THE PEOPLE, Plaintiff and Respondent, v. JOHN LANDIS WISMER, Defendant and Appellant, 10 Cal. App. 5th 1328

Opinion 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 Landis 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 60’s, 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 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 presence of the officers, A.S. answered Cecily’s questions. On November 29, a pediatrician examined I.S. and found a red bruise under the surface of the membrane of her hymen. I.S. also had visible red petechia on the outer surface of her hymen, which was redder than normal. The pediatrician believed her injuries were consistent with digital penetration. On December 4, a social worker conducted a forensic interview of I.S., who explained the Wednesday night incident in a manner similar to her subsequent trial testimony, as described above.

The same day, another social worker conducted a forensic interview of A.S., who explained the two incidents involving Wismer in a manner similar to her subsequent trial testimony, as described above. Also on December 4, a police detective arranged for Richard to make a recorded pretext call to Wismer. During the call, Richard explained that I.S. had reported to Cecily and him that Wismer had touched her vagina on November 27 while they were sitting on the couch. After Wismer denied doing so, Richard falsely told him there was a video recording on a surveillance camera that confirmed I.S.’s allegations.

Wismer nonetheless did not admit doing anything inappropriate to I.S. On December 9, another pediatrician examined I.S., but did not observe the red bruise or blood blister. The pediatrician concluded it had healed and that the prior injury was consistent with digital penetration. DNA analysis of I.S.’s shorts showed her male relatives, and not Wismer, were the primary contributors of DNA. Although there was no DNA evidence showing Wismer was definitely a minor contributor, he could not be excluded as a possible contributor on one of the eight samples retrieved from the shorts.

A second amended information charged Wismer with four counts involving I.S., including one count of unlawful penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and three counts of committing lewd acts on a child under the age of 14 years (§ 288, subd. (a)). It also charged two counts of committing lewd acts on A.S., a child under the age of 14 years (§ 288, subd. (a)).

The information further alleged that counts 2 through 6 were committed against more than one victim (§§ 1203.066, subd. (a)(7), 667.61, subds. (b), (c), (e) & (j)(2)) and that count 2 involved substantial sexual contact (§ 1203.066, subd. (a)(8)). At trial, the prosecution presented evidence substantially as described above. In his defense, Wismer called a number of witnesses who testified regarding his good character and specifically that he was not the type of person given to lewd conduct with children and did not have a reputation for being sexually attracted to children.

He also presented several impeachment witnesses who testified that the alleged victims and/or their parents were not truthful and/or did not have a reputation for honesty. Finally, he offered the testimony of a physician who stated Wismer had palmar psoriasis such that if he had inserted his hand into I.S.’s underwear, he would have left hundreds of thousands of skin cells on the underwear that would have been detectable by forensic analysis. The jury found Wismer guilty on counts 1 through 5 and found true the allegations related to those counts. The jury was unable to reach a verdict on count 6.

The trial court imposed a total term of 50 years to life in prison, consisting of terms of 25 years to life in prison for each of counts 2 through 5, with the terms for counts 3 and 4 to run concurrently to count 2 and the term for count 5 to run consecutively to count 2. Sentence on count 1 was stayed pursuant to

section 654. DISCUSSION 1. Juror Misconduct After discharge of the jury following the verdict, several of the jurors met with the prosecutor and defense counsel outside the courtroom. Juror No. 8, a female of Asian descent who served as foreperson of the jury, made statements that provided the basis for a defense motion for an evidentiary hearing regarding jury misconduct. The motion was supported by declarations from defense counsel and a defense investigator.

The foreperson told counsel and the investigator that the jury’s discussion focused on the pretext phone calls because there was disagreement as to whether Wismer’s reaction to the accusation was a “natural” response.

She devised what she characterized as an “experiment” to show that Wismer’s reaction was not “natural.” Inside the jury room, she falsely accused one of the other jurors, a Hispanic male, of smacking her on the behind while making the racially charged comment that he wanted to put his “Mexican burrito in [her] chicken fried rice.” The trial court denied the motion for an evidentiary hearing, but permitted defense counsel to file a motion for new trial based on the alleged jury misconduct and to request the release of juror identifying information that would facilitate the submission of juror affidavits.

In support of the motion, counsel included an affidavit from Juror No. 8 reiterating her story about the “experiment” involving a fabricated allegation of sexual misconduct leveled at a fellow juror designed to illustrate the “natural” response of an innocent person to a false accusation.

The trial court denied the defense request for release of juror identifying information, concluding that “good cause has not been established to proceed further . . . .” Then, “tak[ing] [Juror No. 8’s] statement as indicated,” the court stated it had been “unable to find . . . any cases indicating that it’s—that kind of discussion is misconduct. It looks to me like it was their attempt at a further critical examination of the evidence . . . that was produced at trial.” On that basis the court denied the motion for new trial based on alleged jury misconduct.

As a prelintinary matter, we agree with the trial court that no formal evidentiary hearing was required to address the claimed misconduct, nor was it necessary to release juror identifying information to facilitate the submission of additional affidavits. It is true, of course, that the trial court has discretion to order an evidentiary hearing where a criminal defendant moves for a new trial based on alleged juror misconduct. (People v. Hedgecock (1990) 51 Cal.3d 395, 415 [272 Cal.Rptr. 803, 795 P.2d 1260].) Here, however, there were no significant factual disputes to resolve.

