Section 1382, Penal Code provides for mandatory dismissal of a misdemeanor action if it is continued without the express or implied consent of defendant beyond the 30-day period following arraignment if he is in custody at the time of arraignment unless good cause to the contrary is shown. (Subd. 3.) What constitutes “good cause” depends on the circumstances of each case and is a determination within the discretion of the trial court. Absent a showing of abuse of that discretion, the trial court’s determination will not be disturbed. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 781 [200 Cal.Rptr. 916, 677 P.2d 1206]; Owens v. Superior Court (1980) *43628 Cal.3d 238, 250 [168 Cal.Rptr. 466, 617 P.2d 1098]; People v. Johnson (1980) 26 Cal.3d 557, 570 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Our Supreme Court has held in the circumstances of each case that the congested calendar of appointed counsel of a defendant in custody awaiting trial on a felony charge cannot serve as “good cause” under section 1382, Penal Code (People v. Johnson, 26 Cal.3d 557, 569), nor can the congested state of the trial court’s calendar in the absence of exceptional circumstances where a defendant, not in custody, is awaiting trial on a misdemeanor charge. (Rhinehart v. Municipal Court, supra, 35 Cal.3d 772, 781-782.)
In the instant case no argument of good cause was made by the prosecution; there is no evidence that the trial court could not have heard the case on the last day; the court expressly stated there was no issue of congested trial court calendar; and the court found there to be no exceptional circumstances. Thus, in denying defendant’s motion for appointment of new counsel on the last day, the trial court said “the relevant issue is counsel’s unavailability to try one case after being engaged in another case and whether or not the court has an obligation under those circumstances to appoint another attorney for a non-custody defendant. ” The court concluded that significant “was the fact Miss Hollander was trying another case and that the issue is whether Mr. Gomez had the right to require the court to appoint a second counsel because of that.” The next day (May 15) defendant’s motion to dismiss was denied. Thus the appellate issue is whether under the circumstances the congested calendar of the deputy public defender representing a defendant, who is not in custody, awaiting trial on a misdemeanor charge is “good cause” under section 1382, Penal Code. At first blush it would appear, as urged by petitioner, that Johnson and Rhinehart compel a negative answer, but despite the language in People v. Rhinehart, supra, 35 Cal.3d 772, 782, I cannot agree. Under the circumstances here I find no abuse of judicial discretion in the denial of the motion to dismiss. In my view People v. Johnson, 26 Cal.3d 557 does not here control because it is limited to the in-custody defendant (p. 569), contemplates the ability of the trial court to appoint other counsel who will be able to bring the case to trial within the statutory period (p. 580), and rests on the improbability that a dismissal would result in defendant’s escaping trial. (P. 573.)
I
Denial of Request to Appoint New Counsel
The court in People v. Johnson, supra, 26 Cal.3d 557, clearly restricted its holding to a defendant in custody pending trial. “A defendant who is incarcerated pending trial, such as defendant Johnson, suffers particular harm when he is denied his right to trial within the statutory period. The *437following discussion of the ‘good cause’ provision of section 1382 is limited to the case of an incarcerated defendant.” (P. 569, fn. omitted.) Later the court concluded, “. . . the state is in no position to deny a defendant his right to a speedy trial because the state is unable to provide counsel who can bring the case to trial within the statutory limits. If the state wants to incarcerate a citizen it cannot do so in violation of the state’s own obligations and in violation of its own self-imposed conditions of confinement. The state must be a model of compliance with its own precepts.” (P. 580.) The rationale is that the speedy trial right of an in-custody defendant cannot be subordinated to the convenience of the public defender and the criminal justice system while he remains confined in jail beyond the prescribed time until the system will accommodate him. The danger to be avoided is not here present because immediately after arraignment defendant was released and thereafter remained free on his own recognizance.
