People v. Zambrana-Aleman CA1/4

Filed 5/2/22 P. v. Zambrana-Aleman CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A161473
v.
DIXON ZAMBRANA-ALEMAN, (San Francisco County
Super. Ct. No. 232307)
Defendant and Appellant.

A jury convicted defendant and appellant Dixon Zambrana-Aleman of
child molestation and multiple related offenses. He contends the court
violated Kelly-Frye1 when it admitted expert testimony about the Child
Sexual Abuse Accommodation Syndrome (CSAAS), and that the court erred
when it allowed the expert to “vouch” for the victim’s credibility and denied
his motion for new trial based on juror misconduct. Appellant’s arguments
are meritless, so we affirm the judgment.
BACKGROUND
The following summary of the evidence focuses on the issues raised on
appeal and is not meant to be exhaustive. We reference additional testimony
as necessary in our discussion section, post.

People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir.
1

1923) 293 F. 1013.

1
 Zambrana-Aleman began dating Samantha’s mother, Jacqueline, when
Samantha was four or five years old. He moved in when Samantha was
seven or eight and moved out when his relationship with Jacqueline ended in
July 2019; Samantha was 20. From age 10 or 11 until May 2019, Zambrana-
Aleman subjected Samantha to various acts of sexual abuse.2
At trial, Samantha testified that, starting when she was around 12, she
would sometimes wake up late at night to find Zambrana-Aleman in her
bedroom touching her breasts, buttocks, and vagina. She started wearing
multiple layers of t-shirts and sweatshirts, a bra, underwear, and sweatpants
with a double or triple knotted drawstring to bed, but, even so, she sometimes
woke up to find her clothing and bedding had been disturbed. Samantha did
not tell anyone about the abuse because Zambrana-Aleman told her not to;
she was afraid; she feared nobody would believe her; and she did not want
her little sisters to hate her “for being the reason their dad went away.”3
Moreover, Samantha had witnessed Zambrana-Aleman threaten and hit her
mother and feared he would use physical force against her if she resisted.4
Samantha’s fear increased with each incident of abuse.
Samantha tried to make her relationship with Zambrana-Aleman seem
as normal as possible when they were around other people, and from an

2 We refer to Samantha and her mother by their first names to preserve
their privacy; we intend no disrespect.
3Zambrana-Aleman and Jacqueline had three additional daughters
together. Samantha shared a room with bunk beds with at least one and
sometimes all of her half sisters.
4The trial court instructed the jury that it could use Samantha’s
testimony about Zambrana-Aleman’s interactions with her mother only for
purposes of assessing (1) why Samantha delayed her disclosure of the sexual
abuse, and (2) “whether this was force, fear or duress in play when Samantha
complied with the defendant’s demands as alleged in this case.”

2
outsider’s perspective they had a relatively normal relationship. At home,
however, she tried to keep her distance from him to the extent possible.
On about five occasions over the years, in the middle of the night when
the girls were sleeping, Jacqueline discovered Zambrana-Aleman in the
bedroom Samantha shared with her sisters. He would jump, startled, when
she turned on the light. When she asked what he was doing, he would say he
was arranging the children’s blankets or give some other excuse. On one
occasion Zambrana-Aleman ran from the room and into the bathroom when
Jacqueline turned on the light. Jacqueline saw that Samantha’s blanket had
been removed. When she asked what he had been doing in the girls’ room,
Zambrana-Aleman acted nervous and responded, “Are you fucking stupid?
What do you think? What would I be doing?”
Jacqueline asked Samantha whether Zambrana-Aleman had touched
her inappropriately “[a] lot of times,” starting when Samantha was a young
girl. Samantha would say “no” and stay quiet. In the summer of 2019
Jacqueline and Zambrana-Aleman ended their relationship, and Zambrana-
Aleman moved out. Not long afterward, Samantha disclosed the abuse to
Jacqueline for the first time. Two days later they reported it to the police.
Samantha waited those two days out of concern that reporting the abuse
would interfere with her ongoing efforts to become a police officer.
Zambrana-Aleman was convicted by jury of seven of eight charged
offenses: committing a forcible lewd act upon a child under 14 years old;
continuous sexual abuse of a child under 14 years old; committing a lewd act
upon a child aged 14 or 15 by a person at least 10 years older; child molest;
assault with attempt to commit rape; attempted rape of an unconscious
woman; and attempted rape by force. He was acquitted of misdemeanor
peeking. The court imposed an aggregate prison term of 28 years.

