RYLAARSDAM, ACTING P. J.
The single issue in this appeal is whether the trial court erred in denying appellant Karl Ivan Avetoom an evidentiary hearing on his Penal Code section 1473.6 motion to vacate a prior judgment of conviction based on selling a stolen 1990 Suzuki motorcycle. (All statutory references are to the Penal Code.) A motion for relief under section 1473.6, however, must be made within one year of 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." Here, there is no doubt that by July 2008 Avetoom had come into possession of evidence — in this case a certain motorcycle frame — that showed a detective had lied on the stand in 1997. We thus affirm the order denying the section 1473.6 motion because the motion was untimely.
In March 1997 Avetoom was convicted of four counts all arising from his sale of a stolen Suzuki motorcycle to a motorcycle shop in Azusa in late February 1995. Avetoom was given a suspended sentence of three years and put on probation. He had been indicted on some 31 counts, including those arising out of a number of other allegedly stolen motorcycles, but the jury acquitted him of all counts other than those relating to the sale of a single stolen 1990 Suzuki motorcycle with the vehicle identification number JS1GV73A8L2100380. That motorcycle, however, was never made available to Avetoom's defense either before or after trial, despite his motion at the outset of trial that it be produced. Before Avetoom was indicted, the 380 frame (or frame plus bike) had been disposed of by OCATT (Orange County Auto Theft Taskforce). The circumstances of that disposition, however, would surface as a disputed question of fact some 13 years later.
Before we relate additional facts, we must note that motorcycles have "VIN" or vehicle identification numbers on their frames, but motorcycle engines have their own identification numbers. 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 engine may, or may not, have been altered.
These facts about the 1997 prosecution of Avetoom are undisputed: In mid-February 1995 Duane Cruz reported that his Suzuki motorcycle was stolen from his carport. That bike had a VIN ending in the last three digits "380," and the whole VIN included one other "3." The VIN of the Cruz bike was JS1GV73A8L2100380. Later that month, on February 27, 1995, Avetoom sold a Suzuki motorcycle with a VIN number JS1GV78A8L2100880 to a motorcycle shop in Azusa. Detectives from OCATT investigating the theft of the Cruz bike made a search of the Azusa shop. One of those detectives, named Thrasher, examined a 1990 Suzuki motorcycle with a VIN of JS1GV78A8L2100880 — that is, the same as the one Avetoom sold to the shop in February — and was unable to determine whether the engine number had been tampered with. However, when a detective from the same taskforce named Wiseman ran a DMV record check for the JS1GV78A8L2100880 bike, he found that the VIN "was not a conforming VIN number." Detective Wiseman determined that two of the "8's" in the JS1GV78A8L2100880 VIN had originally been "3's," and if "3's" were substituted in place of those two "8's," the number matched the VIN of the motorcycle stolen from Cruz. At trial Wiseman testified both that Officer Thrasher in fact recanted his initial observation that the 380 VIN had not been altered and that the VIN indeed had been altered.
Avetoom was found guilty of four counts, including running an illegal chop shop, all stemming from his sale of the Suzuki to the Azusa store. He brought a new trial motion in which he argued that the trial court had improperly denied his motion for the production of the frames and cycles allegedly stolen (including the Cruz 380 bike). The new trial motion noted that a Los Angeles Police Department detective named Christensen had explained to the jury 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 whether the "VIN was altered went to the heart of the prosecution's case."
The motion was denied and in 1999 this court affirmed the judgment after an appeal in which only procedural issues were raised.
Avetoom believed that his sale of the "880" Suzuki to the Azusa store was legitimate. In 1999 he was receiving letters from the DMV saying a Suzuki bike 880 was still in his name. An attorney friend noted that there were "conflicting" reports as to whether the Cruz 380 bike's VIN really had been altered. And in November 1999 a sheriff's deputy verified that DMV records showed a motorcycle with the 880 VIN was still in Avetoom's name. The sheriff's deputy also checked the Cruz 380 number with the DMV and learned that that bike (or at least the frame) was owned by a Stanton motorcycle shop. At the same time, Avetoom also learned from the DMV that the 380 bike had been transferred to the Stanton shop in 1996.
