Two years after his conviction, a former state correctional officer is in line to be sentenced to some custody time of his own for filing a workers’ compensation claim after he was shot outside a San Francisco sex club.
John Alfonzo Smiley and his wife, Cynthia Ann Biasi, were found guilty on March 12, 2012, of attempted perjury for testifying in depositions that the shooting was work-related when, prosecutors say, it resulted from an argument that broke out during a spousal sex swap.
The defendants never signed the depositions, which accounted for the attempted perjury charge, according to Supervising Deputy District Attorney Kelly Mulcahy.
Jurors did not reach verdicts on four workers’ comp fraud counts in the trial two years ago, and Sacramento Superior Court Judge Russell L. Hom declared a mistrial on those charges. While prosecutors refiled the case, the sentencing for Smiley, 48, and Biasi, 40, on the attempted perjury charges has been on hold until the retrial on the four remaining counts is resolved. That trial is still at least four months away.
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On Thursday, Mulcahy asked Judge Laurel White to schedule a sentencing date for Smiley and Biasi. The two defendants each face terms of three years and eight months for the attempted perjury convictions.
“I would like to get this case moving on the sentencing,” the deputy DA told the judge.
White scheduled the sentencing for an Oct. 30 hearing, back in front of Judge Hom. White said Hom would set a sentencing date when the case moves into his courtroom next month.
Mulcahy said outside of court Thursday that the problem with moving the case forward has been an inability to find a date that would work for herself and defense attorneys Mike Wise, who represents Smiley, and Alan Donato, the lawyer for Biasi.
Both Donato and Wise began representation of their clients after the convictions two years ago. Donato said neither has been able to review pre-sentencing reports on their clients.
Wise said Smiley, who has been confined to a wheelchair since he was paralyzed in the April 27, 2008, shooting, is “adamant he didn’t do anything wrong.”
“He wants to go to trial, if necessary,” Wise said. “He’s been frustrated by the process.”
Smiley, who used to work in the transportation department of the California Department of Corrections and Rehabilitation, first claimed that he had been shot by a parolee who recognized him from his job. He later admitted that the shooting took place outside a sex club where he and his wife were engaged in a partner exchange with another couple. Smiley insisted, however, that the other man in the transaction was a parolee who recognized him as a correctional officer and shot him as a result of it.
Mulcahy argued at trial that the shooting resulted from an argument over whether Smiley used a condom during the tryst. The shooter was never arrested.