People v. Fuentes CA1/3 ( 2014 )


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  • Filed 6/27/14 P. v. Fuentes CA1/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,
    Plaintiff and Respondent,
    A138058
    v.
    OSCAR JOSEF FUENTES III,                                             (Sonoma County
    Super. Ct. No. SCR-602423)
    Defendant and Appellant.
    Following a jury trial, defendant Oscar Josef Fuentes III was convicted of
    insurance fraud and related felonies as a consequence of fraudulently seeking to reopen a
    claim for workers’ compensation benefits. The trial court suspended imposition of
    sentence and placed Fuentes on probation for three years.
    On appeal, Fuentes challenges a probation condition allowing warrantless
    searches. We conclude Fuentes forfeited the challenge to the probation condition by
    failing to object below. We also reject his contention that his attorney’s failure to object
    to the condition constituted ineffective assistance of counsel. Accordingly, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    In 2003, Fuentes was 41 years old and was working for the State of California. He
    was injured on the job in that year and filed a workers’ compensation claim, which was
    resolved in June 2006 with a determination that he was 45 percent disabled. Following
    the resolution of his claim, Fuentes received disability benefits of $170 per week, as well
    as medical benefits related to injuries to his neck, back, and upper extremities. Fuentes
    1
    stopped working for the State in 2004 and later did part-time work from November 2005
    to September 2007 as a machinist helper.
    In March and April 2007, Fuentes participated in five sessions with a vocational
    rehabilitation counselor. Fuentes told the counselor he considered himself retired but
    expressed a desire to become a contractor, work part-time, and build on several properties
    he owned. He told the counselor he could drive up to 120 minutes, could lift 150 pounds
    occasionally, and could sit or stand for 30 minutes at a time. The counselor believed she
    could develop a vocational rehabilitation plan that “would be acceptable to the [workers’
    compensation] system.”
    Despite his claimed interest in pursuing work as a contractor, in May 2007 Fuentes
    filed a petition to reopen his workers’ compensation claim and increase his permanent
    disability rating to 100 percent. A finding of 100 percent disability would have entitled
    Fuentes to a lifetime benefit of approximately $2 million as well as enhanced medical
    coverage.
    In January 2008, Fuentes met with an agreed medical examiner who was
    appointed to evaluate his condition. Contrary to what Fuentes had told the vocational
    rehabilitation counselor, he told the doctor appointed to evaluate his condition that he
    could not lift more than 20 pounds, could not engage in any recreational activities, had
    difficulty reaching above shoulder level, and experienced “many other symptoms and
    limitations.” On an activity questionnaire, Fuentes indicated he was unable to stand or
    walk for continuous periods, could not kneel or bend, and could not engage in
    recreational activities. The doctor concluded that Fuentes had a cervical spine disability
    that restricted him to light work, but did not find that he was 100 percent disabled. The
    doctor reevaulated Fuentes in August 2008. After considering new evidence made
    available to him, the doctor again concluded that Fuentes was not 100 percent disabled.
    State Compensation Insurance Fund (State Fund) hired a private investigator to
    determine whether Fuentes had been truthful about his claimed physical limitations in his
    petition to reopen his workers’ compensation claim. An investigator followed Fuentes on
    five separate occasions in 2007 and 2008. The investigator made almost eight hours of
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    video recordings as a consequence of the surveillance efforts. The recordings showed
    Fuentes participating in his son’s baseball and football practices—sometimes for up to six
    hours a day. The recordings also showed him hitting baseballs, bending down to work on
    a vehicle, walking and carrying an empty plastic bucket, unloading an all-terrain vehicle,
    and riding a lawn mower.
    In April 2009, a detective and an internal affairs agent with the State agency that
    had last employed Fuentes interviewed him concerning his answers on the activity
    questionnaire as well as the statements he had made to the agreed medical examiner.
    Fuentes claimed he filed the petition to reopen his claim because he “felt entitled to”
    more vocational rehabilitation money. He tried to place the blame for the petition to
    reopen on his workers’ compensation attorney and maintained that he provided answers
    based upon how he felt on his worst days.
    In September 2009, the parties stipulated to dismiss Fuentes’s petition to reopen
    his workers’ compensation claim. State Fund incurred costs of just over $13,000
    associated with medical testing and evaluation of the claim. In addition, State Fund paid
    over $6,000 for the work performed by the private investigator.
    The Sonoma County District Attorney filed a three-count information in July 2012
    charging Fuentes with insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)), making a false
    claim for health care benefits (Pen. Code, § 550, subd. (a)(6)), and presenting a false
    claim for loss and injury (Pen. Code, § 550, subd. (a)(1)). Following a jury trial, Fuentes
    was found guilty as charged.
    The trial court suspended imposition of sentence and placed Fuentes on probation
    for three years subject to various terms and conditions. Fuentes was ordered to serve six
    months in county jail or in an alternative to jail, such as electronic home confinement.
    As a condition of probation, Fuentes was “subject to warrantless search and
    seizure of [his] person, property, or vehicle at any time of the day or night and as to [his]
    residence at any time or reasonable time of day or night.” The court also specified that
    Fuentes would not be eligible to apply for any additional workers’ compensation benefits
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    as a result of the injury he sustained in 2003. Fuentes did not object to the imposition of
    these probation conditions.
    DISCUSSION
    1.     The Challenge to the Warrantless Search Condition Was Forfeited.
    Fuentes challenges the warrantless search condition of probation on two grounds.
    First, he claims the condition is overbroad in violation of his constitutional rights.
    Second, he argues that the condition is unreasonable and must be stricken based on
    criteria established in People v. Lent (1975) 
    15 Cal. 3d 481
    (Lent). The Lent
    “unreasonableness” inquiry is distinct from a constitutional overbreadth challenge. (See
    People v. Pointer (1984) 
    151 Cal. App. 3d 1128
    , 1138–1139.)
    As noted above, Fuentes did not object at the time the court imposed probation
    conditions. “As a general rule, failure to challenge a probation condition on
    constitutional or Lent grounds in the trial court waives the claim on appeal.” (In re
    Antonio C. (2000) 
    83 Cal. App. 4th 1029
    , 1033.) In People v. Welch (1993) 
    5 Cal. 4th 228
    ,
    234–237, our Supreme Court held that a failure to object to a probation condition at the
    time of sentencing forfeits a challenge to that condition on appeal. Although the
    Supreme Court recognized a limited exception to the forfeiture doctrine for claims raising
    pure questions of law in In re Sheena K. (2007) 
    40 Cal. 4th 875
    , 889 (Sheena K.), the
    court cautioned that the exception “does not apply in every case in which a probation
    condition is challenged on a constitutional ground.” Instead, the limited exception for
    purely legal challenges applies only when the issue “ ‘ “can be resolved without reference
    to the particular sentencing record developed in the trial court.” ’ ” (Ibid.) Thus, a facial
    challenge to a condition prohibiting a defendant from associating with anyone
    disapproved by the probation officer—without any requirement that the defendant knows
    who has been disapproved—could be raised for the first time on appeal because the issue
    does not require reference to specific facts in the sentencing record. (See 
    id. at p.
    885.)
    Conversely, a challenge to the constitutionality or unreasonableness of a warrantless
    search condition, which requires consideration of the crimes of conviction and the facts
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    of the defendant’s case, is forfeited if not raised in the trial court. (In re Josue S. (1999)
    