In December 1999 Avetoom visited that Stanton shop. He was told the owner still had the 380 frame, but the actual bike had been "dismantled . . . for parts over the years." The owner of the shop indicated to Avetoom that the 3's were still intact in the frame's VIN number. Avetoom visited the shop and saw the frame's VIN to be unaltered.
Avetoom approached his trial attorney about postconviction relief. The trial attorney said that showing the frame to have been unaltered would not be enough to reverse the conviction.
Matters were left there until January 2005. In the interim Avetoom spent two years in prison on a probation violation for being involved in the motorcycle business. The probation violation came to light when Avetoom was indicted by a United States Attorney in Arizona for being part of a major motorcycle theft operation. However, in January 2005 the U.S. Attorney voluntarily dismissed all counts against him. Nevertheless, the weakness of the federal case did not prevent Avetoom from being prosecuted for violating his probation — he was not supposed to be involved in the motorcycle business at all.
On the advice of his attorney he waited until the statute of limitations ran out on the federal charges, then turned his attention to his posttrial exoneration. But by then, Avetoom's attorney did not know how to get the case back before the court, since Avetoom was out of custody.
By June 2007 Avetoom had located and retained an attorney named Ferrentino, recommended by his present appellate attorney. Ferrentino retained a private investigator. The investigator found a letter by an OCATT detective to an Alfanso Gayton back in 1995 offering to restore the bike to Gayton, who turned out to be the legal owner of the 380 bike.
The 380 frame (given that by this time the parts had been sold off, it would be a misnomer to say "bike") was acquired by Avetoom's investigator on April 27, 2007. (Possibly the 2007 year was a typo and should have been 2008 given the sequence as related by Avetoom himself in regard to the retention of attorney Ferrentino in June 2007.) The frame's VIN did not look altered or restamped.
A highway patrol officer met with Avetoom's investigator in July 2008 to investigate the acquired frame. The highway patrol officer determined that the VIN on the 380 frame was unaltered. An insurance services office claim form was run on the 380 frame which showed it had been stolen from Cruz in 1995. It also showed that OCATT had acquired the cycle in August 1995, who sold it to a salvage buyer in Inglewood in September 1996, and from there the 380 frame was transferred to the motorcycle shop in Stanton.
Avetoom discovered what he regarded as a smoking gun in mid-May 2009. It was then he came into possession of an affidavit applying for a search warrant authored by Wiseman in May 1995. That affidavit had not been shown to the defense in the original 1997 trial. The affidavit plainly averred that none of the bikes 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." As we have noted, there is no dispute that at trial Wiseman testified that the VIN on the 380 frame had been altered.
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) [duty of prosecution to turn over exculpatory evidence] pursuant to section 1385. In late April 2010 Avetoom filed a motion to vacate his sentence under section 1473.6.
The district attorney's office filed an "informal response" to the section 1473.6 motion in late August 2010. (Cf. Cal. Rules of Court, rule 4.551(b)[providing for informal responses to applications for habeas corpus relief].) The informal response argued that Avetoom had failed on the merits to establish a prima facie case for relief under section 1473.6. It pointed to the substantial evidence presented at trial in 1997 showing that victim Cruz had been able to identify "some" of the unique characteristics of his bike on the bike recovered from the Azusa store "with the overstamped VIN ending in 880." Moreover, Avetoom might readily have obtained a "duplicate title" on a motorcycle. As to the Wiseman affidavit, the informal 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." Thus 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 the Azusa store.
The informal response was supported by three exhibits. The first was an arrest report authored by Wiseman recounting the events of a mid-May 1995 search of the Azusa motorcycle store. The second was a printout of DMV computer records by which Wiseman had determined that the 880 VIN was not a valid number. That printout made reference to State Farm Insurance. The third was a highway patrol stolen vehicle report that recounted that a Suzuki motorcycle with the 380 VIN had been "switched to read" to an 880 VIN, and sold to the Azusa shop on March 1, 1995 by Avetoom. It also said the bike was confiscated from the shop on August 2, 1995.
