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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,

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 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. 
2

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. 
3

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. 
4

“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.” 
5

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 
6

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.
7

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.
8

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. 
9

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.
10

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. 
11

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 
12

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 
13

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 
14

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 
15

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. 
16

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. 
17

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.” 
18

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. 
19

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 
20

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 
21

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.