Wheeler

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…

The appeal is from a judgment entered following trial by jury finding appellant Charles Wheeler guilty on four counts of robbery, four counts of assault, one count of auto theft and one count of possessing an illegal weapon.

Appellant and his codefendant, Ben Reed, entered the supermarket shortly before 5:30 a.m. on May 13, 1970. George Frazier, a clerk in the market, waited on them as they purchased several items. They then left the store. James Allen, a security guard, observed the defendants at this time. A short time later, the two defendants again entered the market. Appellant Wheeler drew a gun on the security guard Allen and announced a holdup. Wheeler directed codefendant Reed to take the gun from Allen. When Frazier could not open the -safe, the store manager was called. As money was being placed in a bag, a customer, Bush, approached. All four were ordered to the back of the store and the robbers left.

Frazier and Allen followed the robbers out and saw the robbers enter a Maverick automobile. Upon seeing Frazier and Allen, one of the robbers fired two shots in their direction. Bush drove by in his car and the three chased the robbers. At one point Bush rammed…