Opinion
C081566 C081737
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN ALFONZO SMILEY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA BIASI-SMILEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F01816)
Defendants John Alfonzo Smiley and Cynthia Biasi-Smiley were both charged with presenting a false and fraudulent insurance claim (Pen. Code, § 550, subd. (a)(1)—count one), insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)—count two), concealing an event affecting a person's right to insurance benefits (§ 550, subd. (b)(3)—count three), two counts of attempted perjury (§ 118/664—counts four, five, six, & seven), and presenting a false claim to a state board (§ 72—count eight). A jury found both defendants guilty of the two attempted perjury counts (counts four and five for Smiley; counts six and seven for Biasi-Smiley) 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.
Undesignated statutory references are to the Penal Code.
On appeal, defendant Smiley contends there is insufficient evidence to sustain the attempted perjury convictions. Defendant Biasi-Smiley asserts claims there is insufficient evidence to support one of the attempted perjury convictions and her conviction for presenting a false claim to a state board. She also joins Smiley's contention to the extent it may benefit her.
Willfully made, false material statements at a deposition that were never executed can support a conviction for attempted perjury and does so here. Biasi-Smiley's statement in the second deposition that her statements in the first deposition were true was sufficient to support her attempted perjury conviction in count seven. There is sufficient evidence to convict Biasi-Smiley for making a false claim to a state board under an aiding and abetting theory. We shall affirm.
BACKGROUND
We take the relevant facts from the jury and bench trials as appropriate.
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.
On April 25, 2008, Smiley and Biasi-Smiley went to San Francisco for the weekend. Biasi-Smiley's parents joined them, bringing the Smileys' two young children along. After they all spent the day together, Biasi-Smiley's parents took the children to their home in Yuba County, while Smiley and Biasi-Smiley remained in San Francisco.
Defendants took a nap and then went to Twist, a swingers club in North Beach. Biasi-Smiley was reluctant to go, but agreed to go to please Smiley. Arriving at around midnight, they paid the $80 entrance fee and spent some time in the club's first floor, an area for socializing and lounging. The couple next 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. When Smiley, who is six feet eight inches tall and weighing 300 pounds, told him he was wearing one, the man replied, "You want to play with people's lives?" Smiley responded he did not, after which the man said, "You know, I kill people for a living." The man 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." Smiley and Biasi-Smiley left the club soon thereafter.
Smiley and Biasi-Smiley both provided the police with a similar description of the other couple, an attractive young African-American woman in her early 20's who was about five feet six inches tall, and an African-American man in his mid-to-late 20's, who was about five feet eleven inches tall, had no visible tattoos, and spoke as if educated. --------
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.
Smiley told the detective he had never seen the man or woman before. He asked the investigating detective to keep the encounter at the swingers club confidential because the visit could violate his department's ethical rules. The detective agreed not to share that information with Smiley's department.
The Claims
Biasi-Smiley called the investigating detective several weeks later and said Smiley now thought the shooter might have been a parolee.
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.
On May 11, 2009, Corrections Lieutenant Christina Shephard filled out an employer-required workers' compensation form for Smiley's injury. Based on information Smiley gave her via telephone, Lieutenant Shephard wrote that Smiley "was shot in back while leaving eating establishment in San Francisco, Ca. by who he believed to be a parolee from the Ca. Department of Corrections." Had she known about the confrontation at the swinger's club, she would have included it in the report. Lieutenant Shephard checked the box that the injury was not clearly identified with state employment, and she did not recommend any action.
The claim and Biasi-Smiley's lien were denied on July 23, 2009. The claim was denied because SCIF could not verify the shooter was a parolee, a fact that could have provided a nexus between the shooting and his employment, rendering Smiley potentially eligible for benefits.
Smiley 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.
Smiley said that he and his wife went to a North Beach nightclub whose name he did not know. They arrived at the club around 11:30 p.m., and stayed until 1:00 a.m. As they were sitting in the bar, a well-dressed African-American man came up and said, "You disrespected me, me and my old lady." Smiley, who had no prior interaction with the man, ignored him. The man left, but then came back and said, "Do you know what I do for a living?" Smiley replied, "Look man, I didn't mean to disrespect anybody. If I did, I'm sorry." The man said he had his "heat" and asked Smiley if he had his. The man came back again, and said, "I'm going to kill you."
When asked why the man threatened to kill him, Smiley responded, "For the life of me, I would love to know that." Smiley told the examiner that when the man asked Smiley if he knew the man's occupation, Smiley realized he was a parolee who recognized Smiley as a correctional officer.
As Smiley and Biasi-Smiley walked to their car, the man from the club got out of a car and approached him. Biasi-Smiley warned that the man had a gun; the man told Smiley, "I told you I was going to kill you." Smiley turned to run but the man shot Smiley, hitting him in the back. Smiley said he was surprised he was not contacted by the internal affairs department of his agency, as he was shot by a parolee.
