P. v. Avetoom CA4/3

Filed 3/8/13 P. v. Avetoom CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G044659
v. (Super. Ct. No. 96HF0016)
KARL IVAN AVETOOM, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed.
Law Offices of William J. Kopeny and William J. Kopeny for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton, Emily
R. Hanks, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
In March 1997, a jury convicted Karl Ivan Avetoom of one count of selling
stolen property, one count of grand theft by false pretenses, and two counts of operating a
motorcycle chop shop as charged in a 32-count information. The convictions were based
on the theft of Duane Cruz‟s 1990 Suzuki motorcycle with a vehicle identification
number (VIN) of JS1GV73A8L2100380 (the Cruz 380 Bike).1 The prosecutor alleged
the Cruz 380 Bike was stolen, Avetoom altered or caused to be altered the Cruz 380
Bike‟s VIN to JS1GV78A8L2100880,2 and Avetoom sold the Cruz 380 Bike with the
altered VIN to Bert‟s Motorcycles. That motorcycle, however, was never made available
to Avetoom‟s defense, despite his motion that it be produced. In our prior nonpublished
opinion People v. Robert Burns Yule II & Karl Ivan Avetoom (June 28, 1999, G022070)
(Avetoom I), we affirmed Avetoom‟s convictions.
Almost 11 years later in April 2010, Avetoom filed a motion to vacate his
convictions pursuant to Penal Code section 1473.63 based on newly discovered evidence.
He argued newly discovered evidence established that in 1995, the prosecution had two
motorcycles in its possession, one with VIN JS1GV73A8L2100380 and another with
VIN JS1GV78A8L2100880, and that the prosecution destroyed or altered the motorcycle
with VIN JS1GV78A8L2100880 to falsely implicate him in the operation of a
motorcycle chop shop based on the theft and alteration of the motorcycle with
VIN JS1GV73A8L2100380.
1 Because of the difficulty in reading VINs, and the slight variations in the
VINs in this case, we have added emphasis in bold where the VINs are different.
2 Motorcycles have VINs on their frames and engines. Thus, a stolen
motorcycle frame with an unaltered VIN may, after a trip to a “chop shop,” be paired
with an engine from another motorcycle and the engine number on that second engine
may, or may not, have been altered.
3 All further statutory references are to the Penal Code, unless otherwise
indicated.
2
After considering the parties‟ written submissions and hearing counsels‟
argument, but without affording Avetoom an evidentiary hearing, the trial court denied
Avetoom‟s section 1473.6 motion to vacate his convictions. Avetoom appealed from the
order denying his motion. On June 1, 2012, another panel of this court filed an opinion
affirming the trial court‟s order denying Avetoom‟s motion. Avetoom filed a petition for
rehearing, which we granted, and a new panel of justices was appointed. Once again,
Avetoom‟s sole contention on appeal is the trial court erred when it failed to conduct an
evidentiary hearing on his section 1473.6 motion to vacate his convictions. We disagree
and affirm the order.
FACTS
The statement of facts is taken from our prior nonpublished opinion,
Avetoom I, supra, G022070.
“Avetoom loved motorcycles. He received his first motorcycle from his
older brother when he was only 14 [years old]. By the time Avetoom was 16 years old,
he was running a motorcycle repair business out of his mother‟s backyard.
“Later, Avetoom and [Robert] Yule, his one-time roommate, bought and
sold motorcycles and motorcycle parts. They did considerable business with Bert‟s
Motorcycles [(Bert‟s)]. At one point, Avetoom sold four motorcycles to the „outside
buyer‟ for Bert‟s. Each motorcycle contained a stolen engine with an altered vehicle
identification number (VIN). Yule sold two motorcycles to Bert‟s. One contained a
stolen engine. The VIN on the other motorcycle was altered. All of these motorcycles
had been registered in either Avetoom‟s or Yule‟s names. Nearly all of the registration
documentation contained nonexistent addresses for the purported sellers.
“The two men rented a storage unit together in Costa Mesa. They also
rented storage units separately in Irvine. Police searches of the three storage units
produced stolen motorcycle frames, stolen engines, stolen parts, and two stolen
motorcycles.
3
“Avetoom and Yule were charged with conspiracy, 14 counts of grand theft
auto, [eight] counts of possession of or receiving stolen property, [five] counts of grand
theft, [one] count of possession of a motorcycle with a removed serial number, and
[three] counts relating to owning or operating running a chop shop. Before trial, the
[prosecutor] dismissed [two] of the grand theft auto counts. The court later struck [one]
count of receiving stolen property.
