I respectfully dissent. The trial court did not abuse its discretion in denying defendant’s belated request for a continuance. The majority reaches a contrary conclusion only through the use of selective hindsight and by substituting its judgment for that of the trial court.
As we reiterated in People v. Byoune (1966) 65 Cal.2d 345, 346-347 [54 Cal.Rptr. 749, 420 P.2d 221], a case significantly relied upon by the ma*797jority, we held in People v. Crovedi (1966) 65 Cal.2d 199, 206 [53 Cal.Rptr. 284, 417 P.2d 868], that due process “comprehends a right to appear and defend with retained counsel of one’s own choice. We further observed, however, that this right is not absolute: ... A defendant may not, for example, demand a continuance if he is unjustifiably dilatory in obtaining counsel (Ungar v. Sarafite, 376 U.S. 575, 590 [11 L.Ed.2d 921, 84 S.Ct. 841]), or if he arbitrarily chooses to substitute counsel at the time of trial (People v. Morris, 226 Cal.App.2d 12, 15 [37 Cal.Rptr. 741]).” (Italics added.) Each case must be determined on its own merits; no “mechanical tests” exist. (Id. at p. 207.)
The decision to grant or deny a continuance “is within the sound discretion of the trial court” (People v. Blake (1980) 105 Cal.App.3d 619, 624 [164 Cal.Rptr. 480]; People v. Crovedi, supra, 65 Cal.2d at pp. 206-207; see People v. Duck Wong (1976) 18 Cal.3d 178, 189 [133 Cal.Rptr. 511, 555 P.2d 297]) and it is up to the defendant timely to assert his right to “appear and defend with counsel of his own choosing” (People v. Kaiser (1980) 113 Cal.App.3d 754, 761 [170 Cal.Rptr. 62]; People v. Rhines (1982) 131 Cal.App.3d 498, 506 [182 Cal.Rptr. 478]). Once a continuance has been denied, on appeal “[t]he burden is on appellant to establish an abuse of judicial discretion . . . .” (Rhines, supra, at p. 506; Kaiser, supra, at p. 761; Blake, supra, at p. 624.)
A review of the underlying facts here demonstrates that the trial court was well within its discretion in denying defendant’s motion for continuance. Defendant failed to retain private counsel or notify the court of his desire to do so for almost three months after the trial date had been set.
On July 26, 1982, trial in this matter was set for October 26. Defendant was free on bail through trial. Sometime in September defendant apparently began speaking with private counsel, Russell Swartz, about the possibility of retaining him as his attorney in place of the appointed public defender. These meetings did not result in Swartz assuming representation of defendant, because defendant was unable to raise the necessary retainer. During this period, the court was not apprised of defendant’s attempts or of his interest in retaining private representation.
On the morning of Monday, October 18, defendant and his public defender attended the trial readiness conference. Counsel requested a continuance on the ground that certain test results might not be ready until the end of that week. The court inquired as to the People’s position on a continuance and was informed that all witnesses had been subpoenaed and were ready. The court denied the motion and put the case over to the afternoon for consideration of other matters.
*798At the end of the afternoon hearing, defendant’s counsel indicated to the court for the first time that defendant had informed him that he wished to retain a private attorney. In amplification, counsel stated defendant “has talked to private counsel and I don’t know how far they are away from arrangements . . . .” The court then directly questioned defendant who stated he had first talked to Swartz “a couple of days before he [Swartz] went on vacation” and it had “been about three weeks or longer since I had a chance to talk to him.” Defendant added that while Swartz had returned that day, he had not yet spoken to him.
The trial court denied the request, remarking it was too late. When the judge continued “and you haven’t made the financial arrangements with Mr. Swartz?” defendant replied “Well, that’s hard to do.” The majority characterizes this exchange as “representing] a timely assertion of appellant’s intentions.” (Ante, p. 792.) However, this step merely apprised the court of a desire to retain counsel, but simultaneously made clear that the desire had yet to be satisfied. Nonetheless, the majority opinion is permeated with the implication that the court would have done well to grant this request for continuance despite the fact that no retention of counsel had occurred.1
In contrast, I find it impossible to conclude that the majority could even hint that the trial court in any way abused its discretion at this point. When the court denied the request it did so on the basis of defendant’s representation that he had not spoken to counsel for more than three weeks and had yet to make definite arrangements to retain him.
Nor can I join in my colleagues’ conclusion that “appellant cannot be faulted for lack of diligence in failing to conclude arrangements with Swartz while Swartz was on vacation.” (Ante, p. 791.) Swartz’ vacation in fact lasted only 10 days according to his testimony at the hearing on October 26. Moreover, there is absolutely no indication that while Swartz vacationed, his office shut down. The record reflects that he practiced with at least one partner. Nothing would have prevented defendant from depositing money with Swartz before he left on his vacation or with Swartz’ office during the time the attorney was gone. Furthermore, the fact that defendant should not be afforded greater leeway because of his counsel’s vacation is conclusively established by the fact that when defendant went to see Swartz on October 18 or 19 following his court appearance, he was still unprepared to retain him as his attorney. Not until late on October 21 was defendant able to make a down payment. The trial court’s denial of a continuance on October 18 thus can in no way be considered a denial of defendant’s right *799to counsel of his choice; on October 18, there was no counsel willing and ready to represent defendant other than the public defender.
