*509DISSENTING OPINION OF
KOBAYASHI, J. WITH WHOM LEVINSON, J„ JOINSI dissent.
The heart of the matter is that though appellant’s motion for change of appointed counsel was granted, new counsel was not allowed sufficient time to prepare the case.
At 9:40 a.m. on November 22, 1971, appellant’s motion for new counsel was denied. After appellant informed the trial court that he would pay for his own attorney, the trial court allowed appellant one hour to find another attorney. The following colloquy ensued.
THE DEFENDANT: Yeh, even if I have to pay for my own attorney, I pay for ’em.
THE COURT: Now you can pay for your attorney?
THE DEFENDANT: Well, I try. Now I working. I try.
THE COURT: What?
THE DEFENDANT: I going try. Because I no like go to court with this feeling that, you know, I already lost the trial before I even start it, and that’s the feeling I got so I don’t want to go to trial that way.
THE COURT: Mr. Torres, you’re going to pay for your own' attorney?
THE DEFENDANT: If I have to, I’m going to pay for my own attorney.
THE COURT: All right, Mr. Torres. The court will give you half an hour to get a new attorney.
THE DEFENDANT: Half an hour to get a new attorney?
THE COURT: Yes. Because I don’t want to dismiss the jurors. They’re outside waiting for this case to go on trial. And you know what it’s costing the State?
THE DEFENDANT: Your Honor, if I lose this case, I’m going jail probably, right? And you give me half an hour for, you know.
*510THE COURT: All right. I’ll give you one hour to get a new attorney.
THE DEFENDANT: Okey. I try get one new attorney in one hour.
At 10:50 a.m. the appellant returned to court with Mr. Hall of the Public Defender's Office. The Court then discharged Mr. Dwight, appellant’s former court appointed attorney, and appointed Mr. Hall as appellant’s attorney but the court refused to grant appellant’s request for a continuance of the trial in order that his new attorney may have time to prepare for trial.
The majority considered several factors in arriving at the conclusion that no actual prejudice was suffered by appellant.
As to exact length of time, Mr. Hall had less than 24 hours to prepare the appellant’s case for trial.
As to the complexity of the case, the majority deems it “quite simple”, involving “only about a day and a half of trial.” It should be noted that the appellant’s trial involved 14 exhibits and the testimony of 11 witnesses, including the testimony of a fingerprint expert. There is no question that Mr. Hall was denied reasonable opportunity to interview the witnesses, examine all exhibits in detail, prepare for voir dire of jurors which occurred on the same day as the appointment, secure expert testimony regarding the fingerprint evidence, and conduct a careful independent investigation of the facts of the case.
In addition to being deprived of the above opportunities to prepare the case, appellant was deprived of the most significant aspect of legal counsel — that of unhurried, reasoned analysis of all the circumstances of the case.
In Moore v. United States, 432 F.2d 730, 735 (3rd Cir. 1970), relied on by the majority, it was stated:
Adequate preparation for trial often may be a more *511important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful analysis of the information it yields may disclose evidence of which even the defendant is unaware and may suggest issues and tactics at trial which would otherwise not emerge.
The majority accords great weight to the fact that Mr. Hall had access to the prosecution’s file and work done by Mr. Dwight, the appellant’s original attorney. Knowledge of the prosecutor’s version of the facts obviously does not alleviate the need for defense counsel to conduct an independent investigation of the case. Reliance on the prosecutor’s file alone by defense counsel would certainly be the result of poor judgment.
Even coupled with Mr. Dwight’s work, the fact remains that Mr. Hall was required to select a jury immediately and had less than 24 hours thereafter to familiarize himself with the details of the case and throw together some sort of defense.
The majority’s discussion regarding appellant’s motivation for seeking a new lawyer is absolutely irrelevant. Whether defendant’s motives were justifiable or not go to the issue of whether counsel should have been granted. In this case new counsel was granted by the court.
Though the majority feels that defendant’s motivation is “extremely significant in showing that there was no abuse of discretion in failure to grant a requested continuance”, the majority claims it did not “seize on this opportunity to speculate on appellant’s actual motives”. Nevertheless, the majority felt that any damage suffered by the appellant was brought upon himself by his own actions. In fact, what the majority has done, is to penalize the appellant for exercising a constitutional right. There is absolutely no evidence in the record regarding the defendant’s bad motives for obtaining a *512new lawyer. Nor is there any finding by the trial court that appellant’s request for continuance was denied because of defendant’s bad motives.
The nuts and bolts of this case are that the trial court created the dilemma for the appellant by appointing a new counsel and denying sufficient time to the new counsel to prepare for trial in order that he may render effective counseling. To penalize appellant for the court’s exercise of discretion of appointing a new counsel is the height of contradiction. Furthermore, it is most unjudicial of an appellate court to speculate by stating “we are unconvinced that more preparation time would have resulted in even a marginally different or superior defense”. How can. this court project itself into a vacuum and positively determine that the appellant’s attorney, given more time, still could not have done better or could not have discovered a defect in the armor of the prosecution? To say the least, though the majority admonishes the use of speculation as a substitute for actual prejudice yet the majority relies strictly on speculation and guesswork as the substance of its holding.
I am of the opinion that the fact that appellant’s new attorney was denied even a reasonable time adequately to prepare for trial in itself constitutes prejudice to the appellant and also a denial of effective assistance of counsel to which appellant is constitutionally entitled.
Less than one day to prepare for a felony trial which may result in a serious deprivation of liberty, can hardly afford a defendant the effective assistance of counsel envisioned by Powell v. Alabama, 287 U.S. 45, 71 (1932). In fact, to hold that appellant’s case would not “have resulted in even a marginally different or superior defense” and in effect to penalize the appellant for trying to procure sufficient time for his new counsel to prepare his case renders the 6th Amendment right to effective counsel a mere shibboleth of freedom.