“At trial, the investigating officer testified regarding a VIN verification
form for one of the motorcycles sold to Bert‟s.4 The form contained another officer‟s
verification that a federal identification number appeared on the stolen motorcycle. The
investigating officer testified that, in spite of the apparent verification, the signing officer
„told [him] differently.‟ That remark was stricken, and the judge instructed the jury to
ignore it. [¶] . . . [¶]
“Avetoom and Yule were each convicted of two of the chop shop counts.
Avetoom was also convicted of selling stolen property and grand theft by false pretenses.
. . . The jury reached not guilty verdicts on the remaining counts.”
After the 1997 trial, Avetoom filed a motion for new trial in which he
argued the trial court erred in denying his motion for the production of the frames and
cycles allegedly stolen (including the Cruz 380 bike). The motion explained a
Los Angeles Police Department detective had testified at trial that changing “3‟s” to
“8‟s” on Suzuki brand motorcycles was actually easy to spot, since the original font used
by Suzuki for an “8” was done in a “x” style. Just closing “3‟s” into a circle or oval
would not show the characteristic “x” of a Suzuki “8.” The new trial motion asserted that
4 “According to testimony, before the Department of Motor Vehicles (DMV)
registers a motorcycle, a „verifier‟ checks to see if the engine number and the VIN match
the numbers on the documentation. This verification may be done by a DMV employee,
a dealership, the Auto Club, or a police agency. This requirement can be bypassed by
purchase of a „defective title bond‟ which protects the registrant, the DMV, and any
future buyer.”
4
whether the “VIN was altered went to the heart of the prosecution‟s case.” The trial court
denied the motion and suspended sentence of three years and put Avetoom on probation.
In Avetoom I, supra, G022070, Avetoom argued on appeal the trial court
erred in failing to instruct the jury sua sponte on unanimity (CALJIC No. 17.01) and
failing to allow a rebuttal witness. We rejected his contentions and affirmed his
convictions. (Avetoom I, supra, G022070.)
Nine years later, in September 2008, Avetoom filed a petition for writ of
error coram vobis in this court. Avetoom asserted he located the Cruz 380 Bike and
determined through numerous law enforcement officials that the VIN “ha[d] never been
altered and remains in its original manufactured condition.” (Italics omitted.) The
petition was supported by numerous exhibits. The Orange County District Attorney filed
an informal response, and Avetoom replied. On January 29, 2009, we summarily denied
the petition. (People v. Karl Ivan Avetoom (Jan. 29, 2009, G040996.)
Later that year, Avetoom filed a petition for a writ of coram nobis in the
Orange County Superior Court. The Orange County District Attorney filed a response.
While that petition was pending, in March 2010, Avetoom filed a motion for relief
seeking a writ of coram nobis, or relief under Brady v. Maryland (1963) 373 U.S. 83(Brady) pursuant to section 1385. Eleven days later, Avetoom filed a reply and another
petition for a writ of error coram nobis. The District Attorney requested the trial court
summarily deny Avetoom‟s motion for writ of error coram nobis.
On April 29, 2010, Avetoom filed a motion to vacate his convictions
pursuant to section 1473.6. Avetoom asserted there was newly discovered evidence
demonstrating a member of the prosecution team committed fraud, a member of the
prosecution team testified falsely, and a member of the prosecution team committed
misconduct that resulted in the fabrication of evidence. The motion was supported by
numerous exhibits, including Avetoom‟s trial exhibits and most of the exhibits that were
included with his September 2008 petition for writ of error coram vobis filed in this
5
court. The only additional exhibit was a statement of probable cause purportedly
prepared by Irvine Police Detective Eric Wiseman in May 1995.
Before we discuss the exhibits though, we recite the prosecution‟s facts
from the 1997 trial as represented by Avetoom. Cruz reported the Cruz 380 Bike with
the VIN ending 380 was stolen in February 1995. Later that month, someone
permanently overstamped the VIN 380 to read 880. There was only one motorcycle at
issue, the Cruz 380 Bike with VIN 380. Avetoom sold the Cruz 380 Bike with the
altered VIN to Bert‟s. Wiseman testified the Orange County Auto Theft Task Force
(OCATT) impounded the Cruz 380 Bike on August 2, 1995. He explained the Cruz 380
Bike was altered to become the Avetoom 880 Bike by permanently overstamping the
“3s” with “8s.” Cruz testified he thought the bike shown in the prosecutor‟s photographs
was his motorcycle.
Based on the exhibits, we now provide a detailed account of what happened
since Avetoom‟s trial. In 1999, the DMV sent Avetoom letters stating a Suzuki bike with
VIN ending 880 was still in his name. An attorney friend suggested Avetoom find the
motorcycle because there were “numerous conflicting reports” as to whether the Cruz
380 Bike‟s VIN had been altered. Later that year, Avetoom spoke with a sheriff‟s deputy
who verified DMV records showed a motorcycle with the 880 VIN was still in
Avetoom‟s name. The sheriff‟s deputy also checked the Cruz 380 Bike VIN with the
DMV and learned a Stanton motorcycle shop owned the bike (or at least the frame).