    72 Cal. App. 4th 168
    , 169–170.)
    An application of these principles in this case leads to the conclusion that both of
    Fuentes’s claims regarding the search condition have been forfeited. Fuentes first claims
    that the search condition is unconstitutionally overbroad because it is not “narrowly
    drawn” or specifically “tailored” to his crimes. But in order to evaluate whether the
    search condition is properly tailored to the specific crimes of which Fuentes was
    convicted, we would necessarily be required to examine the circumstances of the offenses
    as well as the sentencing record. Because this fact-specific inquiry precludes application
    of the Sheena K. exception to the general forfeiture rule, Fuentes’s failure to object to the
    condition when it was imposed forfeits the constitutional challenge on appeal.
    Fuentes next claims the search condition is unreasonable under Lent because it
    “has no relationship to the crime of which the offender was convicted” and “forbids
    conduct that is not reasonably related to future criminality.” Again, evaluation of these
    assertions necessarily would require an examination of the facts underlying the
    convictions and the relationship between those facts and the condition. Because the
    required analysis would go far beyond resolving pure questions of law, the limited
    exception to the forfeiture rule in Sheena K. does not apply. In any event, the Sheena K.
    exception generally does not apply to Lent “unreasonableness” claims, which turn on the
    particular facts of each case. As the court explained in Sheena K., “[a]pplying the
    [forfeiture] rule to appellate claims involving discretionary sentencing choices or
    unreasonable probation conditions is appropriate, because characteristically the trial court
    is in a considerably better position than the Court of Appeal to review and modify a
    sentence option or probation condition that is premised upon the facts and circumstances
    of the individual case.” (Sheena 
    K., supra
    , 40 Cal.4th at p. 885.)
    Fuentes urges that we exercise our discretion to review his claim on appeal despite
    his failure to object, claiming that it raises “an important constitutional issue.” We
    decline to do so. We observe that Fuentes primarily relies on People v. Keller (1978)
    
