Swinger Shot by Unhappy Swinger Lies to Get Insurance Benefits and is Convicted of Fraud and Perjury

John Alfonzo Smiley and Cynthia Biasi-Smiley were both charged with presenting a false and fraudulent insurance claim, insurance fraud, concealing an event affecting a person’s right to insurance benefits, two counts of attempted perjury, and presenting a false claim to a state board. A jury found both defendants guilty of the two attempted perjury counts and could not reach a verdict on the other charges. At a subsequent bench trial, defendants were each found guilty of the remaining counts. The trial court suspended imposition of sentence as to the defendants and placed them both on five years of formal probation.

In The People v. John Alfonzo Smiley, The People, v.  Cynthia Biasi-Smiley, C081566, C081737, Court Of Appeal Of The State Of California Third Appellate District (Sacramento) (June 26, 2020) the defendants appealed their convictions for attempted perjury but not the other counts.

BACKGROUND

The Shooting and Statement to the Police

In 2008, Smiley was a correctional officer for the Department of Corrections and Rehabilitation, driving and escorting inmates from one secured facility to another. He and Biasi-Smiley were married. On April 27, 2008, he was shot in the back and rendered paraplegic while walking with his wife in the North Beach section of San Francisco. Smiley and Biasi-Smiley were interviewed about the incident by San Francisco police and gave the following rendition of the events:

  • Defendants went to Twist, a swingers club in North Beach.  Arriving at around midnight, they paid the $80 entrance fee and went upstairs to the “play area,” where people were engaging in sex in plain view.
  • Biasi-Smiley took off her dress and performed oral sex on Smiley. An attractive young woman came up to them, and a young, well-dressed man with the woman motioned to Smiley. Smiley and the man nodded at each other, indicating an agreement to switch partners. Smiley and the other woman began engaging in intercourse, as did Smiley-Biasi and the other man.
  • After a couple of minutes, the man came over and accused Smiley of not wearing a condom.  The, believing Smiley did not use a condom, asked Smiley if he had a weapon; Smiley said he did not. The man then told Smiley, “I got a nine, and I’m going to kill you.”
  • As the Smileys walked to their car, a luxury sedan sped up from behind, pulled up sideways, and stopped. The man from the club got out of the car and said, “I told you I’m going to kill you.” Smiley and Biasi-Smiley started to run but the man shot Smiley in the back, rendering him paraplegic.

The Claims

In April 2009, Smiley filed a workers’ compensation claim, asserting he had been shot by a former inmate. Neither Smiley nor Biasi-Smiley mentioned, either on the form or to the adjuster, being at Twist, Smiley’s having sex with the other woman, or his being threatened by her companion due to his alleged failure to wear a condom.

The claim sought a permanent disability payment of more than $2 million, plus a like amount in home health expenses, for a total claim of around $4 million. The claim was estimated by the State Compensation Insurance Fund (SCIF) to be worth $2.44 million. Biasi-Smiley subsequently filed a lien for $271,680 against Smiley’s workers’ compensation claim for ongoing medical expenses.

Smiley claims were denied and he appealed the denial; he and Biasi-Smiley were deposed by an SCIF attorney on October 15, 2009. Smiley told the deposing attorney he constantly faced threats of violence from inmates. According to Smiley, one time an African-American inmate from Alameda County did not like the way Smiley was talking to him and threatened to “put some le[a]d” in Smiley.

In her first deposition she testified the man said to Smiley, “You know what I do for a living? I kill people. And I’m going to kill you.” Smiley said to Biasi-Smiley, “Let’s go. That’s a parolee.”

SCIF incurred costs of $22,176.36 for medical evaluation, investigative expenses, and legal fees associated with the claim. Smiley filed a disability retirement selection with California Public Employees’ Retirement System (CalPERS) on March 4, 2010, seeking “industrial disability” benefits. These benefits were available only if the disability was work-related, with much greater monthly payments than those for retirement due to disabilities not related to work. CalPERS generally defers to SCIF when determining whether an injury is work-related.

CalPERS denied the request for industrial disability, but approved him for regular disability retirement. Smiley’s monthly disability check was $574 at the time of trial. He would receive $3,002 a month with a retroactive payment of $18,717.63 had his work-related disability retirement been approved.

Defense Evidence

Testifying on his own behalf at the jury trial, Smiley maintained he told the truth at both depositions. He did not mention the swingers club incident during the deposition because he did not believe it had anything to do with the shooting, and the condom issue was a known risk of a partner swap. Smiley thought the shooter agreed to swap partners because he did not immediately recognize Smiley as a correctional officer, and later used the condom allegation as a ruse so he could try to kill Smiley. He recognized the man was an Alameda County parolee two days after the shooting.

DISCUSSION

The elements of perjury are a willful statement, made under oath, of any material matter which the declarant knows to be false. The appellate court’s sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The making of a deposition is deemed to be complete from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true. A “complete” deposition transcript is one that has been executed, i.e., signed by the deponent. If a defendant has not signed his or her deposition, it may not be used to convict him or her of perjury.

There is no evidence either affidavit was signed by Smiley or delivered. Rather than being prosecuted for perjury, Smiley was charged with and convicted of attempted perjury. An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. Perjury cannot be committed unintentionally so attempted perjury is a crime.

There is ample evidence Smiley knowingly made false, material statements in both depositions about the events leading up to his shooting. Also, Smiley had motive to make these false statements. If his misrepresentations about the cause of his shooting were believed, his injury could be deemed related to his work and he would stand to receive significantly more money than if the injury was found not work-related

Sufficient evidence supports an intent to commit the crime of perjury by making false material statements in the depositions in order to collect substantially larger payments from the state. Making those false statements with that intent but failing to sign and execute the depositions is a classic example of an attempted crime, a specific intent to commit perjury with a willful but ineffective act to do so.

Sufficient Evidence of Presenting a False Claim

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. Biasi-Smiley helped Smiley fill out the claim form he submitted to CalPERS that forms the basis of the section 72 charge. She filled out all or parts of six pages of the eight-page form. She filled out all of page two, which included the statement that Smiley was shot in the back by a parolee. She also signed the form, which could not be processed without the signature.

The trial court could reasonably find that filling out most of the form and signing it was an act to facilitate Smiley’s fraudulent industrial disability retirement claim to CalPERS, she did so with knowledge of the claim’s fraudulent purpose, and did so with the intent of facilitating the fraudulent claim. Substantial evidence supports her conviction on an aiding and abetting theory.

ZALMA OPINION

It is unfortunate and sad that a correctional officer of the state of California was willing to lie to obtain benefits he knew, or should have known, he was not entitled to receive. That he was shot in the back by a “swinger” who was offended that he had sex with a strange woman at a swingers club without a condom, clearly had nothing to do with his occupation. Creating a story that the shooter was a parolee and getting his wife to support the false claim resulted in both of them being convicted of insurance fraud and attempted perjury. They were fortunate that they were only sentenced to probation.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as a

n insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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