Avetoom called the DMV and learned the Cruz 380 Bike had been transferred to “The
Frame Shop,” in Stanton in 1996. In December 1999, Avetoom visited The Frame Shop.
The owner told Avetoom that he had the 380 frame but the actual bike had been
“dismantled . . . for parts over the years.” The owner, Avetoom, and Avetoom‟s attorney
friend inspected the frame and concluded the frame VIN was unaltered. Before trial, the
prosecutor advised Avetoom‟s trial counsel that he could not inspect the Cruz 380 Bike
because OCATT did not have possession of the motorcycle.
6
Avetoom contacted his trial attorney about postconviction relief. Avetoom
explained it was factually impossible to have changed the “3s” to “8s” in February 1996
and have them be “3s” in 1999. The trial attorney said that showing the frame to have
been unaltered would not be enough to reverse the conviction because the jury could have
believed another motorcycle was the basis for the conviction.
In September 2002, Avetoom violated probation for operating a motorcycle
business and was sentenced to prison. The United States Attorney in Arizona indicted
Avetoom for being part of a major motorcycle theft operation. However, in
January 2005 the United States Attorney voluntarily dismissed all counts against him.
In January 2005, on the advice of his attorney, Avetoom waited until the
statute of limitations ran on the federal charges before pursuing postconviction
exoneration. By then, however, Avetoom‟s trial attorney did not know how to get the
case back before the court because Avetoom was out of custody.
By June 2007, Avetoom had located and retained an attorney named
Coreen Ferrentino, recommended by his present appellate attorney. Ferrentino retained a
private investigator, George B. Rowell, Jr. In April 2007,5 Rowell went to The Frame
Shop to inspect the motorcycle frame with VIN JS1GV73A8L2100380. He did not
believe the VIN had been altered or manipulated. The owner, Gary Fuca, told Rowell
that he had purchased the motorcycle (now just a frame as he had sold parts from it over
the years) as salvage from a dealer auction in September 1996 and it had been in his
possession since that time.
Shortly thereafter, Rowell returned to The Frame Shop and purchased the
motorcycle frame with VIN JS1GV73A8L2100380 for $400. Fuca provided Rowell with
a bill of sale, a salvage certificate from August 1995, an Orange County Sheriff‟s
5 The reference to the year 2007 was possibly a typographical error in the
declaration and should have been 2008 given the sequence as related by Avetoom
concerning the retention of attorney Ferrentino in June 2007.
7
Department Verification of Vehicle Form, and a letter from OCATT, dated September 6,
1995 (the OCATT Letter). The OCATT Letter advised Alfonso Gayton, Jr., that
detectives executed a search warrant and impounded a 1990 Suzuki motorcycle with a
VIN of JS1GV73A8L2100380. The letter advised Gayton that neither the legal nor the
registered owner claimed interest in the motorcycle and upon proof of ownership he
could claim the motorcycle. This letter had not been produced to the defense at
Avetoom‟s 1997 trial. The Sheriff‟s Verification of Vehicle form indicated an Officer
William Youngson inspected the motorcycle in December 1996, and Youngson
concluded the VIN was unaltered; Youngson memorialized his findings in a June 2008
declaration (the Youngson Declaration).
In July 2008, Rowell met with CHP Officer Brian Habegger, an expert in
VIN verification who memorialized his findings in a September 2008 declaration (the
Habegger Declaration). Habegger inspected the 380 frame and determined the VIN was
unaltered. He ran the VIN in the insurance claim search database and learned the
motorcycle frame had the following history: (1) On February 16, 1995, the motorcycle
was stolen from Duane Cruz; (2) On August 2, 1995, OCATT recovered the motorcycle;
(3) On September 11, 1996, State Farm Insurance sent the motorcycle frame to a salvage
buyer, Gus‟ Auto and Motorcycle in Inglewood; and (4) On November 4, 1996, the frame
was sent to The Frame Shop in Stanton.
In May 2009, Avetoom discovered what he regarded as conclusive
evidence establishing his innocence. Avetoom obtained a statement of probable cause
purportedly authored by Wiseman in May 1995 (the Wiseman Affidavit). The Wiseman
Affidavit had not been shown to the defense at the 1997 trial. There are three pages
(pages 4, 16, and 17) of what appears to be a 14-page document. On May 23, 1995,
Deputy District Attorney Thomas H. Crofoot signed the document. He “[a]pproved [the
document] as to form and content.” Wiseman‟s signature does not appear on the
document submitted to this court.
