I concur in the opinion of the majority of this court. I believe that it should be noted that the trial judge erred in his statement on the motion for severance that it was impossible to entertain that motion after the trial had commenced.
In People v. Terry, 2 Cal.3d 362, at page 386 [85 Cal.Rptr. 409, 466 P.2d 961], the court stated: “The Attorney General argues that Aranda is inapplicable because the judge did not have the alternative of granting separate trials and it would have been unfair to the People to exclude the confessions. He asserts that if the judge had granted a mistrial, so as to grant a severance, the double jeopardy rule would have barred further prosecutions of either defendant. This assertion is unsound. Before trial began and before Aranda was. decided, a motion to sever had been made and the judge said it was denied by the court. The defendants never indicated in any way thereafter that they no longer desired a severance. Therefore, if, when the Aranda question later arose, the judge had granted a mistrial on his own motion, defendants would be deemed to have consented to the mistrial, since it was granted to achieve their original objective of severance. Of course, if defendants consent to a mistrial they cannot successfully later urge former jeopardy. (E.g., Cardenas v. Superior Court, 56 Cal.2d 273, 276 [14 Cal.Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371].) Moreover, if defendants had refused to consent to severance, it would appear that they had waived their rights under Aranda, because they would then have prevented the court from utilizing the only equitable solution to the Aranda problem.” The motion for severance thus could have been entertained without creating a double jeopardy situation.
It is my view after an examination of the entire record and the overwhelming evidence of guilt that the error has not resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)