This proceeding, in the nature of an application for a writ of error coram nobis, was instituted on behalf of Denzil Dye who previously had been convicted of a violation of section 311 of the Penal Code, and at the time of the filing of the petition was confined in the Sacramento County Road Camp at Folsom.

The petition alleges among other things:

That the imprisonment of said petitioner is contrary to law and in violation of the guarantee of due process of law as contained in the Constitutions of the United States and the State of California, in the following particulars, to wit: That he pleaded guilty to and was convicted of the violation of section 311 of the Penal Code of the State of California in the Municipal Court of the City of Sacramento on the 19th day of April, 1945; that said Penal Code section among other things covers indecent exposure of the person, and procuring or counseling and assisting another so to expose himself in a public place; that said conviction and/or confession had been and was obtained through fraud, duress, mistake of fact, misrepresentation, and against the free will of the defendant; that said confession and/or plea was not voluntary; that said defendant, Denzil Dye, was and is hard of hearing, and thought until five days prior to the filing of said application that he had pleaded guilty to the misdemeanor of disturbing the peace; that his counsel had represented to him that he had the case "fixed” and that upon his, the petitioner’s, plea of guilty to disturbing the peace, he would be fined only and not sentenced to any term of imprisonment nor charged with an offense involving immorality, since he was particularly concerned that such a charge should not be made because it would jeopardize his position as a federal employee.

The petition then sets out in detail the alleged facts on which these averments are based, stating in one paragraph which the referee has referred to as paragraph 1, page 7, and has found to be untrue: "That defendant has a mastoid on his ear and is hard of hearing; that after the case was called, and while defendant stood alongside counsel, ‘something’ was read that defendant did not hear or listen to or pay attention to, but which ‘something’ was afterwards learned by your petitioner to have been a complaint charging violation of section 311 of the Penal Code; that said defendant was then asked whether he pleaded guilty or not guilty; that said defendant did not hear the question the first time and when asked again made no response, although he heard the question asked the second time; that he did not for a short space of time enter any kind of plea when counsel turned and said, ‘say, guilty,’ at which time, defendant continued to demur, and then when nudged, said, ‘guilty’.” The petition concludes with a prayer that this court determine the questions involved and “that said Denzil Dye, be restored to his liberty, and granted a fair trial upon the merits and/or for any, all and such other relief as to this Honorable Court may seem meet and proper in the circumstances.”

The sheriff of Sacramento County filed an answer and return to said petition, denying that the imprisonment of petitioner was illegal or without authority of law, and reciting the steps taken in the proceedings leading to such imprisonment.

On June 4, 1945, this court issued an order to show cause why the writ should not issue, and set a time for hearing the matter. The Honorable Warren Steel, judge of the Superior Court of Yuba County, was appointed as a referee to take the testimony of all the witnesses in the matter, said testimony to be directed to the issues of fact raised by the petition and answer filed herein, and at the conclusion thereof to prepare and file in this court findings of fact upon said issues, based on the testimony so taken. The hearing was had as ordered, and the referee filed his findings and conclusions of fact, as follows:

After having made a careful examination of the transcript of the testimony herein taken, we are of the opinion that the said findings are amply justified by the evidence, and they are therefore adopted as our own.

Likewise, from such examination of the evidence it is readily apparent that the main question for this court must concern a determination of whether or not the misrepresentation of petitioner’s attorney was apparently corroborated in a substantial manner by acts or statements of responsible officials and was in good faith relied upon by petitioner and actually did operate to preclude the exercise of his free will and judgment. It was this particular question which the Supreme Court had in mind when it stated in the case of People v. Gilbert, 25 Cal.2d 422, 443 [ 154 P.2d 657 ] :

While the referee found that petitioner placed reliance upon the misrepresentations of his counsel that he had matters fixed with the responsible officials and that petitioner, in pleading guilty to a charge of disturbing the peace only, would receive nothing more than a fine, it does not follow that petitioner at the time of entering his plea was unaware of and did not understand the nature of the charge as read and thought he was only pleading guilty to a charge of disturbance of the peace. On the contrary, the evidence and the subsequent findings alike sustain the conclusion -that petitioner was aware of the nature of the morals charge which was read to him and to which his plea of guilty was personally entered.

There is no testimony of any kind to refute the statement of the judge of the municipal court and that of the prosecuting attorney that before petitioner entered his plea of guilty to the crime of a violation of section 311 of the Penal Code of the State of California, said prosecuting attorney, standing within a few feet of the petitioner, read aloud, in an ordinary voice and the usual tempo, the charging part of the complaint to the effect that petitioner ‘ ‘ did then and there, before the filing of this complaint, and within one year prior thereto, willfully and unlawfully and lewdly procure, counsel' and assist one Robert Ingle, a human being, to expose himself, the said Robert Ingle, in a manner offensive to decency. . . .” It is clear that the representatives of the state intended that petitioner should hear and fully comprehend the nature of the complaint filed against him. It must further be noted that, after petitioner had entered his plea and before he was sentenced, a statement of the facts of the case was made to the judge in petitioner’s presence by a member of the district attorney’s office. This circumstance likewise should have made petitioner aware of the precise nature of the situation, at a time when he might still have indicated a desire to withdraw his plea of guilty had he desired so to do. A similar opportunity was presented when petitioner appeared in the superior court in the company of his attorney and the prosecuting attorney for the purpose of dismissing the original charge, at which time the court, in the presence of petitioner, was advised of the charging language of the complaint to which petitioner had pleaded guilty in the municipal court.

The instant case is in many respects similar to the previously cited case of People v. Gilbert, supra. Doubtless, the pattern of the petition, and the proof herein, were fashioned with this decision in mind. In that ease, as in the present one, there was evidence that the defendant had been led by his attorney to believe that he would be given a lesser punishment in exchange for a plea of guilty. And in that case as in this, statements of the prosecuting attorney and the trial judge, while entirely proper and innocent in themselves, were nevertheless misquoted and misstated by petitioner’s attorney so as to make it appear that they were tantamount to a guarantee of lesser punishment. It therefore is not difficult to apply the principles of that decision to this case. There is, however, this vital distinction between the two cases: In the Gilbert case, the record before the Supreme Court was such that said court could not determine whether or not there was a sufficient showing of the critical extrinsic factors. The findings were not drawn with a view to the determination of the issue of the validity of the plea or pleas in question. Thus the court observed, at pages 442, 443:

In the case at bar, the petition, return and findings were directed to the clear-cut issue of the validity of petitioner’s plea. The findings, following the language of the Supreme Court in the Gilbert case, declared the existence of the factual elements which support the validity of said plea and the nonexistence of the factual elements which would invalidate the plea, which findings are amply sustained by the record.

The writ is denied.