Petitioner seeks to escape the custody-status distinction drawn in Johnson by pointing up language in Rhinehart v. Municipal Court, supra, 35 Cal.3d 772 which, he urges, makes Johnson applicable to his case. In Rhinehart, a misdemeanor case in which defendant was not in custody, the court, not then available for a trial of the cause, impaneled a jury on the last day of the statutory period solely to avoid dismissal under section 1382, and thereafter continued the trial a week past the statutory limit. On the main issue, the court held the accused is “brought to trial” within the meaning of section 1382 when the case is called for trial by a judge available and ready to try the case to its conclusion. (P. 780.) Then the court was confronted with whether the trial court’s congested calendar constituted “good cause” for avoiding the time limit of section 1382. Neither a waiver of speedy trial right nor an issue involving the right to new court-appointed counsel was involved. In discussing the court’s congestion as “good cause,” the court cited to Johnson stating, “Although the court in Johnson expressly limited its discussion of the ‘good cause’ provision of section 1382 to cases involving individuals who are incarcerated while awaiting trial (Johnson, supra, 26 Cal.3d at p. 569), there is no sound reason why its reasoning should not apply to individuals who are not in custody. The constitutional and statutory guarantees to a speedy trial are not limited to incarcerated individuals.” (P. 782.) It is the rule of Johnson, that court congestion is not “good cause” under section 1382, that was specifically applied in Rhinehart to misdemeanor defendants who are not in custody. But aside from my interpretation of Rhinehart, there are several reasons for my conclusion that Johnson should not apply in the circumstances of this case.
First, Johnson by its own language is restricted to in custody defendants, and there is good reason for this. Even the statute (§ 1382, subd. 3, Pen. Code) makes a distinction between those in custody and those who are not. It is made in the context of when the time within which an accused must be brought to trial in a misdemeanor case begins to run—30 days after a de*438fendant is arraigned “if he is in custody at the time of arraignment” or 45 days “in all other cases.” The Legislature made custody status an important factor in the case of misdemeanants. Prejudice suffered by a defendant in custody because of a delay in trial is the obvious basis for the distinction in the statute as well as in Johnson. Johnson's requirement of stricter speedy trial rights based upon “the particular harm” faced by the incarcerated defendant, hardly applies here.
Second, Johnson's rationale contemplates that the trial court will be able to appoint competent new counsel who will bring the case to trial before the statutory period expires. In that case the court could have easily done so because of the time factor involved. Johnson was arrested on February 2; trial was set for March 23 on which day the deputy public defender asked the court for a continuance to May 6 because his trial calendar of other cases prevented him from trying defendant’s case before that time; the court granted the request and continued the cause to May 6 over objection of defendant. There the trial court acquiesced in a delay attributable to the deputy public defender, knowing nine days in advance of the last day of the statutory period that he still would be unavailable to represent Johnson because he was engaged in another trial. There was adequate time for the trial court to act in Johnson’s case—inquire into the matter of appointment of new counsel and appoint one who would be able to bring defendant to trial within the statutory limit. Said the court: “A defendant deserves not only capable counsel, but counsel who, barring exceptional circumstances, can defend him without infringing upon his right to a speedy trial.” (P. 572.) And again, at pages 572-573, “Under these circumstances we think the court should inquire whether the assigned deputy could be replaced by another deputy or appointed counsel who would be able to bring the case to trial within the statutory period. In some instances, appointment of new counsel will serve to protect defendant’s right to a speedy trial. If, on the other hand, the court cannot ascertain a feasible method to protect defendant’s right, the court will have no alternative but to grant a continuance; upon a subsequent motion to dismiss, however, the court must inquire into whether the delay is attributable to the fault or neglect of the state; if the court so finds, the court must dismiss.” (Fn. omitted.) Johnson placed on the trial court the burden of determining whether another deputy public defender was available and if not, of finding a competent lawyer to bring the case to trial within the statutory period. As I read Johnson, appointed counsel’s congested trial calendar alone does not per se require appointment of new counsel, for if under the circumstances the court “cannot ascertain a feasible method to protect defendant’s right,” it has no alternative but to grant a continuance.
