Young

—I concur in the judgment on the ground that the defendant’s counsel affirmatively waived the invocation of his right to the exclusion of the witness by saying that “I am not going to make an objection unless he appears as a witness,” second that he wanted “to wait and see what the testimony relates to” followed by silence when the officer testified.

Respondent’s petition for review by the Supreme Court was denied March 19, 1986.

—Defendant was charged with two counts of first degree burglary (Pen. Code, § 459). He moved to set aside the information (Pen. Code, § 995) on the ground that a violation of the witness exclusion order at his preliminary examination denied him a substantial right. The court granted the motion and dismissed the information, despite an express finding that defendant was not prejudiced by the violation. The People appeal. (Pen. Code, § 1238, subd. (a)(1).) (All further references to sections of an unspecified code are to the Penal Code.) We shall reverse the judgment of dismissal.

*540 The felony complaint charged the identical burglaries which were later charged in the information. Before the commencement of the preliminary hearing, defendant moved “to exclude witnesses.” The magistrate ordered all witnesses other than the prosecutor’s designated “investigating officer” (§ 867) “to hold themselves available outside.”

The prosecutor called the two burglary victims in turn. The second victim, Dr. Mark Fletcher, testified that on November 30, 1983, his home was forcibly entered and property stolen from within.

At the conclusion of Fletcher’s testimony, defense counsel…