I respectfully disagree with the majority’s analysis of the factual record here and the applicability of any court decision on which it relies to uphold the trial court’s arbitrary refusal to permit Jeffers a meaningful opportunity to allow his privately retained lawyer to replace an assigned lawyer whose first contact with the case was after Jeffers made his request.
The attorney-client scenario which sets the context within which we must address this issue appears to be sui generis, at least from our review of reported decisions. In this case, the court generally assigned the legal group of Franklin & Robinson without designating any individual attorney. Apparently, the assigned legal group screens its assigned cases and matches its available lawyers according to their expertise.
The charges of pandering and pimping with which Jeffers was charged apparently fall within the class “three” category of difficulty on a scale used by the San Diego Superior Court in evaluating the degree of competence required for attorneys it assigns indigent defendants. The assigned legal group referred the case to Patricia Robinson who handled all material appearances, the preliminary hearing and the pretrial motions in superior court. On the day of trial, Robinson told the court she was presently trying a class “four” felony trial which would not terminate for another two weeks, following which she was scheduled to try another class “four” felony trial to which she had been individually appointed. She stated she had told Jeffers of the dilemma (presumably the same morning), and that he preferred to hire his own counsel rather than have the matter shunted-off to another appointed lawyer with no previous contact with the case. Robinson did not ask to have the matter continued until she was available but advised the court her legal group would locate another of its contract lawyers to appear the following day. She did not represent that this substitute lawyer would be ready to go to trial without a continuance for preparation.
The court suggested it had a problem: The trial date had arrived and if Jeffers wished to retain counsel, it should have been done weeks ago and certainly not the day of trial. (Since there is no reason to suspect Jeffers knew he was not going to have his fully prepared, competent Ms. Robinson continue to represent him until the very day of trial, the court’s remarks seem singularly inappropriate.) The People represented they “will be calling witnesses in from out of state” and asked if the court would give an “indication that its possible to get a courtroom this week.’’'’ (Italics added.) The court could only reply: “It would appear that there’s a possibility of a *860courtroom this week, but I don’t want to anticipate what’s going to happen until tomorrow.”
The following day, Attorney De Pento specially appeared for Jeffers, stated a financial relationship had been worked out and he was prepared to represent Jeffers if there was a continuance. Without inquiring what delay would be required, the court summarily stated: “It wouldn’t appear that’s going to be the case. The People are strenuously objecting.”
At this point, a new representative from the Franklin & Robinson group stated he was prepared to take the case out, but could not believe a continuance would be prejudicial to the People. The court, did not question the extent of preparation or readiness this lawyer had attained in the few hours since he was made aware of the case. Instead, the court asked Jeffers to explain why he was dissatisfied with the legal group. This seems an inappropriate question because dissatisfaction with the employer entity rather than the lawyer who is to provide actual representation, seems irrelevant. Further, the question of dissatisfaction is unrelated to a good faith reasonable request for a continuance to allow a concededly competent felony lawyer to replace newly appointed counsel.
The following day Jeffers’s motion was renewed and again summarily rejected after a different judge ascertained one minor was going to have to come from the east coast. However, the People indicated that person was merely on standby, she was not shown to be inconvenienced by any delay, nor did the People show any inconvenience by holding her in that status. Thus, both the assignment judge and the trial judge found the motion was not timely, in spite of evidence Jeffers was unaware of the attorney-switch until the day set for trial. Timeliness therefore appears to be irrelevant under the authorities discussed hereafter. Further, the inconvenience to witnesses is not shown. The additional justification that the “reasons” Jeffers stated are not sufficient, overlooks the clear state of the record relating to a last minute loss of his experienced trial attorney in whom he had confidence, who had handled all material aspects of the case to date, replaced on the very day of trial by a person Jeffers had never met and having no familiarity with the proceedings other than perhaps looking at a bare record.1
The words of Justice Mosk, dissenting in Drumgo v. Superior Court (1973) 8 Cal.3d 930, 936 [106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984], are poignantly apt: “In the foregoing factual context, how is the administration of justice served by the dogged insistence that Mr. [A] ... and not Mr. [B] *861... represent the defendant? ... [W]hat compelling state interest is served by denying [substitution]... of the qualified and willing attorney of defendant’s choice? The obvious answer is: none.”