The circumstances of Johnson do not exist here and further, the need for effective representation by appointed counsel who is appointed the same day he must go to trial, is no small problem. Here the trial court for the first *439time learned on the last day (May 14) of the statutory period that the deputy public defender, Ms. Hollander, was unavailable for trial of defendant’s case. The plain facts are that Ms. Hollander knew on May 11, when she took on the defense of O’Brien in another trial (People v. O’Brien) in another court, that she would not be available to defend Gomez on May 14, yet she did nothing to so advise the court; she waited until the last day of the statutory period (May 14) to inform the court and request appointment of new counsel for defendant. It is conceded that no other deputy public defender was available. Petitioner argued that the court should have “done something.” I fail to see what the court could have done under the circumstances for it is not reasonable that counsel appointed on the last day would be able to competently defend Gomez and proceed to trial on that day “to protect defendant’s right to a speedy trial.” (People v. Johnson, supra, 26 Cal.3d 557, 572.)
Defendant was arrested on April 12, 1984; on April 13, a complaint charging him with a violation of section 11550, subdivision (b), Health and Safety Code, was filed. On that day he was arraigned, entered his plea of not guilty and was immediately released on his own recognizance. Defendant was not in custody at any time during the pendency of the trial. The public defender was appointed to represent him, and the cause was set for jury trial for May 1. Thereafter the cause was twice called for jury trial (May 1,8), and on each call Ms. Hollander answered ready; the case trailed to Friday, May 11. On May 11 the case was called for a jury trial and Ms. Hollander and the prosecutor answered ready; the cause trailed to May 14. However, on the same day (May 11) in another court, Ms. Hollander announced ready for and proceeded to trial in the two-week jury trial of People v. O’Brien, and on that day a jury was impaneled and sworn. On Monday, May 14, the 30th day from defendant’s arraignment, Ms. Hollander appeared with defendant, and when the cause was called for jury trial and the prosecutor announced ready she, for the first time, informed the court she was unavailable for trial having on Friday, May 11 become engaged in the trial of People v. O’Brien; and requested the court appoint another lawyer to represent defendant herein. Thereupon, defendant read from a printed card, “I don’t want to waive time. I want my speedy trial right. I want the court to appoint another lawyer for me today since Miss Hollander is engaged.” Ms. Hollander requested the court to appoint counsel so that defendant “could exercise his speedy trial rights and have his trial, this being the last day.” The court denied the motion, concluded that defendant was not ready for trial because his lawyer was engaged, over his objection ordered the trial to trail on a day-to-day basis behind People v. O’Brien to await Ms. Hollander and placed defendant on three-hour call. The next day, May 15, the day following the expiration of the 30-day period, Ms. Hollander appeared with defendant and moved to dismiss. The court denied the motion and ordered the case to trail day-to-day; Ms. Hollander became available on May 16, O’Brien having changed his plea. On Friday, May *44018, defendant and Ms. Hollander appeared, the cause was set for jury trial and defendant waived time. On October 4 defendant and Ms. Hollander requested that he be diverted and referred to the probation department. Defendant is presently in the diversion program.
Ms. Hollander’s failure to advise the court on May 11 that she would be unavailable for trial on what she knew to be the last day (May 14) of the statutory period, knowing no other public defender was available to take over for her, deprived the court of the opportunity to appoint counsel who would be prepared to defend Gomez within the speedy trial limit and avert a delay. At the same time defendant refused to waive time (as he had a right to do) and insisted the court appoint counsel on the last day so that he could go to trial the same day. It is only fair to expect the state to provide facilities and the machinery needed to give a defendant his speedy trial right, but in this case the court was placed in the untenable position of either delaying the trial past the 30-day limit or appointing counsel who, unfamiliar with the case and unprepared to represent Gomez, would have to proceed with the jury trial the same day. One wonders what kind of representation defendant would get under such circumstances. As stated in Johnson, an accused deserves not only capable counsel but counsel who can defend him and be able to bring the case to trial within the statutory period. It is entirely unrealistic to expect newly appointed counsel to take over the defense in a jury trial especially one in which defendant is charged with a narcotic violation, and be prepared to effectively represent him on the same day he was appointed. Petitioner had a tendency in his oral argument to sweep this concern under the rug by telling this court “we are not to that point yet,” but I disagree. Effective representation of a defendant under these circumstances is a serious consideration for the court, and now, I cannot find that the court, faced with all of the foregoing circumstances acted unreasonably.