    76 Cal. App. 3d 827
    (Keller) overruled on other grounds in People v. Welch, supra,
    5
    5 Cal.4th at page 237, as the basis for his constitutional overbreadth claim. In Keller, the
    court imposed a search condition after the defendant pleaded guilty to the theft of a 49
    cent pen. (Id. at p. 830.) The appellate court struck down the condition and analogized
    the imposition of a search condition following a petty theft conviction to “the use of a
    Mack truck to crush a gnat.” (Id. at p. 840.) This case simply does not present the same
    lack of proportionality between the offense and the search condition. Fuentes was
    convicted of attempting to defraud State Fund into giving him lifetime benefits worth $2
    million. Further, as the probation report explained, Fuentes’s use of pain medication was
    “of concern” and purportedly played a role in his decision to make false statements to
    secure additional workers’ compensation benefits. His misuse or dependence on pain
    medication—and the role it played in his decision to make a fraudulent claim—provides
    an additional basis for a search condition.
    Moreover, Fuentes’s reliance on Keller is misplaced. In People v. Balestra (1999)
    
    76 Cal. App. 4th 57
    , 64–68, the same court that decided Keller considered the propriety of
    a search condition applied to a person convicted of elder abuse. The court upheld the
    condition and noted, “[i]t is clear that Keller is inconsistent with the Fourth Amendment
    jurisprudence since the date of that decision.” (Id. at p. 67.) Among other things, the
    court observed that a warrantless search condition serves a valid rehabilitative purpose
    regardless of whether the underlying offense involves theft, narcotics, or firearms. (Ibid.)
    In short, given the nature of the three felonies of which Fuentes was convicted, the role
    that pain medication may have played in the offense, and the state of the law since Keller
    was decided, we are not persuaded that Fuentes’s challenge to the search condition
    presents important constitutional issues meriting further review.
    2.     Defense Counsel Was Not Ineffective.
    Fuentes attempts to circumvent the forfeiture of his claim by arguing that defense
    counsel’s failure to object to the warrantless search condition amounted to ineffective
    assistance of counsel. We are not persuaded.
    In order to establish a claim of ineffective assistance of counsel, a defendant bears
    the burden of demonstrating both that counsel’s performance fell below an objective
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    standard of reasonableness (Strickland v. Washington (1984) 
    466 U.S. 668
    , 687–688) and
    that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.” (Id. at p. 694; People v. Ledesma
    (2006) 
    39 Cal. 4th 641
    , 746.) “Unless a defendant establishes the contrary, we shall
    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.’ [Citation.] If the record ‘sheds no light on why counsel acted or
    failed to act in the manner challenged,’ an appellate claim of ineffective assistance of
    counsel must be rejected ‘unless counsel was asked for an explanation and failed to
    provide one, or unless there simply could be no satisfactory explanation.’ ” (People v.
    
    Ledesma, supra
    , at p. 746.) Because it is rarely the case that “an appellate record [will]
    establish ineffective assistance of counsel” (People v. Thompson (2010) 
    49 Cal. 4th 79
    ,
    122), such claims are “more appropriately decided in a habeas corpus proceeding.”
    (People v. Mendoza Tello (1997) 
    15 Cal. 4th 265
    , 266–267.)
    In this case, the record sheds no light on why Fuentes’s counsel failed to object to
    the warrantless search condition. However, there a number of possible explanations for
    counsel’s inaction. In light of Fuentes’s multiple felony convictions, his defense counsel
    may have reasonably believed that the best strategy in order to assure a grant of probation
    was to accede to the imposition of probation conditions customarily imposed by the
    courts, such as the search condition here. In addition, defense counsel may have
    concluded that an objection to the condition would have little likelihood of success in
    light of case authority upholding warrantless search conditions as a means to ensure that a
    probationer obeys all laws. (See People v. 
    Balestra, supra
    , 76 Cal.App.4th at p. 67.) It is
    well settled that counsel is not ineffective for failing to raise an objection that counsel
    reasonably determines would be fruitless or meritless. (People v. Ochoa (1998) 
    19 Cal. 4th 353
    , 463; People v. Jackson (1989) 
    49 Cal. 3d 1170
    , 1189.)
    On this record, we cannot conclude that defense counsel’s performance fell below
    an objective standard of reasonableness. Consequently, Fuentes’s ineffective assistance
    claim lacks merit.
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    DISPOSITION
    The judgment is affirmed.
    _________________________
    McGuiness, P.J.
    We concur:
    _________________________
    Siggins, J.
    _________________________
    Jenkins, J.
    8