8
The affidavit stated Wiseman believed Avetoom, Yule, and a third man
were involved in the theft of motorcycles, disposing of motorcycle frames, altering or
overstamping motorcycle engines, and selling these motorcycles to retail establishments.
The affidavit plainly averred that none of the motorcycle frames under investigation had
altered VIN‟s. The exact language was: “During my investigation I have observed that
all of the motorcycles recovered in this case have contained motorcycle frames which are
unaltered.” The affidavit continued, “Due to the fact that all of the motorcycle engines
recovered in this case have been altered, I believe that the subjects are also using dye
stamps to over stamp the engine number.” The parties do not dispute that at trial
Wiseman testified the VIN on the 380 frame had been altered to 880.6
Based on this newly discovered evidence, Avetoom asserted Wiseman‟s
affidavit established the Cruz 380 Bike‟s VIN was not altered and his testimony it was
altered was false. Additionally, he claimed Wiseman‟s affidavit demonstrated the
prosecution had the Cruz 380 Bike in its possession in May 1995, and in August 1995
took possession of another motorcycle, the Avetoom 880 Bike. He contended this newly
discovered evidence entitled him to a new trial, or an evidentiary hearing.
The Orange County District Attorney filed an informal response.
(Cf. Cal. Rules of Court, rule 4.551(b) [providing for informal responses to applications
for habeas corpus relief]; People v. Romero (1994) 8 Cal.4th 728, 737.) The response
argued Avetoom failed to establish a prima facie case for relief under section 1473.6. It
pointed to the substantial evidence presented at trial in 1997 showing Cruz had been able
to identify “some” of the unique characteristics of his bike on the bike recovered from
6 We cannot verify this, however, as the reporter‟s transcript from the 1997
trial is not part of the record. The preliminary hearing transcript is part of the superior
court case file in case No. 96HF0016 that we took judicial notice of. At the preliminary
hearing, Wiseman testified he inspected the VIN on the 380 frame and concluded it had
been altered to 880. Based on that testimony, and the parties‟ representations concerning
Wiseman‟s trial testimony, we assume Wiseman‟s trial testimony was consistent with his
preliminary hearing testimony.
9
Bert‟s “with the VIN overstamped ending in 880.” Moreover, it asserted Avetoom might
readily have obtained a “duplicate title” on a motorcycle. As to the Wiseman Affidavit,
the response argued that “at the time” it was prepared, his “investigation” had “revealed
that stolen [motorcycle] engines were being placed on salvaged motorcycle frames,” so
that Wiseman did not discover the Suzuki had an “overstamped VIN until he ran the VIN
through DMV and determined it was invalid.” The response stated a “review of all the
evidence presented at trial” showed there was no basis for Avetoom‟s claim there were
two motorcycles, one with a 380 frame and one with an 880 frame, both seized from
Bert‟s.
The district attorney‟s informal response was supported by three exhibits.
The first, Exhibit 1, was Wiseman‟s arrest report for OCATT case No. 95-05-048 dated
August 9, 1995, recounting the events of a mid-May 1995 search of Bert‟s. As relevant
here, the report began by stating that when the investigating detective examined the
motorcycle in question, “he was concentrating on the engine number and was unable to
determine that this engine number had been tampered with or altered in any way.” The
report then explained Wiseman ran a DMV record check on the 880 VIN and it was not a
conforming VIN. He stated the 380 VIN had been altered to an 880 VIN by
overstamping the “3s” to “8s”. Wiseman met with Cruz, who positively identified the
motorcycle based on distinguishing characteristics. The second, Exhibit 2, was a printout
of DMV computer records establishing the 880 VIN was invalid. That printout made
reference to State Farm Insurance. The third, Exhibit 3, was a CHP stolen vehicle report
that recounted a Suzuki motorcycle with the 380 VIN had been “switched to read” an
880 VIN, and sold to Bert‟s on March 1, 1995, by Avetoom. It also said the bike was
confiscated from Bert‟s on August 2, 1995.
After moving for a continuance and requesting an evidentiary hearing on
his section 1473.6 motion, Avetoom filed a reply to the district attorney‟s informal
response, and another motion to set an evidentiary hearing on the section 1473.6 motion.
10
That motion too was supported by numerous exhibits, including additional newly
discovered evidence Avetoom obtained from State Farm‟s file, which he had subpoenaed.
The new evidence included, as Exhibit M, what is purported to be the same
Wiseman arrest report for OCATT case No. 95-05-048 dated August 9, 1995, that the
district attorney submitted as Exhibit 1 with its informal response. Unlike Exhibit 1,
Exhibit M states the investigating detective examined the motorcycle in question and
“determined that this Suzuki VIN and engine number had not been tampered with or
altered in any way.”