II
Motion to Dismiss
Johnson instructs us that in some instances appointment of new counsel will serve to protect defendant’s right to a speedy trial but if the court cannot ascertain a feasible method to protect defendant’s right, the court will have no alternative but to grant a continuance; “upon a subsequent motion to dismiss, however, the court must inquire into whether the delay is attributable to the fault or neglect of the state; if the court so finds, the court must dismiss.” (26 Cal.3d at 572-573, fn. omitted.)
On the day (May 15) following the last day of the statutory period the court denied defendant’s motion to dismiss. No reason for its decision on *441the motion was given by the court but the ruling carries the implied finding that the delay beyond the 30-day period was not attributable to the fault or neglect of the state, and that “good cause” existed for delaying the trial beyond the 30-day period. (People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1008-1009 [122 Cal.Rptr. 267].) It is conceded by both parties that no court congestion existed thus, the state did not cause the delay. Here, then, the delay reasonably can be attributed to the state only if the state was in a position to avert it. The fault or neglect in Johnson and Rhinehart was attributable to the trial court because it knew well in advance of the last day that counsel would be unavailable or that no court would be available for the trial, but did nothing. Without further belaboring the point, it is clear the trial court here was given no time in which to appoint counsel to properly represent defendant and who could try his case within the statutory time, which means trial on the same day counsel was appointed. This caused a delay for which the court was not responsible and which could not have anticipated by it and it could not avert. The delay was caused by Ms. Hollander who took on the trial of another case three days before but did not advise the court until the last day that she was unable to represent Gomez. The court did not acquiesce in the delay. Under these circumstances I cannot attribute the resulting delay in trial to the fault or neglect of the court. In my view the state neither caused the delay nor acquiesced in a delay caused by an officer of the court.
Finally, I have several concerns with the result reached in the majority opinion. First, it opens the way for abuse that makes a mockery of our system of justice. It allows a defendant in a criminal case with the aid of his court appointed lawyer to wait until the last day of his speedy trial period to advise the court that his counsel is unavailable for trial, refiise to waive time and demand the court appoint new counsel to go to trial immediately thereby placing the trial court in the position of having to either appoint new counsel who is neither familiar with the case nor prepared to proceed to immediately go to trial, or dismiss the charges against defendant. This concern was voiced in Johnson in the case of a defendant in custody. Said the court: “Because appointed counsel are furnished by the state, fault or neglect by such counsel may under the reasoning of this opinion result in the dismissal of charges. We observe, however, ‘that both the people and the defendant have the right to an expeditious disposition, and to that end, it [is] the duty of all courts and judicial officers and of all counsel, both the prosecution and the defense, to expedite such proceedings to the greatest degree that is consistent with the ends of justice. ...’(§ 1050.) It would therefore be improper for appointed counsel deliberately to overbook his calendar or otherwise conduct himself so as to delay trial and thereby secure a dismissal of the charges against his client; such deliberate delay, because undertaken for the benefit of the defendant, would constitute good cause to deny a motion to dismiss.” (People v. Johnson, supra, 26 Cal.3d 557, 573, fn. 17.)
*442Second, the defendant in a case of this kind will escape prosecution because section 1387, Penal Code precludes a refiling of misdemeanor charges. However, in Johnson there was no likelihood that defendant would evade prosecution. Said the court at page 573: “The dismissal of charges when a defendant is denied his right to a speedy trial whether because of conflicting obligations of appointed counsel, congested court calendars, or other causes will not result in defendants’ escaping trial for serious crimes they may have committed. Under section 1387, the dismissal of a felony charge for lack of a speedy trial is not a bar to further prosecution unless the charge has been previously dismissed on such grounds.”
In concluding, I note that prior to the filing of the within petition defendant appeared with Ms. Hollander before the trial court and requested that he be diverted. Presently defendant is in the diversion program. Defendant’s acceptance of the benefits of diversion well may operate as a waiver of his speedy trial rights; in my opinion the alternative writ was improvidently issued.
A petition for a rehearing was denied July 22, 1985, pursuant to rule 27(e), California Rules of Court.