Sutton

Defendants Charles Edward Sutton and Larry Decateur Arnold were convicted by a jury of three felonies arising out of the same robbery (Pen. Code, § 211), assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and grand theft of a firearm (Pen. Code, § 487, subd. 3). The jury fixed the robbery at first degree, found both defendants used a firearm during its commission in violation of Penal Code section 12022.5 and found that Arnold intentionally inflicted great bodily harm on the victim in violation of Penal Code section 213. The jury also found both defendants to have been armed with a deadly weapon in violation of Penal Code section 12022 at the time of the firearm theft. The court defendants to prison on all charges but stayed execution of the grand theft and assault sentences pending any appeal and during service of sentence for the robbery, the stays to become permanent upon of the robbery sentences.

On appeal defendants contend: (1) the motions to suppress evidence under Penal Code section 1538.5 should have been granted, (2) their convictions of the assault and theft charges were for offenses necessarily included within the robbery conviction, and (3) the court…