Never Complain When You Win

Chutzpah: Plead Guilty to Fraud, Receive Probation and Appeal the Conditions

Raymundo Gonzalez appeals the condition of probation imposed after he pled no contest to one felony count of insurance fraud. Specifically, when defendant was placed on probation by the trial court, one of the conditions of probation permitted searches of computers, and hand-held electronic and cellular devices (electronic devices). No objection was raised to this condition when it was announced. In The People v. Raymundo Gonzalez, F084950, California Court of Appeals (September 25, 2023) Gonzalez sought removal of the search of electronics equipment.

FACTS

In the claim, defendant alleged he was injured on September 5, 2013, after pulling irrigation lines when the tire of a tractor hit him on the right foot, causing him to fall. The injury was documented, and defendant saw a doctor at the end of the day. A worker's compensation claim form was also completed by defendant and his employer's safety officer.

In March 2016, defendant was examined by Dr. Stephen Choi regarding his ongoing claim. Defendant told Choi he had not suffered any prior injuries. Following a clinical exam, Choi was unable to make any specific findings regarding defendant's left arm and right foot. Choi concluded, however, that defendant had full range of motion in both shoulders, elbows, hands, and joints. Choi reevaluated defendant in November 2016. Choi ultimately apportioned 25 percent of defendant's injury to a preexisting degenerative disc disease, which was nonindustrial, and 75 percent to the injury incurred in September 2013.

The Effect of Surveillance

A new evaluation was completed in February 2018, after surveillance footage from November 2013, April 2015, June 2015, and September 2015 was considered. Choi asked for this reevaluation after seeing the footage, which showed defendant walking and moving as if he was injury free. Choi observed defendant working hard, picking things up from the ground, and bending and twisting his body without trouble. Choi concluded these movements should not have been possible if he truly had lower back and shoulder pain. This new evaluation determined defendant did not have any impairment or disability and did not require future medical care.

A further investigation revealed defendant filed various claims for injuries while employed with other companies between 2001 and 2011. Defendant claimed he was not able to stand or walk for long periods of time and could not lift anything or bend. Defendant further stated he had never filed a worker's compensation injury claim and never suffered an on-the-job injury. All these statements were in direct conflict with what was depicted in the video footage.

Defendant was charged  with three counts of insurance fraud and one count of perjury. Defendant entered a plea of no contest on count 1 and counts 2 through 4 were then dismissed under the plea agreement. On August 3, 2022, the trial court sentenced defendant to probation following the plea. A condition of probation, which was imposed without discussion or objection, was an electronic search condition requiring defendant to submit to a search of his electronic devices with or without a warrant.

DISCUSSION

A trial court may impose and require any or all of the terms of imprisonment, fine, and conditions as it determines are fitting and appropriate. A condition of probation will not be held invalid unless it

has no relationship to the crime of which the offender was convicted,
relates to conduct which is not in itself criminal, and
requires or forbids conduct which is not reasonably related to future criminality.

Because defendant's trial counsel did not object Gonzalez claimed ineffective assistance of counsel.

The Claim of Ineffective Assistance of Counsel

To establish ineffective assistance of counsel defendant must show

counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and
counsel's deficient performance was prejudicial

Unless a defendant establishes the contrary, the court will presume that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.

The court’s review of the record revealed that defendant asked the court to be allowed to travel to Mexico during his probation to visit his grandchildren, who he apparently visited often. The court allowed such travel as long as permission was obtained from probation first. It is not unreasonable to conclude evidence of travel not cleared by probation could be found on a computer or other electronic or cellular device.

 Was the Condition Overbroad?

The possible reasons discussed provide a satisfactory explanation for trial counsel's decision not to object here. The type of evidence that might be found on a computer or other electronic devices would support the condition. Defendant's intent to travel outside the jurisdiction while on probation could also be monitored through those devices, if probation had reason to suspect he traveled or was planning to travel without obtaining permission first.

Moreover the decision not to object to the electronic devices condition could be related to the decision by the trial court not to impose a jail sentence.

ZALMA OPINION

The facts established that Mr. Gonzalez was serial workers' compensation fraudster who was not injured but had successfully defrauded multiple employers only to be caught and prosecuted on his last attempt because investigators acquired video proving he had lied about his condition and work history that, when his doctor saw the video, was offended and cut him off. To complain about the terms of probation and take up the time of the court of appeals was unmitigated gall (Chutzpah!) and should have resulted in more than a loss of the appeal but show a violation of probation sufficient to cause him to serve jail time.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.

Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808

Go to Newsbreak.com  https://www.newsbreak.com/@c/1653419?s=01

Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257

Daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg;  Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library