Crime - Sacto 911

Guard shot at San Francisco sex club awaits fate on fraud charge

John Smiley and wife Cynthia Ann Biasi-Smiley at their court arraignment, March 23, 2010
John Smiley and wife Cynthia Ann Biasi-Smiley at their court arraignment, March 23, 2010 mcrisostomo@sacbee.com

A Sacramento judge said he will decide Tuesday whether a former correctional officer and his wife committed workers’ compensation fraud after the officer was shot and paralyzed outside a San Francisco sex club.

Sacramento Superior Court Judge James McFetridge heard closing arguments in the court trial Monday.

John Alfonzo Smiley and Cynthia Ann Biasi, who face four fraud-related counts, are accused of lying in depositions claiming the April 27, 2008, shooting outside the club that left Smiley in a wheelchair was work-related, then seeking $4 million in workers’ compensation.

No one has been arrested in John Smiley’s shooting.

Sacramento County prosecutors say Smiley, who was off duty, was gunned down outside the private club after an argument with another couple after the couples swapped partners. Prosecuting Sacramento County Deputy District Attorney Kelly Mulcahy argued in her closing argument Monday that Smiley and Biasi lied when they said Smiley was targeted outside a restaurant in the city by a revenge-seeking parolee who recognized Smiley as a correctional officer.

The couple was convicted in March 2012 of attempted perjury in Sacramento Superior Court in connection with their deposition testimony, but jurors deadlocked on the fraud allegations. Prosecutors later refiled the fraud charges, and the couple’s sentencing on the attempted perjury charges was put on hold pending the results of this trial. The couple faces three years, eight months each on the attempted perjury charges.

Calling their deposition statements “jam-packed with lies,” Mulcahy argued the couple misled insurance officials about being familiar with the sex club, their liaison and the argument that led to Smiley’s shooting not out of embarrassment but because it potentially damaged their case before the State Compensation Insurance Fund. Still, Mulcahy said, the couple might have escaped prosecution after its initial claim was denied. State insurance officials handed the case to Sacramento County prosecutors after Smiley and Biasi filed an appeal.

But Smiley’s attorney, Michael Wise, and Biasi’s counsel, Alan Donato, argued shoddy work by San Francisco police after the shooting and later by SCIF and CalPERS left prosecutors unable to prove Smiley and Biasi intentionally misled investigators, calling their inquiries “faulted from the beginning.”

They accused the San Francisco police inspector assigned the shooting case of badly mishandling the initial investigation, leaving the file untouched between August 2008 and June 2009.

“This was the most serious case on her calendar,” Donato said. “She was in over her head. She was not able to follow up on even the most most obvious things to close this case.”

Among the lapses, Donato said the police inspector failed to investigate whether the gunman was a parolee as the couple claimed, work with other agencies that offered help in finding the officer’s shooter, collect fingerprints or DNA evidence, review the club’s email records for a possible suspect or call in Smiley for follow-up interviews.

State insurance investigators at the insurance fund and CalPERS then picked up the case without conducting their own investigations into claims that a parolee shot Smiley, the attorneys claimed in their arguments.

Smiley, a former transportation officer in the California Department of Corrections and Rehabilitation, later admitted that the shooting happened outside the sex club but maintained the shooter was a parolee who recognized him. Smiley’s shooter has never been arrested.

But Mulcahy said the case had little to do with a sloppy investigation.

“They misrepresented the info. They lied to SCIF. We don’t need to prove a parolee shot Smiley. They have no way of knowing who this person is because the Smileys have no information on the people they had sex with,” Mulcahy said. “They lied repeatedly. They lied, appealed and lied some more.”

Darrell Smith: 916-321-1040, @dvaughnsmith

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