I dissent. Applying the test of later constitutional developments in criminal law to this 1962 trial, I believe that the judgment should be reversed as to both defendants. The combination of a joint trial and representation by a single attorney enforced shallow and ineffectual cross-examination and deprived both defendants of their Sixth Amendment right of confrontation.
During the prosecution’s case in chief, Officer Sanich testified to a statement made by Carter at the scene of the arrest: “I didn’t do it. Williams did it.” Although the statement does not identify “it” as the robbery or the fight, Sanich testified that Carter was referring to the robbery. The statement was elicited by defense counsel on cross-examination. Sanich also testified that Williams, although present during Carter’s accusation, remained silent. *825Sanieh was later called as a prosecution rebuttal witness. On direct examination he testified to a conversation with Williams at the “detective division.’’ In response to a leading question by the prosecutor, he testified that Williams denied personal involvement in the robbery but had accused Carter of the robbery. A few minutes later he said that Williams had “indicated” Carter’s commission of the robbery but didn’t state it outright. The court struck Sanieh’s second statement, but not the first. Sanieh then testified to an extrajudicial statement made by Carter, as follows: “Yes, Carter stated Williams had robbed him [i.e., the victim]. ”
Inescapable impact of . Sanieh’s testimony upon the jury was that each defendant had made an extrajudicial statement-accusing the other of the robbery. On this direct appeal we must appraise the impact of these extrajudicial accusations in the light of constitutional developments occurring after the 1962 trial. (People v. Charles, 66 Cal.2d 330, 334 [57 Cal.Rptr. 745,425 P.2d 545].)
Jointly tried defendants are denied the right to the effective assistance of counsel where, notwithstanding a conflict of interest, they are represented by a single court-appointed attorney. (People v. Chacon, 69 Cal.2d 765, 774 [73 Cal.Rptr. 10, 447 P.2d 106].) Here, each defendant had uttered an extrajudicial accusation against the other. Since each defendant’s out-of-court statement exculpated himself but inculpated the other, the single attorney had to restrain himself in Cross-examining the witness, lest he destroy the exculpatory along with the inculpatory phase of the statement. Sanieh was especially vulnerable to cross-examination because at the preliminary examination he testified that both defendants had denied participation in the robbery, then, at the trial, stated he did not recall these denials. As pointed out in People v. Donohoe (1962) 200 Cal.App.2d 17, 28 [19 Cal.Rptr. 454], separate counsel for each defendant might have employed tactics for the best interest of his own client including vigorous assault on the other defendant. The extrajudicial accusations created a conflict of interest and one attorney could not give effective representation to both these defendants. (See also, People v. Lanigan, 22 Cal.2d 569, 576-577 [140 P.2d 24, 148 A.L.R. 176] ; People v. Odom, 236 Cal.App.2d 876, 878-879 [46 Cal.Rptr. 453].)
A necessary implication of Bruton v. United States, 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620], also demands reversal. Bruton holds that the conviction of a defendant at a *826joint trial must be set aside where he is incriminated by the admission in evidence of his codefendant’s confession. Infringement of the Sixth Amendment right of confrontation is the basis of the rule. In all logic the rule applies just as forcefully to an extrajudicial accusation by one codefendant against another.
In the light of constitutional hindsight, these defendants suffered a serious deprivation of confrontation by being subjected to a joint trial. If Carter had been tried alone, he could have chosen not to testify, thus avoiding impeachment. Under those circumstances, Williams’ extrajudicial accusation against him would have been inadmissible hearsay. (People v. Johnson, 68 Cal.2d 646 [68 Cal.Rptr. 599, 441 P.2d 111].) If Williams had been tried alone, he could have adopted a similar tactic.
Although there is much to be said for the contention that the declarant’s presence in court and his current availability for cross-examination satisfy the confrontation requirement, People v. Johnson, supra, does not permit that argument. (Cf., People v. Pierce, 269 Cal.App.2d 193, 202 [75 Cal.Rptr. 257].)
The constitutional errors (however retroactive) infecting the trial can be classed as harmless only by the impermissible process of assaying the incriminating quality of the remaining evidence after the constitutionally invalid evidence has been subtracted from the record. In measuring prejudice we must view the whole record, “the entire picture of the defendant put before the jury.” (People v. Bassett, 69 Cal.2d 122, 138 [70 Cal.Rptr. 193, 443 P.2d 777] ; People v. Hopper, 268 Cal.App.2d 774, 778 [75 Cal.Rptr. 253].) When the record is viewed in its entirety, there is—at the minimum—a reasonable possibility that the invalid evidence influenced the verdict. I would reverse.
Appellants’ petitions for a hearing by the Supreme Court were denied October 22, 1969. Mosk, J., did not participate therein.