Probably the most important fact with regard to the October 18 motion is that the judge hearing the October 26 motion was never informed during the proceeding that the issue had been previously raised in open court. On the morning of trial, October 26, defendant disqualified the judge who heard the October 18 motions. The case was then reassigned to a new judge unfamiliar with the case. When he started hearing the motion for continuance, the judge remarked “This is an oral motion, [it] hasn’t been noticed?” The public defender agreed stating “we have attempted to put the matter on calendar for this motion but we have not been able to do that . . . .” The judge inquired as to when attempts had been made and counsel responded that the “first attempt” to have the matter calendared had occurred the Friday before, which was October 22. This characterization of the timing continued throughout the proceedings. As a result, when the trial judge whose order is at issue in this appeal exercised his discretion, he was unaware of the October 18 motion. It completely escapes me how that motion could therefore be used as any basis for demonstrating that this judge abused his discretion in denying the continuance as he did. How can an abuse of discretion occur based on facts not presented to the court?
The majority next concludes that the steps taken after defendant finally made a payment to Swartz on Thursday, October 21, “demonstrated the genuineness of appellant’s diligence in securing Swartz’s representation.” (Ante, p. 793.) In support, my colleagues cite the efforts assertedly made to have the motion for a continuance placed on calendar on Friday, October 22, or Monday, October 25, and conclude “It is not clear why the court did not permit the motion to be calendared” because there was “ample authority” to do so under both local policy and Penal Code section 1050. (Ante, p. 793.)
The reference to local “policy” apparently is based on Swartz’ testimony during the October 26 hearing. Initially, I note that Swartz forthrightly explained throughout that he personally had not handled the requests for continuance; his partner and the public defender had. No affidavits were submitted by those directly acting on defendant’s behalf or in response to those efforts, and Swartz’ testimony necessarily was replete with conjecture and hearsay.2 After Swartz observed that normal practice with short-call *800items was to ask the judge to calendar the matter at a specific time, the court inquired “Did your office or you personally indicate that you wished to have an order shortening time for such a motion? ... [1] Was that communicated to the Court?” Swartz replied that he had not talked with the court, his partner had, and “it was probably—that’s inherent in our request, that we have a hearing right away on the issue of substitution and continuance . . . .’’He further stated that he did not “believe” that the court had been informed that a written motion would be filed, nor were there any plans by the various counsel to make such a motion.
Penal Code section 1050, subdivision (b), states “To continue any hearing in a criminal proceeding, including the trial, a written notice must be filed within two court days of the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance. Continuances shall be granted only upon a showing of good cause.” (Italics added.) The majority ignores the fact that a timely written motion could have been filed. The court was not obligated to place an oral motion on the calendar by the provisions of section 1050, especially absent a showing of good cause. Here, we have no idea of what information was transmitted during the oral requests for a hearing on a motion for continuance and whether “good cause” to waive the requirement of a written motion was shown. Nor did defendant’s counsel assert that no written motion was filed because counsel believed it would have been treated in the same manner as the oral motion. The majority however assumes such would be the case. (See ante, p. 793, fn. 6.) In fact, because “good cause” must be shown in order for a court to entertain an oral motion, while no such showing must be made for a written motion to be considered, a written motion accompanied by a request for an order shortening time may well have successfully expedited matters.
These actions were not taken, however, and instead, on the morning of trial, with a jury panel called for duty and witnesses already subpoenaed, defendant’s motion for continuance based on the existence of retained counsel was first presented to the court. Under the circumstances, the trial court obviously did not abuse its discretion in refusing to grant the relief sought. To sum up the facts, defendant had been on bail for the three months between trial setting and trial date. He had talked to private counsel for well over a month before trial was to commence but did not come up with a retainer until days before trial date. Counsel then agreed to represent him only if a continuance was granted. After counsel was paid, only informal attempts were made to have a motion for continuance heard. When the motion was in fact heard on the morning of trial, the only information presented regarding the reasons for delay in seeking to substitute counsel *801was defendant’s inability to pay. The previous request for continuance made before counsel was retained was never mentioned. (See People v. Blake, supra, 105 Cal.App.3d at pp. 624-625 [where defendant had reasonable opportunity to obtain counsel of choice, no abuse of discretion if no continuance granted at start of trial].)
The majority attempts to fault the prosecution for failing to show a lack of good cause by affirmatively demonstrating inconvenience to the witnesses, jury and court. It is undisputed that a jury had been called and witnesses subpoenaed. Moreover, it is clear that the prosecution objected to the request for continuance. (See ante, p. 795, fn. 9.) The burden was on defendant to demonstrate affirmatively his diligence and good cause for the continuance. This he failed to do.
Rather than posing a contrast to cases involving “eve-of-trial, day-of-trial, and second-day-of-trial requests” where appellate courts have “found the lateness of the continuance to be a significant factor which justified a denial where there were no compelling circumstances to the contrary” (ante, p. 792, fn. 4), this case belongs squarely within that line of precedent. The majority has plucked it out of position for no apparent reason and has substituted its judgment and the use of hindsight for a proper determination of whether the trial court abused its discretion in light of the information presented to it.
I would affirm the judgment.
Kaus, J., and Grodin, J., concurred.
For example, my colleagues only grudgingly “assume” that the October 18 motion may have been premature, (Ante, p. 792.)
For example, Swartz testified, regarding contacts made with the judge’s office for the purpose of requesting that the continuance motion be calendared, that: “[I]t was my understanding that [the public defender’s] office contacted Judge Abbe’s office, asking that the matter be put on calendar for the purpose of making a motion to continue and that Judge Abbe’s office called the Public Defender’s Office back and told them that it would not be put on calendar Friday afternoon and that Judge Abbe would not put it on calendar on Monday. This is what I was told by a secretary from [the public defender’s] office, that the information had come from the court.”