Never Complain When You Win
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Chutzpah: Plead Guilty to Fraud, Receive Probation and Appeal the Conditions
\\nRaymundo Gonzalez appealed the condition of probation imposed after he pled no contest to one felony count of insurance fraud.
\\nIn 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.
\\nA 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.
\\nA 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. .
\\nDefendant was charged\\xa0 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.
\\nA 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
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- has no relationship to the crime of which the offender was convicted, \\n
- relates to conduct which is not in itself criminal, and \\n
- requires or forbids conduct which is not reasonably related to future criminality. \\n
Because defendant\'s trial counsel did not object Gonzalez claimed ineffective assistance of counsel.
\\nTo establish ineffective assistance of counsel defendant must show
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- counsel\'s representation fell below an objective standard of reasonableness under prevailing professional norms, and \\n
- counsel\'s deficient performance was prejudicial \\n
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.
\\nMoreover 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.
\\nThe facts established that Mr. Gonzalez was a 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. When his doctor saw the video he 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.
\\n(c) 2023 Barry Zalma & ClaimSchool, Inc.
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