Juror No. 8— the juror who allegedly engaged in misconduct—was the source of the information, and she initially told both the prosecutor and defense counsel what happened. Everyone including the trial court accepted her story and proceeded to analyze whether her actions amounted to misconduct. The jurors in this case were instructed pursuant to CALCRIM No. 201 that they should not “do any research regarding the case” or “conduct any tests or experiments.” (Italics added.) The law on the subject, however, is less categorical. As the Supreme Court explained in People v.

Collins, supra, 49 Cal.4th 175, “[n]ot every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and improper jury conduct turns on this difference. The jury may weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences.

It may reexamine the evidence in a slightly different context as long as that evaluation is within the ‘ “scope and purview of the evidence.” ’ [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted.” (Id. at p. 249, quoting People v.

Bogle (1995) 41 Cal.App.4th 770, 781 [48 Cal.Rptr.2d 739].) And this is true regardless of whether the new evidence is generated outside the courthouse or inside the jury deliberation room. (Collins, at pp. 248-249.) The problem here is that the accused juror’s reaction to Juror No. 8’s false accusation was not part of the evidence in the case. When it was presented to the jurors in the deliberation room, it became new evidence they were not entitled to consider.

It is really no different than if Juror No. 8 found a psychological study on the Internet examining how people respond to false allegations of sexual misconduct and played a video clip of a test subject’s reaction for her fellow jurors. What Juror No. 8 was attempting was a controlled experiment. She hypothesized that Wismer was in fact guilty (the independent variable), such that if she accused a truly innocent person (the Hispanic juror) she would observe a different reaction (the dependent variable).

It is the nature of a controlled experiment, however, that all other variables must be controlled, i.e., not vary. Here there are numerous variations between the two situations—the setting, the mode of communication, the relationship of the two parties, the age of the alleged victim, the racial overtones in Juror No. 8’s accusation—that make this anything but a controlled experiment. Consider if the prosecutor had called a psychologist to testify about the “normal” reaction of an innocent person accused of sexual molestation based on experimental studies.

Assuming the expert’s testimony was otherwise admissible, Wismer would have been entitled to cross-examine the expert about the studies, questioning their methodology or the applicability of their conclusions. He could have called another expert to testify in opposition. He was denied that very fundamental opportunity to confront and address the evidence against him because that evidence was generated secretly within the confines of the jury deliberation room. (See Higgins v. L. A.

Gas & Electric Co. (1911) 159 Cal. 651, 657 [115 P. 313] [jury experiment is improper where it generates “evidence which it is not possible for the party injured to meet, answer, or explain”].) In asserting that Juror No. 8 did not engage in misconduct, the People suggested the experiment was “just a hypothetical” akin to asking how a reasonable person would react if falsely accused. Certainly jurors are permitted to “ ‘use common experiences and illustrations in reaching their verdicts.’ ” (People v. Cumpian (1991) 1 Cal.App.4th 307, 316 [1 Cal.Rptr.2d 861], quoting U.S. v.

Avery (6th Cir. 1983) 111 F.2d 1020, 1026.) But Juror No. 8’s experiment was conducted precisely to remove the discussion from the realm of the hypothetical by providing a new concrete standard, observable by every juror, as to how an innocent person responds to a fabricated charge of sexual misconduct. Indeed, it was Juror No. 8’s frustration with the fact that the jurors’ common experience had thus far failed to produce agreement that prompted her to create a different “common experience” inside the deliberation room, which amounted to new evidence.

When jury misconduct has occurred, prejudice to the defendant is presumed and the burden is on the prosecution to rebut the presumption by showing that the misconduct did not affect the jury’s decision. (People v. Honeycutt (1977) 20 Cal.3d 150, 156 [141 Cal.Rptr. 698, 570 P.2d 1050].) Here the People make no serious attempt to argue that if misconduct occurred, it nonetheless did not influence the verdict. To the contrary, Juror No. 8’s affidavit itself indicates that the experiment was aimed at a holdout juror, whose vote changed after the experiment was conducted.

Under these circumstances, the misconduct of Juror No. 8 in creating new evidence for the jury to consider requires reversal of the judgment. 2. Evidentiary Issues DISPOSITION The judgment is reversed. The matter is remanded for further proceedings consistent with this opinion. McConnell, P. J., and O’Rourke, J., concurred. A petition for a rehearing was denied May 8, 2017. At trial, a recording of the pretext call was played for the jury. All statutory references are to the Penal Code unless otherwise specified.

Juror No. 8 separately initialed eight of the 13 paragraphs in the affidavit, making handwritten corrections on several of them. The remaining five paragraphs were not initialed, but the numbers were circled and there was a handwritten note at the bottom: “# 4, 5, 6, 7, 9—I am uncomfortable with the statements due to future mis-interpretation or how the statements would affect the case.” She nonetheless signed the affidavit without crossing out or correcting any language in the five paragraphs.

She also submitted a second affidavit in opposition to the motion for new trial in which she sought to “clarify” a statement in her first declaration regarding evidence about the physical positioning of bodies in defendant’s car. There was no attempt to change or clarify any statement about the experiment in the jury room. The People do not dispute that Juror No. 8 did what she said she did. Rather, they argue that the false accusation of sexual misconduct by a fellow juror did not constitute an impermissible experiment warranting a new trial.

We likewise will accept the undisputed facts as to what occurred and proceed to decide the legal question whether it amounts to jury misconduct. (People v. Collins (2010) 49 Cal.4th 175, 242 [110 Cal.Rptr.3d 384, 232 P.3d 32].) See footnote, ante, page 1328.