The majority opinion in People v. Courts (1985) 37 Cal.3d 784 [210 Cal.Rptr. 193, 693 P.2d 778], relies substantially upon the premise in Maxwell v. Superior Court (1982) 30 Cal.3d 606 [180 Cal.Rptr. 177, 639 P.2d 248, 18 A.L.R.4th 333], that chosen representation is preferred representation and that a defendant’s confidence in his lawyer is vital to his defense. The facts in this case are even more compelling than those in Courts where the defendant was forced to go to trial without his preferred counsel, but with one who at least had been involved actively in the case for some period of time. In our case, there was a de facto substitution of counsel on the day of trial. To say due process and right to counsel of choice requires nothing more than representation by someone belonging to the same ad hoc legal group, where an indigent defendant has no choice over assignments from within that group, is absurd. We cannot equate Jeffers with the civil litigant who retains a law firm for representation. Even though civil clients justifiably may be saddled with representation by any qualified member of that firm, in practice it is seldom that civil cases are not recalendared where no substantial prejudice is shown, to allow the trial to be conducted by lawyers familiar with the case. Also, it is common to have experienced trial specialists in large civil firms pick up a file worked-up by staff or associates and proceed to trial. The civil client generally has bargained exactly for this. That is in contrast to what we have here where the court forced Jeffers to proceed to immediate trial with a lawyer, not shown to be a trial specialist having no preparation or prior contact with the case rather than permit him a reasonable continuance to allow his own retained counsel time to prepare, without any inquiry as to length of continuance retained counsel would need and no showing a continuance would prejudice the People or disrupt the court’s calendar. Under People v. Courts, the error is reversible per se.
There are major flaws in the majority’s analysis. Although it speaks of Jeffers’s lack of timeliness, that is based solely on the fact his initial request was made on the date scheduled for trial. All reported decisions in which the lack of timeliness has been found to justify denial of a continuance to substitute counsel, cite one or all of the following:
(1) Defendant has had the ability but has unreasonably delayed in attempting to retain private counsel, although earlier motivated to do so;
(2) Defendant shows no potential ability to obtain private counsel within a period sufficiently short to prevent irreparable prejudice to the People’s case;
*862(3) Defendant has secured numerous prior trial continuances because of substitutions of counsel;
(4) Defendant wants to replace competent, fully-prepared counsel who is prepared to go to trial as scheduled;
(5) Either on the date trial was to begin or occasionally after trial commenced, defendant declared a conflict of interest between himself and his attorney over trial strategy or claimed other inadequacies; and,
(6) Defendant merely expressed a personal preference for a different lawyer to be appointed at public expense. None of these factors occur here, and if they lurk undiscovered beneath the factual fabric of this case, the absolute failure of the trial court to even attempt to inquire into these relevant factors does not allow us to speculate any or all of them may exist.
Here, the majority relies on two factors, timeliness and its speculation about the prosecutor’s concern for inconvenience to a witness having to travel from the east coast. The trial court never addressed witness inconvenience, only relying on its perception of a lack of timeliness, which as the majority stress “may be a significant factor justifying denial absent compelling circumstances to the contrary.” An examination of the cases referred to in the decisional footnote2 from which the majority extracted this principle, shows the intermediate appellate court cases mentioned therein all contain facts like those in People v. Rhines (1982) 131 Cal.App.3d 498 [182 Cal.Rptr. 478], a case to which the majority refers to support its position.
The disparity in Rhines and the other cases footnoted in Courts are exemplified by a factual resume of Rhines. There, the public defender had been relieved early on due to a conflict of interest and other counsel was appointed. After one trial resulted in a mistrial and seven days before a second trial was to commence, the trial court substituted new appointed counsel at defendant’s request. The trial was then continued on six separate occasions by defendant’s motions. On the second day of the second trial, defendant’s (now third) appointed lawyer asked the court to allow Rhine to represent himself with the assistance of his present lawyer. After his concededly competent present lawyer expressed willingness to continue in his defense, Rhine asked the court to give him time to get another lawyer. There was no representation Rhine intended to or would ever be able to retain a private lawyer. Without having his request rejected, but with the court commenting that Rhine appeared to be deliberately attempting to create a conflict with his present counsel, he then agreed to proceed with his current *863lawyer. Later that day, he elected to proceed without counsel and made a knowing and voluntary waiver of counsel. It is astounding the majority can view the facts in Rhines and similar cases as support for the trial court’s purported exercise of discretion in Jeffers’s case.
In People v. Blake (1980) 105 Cal.App.3d 619 [164 Cal.Rptr. 480], the defendant had had numerous continuances to obtain counsel before trial began and only appealed from the denial of another continuance requested in midtrial. In Blake, unlike here, there was a continuity in representation by the individual lawyer assigned to the case, and no apparent showing of ability to hire a private counsel, or representation that any particular lawyer had been selected or had agreed to represent the defendant.
