Supplemental Opinion and Order On Petition for Rehearing

In our original opinion herein, we remarked that a certain critical record “is not before this court [and] was apparently never received and considered in the District Court as an Exhibit * * *.” In his Petition for Rehearing, the appellee now advises us that while the record in question was not received as an Exhibit and hence was not presented to us, it was “supplied to the District Court * * * and was noted only in the clerk’s work docket rather than the court docket.” This representation is supported by the affidavit of a Deputy District Court Clerk, included in the Appendix of appellee’s Petition for Rehearing. Also included in that Appendix is the record in question, a transcript of the state court proceedings of June 28, 1966. This transcript purports to reveal the entire colloquy which occurred at the time the appellant withdrew his previous plea of guilty and substituted his plea of guilty. In pertinent part, the transcript reads:

In our original opinion we noted that it was “undisputed” that Kearns entered his guilty plea under the impression that the prosecuting officer “would recommend that the sentencing judge award probation.” Kearns testified as to this, as did the attorney who represented him at the time. The appellee offered no evidence to the contrary. We have found nothing in the record, including the portion thereof which has been for the first time called to our attention in appellee’s Petition for Rehearing, to indicate that the prosecuting attorney made the recommendation, the promise of which had presumably induced Kearns to withdraw his plea of innocence and enter his plea of guilty. Cf. Gilmore v. People of State of California, 364 F.2d 916 (9th Cir. 1966).

Upon remand, the District Court will ascertain if the promised recommendation was made, and if not, it will grant habeas relief unless California does, within thirty days from the issuance of this judgment, afford Kearns an opportunity to withdraw his plea of guilty.

*70 Treating the appellee’s Petition for Rehearing, in part, as a motion to augment the record on appeal with the inclusion of the state court proceedings of June 28, 1966, the motion is granted.

The court’s original opinion, as herein modified, will stand, and the Petition for Rehearing is denied.