In re Levine

MOORE, P. J. Petitioner was convicted in Los Angeles County in October, 1951, of a felony, to wit, violation of the Health and Safety Code, section 11715. The crime was eom[193]mitted in June, 1945, but prosecution was not barred by reason of defendant’s extended absence from the state at the times alleged. Defendant (petitioner herein) appealed after he had been duly sentenced to prison. The judgment of conviction was affirmed by this court on December 9, 1952. On March 1, 1953, he filed here his petition for writ of error eoram nobis which alleges that his imprisonment is in violation of the Fourteenth Amendment to the federal Constitution, and article I, section 13 of the California Constitution; that he was denied due process of law and a hearing on the merits in that the prosecution conspired “with defendant’s attorney by the use of fraud, collusion and chicanery, trickery, deceit and what not, to make petitioner change his plea of not guilty to guilty, against his free will”; that he backs his contention with documentary proofs and affidavits.

Upon the filing of such petition, it was referred to The Honorable Thomas J. Cunningham, judge of the Superior Court of Los Angeles County, to determine whether petitioner was denied (1) due process of law by the trial court at the time of his conviction, (2) a hearing on the merits by reason of fraud, collusion, trickery and deceit participated in by the trial judge, the deputy district attorney and defendant’s own counsel who represented him at the time of his conviction. The order appointing Judge Cunningham as referee directed him to hear and consider all material and relevant evidence offered by defendant or by the People with respect to the issue presented by the petition, to the end that this court can determine whether or not a writ should be issued as prayed for and to make findings upon such issues and to return them to this court.

On June 12, 1953, the petition came on for hearing before such referee. The People were represented by Michael J. Clemens, Deputy Attorney General, and petitioner by Attorney Leonard P. Baum, Esquire. By stipulation of counsel, the affidavits of three witnesses on behalf of petitioner were admitted. Each of those affidavits set forth that the affiant had witnessed a conversation between defendant and his current attorney who stated to defendant substantially that if he would change his plea to “guilty” he would be given probation. A sister and a brother of petitioner were sworn to testify on behalf of the latter. Each deposed that defendant’s attorney, in the presence of affiant, had advised defendant to withdraw his plea of “not guilty” and to plead