Farrow

The matter before us consists of a separate appeal by each of four criminal defendants who were tried together. By name, the four defendants are David James Farrow (David), Douglas Gregory Farrow (Douglas), David Wayne Jackson (Jackson) and Keith Benjamin Fletcher (Fletcher). 1 In general terms, all four defendants were charged by a three-count information that set forth allegations of first degree residential robbery, residential burglary and assault with a deadly weapon or by means of force likely to produce great bodily injury. The information also set forth numerous sentence enhancement allegations as against each of the defendants. The defendants appeal from the judgments entered below upon the jury guilty verdicts and sentence enhancement allegation true findings that were returned.

On appeal, the defendants have raised the following contentions: 2 (1) The trial court prejudicially erred in failing to conduct further proceedings to inquire into the possibility of juror misconduct, which possibility was revealed for the first time in connection with David’s motion for a new trial, *1610 and further erred in failing to grant the other defendants’ request for a…

I concur in the result and most of the court’s opinion. I dissent from that portion of the majority opinion which precludes punishment for the assaultive conduct of the defendants pursuant to Penal Code section 654.

I am unimpressed by the majority conclusion that the assaultive violence cannot be separated from the robbery conviction for purposes of additional punishment. People v. Nguyen (1988) 204 Cal.App.3d 181, 190 [ 251 Cal.Rptr. 40 ], held that “gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not ‘incidental’ to robbery for purposes of section 654.” That rationale applies in this case. A reading of the manner in which this incident unfolded demands the assault be separately punished. There is not logical justification for this act of clemency by the majority.

The problem with my position is that I have failed to garner one more vote.

The petitions of both respondent and appellants for review by the Supreme Court were denied June 3, 1993.

[Opinion certified for partial publication. [*] ]

OPINION

TIMLIN, J.

The matter before us consists of a separate appeal by each of four criminal defendants who were tried together. By name, the four defendants are David James Farrow (David), Douglas Gregory Farrow (Douglas), David Wayne Jackson (Jackson) and Keith Benjamin Fletcher (Fletcher). [1] In general terms, all four defendants were charged by a three-count information that set forth allegations of first degree residential robbery, residential burglary and assault with a deadly weapon or by means of force likely to produce great bodily injury. The information also set forth numerous sentence enhancement allegations as against each of the defendants. The defendants appeal from the judgments entered below upon the jury guilty verdicts and sentence enhancement allegation true findings that were returned.

On appeal, the defendants have raised the following contentions: [2] (1) The trial court prejudicially erred in failing to conduct further proceedings to inquire into the possibility of juror misconduct, which possibility was revealed for the first time in connection with David's motion for a new trial, and further erred…