Bento

Relevant Procedural Background

On September 9, 1996, an amended information was filed against appellants Anthony Temell Johnson and Richard Allen Bento. Count 1 charged appellants with first degree murder. (Pen. Code, § 187.) Count 2 charged appellants with attempted willful, deliberate, and premeditated murder. (Pen. Code, §§ 664, 187.) Counts 1 and 2 also alleged that both appellants were armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).) Count 3 charged Bento with robbery (Pen. Code, § 211), and counts 4 and 5 charged Bento with assault with a firearm (Pen. Code, § 245, subd. (a)(2)). Counts 3 through 5 also alleged that Bento personally used a firearm. (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) Finally, the information alleged that Johnson had suffered a prior felony conviction. (Pen. Code, § 667, subd. (a)(1).) Appellants pleaded not guilty and denied the special allegations.

Trial by jury commenced on September 12, 1996. On September 30, 1996, the jury found Johnson guilty on counts 1 and 2, and found true the *183 allegations that he was armed pertaining to these counts. The jury was deadlocked with respect to counts 1 and 2 against Bento,…