The informal response did not, however, argue that Avetoom's section 1473.6 motion was too late under subdivision (d) — the one-year limit — of the statute. Nor did it argue or present evidence asserting that Wiseman's 1995 affidavit could have been discovered with due diligence.
The "lead" to State Farm prompted further investigation on Avetoom's part. He procured the State Farm claim file on the Cruz 380 bike. The upshot was that Avetoom included several items of newly discovered evidence in his reply, filed in October 2010, to the informal response. The new evidence included, as an exhibit N, an OCATT vehicle release form dated January 12, 1996 for a 1990 Suzuki with the 380 VIN. In the blank specifying the party to whom the bike was being released were the handwritten words "State Farm" crossed out and, in the same handwriting, the word "Farmers" inserted. The same was done in the blank to write 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 cycle. 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 Cruz's bike. Other new evidence include two tow bills, barely legible in our record, but one can make out that they were for a 1990 Suzuki motorcycle and the claimant was Duane Cruz. Also included, as exhibit P, are two blurry pictures, wholly indecipherable as they appear in the clerk's transcript in the appellate record, which were asserted by Avetoom's trial attorney to be pictures of the "obliterated" 880 bike and VIN.
The reply also included a handwritten adjuster's log (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.
There was an oral hearing on the motions filed by Avetoom on November 5, 2010, but no evidentiary hearing. The trial court took the motions under submission. Five days later the court issued a thorough and well-written 11-page findings and order.
The trial court rejected (albeit in the context of its discussion of the substance of Avetoom's Brady error) the point that the May 1995 Wiseman affidavit showed any government misconduct. "Preliminarily," it said "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 judge pointed out that the statement conflicted with other passages in the affidavit, and quoted passages which indicated that Wiseman believed that engine numbers had been altered and overstamped, with the "`motorcycle frames hav[ing] been switched.'" The judge further noted that the "quoted sentence on which Counsels [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." In that context the trial judge pointed to a passage in the recitation of facts in our earlier unpublished opinion that Avetoom and his codefendant each "`sold motorcycles'" to a particular dealer and "`All had altered VIN's.'" The judge concluded by saying that 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."
Two pages later, and specifically addressing Avetoom's section 1473.6 request, the court rejected 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 bike would have undermined the prosecution's case, pointed unerringly to innocence, or would have been `substantially probative'" of Avetoom's innocence. And "finally," the court ruled, the section 1473.6 motion was untimely, because it included declarations signed in 2008.
Avetoom filed a timely appeal from the trial court's order denying his requests for relief. The appeal raises only matters involving the propriety of denying Avetoom an evidentiary hearing on his section 1473.6 motion.
There is only one published California decision discussing section 1473.6, namely People v. Germany (2005) 133 Cal.App.4th 784 (Germany). Section 1473.6 was enacted in 2002 in response to the Rampart scandal. (Id. at p. 791; see People v. Villa (2009) 45 Cal.4th 1063, 1076, fn. 5 [noting in passing that the legislation that became section 1473.6 "`was originally introduced to address a problem illustrated by the so-called Rampart scandal . . . in which it was discovered that certain Los Angeles Police Department officers had engaged in misconduct, including planting evidence, filing false police reports, committing perjury, and creating nonexistent confessions.'"]; see also Medwed, California Dreaming? The Golden State's Restless Approach to Newly Discovered Evidence of Innocence (2007) 40 U.C. Davis L.Rev. 1437, 1442, fn. 20 [listing authorities discussing Rampart scandal].)
Germany plainly sets forth the standard of review for section 1473.6 motions. Because the statute employs the "same procedures applicable to a petition for writ of habeas corpus," courts should look to California Rules of Court, rule 4.551, which lays out those procedures. (Germany, supra, 133 Cal.App.4th at pp. 790-791; all further references to rule 4.551 are to the California Rules of Court.) By its terms rule 4.551 requires an evidentiary hearing when the applicant shows "a reasonable likelihood" of entitlement to relief and that entitlement depends on an "issue of fact." The relevant language from rule 4.551 is: "An evidentiary hearing is required if, after considering the verified petition, 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 petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact."