Exhibit N is an OCATT Vehicle Release form dated January 12, 1996, for a
1990 Suzuki with the 380 VIN. The form stated Wiseman was the responsible detective
releasing the motorcycle. In the blank specifying the party to whom the bike was being
released were the handwritten words “State Farm” crossed out and, in handwriting, the
word “Farmers” inserted. The same was done in the blank designated for writing the
“registered owner and/or legal owner.” The new evidence also included, as Exhibit O, a
State Farm letter dated January 12, 1996, to Wiseman saying it was the owner of a 1990
Suzuki motorcycle and seeking to take possession of that motorcycle. State Farm‟s letter
caption listed the “VIN” as “JS1GV7BASL2100380” but the next line gave
JS1GV78A8L2100880 as “Bike VIN Number.” The loss date corresponded with the date
of the theft of the Cruz 380 Bike.
Also included, as Exhibit P, were two blurry pictures, wholly
indecipherable as they appear in the clerk‟s transcript in the appellate record, which
Avetoom‟s trial attorney represented to be pictures of the “obliterated” 880 bike and VIN.
Other new evidence, Exhibits Q and R, included two tow bills, barely legible in our
record, but one can read they were for a 1990 Suzuki motorcycle and the claimant was
Cruz. Finally, the reply also included a handwritten adjuster‟s log, Exhibit S (again,
virtually illegible as it comes to us in the appellate record) but which does have a notation
indicating that Cruz‟s policy was cancelled on January 22, 1995. Exhibit T is an e-mail
11
from the prosecutor now handling the file to Avetoom‟s postconviction counsel. Finally,
Exhibit E, which had been included with Avetoom‟s motion, indicated Cruz suffered two
prior convictions, and Gayton had been charged with an offense.
Based on this newly discovered evidence, Avetoom contended there were
two motorcycles with two distinct VINs in OCATT‟s possession and control:
JS1GV7BASL2100380 and JS1GV78A8L2100880; OCATT destroyed one motorcycle
VIN to prove Avetoom altered the other motorcycle VIN; and OCATT intentionally
failed to disclose exculpatory evidence to Avetoom, including the motorcycles and
evidence Cruz suffered two prior convictions. Avetoom also asserted the original police
report was altered to hide the fact the detective who executed the search warrant at Bert‟s
concluded the motorcycle with the VIN JS1GV78A8L2100880 had not been altered. He
included a police report that stated the detective was focusing on the engine numbers and
he was unable to determine whether the engine number had been tampered with in any
way.
On November 5, 2010, the trial court conducted a hearing, but it did not
conduct an evidentiary hearing. After stating it had read and considered the parties‟
written submissions, counsel presented their arguments. The trial court took the matter
under submission. Avetoom filed a supplemental reply.
Two days later, the trial court issued an 11-page order denying Avetoom‟s
section 1473.6 motion. In the context of its discussion of Avetoom‟s claim of Brady
error, the court rejected Avetoom‟s assertion the Wiseman Affidavit showed any
government misconduct. After noting Wiseman prepared but did not sign the statement
of probable cause, the court opined Avetoom‟s “reliance on this unauthenticated
photocopy is misplaced.” The court stated: “Preliminarily, there is no showing that the
quoted sentence [referring to the “unaltered” VINs of the bikes under investigation] is not
a typographical error of some sort.” The court explained the statement conflicted with
other passages in the affidavit, and quoted passages that indicated Wiseman believed that
12
engine numbers had been altered and overstamped, with the “„motorcycle frames
hav[ing] been switched.‟” The court further noted that the “quoted sentence on which
[c]ounsels [referring to the “various” counsel who had appeared on Avetoom‟s behalf] so
heavily rely to prove a „Brady violation‟ is also inconsistent with sworn trial testimony.”
The trial court relied on a passage in the recitation of facts in our earlier unpublished
opinion (Avetoom I, supra, G022070) that Avetoom and his codefendant each “„sold
motorcycles‟” to a particular dealer and “„All had altered VIN‟s.‟” The court reasoned
there “[was] no showing that the quoted sentence is not merely a misstatement or
typographical error, rather than some sort of nefarious plot on the part of the prosecution
to hide exculpatory information from the defense.” The trial court dismissed Avetoom‟s
remaining contentions as immaterial.
With regard to Avetoom‟s section 1473.6 motion, the trial court denied the
motion as not falling within any of the three bases for relief provided by the statute,
because there was “no actual showing of official fraud, false testimony, or fabrication.”
The court ruled there was “no showing production in 1997 of the Cruz 380 [B]ike would
have undermined the prosecution‟s case, pointed unerringly to innocence, or would have
been „substantially probative‟” of Avetoom‟s innocence. The court added Avetoom did
not establish the Cruz 380 Bike could not have been discovered prior to 1997 with
reasonable diligence. Finally, the court ruled the April 2010 section 1473.6 motion was
untimely because it included declarations signed in 2008.
