P. v. Avetoom
Filed 3/8/13 P. v. Avetoom CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. KARL IVAN AVETOOM, Defendant and Appellant. | G044659 (Super. Ct. No. 96HF0016) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
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).
stolen, Avetoom altered or caused to be altered the Cruz 380 Bike’s VIN to
JS1GV78A8L2100880,
title="">[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 1473.6
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 JS1GV78A8L2100
or altered the motorcycle with VIN JS1GV78A8L2100
operation of a motorcycle chop shop based on the theft and alteration of the
motorcycle with
VIN
JS1GV73A8L2100380.
After considering the
parties’ written submissions and hearing counsels’ argument,
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.
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.
“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.
name="_ftnref4" title="">[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.â€
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’sâ€
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 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.)
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.
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 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,â€
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.â€
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.
Avetoom contacted his
trial attorney about postconviction relief.
Avetoom explained it was factually impossible to have changed the “3sâ€
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,
Rowell went to The Frame Shop to inspect the motorcycle frame with VIN JS1GV7
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 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 JS1GV73A8L2100
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.
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.â€
The parties do not dispute that at trial Wiseman testified the VIN on
the 380 frame had been altered to 880.
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 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.â€
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
“8sâ€. 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. 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.â€
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 “JS1GV7BASL2100
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 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: JS1GV7BASL2100
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 JS1GV7
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
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 engine numbers had been altered and overstamped, with the
“‘motorcycle frames hav[ing] been switched.’â€
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.â€
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. (
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
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 government
official beyond the moving party’s personal knowledge. (2) The effective date of this section.â€
People v. Germany (2005) 133 Cal.App.4th 784, 791 (
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
[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. (
(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
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
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.â€
title="">[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.
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.
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.â€
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.†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 springboardâ€
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.
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.â€
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.
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 JS1GV73A8L2100
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 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.
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: JS1GV7BASL2100
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.
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
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.â€
(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 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.
name="_ftn1" title="">[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.
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.
