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People v. Wismer

California Court of Appeals, Fourth District, First Division

April 20, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JOHN LANDIS WISMER, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL from a judgment of the Superior Court of San Diego County No. SCD252707, Kenneth K. So, Judge. Reversed.

          Law Offices of Scott M. Schlegel and Scott M. Schlegel for Defendant and Appellant.

          Kamala 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.

          DATO, J.

         A 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.

         In this 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.

         Although 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 rice."

         The 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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.

         On 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.

         While 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.

         Between 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.

         Wismer 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.

         I.S. 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.

         Richard 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.

         In the 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.

         After 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.

         Cecily 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.

         Cecily 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 ...


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