Avetoom appealed from the trial court‟s order denying his section 1473.6
motion. On June 13, 2011, this court issued an order limiting Avetoom‟s appeal to the
denial of his section 1473.6 motion.
After the parties filed their appellate briefs, we took judicial notice of the
superior court file in case No. 96HF0016 in an order dated June 13, 2011. (Cal. Rules of
Court, rule 8.252; Evid. Code, §§ 452, 459.) After hearing oral argument, we filed an
opinion affirming the trial court‟s denial of Avetoom‟s section 1473.6 motion. (Avetoom
13
I, supra, G022070.) Avetoom filed a petition for rehearing, which we granted. The order
granting rehearing stated: “Justice Bedsworth has recused himself, and the other
members of the panel have requested that the Presiding Justice appoint an entirely new
panel because they discussed the case with Justice Bedsworth.” We set a briefing
schedule, took judicial notice of the writ proceedings in case No. G040996, the coram
vobis writ proceedings, and appointed a new panel. The parties again filed briefs in this
court, and we again heard oral argument.
DISCUSSION
I. Section 1473.6
Section 1473.6, subdivision (a), states: “Any person no longer unlawfully
imprisoned or restrained may prosecute a motion to vacate a judgment for any of the
following reasons: [¶] (1) Newly discovered evidence of fraud by a government official
that completely undermines the prosecution‟s case, is conclusive, and points unerringly to
his or her innocence. [¶] (2) Newly discovered evidence that a government official
testified falsely at the trial that resulted in the conviction and that the testimony of the
government official was substantially probative on the issue of guilt or punishment.
[¶] (3) Newly discovered evidence of misconduct by a government official committed in
the underlying case that resulted in fabrication of evidence that was substantially material
and probative on the issue of guilt or punishment. Evidence of misconduct in other cases
is not sufficient to warrant relief under this paragraph. [¶] (b) For purposes of this
section, “newly discovered evidence” is evidence that could not have been discovered
with reasonable diligence prior to judgment. [¶] (c) The procedure for bringing and
adjudicating a motion under this section, including the burden of producing evidence and
the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.
[¶] (d) A motion pursuant to this section must be filed within one year of the later of the
following: (1) The date the moving party discovered, or could have discovered with the
exercise of due diligence, additional evidence of the misconduct or fraud by a
14
government official beyond the moving party‟s personal knowledge. (2) The effective
date of this section.”
People v. Germany (2005) 133 Cal.App.4th 784, 791 (Germany), is the
only published case to date addressing the applicability and scope of section 1473.6, a
statute the Legislature enacted in response to the Los Angeles Police Department
Rampart scandal. Section 1473.6‟s purpose was to provide those who suffered
convictions but were released from custody a method to attack their convictions based on
government misconduct. (Ibid.)
In interpreting section 1473.6, the Germany court stated: “As specified in
section 1473.6, subdivision (c), the trial court, in considering a motion under
section 1473.6, utilizes the same procedures applicable to a petition for a writ of habeas
corpus, which procedures are set forth in California Rules of Court, rule 4.551. Thus, if
the party moving to vacate under section 1473.6 makes a prima facie showing for relief,
the trial court must issue an order to show cause. (Rule 4.551(c)(1).) In deciding
whether a prima facie showing has been made, „the court takes [the moving party‟s]
factual allegations as true and makes a preliminary assessment regarding whether [the
moving party] would be entitled to relief if his . . . factual allegations were proved.‟
[Citation.] Upon the issuance of an order to show cause, the respondent may file a return
(rule 4.551(d)), and the moving party may file a denial (rule 4.551(e)). Thereafter, „the
court must either grant or deny the relief sought by the [motion to vacate] or order an
evidentiary hearing. An evidentiary hearing is required if, after considering the [motion
to vacate], the return, any denial, any affidavits or declarations under penalty of perjury,
and matters of which judicial notice may be taken, the court finds there is a reasonable
likelihood that the [moving party] may be entitled to relief and the [moving party‟s]
entitlement to relief depends on the resolution of an issue of fact.” (Rule 4.551(f).)”
(Germany, supra, 133 Cal.App.4th at pp. 790-791, fn. omitted.) In a motion proceeding,
a trial court may resolve evidentiary conflicts without hearing live testimony. (People v.
15
Superior Court (Zamudio) (2000) 23 Cal.4th 183, 201.) We independently review the
record to determine whether the trial court properly denied Avetoom‟s section 1473.6
motion to vacate his convictions. (In re Smith (2003) 114 Cal.App.4th 343, 360-361
[when lower court considers a petition for writ of habeas corpus without conducting an
evidentiary hearing, we independently review the record].)
