In People v. McNally (1980) 107 Cal. App. 3d 387, a disabling conflict was discovered by defense counsel midtrial. The trial court declared a mistrial, prompting the defendant to move for an order entering a plea of once in jeopardy. (McNally, supra, 107 Cal. App. 3d at p. 389.) The court granted the motion and dismissed the information, finding the defendant did not consent to the mistrial, and that there was no legal necessity for its granting. (Ibid.) The People appealed, claiming that legal necessity required the mistrial and that the defendant's consent was therefore unnecessary. The appellate court agreed, finding that "the development which led to the mistrial was not simply a legal or procedural error; rather, counsel's belated discovery of his conflict of interest struck at the defendant's constitutionally guaranteed right to assistance of counsel. If counsel must represent conflicting interests or is ineffective because of the burdens of representing more than one defendant, the injured defendant has been denied his constitutional right to effective counsel. " (Id. at pp. 391-392.) Because defense counsel could no longer effectively represent the defendant, defense counsel became " 'absent' as did the judge in T.P.B. v. Superior Court (1977) 66 Cal. App. 3d 881, when he disqualified himself." (McNally, supra, 107 Cal. App. 3d at p. 392.) The court concluded "that when, during a trial, the attorney for a defendant discovers and declares a conflict of interest, and when the trial court concludes that conflict may prejudicially affect the defendant's right to effective counsel, legal necessity requires a mistrial. The defendant's consent to the mistrial under such circumstances is unnecessary." (Id. at p. 393.)