I dissent.
While the majority opinion relies upon certain broad language found in the cited cases, such language must be read in the light of the facts which were under consideration. I find nothing in these cases nor in reason to justify the reversal of the judgment in the present case, and I believe that such reversal will have the effect of seriously interfering with the efficient and orderly administration of justice in our trial courts.
This is not a case in which a trial court has assumed to appoint counsel of one codefendant to represent another defendant over objection on the ground of diversity of interest between the codefendants. (Glasser v. United States, 315 U.S. 60 [62 S.Ct. 457, 86 L.Ed. 680] ; People v. Lanigan, 22 Cal.2d 569 [140 P.2d 24, 148 A.L.R. 176].) Neither is it a ease in which a defendant has been forced to go to trial with unprepared counsel (People v. Manchetti, 29 Cal.2d 452 [175 P.2d 533]) or without representation by any counsel. (In re Masching, 41 Cal.2d 530 [261 P.2d 251].)
*750The present record presents a case in which one of two codefendants, who had been jointly represented by counsel of their own choice during the preliminary hearing, arraignment, and in preparation for the trial] appears with such counsel on the day set for trial, which is over 30 days after arraignment; and without previous indication or appropriate motion (Pen. Code, § 1050), informally requests a continuance for the purpose of obtaining other counsel, upon the mere suggestion that “there might be a diversity of interest.” Appellant’s counsel stated, “as far as I am concerned, I am ready to defend both these men, and I did go originally on the assumption that I would defend both of them. ...” It is patent from this and the rest of the colloquy that counsel did not believe that any conflict of interest existed, and that he felt that he could continue to represent both without any violation of his duty to either of his clients (Rules Prof. Conduct, rule 5). During the colloquy, the prosecution interposed an objection to the continuance, the ease was passed, and the attorneys for both sides conferred with the trial judge in chambers. The proceedings at this conference are not to be found in the record. It may be assumed, however, that the trial judge performed his official duty, and that he satisfied himself, as counsel had previously indicated, that counsel could represent both defendants fairly and without prejudice. The trial judge then called the case for trial. Counsel answered “ready” on behalf of both defendants, and the trial proceeded without any objection by defendant or his counsel. The record reveals that counsel vigorously and ably represented the codefendants, and there is not the slightest indication of any conflict of interest. It thus appears that defendant, without making a proper motion for continuance (Pen. Code, § 1050) and without interposing any proper objection, took the chance of obtaining a favorable verdict; and being disappointed in the result, now seeks a reversal upon the claim that the trial court abused its discretion in denying a continuance under the circumstances. No case has been cited to sustain such a claim.
While our courts should jealously guard the rights of a person accused of crime, there is no absolute right on the part of the accused to insist upon a continance of his trial for the purpose of permitting him to change from representation by one counsel of his choice to another. (People v. Dowell, 204 Cal. 109, 113 [266 P. 807]; People v. Whinnery, 55 Cal.App. *7512d 794, 798-799 [131 P.2d 33] ; People v. Shaw, 46 Cal.App. 2d 768, 772-775 [117 P.2d 34] ; Berger v. Mantle, 18 Cal. App.2d 245, 248-249 [63 P.2d 335].) I am in accord with the following language employed by Mr. Justice Schauer, while presiding in the District Court of Appeal, in People v. Whinnery, supra, at page 799, in quoting approvingly from People v. Shaw, supra: “To hold that a defendant charged with crime has an absolute right to counsel of his own selection, with unlimited right to insist upon continuances of his trial, would be subversive of the prompt administration and execution of the laws—upon which depends largely their effectiveness. It is at once apparent that the trial court must in the nature of things have some control over such matters, to the end that judicial business may be dispatched in an orderly manner; and if it has any discretion it is apparent to us that such discretion was not abused in this particular instance. ’ ’
But, as I read the majority opinion in the instant case, if the accused and his codefendant have been jointly represented by counsel of their own choice and the accused merely suggests informally for the first time on the day of trial that there might be a diversity of interest between the codefendants, the trial may not proceed and a continuance must be granted, unless perchance the accused may subsequently expressly consent to going to trial with such joint representation. (See People v. Rocco, 209 Cal. 68 [285 P. 704].) If this be the rule, then trial courts are powerless to prevent dilatory tactics on the part of those accused of crime or to prevent the disruption of the orderly dispatch of the work of our busy courts. I cannot subscribe to such a rule.
For the above reasons and those stated by Mr. Presiding Justice Moore when the case was before the District Court of Appeal (People v. Robinson *(Cal.App.) 259 P.2d 683), I would affirm the judgment.
Edmonds, J., concurred.
A hearing was granted by the Supreme Court on September 4, 1953.