Here, Avetoom argues the trial court erred in denying his section 1473.6
motion to vacate his convictions without affording him an evidentiary hearing. We
disagree as Avetoom failed to state a prima facie case for relief.
In his motion, Avetoom asserted he possessed newly discovered evidence
demonstrating government misconduct under all three of section 1473.6‟s categories. Of
the newly discovered evidence he possessed, only one item was discovered within
section 1473.6‟s one-year statute of limitations—the Wiseman Affidavit, discovered May
2009. The other items (Exhibit A-April 2007; Exhibit D-June 2008;
Exhibit G-September 2008; Exhibit H-September 2008) were all discovered before
April 29, 2009. But that is of no consequence because as Avetoom conceded in his
motion to vacate, the Wiseman Affidavit “is the springboard for [his] motion to vacate
his convictions under . . . [s]ection 1473.6.”7
Exhibit B to Avetoom‟s section 1473.6 motion is what is purported to be a
statement of probable cause prepared by Detective Eric Wiseman. The affidavit appears
to be a total of 14 pages, as it begins on page 4 and the signature page is page 17, but we
have only three pages: pages 4, 16, and 17.
7 We need not address the issue of whether section 1473.6‟s statute of
limitations applies in this case based on our conclusion Avetoom failed to state a prima
facie case for relief. We note, however, the same procedures applicable to writs of
habeas corpus, a civil proceeding, are applicable to section 1473.6 motions. Thus, as in
civil cases, a statute of limitations defense in the section 1473.6 context might be waived
unless pleaded and proved. (5 Witkin, Cal. Procedure (4d ed. 2008) Pleading, §§ 1117,
1118.) We need not decide that question here however.
16
Although the affidavit in its first sentence states Wiseman prepared it,
Wiseman did not sign the affidavit. Instead, Deputy District Attorney Thomas H.
Crofoot signed the affidavit. Crofoot “approved [the affidavit] as to form and content.”
We cannot conclude the affidavit purportedly prepared by Wiseman but not signed by
him under penalty of perjury is authentic. Assuming the affidavit conflicts with his trial
testimony, which as we explain below we are not certain it does, we cannot attribute to
Wiseman statements he has not sworn under oath to be true. In other words, we cannot
rely on an unauthenticated affidavit that allegedly conflicts with Wiseman‟s trial
testimony to establish Wiseman testified falsely. Thus, the record includes insufficient
evidence the affidavit is what Avetoom claims it to be—evidence Wiseman initially
declared all the motorcycle frames he found at Bert‟s were unaltered but later falsely
testified the motorcycle frame with VIN JS1GV73A8L2100380 found at Bert‟s was
altered.
Second, the portion of the Wiseman Affidavit we have before us is
internally inconsistent on the point Avetoom attempts to establish. Although Wiseman
stated, “[he] observed that all of the motorcycles recovered in this case have contained
motorcycle frames which are unaltered[,]” he also made other statements that conflict
with this statement. Wiseman stated Avetoom was “involved in the theft of numerous
motorcycles, the disposal of the stolen motorcycle frames, the alteration and
overstamping of stolen motorcycle engines, the changing of stolen component
motorcycle parts and the sale of these motorcycles to retail dealerships.” Wiseman later
said, “Due to the fact that all of the motorcycle engines recovered in this case have been
altered, I believe that the subjects are also using dye stamps to over stamp the engine
number.”
Based on a complete reading of the portions of the purported Wiseman
Affidavit we have before us, we agree with the trial court‟s conclusion the sentence the
“motorcycle frames . . . are unaltered” is “merely a misstatement or typographical error.”
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Admittedly the word unaltered was used in connection with motorcycle frames and the
word altered used in connection with motorcycle engines. But we cannot overlook the
statement, “I believe that the subjects are also using dye stamps to over stamp the engine
number.” (Italics added.) The use of the word “also” suggests both the motorcycle
engines and the motorcycle frames were being overstamped. This conflicts with the
earlier statement all the motorcycle frames were unaltered. Finally, it is not surprising we
have found inconsistencies when we have before us only three pages of what apparently
is a 14-page affidavit.
Thus, “the springboard” of Avetoom‟s claim is unauthenticated and
therefore untrustworthy. Additionally, his argument the other exhibits included with his
motion to vacate buttress his claim the purported Wiseman Affidavit established he
testified falsely and there were two motorcycles is not persuasive.
With respect to the newly discovered evidence Avetoom included with his
reply brief, that evidence too is insufficient to state a prima facie case for relief. Based
on our review of that evidence, we cannot conclude it gives rise to a reasonable inference
there were two motorcycles and Wiseman or others destroyed or otherwise altered the
Avetoom 880 Bike VIN sold by Avetoom to convict him for having stolen the Cruz 380
Bike.