In a second deposition held on December 3, 2009, Smiley affirmed that his attorney had forwarded him a transcript of the prior deposition, everything in that deposition was correct, and there were no material changes to make. According to Smiley, his wife wanted them to leave after the man threatened to kill Smiley. Smiley initially did not want to go, but, after thinking about the matter, he said, "You know, that guy is a parolee. Let's go."
Smiley was asked about a statement on his union's website that the attacker was suspected to be a parolee who possibly recognized him and was still at large. Smiley said he did not provide the information, but, "I'm pretty sure it's accurate." Smiley admitted he told his father-in-law the person who shot him recognized Smiley from prison transport, leading his father-in-law to include this information on an online fundraising appeal for Smiley. Smiley could think of no other reason why the man was so angry with him other than he was likely a parolee.
In her first deposition on October 15, 2009, Biasi-Smiley said she and her husband were walking in North Beach when they entered a club "out of the blue." The club had drinks, music, and dancing. As they were sitting in a booth, an African-American man came up to Smiley and accused him of disrespecting the man. 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." Smiley told her during his recuperation in the hospital that he wanted to give another statement to the detective, as he was feeling better and thought he could pick the shooter out of a photographic lineup.
At the second, December 3, 2009 deposition, Biasi-Smiley said she reviewed the transcript of the first deposition, and found it true to the best of her knowledge and had no substantive changes to make. She said that whenever she and her husband discussed the shooting, they said it involved a parolee. Not one of her hairdressing clients did not know that a parolee did it.
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. Biasi-Smiley helped fill out the form, including the statement on the form that Smiley was shot in the back by a parolee on April 27, 2008. She also signed the form as a lifetime beneficiary in order to process the application. She went with Smiley to CalPERS when he delivered the form.
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. While he never told the investigating detective that the shooter was a parolee, he assumed that she shared his suspicion because she knew he was a correctional officer. 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.
Smiley's twin brother James Smiley testified that Smiley told him two or three days after the shooting that the shooter was a parolee. Smiley told him that he saw a man at the swingers club whom he knew to be a parolee, but did not disclose that he had sex with that man's partner at the club.
While Smiley was in the hospital retired correctional officer Adrian Fletcher heard Smiley's shooter might have been a parolee. James Smiley overheard a conversation between correctional officers at the hospital that the shooter might be a parolee. Smiley told his brother James about the confrontation at the swingers club, but James did not share this information with anyone.
DISCUSSION
I
Sufficient Evidence of Attempted Perjury
A. Smiley's Contention
Smiley contends there is insufficient evidence he intended to sign and deliver the depositions to support his convictions for attempted perjury.
"The elements of perjury are a willful statement, made under oath, of any material matter which the declarant knows to be false." (People v. Trotter (1999) 71 Cal.App.4th 436, 439, citing § 118, subd. (a).)
"In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. [Citations.] Our sole function is to determine if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] The Supreme Court has held, 'Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' [Citations.]" (People v. Post (2001) 94 Cal.App.4th 467, 475 (Post).)
"The making of a deposition . . . is deemed to be complete, within the provisions of this chapter, 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." (§ 124.) 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. (Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247; Post, supra, 94 Cal.App.4th at p. 479.)
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." (§ 21a.) The attempt statute applies to "[e]very person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration . . . ." (§ 664.) The only crimes which may not be attempted are offenses which must be committed unintentionally such as involuntary manslaughter (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332) and unlawfully causing a fire in violation of section 452 (In re Kent W. (1986) 181 Cal.App.3d 721, 723-724). Perjury cannot be committed unintentionally (People v. Viniegra (1982) 130 Cal.App.3d 577, 584), so attempted perjury is a crime.
Post, like the claim here, involved an unexecuted deposition that contained material false statements from the deponent. (See Post, supra, 94 Cal.App.4th at pp. 473, 476.) The defendant in Post was convicted on two counts of perjury based on the deposition. (Id. at pp. 470, 476.) The Court of Appeal reversed the perjury convictions for insufficient evidence because the depositions were not executed. (Id. at p. 480.) The Post court also found attempted perjury was a crime under California law. (Id. at p. 482.) Finding the evidence showed the defendant made material false statements in the deposition, had a motive to lie, and there was no evidence of mistake of fact or confusion during the deposition, it reduced the defendant's convictions to attempted perjury. (Id. at p. 483.)
