The test as to whether the trial court’s denial of a continuance request is an abuse of discretion is not limited solely to situations where the action is whimsical, arbitrary, or capricious, but may also include actions not in conformity with the spirit of the law and, as such, defeats the ends of substantial justice. Following appellant’s conviction at jury trial sentencing was scheduled before the trial judge with all parties, including the judge, expressing a preference that he hear the matter. On the scheduled date for sentencing, however, the trial judge was absent. Although both the prosecution and the defense favored a short continuance to allow the trial judge to impose sentence, the second judge refused, citing the crowded jail as his reason for denying the continuance. He then sentenced appellant to state prison. While a defendant convicted at trial, unlike one who has entered a guilty plea, has no right to be sentenced by the trial judge (People v. Downer (1962) 57 Cal.2d 800), there is a preference that the trial judge sentence. (People v. Cole (1960)177 Cal.App.2d 458.) Here, the second judge’s denial of the continuance request did not meet the traditional concept of abuse of discretion, being based on a seemingly legitimate reason. However, under the circumstances of this case, the refusal to grant a continuance was not in conformity with the spirit of the law and, as such, constituted an abuse of discretion. Prejudice was established because “we are unable to say what the position” of the trial judge might have been.