There is a one-year limitation set forth in section 1473.6, subdivision (d) which has never been addressed in a published opinion, including Germany. The exact language from that subdivision (d) is: "(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."
Section 1473.6 provides for a motion to vacate a criminal judgment if there is newly discovered evidence falling into one of three categories. Subdivision (a) of the statute provides: "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." (Italics added.)
By its terms, section 1473.6 subdivision (d) dates the beginning of the one-year limit from the date the moving party discovered or could have discovered with due diligence "additional evidence of the misconduct or fraud by a government official beyond the moving party's personal knowledge" — the "additional" obviously referring to evidence "additional" to that presented at trial.
The trial court was incorrect to conclude that production of the Cruz 380 bike would not have "undermined" the prosecution's case. At the very least, the Cruz 380 frame recovered in 2007 (or 2008) was strong evidence that Wiseman's testimony was false when he asserted the 380 VIN had been altered, particularly in light of the prosecution's own foundational evidence that Suzuki "3's" cannot easily be changed to Suzuki "8's" given the "x" shape of the 8's. As Avetoom's new trial motion back in 1997 put it, the alteration of the VIN was the "heart" of the prosecution's case. And the trial judge pointed to our own recitation of the facts in our 1999 opinion that all the motorcycles which Avetoom was accused of stealing or chopping had altered VIN's. Thus, just based on the frame acquired in 2007, plus the verifications of non-alteration of that frame's VIN by officers and investigators in 2008, Avetoom was in possession of "newly discovered evidence" which justified relief under section 1473.6 subdivision (a)(2) — government official testifying falsely at trial and the false testimony was substantially probative of guilt.
Moreover, it cannot be said here that Avetoom is entitled to an evidentiary hearing on the threshold issue of whether the one-year limit applies at all. Tracking habeas corpus procedure, the reason for an evidentiary hearing is the need to make credibility determinations. (In re Scott (2003) 29 Cal.4th 783, 824.) Here, however, much like a civil complaint might show on its face that it is subject to a statute of limitations bar and thereby be subject to demurrer (that is, dismissal without an evidentiary hearing), so did Avetoom's own moving papers supporting his section 1473.6 motion.
That leaves only the further evidence of the May 1995 Wiseman affidavit discovered in May 2009, and the material from the State Farm claim file submitted in October 2010. As to the 1995 Wiseman affidavit, it was merely cumulative of the "newly discovered evidence" of the 380 frame discovered in 2007 (maybe 2008), i.e., Wiseman may have lied on the stand when he said the 380 frame had been altered.
As to the State Farm material, let us assume, for the moment, that it gives rise, or could give rise, to a reasonable inference that there were indeed two motorcycles, which would give rise to the further inference that Detective Wiseman or others destroyed or otherwise disposed of the true 880 bike sold by Avetoom, in order to convict him for having stolen the 380 bike. Even so, the text of section 1473.6, subdivision (d) implies that defendants seeking exoneration under the statute get only one chance, namely the one chance that arises when they obtain, or could have obtained, the evidence that otherwise comes within one of the three categories of subdivision (a). In this case we note that the second round of newly discovered evidence precipitated by the district attorney's office's own informal reply would presumably have come into Avetoom's possession in any event, had he timely filed his motion.
We do not consider, in this opinion, the degree to which Avetoom might have earlier "discovered with the exercise of due diligence" either the 380 frame or the State Farm file.
Much of Avetoom's briefing is devoted to demonstrating that the trial court failed to properly apply the rule of Brady, supra, 373 U.S. 83 to Avetoom's section 1473.6 application. The problem is that because Avetoom was in possession of evidence apparently in 2007 and certainly in 2008 sufficient to establish relief under section 1473.6 subdivision (a)(2), it makes no difference whether the trial court properly applied Brady or not.
We may note, though, in regard to Brady, that the legislative history of section 1473.6 shows that 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.
The order appealed from is affirmed.
BEDSWORTH, J. and IKOLA, J., concurs.