Smiley asserts that in the context of a deposition the crime of attempted perjury requires a specific attempt to make false statements at the deposition and an additional specific intent to sign and deliver the deposition. He claims that reading Post to find attempted perjury is proven whenever perjury would otherwise be shown had the deposition been signed and delivered is inconsistent with the law of attempts. He further tries to distinguish Post by noting it involved appellate review of a conviction for perjury rather than the attempted perjury counts here, and the two issues Post focuses on, whether attempted perjury exists and is a lesser included crime of perjury, are not present in this case. Finding no reasonable, credible evidence exists that he intended to sign and deliver the transcript, he concludes the convictions must be reversed.
As in Post, there is ample evidence Smiley knowingly made false, material statements in both depositions about the events leading up to his shooting. Also like Post, 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. Post is thus factually indistinguishable from this case.
While section 124 adds an element to perjury by requiring the deposition be signed and delivered, it does not alter the underlying mens rea for perjury. The " 'willful[]' " element of perjury "requires proof the defendant made [the] statement 'with the consciousness that he [or she] did not know that it was true, and with the intent that it should be received as a statement of what was true in fact.' " (People v. Hagen (1998) 19 Cal.4th 652, 663-664.) There is sufficient evidence in the record to support this element of perjury notwithstanding the lack of evidence that Smiley signed or delivered the deposition.
Smiley's analysis would be persuasive if the law of attempt required a completed offense for liability for the attempted crime. It says otherwise. "An attempt to commit a crime is neither a completed crime nor a conspiracy to commit a crime. An attempt is an offense 'separate' and 'distinct' from the completed crime. [Citations.]" (People v. Reed (2005) 129 Cal.App.4th 1281, 1283.) 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. As in Post, the failure to sign and deliver the depositions does not render Smiley immune from criminal liability, but rather makes him liable for attempted perjury. Applying Post, we find substantial evidence supports Smiley's attempted perjury convictions.
B. Biasi-Smiley's Contention
Biasi-Smiley contends there is insufficient evidence to support her conviction for attempted perjury in count seven, which is based on the December 3, 2009 deposition.
At the second deposition, Biasi-Smiley acknowledged filing, subsequent to the prior deposition, a lien for her home health care services she provided for Smiley. She next admitted to having read her prior deposition, and affirmed that it was "true and correct, to the best of your knowledge." Following this, she answered questions about the nature of the home care she provided for her husband.
Biasi-Smiley then stated that Smiley told his correctional officer friends that it was more likely than not that a parolee shot him. Continuing, she testified that whenever she and her husband told someone about the incident, they said Smiley was shot by a parolee. Asked if she and her husband always told other correctional officers that they believed the shooter was a parolee, she answered, "Always." Biasi-Smiley was next asked: "And that there was no other reason that this guy would have possibly shot your husband?" She replied, "No. [¶] And I always do say, you know, people who know of my husband, we all know, you see him once, you'll never forget him; he's a big, tall, black man."
Biasi-Smiley claims her statement that she read and affirmed the truth of the prior deposition did not amount to a new attempted perjury, since the examiner did not ask a new question. She finds the rest of her statements made at the second deposition to be truthful, as they addressed what she and her husband told other people about the identity of the shooter. She concludes no reasonable factfinder could find her guilty of perjury based on her statements.
"[A] charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once." (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.) Thus, for example, two counts of perjury can be based on two separate statements at trial. (People v. Jimenez (1992) 11 Cal.App.4th 1611, 1624-1625, disapproved on another ground in People v. Kobrin (1995) 11 Cal.4th 416.) The evidence shows that during the first deposition, Biasi-Smiley gave an account of the events before the shooting much like that given by her husband in his first deposition. The factfinder could reasonably conclude this constituted knowingly making false statements about facts material to her husband's claim that he was shot by a parolee, and that Biasi-Smiley did so with the intent that it be received as true. Making the same false statement in two separate proceedings constitutes two acts of perjury. By claiming in her second deposition that the statements in the first deposition were true and correct to the best of her knowledge, she committed another act of attempted perjury.
II
Sufficient Evidence of Presenting a False Claim
Biasi-Smiley's final contention is that there is insufficient evidence to support her conviction for presenting a false claim to a state board. This charge is based on the false claim for industrial disability Smiley made to CalPERS on March 4, 2010. She argues that the evidence does not show she either presented a claim to CalPERS or intended to defraud it.
Section 72 states in pertinent part: "Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, city, or district board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is punishable either by imprisonment in the county jail for a period of not more than one year, by a fine of not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine, or by imprisonment pursuant to subdivision (h) of Section 1170, by a fine of not exceeding ten thousand dollars ($10,000), or by both such imprisonment and fine."
The jury was given the standard instructions on aiding and abetting and the prosecutor argued that Biasi-Smiley could be guilty of the section 72 charge as an aider and abettor.
" '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." ' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
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 factfinder (here 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.
DISPOSITION
The judgments are affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
MAURO, J.