People v. Fuentes CA1/3

Filed 6/27/14 P. v. Fuentes CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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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