

PETITION for Writ of Habeas Corpus. Petition denied.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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Jaymar Dodds appeals from the judgment entered following his conviction by a jury on one count of attempted premeditated murder (Pen. Code, §§ 187, 664)[1] and seven counts of robbery (§ 211). Dodds contends the trial court's denial of his midtrial request for a continuance because of the unavailability of a defense alibi witness (his fiancée) constituted prejudicial error. He also asserts the trial court erred by imposing separate, consecutive 25-years-to-life gun-use enhancements for both attempted murder and one of the robberies based on the shooting (and serious injury) of a single victim. We affirm. We also deny Dodds's petition for writ of habeas corpus, which we have considered in conjunction with this appeal, again finding no basis for his claim the court prejudicially erred by denying his request for a continuance.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Robberies and Attempted Murder

Dodds and his codefendant Deanthony Nichols were tried on a variety of charges relating to robberies at three Palmdale businesses in late 2002 and early 2003. The first incident took place on December 18, 2002. Two employees of a 99¢ Only Stores, Ronald Reed and Estella Schimmeyer, were entering the store in the early morning when they were attacked by a masked man, armed with a gun, who pushed Reed to the floor and forced Schimmeyer to turn off the alarm and open the store's safe for him. Reed identified Dodds as the man who had robbed him in a photographic lineup and at the preliminary hearing.

The second incident occurred on January 19, 2003 at a Starbucks. Two masked assailants with guns approached employees Melissa Robinson, Miguel Serrano and Dana Volack as they opened the store in the morning. Serrano and Robinson were pushed or ordered to the ground, while Volack was forced to disarm the store alarm, open the safe and direct the perpetrators to the store surveillance system. At the preliminary hearing Andre Collier, Dodds's stepbrother, testified he had heard Dodds bragging over the telephone about robbing the 99¢ Only Stores and also had heard Dodds say he robbed businesses located near a freeway so he could escape quickly. That testimony was read to the jury at trial after Collier provided inconsistent testimony.

The third incident, similar to the others in time of day and method of entry, took place on January 30, 2003 at a Carrows Restaurant. Two men, at least one of whom wore a cap, hood and bandana to attempt to conceal his face, rushed the door as two employees were entering the restaurant in the early morning. One employee, Miguel Camberos, was forced to the floor at gunpoint. The other, Janice Ratterree, was first instructed to disable the alarm, then taken to the back office where she was threatened at gunpoint and compelled to empty the safe. While Ratterree was in the back office, the assailant fired his gun near her head. The shot prompted Camberos, who was in the dining area of the restaurant, to attempt to stop the man guarding him from pointing his weapon. At that moment, the perpetrator who had been in the back with Ratterree emerged from the back office and shot Camberos in the stomach. Camberos survived the shooting. Ratterree identified Dodds in a photographic lineup as looking like the person who had robbed her and positively identified Dodds at trial as the robber.

2. Jury's Verdict and Dodds's Sentence

The jury convicted Dodds on one count of attempted willful, deliberate and premeditated murder (count 1 [Camberos]) and two counts of robbery (counts 3 [Ratterree] and 4 [Camberos]) in connection with the Carrows Restaurant robberies and shooting; three counts of robbery (counts 6 [Volack], 7 [Robinson] and 8 [Serrano]) for the Starbucks robberies; and two counts of robbery (counts 9 [Schimmeyer] and 10 [Reed]) for the 99¢ Only Stores robberies. The jury also found true special allegations that Dodds had personally discharged a firearm that proximately caused great bodily injury to Camberos (§ 12022.53, subd. (d)) as to counts 1, 3 and 4, that he personally used a firearm (§ 12022.53, subd. (b)) as to counts 6, 7, 8, 9 and 10, and that Dodds had previously been convicted of a serious or violent felony within the meaning of the â€