We begin by noting that Avetoom‟s reply fails to explain how each piece of
newly discovered evidence demonstrates the egregious misconduct he attributes to the
Irvine Police Department and the Orange County District Attorney. Indeed, he concedes
“The following summary of the newly discovered evidence is not exhaustive[.]” It was
Avetoom‟s duty to offer newly discovered evidence establishing a prima facie case for
relief and explain how that evidence demonstrates he was entitled to relief or at a
minimum an evidentiary hearing.
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Avetoom does highlight a few of the pieces of evidence, and we will
discuss those. But first we must discuss the district attorney‟s Exhibit 1 included with his
informal response before we address Avetoom‟s claims.
Exhibit 1 was Wiseman‟s arrest report for OCATT case No. 95-05-048
dated August 9, 1995, recounting the events of a mid-May 1995 search of Bert‟s. As
relevant here, the report stated that when the investigating detective examined the
motorcycle in question, “he was concentrating on the engine number and was unable to
determine that this engine number had been tampered with or altered in any way.” With
his reply, Avetoom included Exhibit M, which was the same Wiseman arrest report for
OCATT case No. 95-05-048 dated August 9, 1995. Both Exhibits 1 and M indicate
Wiseman and his supervisor signed the arrest report on August 9, 1995. However,
Exhibit M is materially different, in part, from the language quoted above from Exhibit 1.
Exhibit M states the investigating officer “determined that this Suzuki VIN and engine
numbers had not been tampered with or altered in any way.” Although we agree the
reports are different, we cannot conclude Wiseman or someone else falsified the arrest
report to cover up the government‟s prior misconduct and support the district attorney‟s
argument in these postconviction proceedings. We note it was the district attorney who
first submitted the arrest report, and Avetoom who subsequently submitted a different
version of the same arrest report.
The other evidence Avetoom relied on (Exhibit N-OCATT Vehicle Release
form & Exhibit O-State Farm letter to Wiseman) does not point unerringly to his
innocence. Exhibit N is an OCATT Vehicle Release form that states the motorcycle with
VIN JS1GV73A8L2100380 will be released to State Farm Insurance and the registered or
legal owner is State Farm Insurance. Someone crossed out both references to State Farm
Insurance and replaced them with Farmers Insurance. Although the form states Wiseman
was the detective responsible for releasing the motorcycle, the signature on the document
is unintelligible. Because we do not know who altered the document, there is no
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foundation for its admission. Additionally, it is reasonable to use the legal VIN of a
vehicle when describing that vehicle. Thus, we cannot conclude Exhibit N establishes
the existence of two motorcycles.
Exhibit O is a letter from State Farm Insurance to “Eric Wisman” dated
January 12, 1996, stating it is the legal owner of the motorcycle described in the
beginning of the letter. The letter states a claim number, a description of the motorcycle
(1990 Suzuki motorcycle), that Cruz is the insured, a loss date of February 16, 1995, and
that Bert‟s Frame Shop owns the engine. The letter also states the following: “VIN:
JS1GV7BASL2100380” and under it “Bike VIN Number: JS1GV78A8L2100880.”
Again, we are unsure how this demonstrates there were two motorcycles, law
enforcement knew there were two motorcycles, and law enforcement misrepresented
and/or manipulated the truth to convict Avetoom.
The remaining exhibits are either undecipherable (Exhibits P, Q & R) or are
of little relevance to Avetoom‟s claim the government withheld and then altered evidence
to wrongly implicate him in a chop shop operation (Exhibits S & T).
Avetoom‟s claim of Brady error requires no separate discussion.
Section 1473.6‟s legislative history demonstrates it is the exclusive remedy, “„other than
a pardon,‟” for “those no longer in the system to challenge their judgment when they
learn that their conviction was obtained in part because of fraud or false evidence by a
government official.” (Germany, supra, 133 Cal.App.4th at p. 791.) By 2008, Avetoom
was “no longer in the system,” and thus his only remedy was by way of section 1473.6 or
a pardon. Thus, we conclude the trial court properly denied his section 1473.6 motion.
A few final thoughts. Avetoom acknowledges that he did nothing for years
so as to allow the statute of limitations in his federal case to expire. Avetoom‟s delay in
seeking relief and the voluminous record in this case makes it difficult to parse his
contentions. Over 13 years after his convictions, Avetoom cobbles together various
documents to assert there is only one conclusion that can be drawn, i.e., that the
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government committed egregious misconduct to convict him. We disagree. Avetoom‟s
syllogism is faulty as his exhibits do not establish the vast conspiracy he seeks to prove.
DISPOSITION
The judgment is affirmed.
O‟LEARY, P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
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