More importantly, the majority overlooks the reference in Courts' footnote 4, to the earlier Supreme Court decision in People v. Byoune (1966) 65 Cal.2d 345 [54 Cal.Rptr. 479, 420 P.2d 221], in reference to the phrase “no compelling circumstances to the contrary.” In Byoune, defendant was happily proceeding to trial with appointed counsel on grand theft charges, until the very day of trial when his motion for continuance to begin efforts to obtain retained counsel was denied as untimely. The only reason given for Byoune not attempting to secure retained counsel earlier was that he was perfectly content to proceed to trial on grand theft charges defended by appointed counsel; but when, the day before trial, the prosecution added a more serious robbery count, he reconsidered his decision. There, as in Jeffers’s case, defendant promptly informed the court of his desire to obtain private counsel as soon as the posture of the judicial game-plan changed. Relying on a decision involving a similar issue in Chandler v. Fretag (1954) 348 U.S. 3 [99 L.Ed. 4, 75 S.Ct. 1], where a last minute amendment to the pleading raising the stakes made it an abuse of discretion for a court to deny a continuance to retain private counsel even though there had been no effort made earlier to do so and even though Byoune admitted he was still indigent and his ability to obtain funds to retain private counsel depended upon his hope he would be able to persuade a relative in Chicago to front the money, the Supreme Court rejected the People’s lack of timeliness argument. The decision in Byoune stresses the fact the motion was made before trial commenced and the record contained no indication of any significant inconvenience to jurors or witnesses if a delay were granted.
Thus, there are really two issues here. First, whether the trial court can deny a continuance where the defendant has not shown to have been unjustifiably dilatory in obtaining counsel (People v. Byoune, supra, 65 Cal.2d at p. 346), and second, whether even though dilatoriness is shown, compelling circumstances exist. The expression in People v. Courts supports the second point, because the Supreme Court suggests lateness alone, if accom*864panied by the other factual circumstances present in the cited Courts of Appeal cases, would not justify denying a continuance where there are other compelling circumstances.
To the extent the majority finds support from language in Morris v. Slappy (1983) 461 U.S. 1 [75 L.Ed.2d 610, 103 S.Ct. 1610], to the effect that a “meaningful relationship” between counsel and client is not a principle guaranteed by the Sixth Amendment, each justice on the United States Supreme Court made it clear that statement is dictum. Moreover, the question of the lack of a “meaningful relationship” is a “red herring” in this case.
In Slappy, the only dispositive issue was whether the trial court abused its discretion in permitting substitute assigned counsel to proceed in face of defendant’s claim of lack of preparation. Upon inquiry by the court, the substituted lawyer stated he had commenced studying the record six days before trial and had conferred with defendant during that time. The lawyer asserted, and the court found after examination, that the lawyer was ready, willing and able. The defendant never requested a continuance for the purpose of obtaining privately retained counsel, or any substituted counsel before trial began; his only claim was that present counsel had not had adequate time to prepare. That was the sole issue resolved adversely to Slappy and it disposed of his appeal in the United States Supreme Court. Thus, Slappy involved a factual dispute which was correctly resolved against the defendant’s claim that his substituted assigned counsel had not been given sufficient time to prepare. Slappy never requested a continuance for the purpose of obtaining other counsel, although five days after trial commenced he ambiguously stated he was concerned the public defender who was originally representing him and whose inability to proceed to trial was because of illness should not have been replaced by the present public defender.
Further, the majority’s reliance on language in People v. Stroble (1951) 36 Cal.2d 615 [226 P.2d 330], is misplaced. There, defendant was represented by two public defenders who were replaced by a third public defender at the insanity phase of the trial. Defendant made no objection to this substitution and only raised his complaint on appeal. Stroble has no factual or legal similarity to this case.
In People v. Courts, supra, 37 Cal.3d at page 794, the Supreme Court stresses the lack of any showing a continuance would significantly inconvenience the court or the People. It is obvious from the discussion in Byoune and in Courts, that the burden of producing evidence on this point is on the People. Here, the court made no finding a continuance would prejudice the People’s case or the potential witnesses, and the majority speculation that *865it may have been able to find support for such a finding had it inquired is immaterial to the issue raised here.
Further, that the superior court may equate the appointment of a “legal group” with the appointment of a specific lawyer in felony cases so that the same standards of timeliness should be applied when the defendant objects to being defended at the most meaningful stage of the proceedings, the trial, by an attorney having no previous contact with the case, makes no sense. As binding Supreme Court precedent reveals, timeliness is only a relevant factor when the defendant has no valid reason to delay the trial to replace a prepared lawyer with whom no previous dissatisfaction has been expressed or there is a showing the People’s ability to successfully prosecute the defendant will be substantially impaired by delay. Timeliness should only be considered when the request for a continuance is whimsical, or prejudice is shown. Here the court made no inquiry as to the length of the delay and did not suggest its calendar would be disrupted to any degree let alone substantially; the People stated no valid reason to object to the continuance; and the court did not suggest a continuance to permit his present lawyer, Robinson, to continue with Jeffers’s defense. The court erred in arbitrarily summarily denying Jeffers a reasonable opportunity to have his retained counsel defend him at trial.
Appellant’s petition for review by the Supreme Court was denied April 2, 1987.
It is relevant also that only one prior continuance of the trial had been requested by defendant. This occurred only after the trial had “trailed” for several days, and the record is silent as to the justification for that continuance.
People v. Courts, supra, 37 Cal.3d at page 792, footnote 4.