California Court of Appeals, Fourth District, First Division
FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of San Diego County No.
SCD252707, Kenneth K. So, Judge. Reversed.
Offices of Scott M. Schlegel and Scott M. Schlegel for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Peter Quon, Jr., and Anthony Da Silva,
Deputy Attorneys General, for Plaintiff and Respondent.
standard instruction given in every California criminal case
tells jurors they are not to do any independent research or
"conduct any tests or experiments." (CALCRIM No.
201.) The instruction is based on fundamental principles of
due process, because if jurors conduct independent
investigation, the parties are deprived of the ability to
understand and address the results of that investigation,
whatever they may be. Independent investigation and
experimentation is error when it provides the jury with
additional evidence never presented at trial. It is evidence
the parties never saw, much less had the opportunity to
object or respond to.
case, defendant John Wismer was accused of sexual molestation
by the nine- and 13-year-old daughters of Wismer's friend
and business associate, Richard S. The physical evidence was
inconclusive; the prosecution's case turned largely on
the credibility of the two girls and, to a certain extent,
their parents. The primary incident, involving the younger of
the two girls, allegedly took place on an evening in late
November. Roughly a week later, police arranged for Richard
to make a recorded pretext call to Wismer in which he
confronted Wismer with his daughter's allegations.
the pretext call failed to elicit any admissions from Wismer,
jurors nonetheless focused on the call during their
deliberations, listening to it three times and discussing
whether Wismer's reaction to the call was consistent or
inconsistent with guilt. Frustrated they could not reach
agreement, one of the jurors (of Asian descent) took it upon
herself to conduct what she characterized as an
"experiment" illustrating for her colleagues how a
truly innocent person would respond to a fabricated
allegation. Using racially charged language, she falsely
accused a male Hispanic juror of slapping her behind,
punctuating the accusation by claiming he said "he
wanted to put his Mexican burrito in my chicken fried
Asian juror's false accusation and the Hispanic
juror's reaction were not part of the evidence in the
case, yet they were presented to and considered by the jury
in reaching a verdict. This is juror misconduct of a
fundamental nature that requires reversal of the judgment.
AND PROCEDURAL BACKGROUND
November 2013, I.S., then a nine-year-old girl, and A.S.,
then a 13-year-old girl, lived with their parents, Richard
and Cecily S., and two younger brothers in San Diego. A few
years earlier, through his occupation as a self-employed
private banker, Richard met and became friends with Wismer.
Wismer, who was in his late sixties, often visited the
family's home on Thursdays to discuss business deals with
Richard and have dinner with the family. Wismer was
considered an extended family member and a grandfatherly
figure to the children.
November 27, 2013, the Wednesday before Thanksgiving, Wismer
came to the family home to have dinner. After the meal,
Richard and Wismer went outside to the patio to have drinks
and smoke cigars. The four children had a "camp
out" in the downstairs playroom with sleeping bags,
pillows, blankets, and stuffed animals. Around 8:00 p.m.,
13-year-old A.S. went outside to the patio and sat in a chair
near Wismer. She asked her father whether she could have a
boyfriend. He replied that she could not. Richard then went
inside the house to the kitchen or bathroom.
Richard was inside the house, Wismer told A.S. she should go
out with the boy. He stroked her thigh, making her feel
uncomfortable. When Richard returned to the patio, A.S. went
back inside to the camp-out area and watched television with
I.S. while their brothers slept. Cecily went upstairs, got
into bed, and fell asleep.
12:00 and 12:30 a.m., Richard and Wismer went inside the
house. Richard made some soup while Wismer sat on one end of
the couch by himself in the living room. I.S. and A.S. were
still watching television. When Richard returned from the
kitchen, he sat at the other end of the couch. Richard and
Wismer watched a movie while they ate. Richard fell asleep.
went to the camp-out area and told I.S. and A.S. that he was
going to leave unless one of them watched the movie with him.
While A.S. remained behind, nine-year-old I.S. went with
Wismer into the living room, sat on the couch, and watched
the movie with him. I.S. was wearing a jacket, shirt, and
shorts and had a blanket over her. Richard continued sleeping
and snoring at the other end of the couch. After about 15 or
20 minutes, Wismer put his hand underneath I.S.'s blanket
and started rubbing her leg. He then put his hand underneath
her shorts and underwear and started rubbing her vagina.
Feeling uncomfortable, I.S. told Wismer she had to go to the
bathroom. She got up and went into the bathroom. She was
shocked and did not know what to do.
returned to the couch, but sat away from Wismer. Richard was
still sleeping. Wismer scooted next to I.S. and pulled her
close to him. He began rubbing her leg again. She said she
was feeling uncomfortable, stood up, walked to the end of the
couch, and stood there. Wismer asked her if she was okay. She
replied she was not, walked to the camp-out area, and went to
sleep with A.S.
woke up and saw Wismer sitting on the couch with his hands on
his lap watching the movie. Richard asked him whether it was
time for him to go. Wismer replied that it was and they
headed outside. However, Wismer's car would not start.
They went back inside the house, where Wismer attempted to
call his wife several times before finally reaching her.
Richard offered to let Wismer sleep in the boys' bedroom
because it was not occupied. They went upstairs and Wismer
slept on the bottom bunk bed in the boys' bedroom.
morning, Wismer declined Cecily's offer of coffee,
explaining he had too much to drink the prior night. Wismer
left the house when his son arrived to pick him up.
Thanksgiving dinner, I.S. told Cecily that Wismer had put
"his fingers in my privates." Crying, I.S.
explained it had happened the prior night on the couch, but
that she did not want to get Wismer in trouble. Cecily then
told Richard what I.S. had told her. Together they talked to
I.S., who repeated what she had told Cecily earlier and also
added that Wismer had kissed her.
then asked A.S. whether Wismer had done anything that made
her feel uncomfortable. A.S. told her that the prior night he
put his hand on her thigh. She also told her about an
incident during which she was in Wismer's car and he put
his hand underneath her shirt.
called 911 and reported what her daughters had told her. When
officers arrived shortly thereafter, Cecily handed them
I.S.'s sweater, t-shirt, and shorts, but not her
underwear. In the ...