3
 This timely appeal followed the denial of Zambrana-Aleman’s motion
for a new trial.
DISCUSSION
I. CSAAS Evidence
A. Background
The People moved in limine to admit expert CSAAS testimony, including
testimony on the effect of trauma on memory and the connection between
child sexual abuse and delayed disclosure, to assist the jury in evaluating
Samantha’s credibility.5 Zambrana-Aleman moved to exclude CSAAS
evidence as inherently unreliable, irrelevant, and unduly prejudicial and to
require the prosecution to identify any myths or misconceptions it intended
the expert testimony to dispel if the testimony were admitted. In the event
the court declined to exclude the CSAAS evidence outright, Zambrana-
Aleman requested a Kelly-Frye hearing into its continued validity. After
argument, the court ruled that Kelly-Frye was inapplicable but ordered an
Evidence Code section 402 (section 402) hearing to “understand exactly what
myths are to be debunked.”
1. The Section 402 Hearing
The section 402 hearing was held near the end of the prosecution’s
case-in-chief. The prosecutor called Dr. Stefanie Smith, Ph.D., as the CSAAS
expert. Dr. Smith is a clinical psychologist specializing in trauma and child
maltreatment. She identified a number of common characteristics of child
sexual abuse victims, including issues with trust; attempts to appear
unattractive; delayed disclosure, nondisclosure, and denial of the abuse;

5Although the expert witness did not explicitly refer to CSAAS or
describe such behaviors as a “syndrome,” the record shows the syndrome was
the subject of the proposed testimony.

4
behavioral changes, such as becoming angry or withdrawn; attentional and
memory problems; and shame.
Dr. Smith testified that sexually abused children commonly do not
disclose the abuse because they think they will not be believed or will get in
trouble. They may confuse the abuser’s actions with how adults demonstrate
love and care and therefore fail to understand they are being abused. Abused
children may also keep quiet out of worry about what might happen if they
are not believed or the effects on a non-abusing parent if the abuser leaves.
They may be ashamed and feel the abuse was their fault. Having observed
domestic violence between the perpetrator and a non-abusive parent can also
contribute to a sexually abused child’s delayed or nondisclosure of the abuse.
The trial court ruled the CSAAS testimony was admissible but limited
it in large part to testimony about delayed disclosure of child sexual abuse
and various related factors, including children’s worries about being
disbelieved or rejected and the effect on the non-abusive parent; their
exposure to domestic violence between the parents; and shame. The court
also permitted Dr. Smith to testify about typical triggers of disclosure, such
as the abuser leaving the home; myths about children’s ability to protect
themselves; and memory issues and dissociation. However, the court barred
Dr. Smith from testifying about whether there are certain hallmark
behaviors of child sexual abuse and “whether sexual abuse can be determined
based solely on looking at the victim’s behavior,” with the qualification that
testimony about the child’s manner of dressing could be admissible in the
context of delayed disclosure and how abused children try to protect
themselves.

5
 2. Trial
At trial, Dr. Smith testified that she did not meet, interview, or treat
Samantha but had reviewed her preliminary hearing testimony, the initial
police report, and a recording of the investigation by the special victim’s unit.
Dr. Smith testified that ongoing sexual abuse can alter a child’s brain
development, affecting cognitive processes, memory, and the ability to
recount a chronologically cohesive memory. The power dynamic between
child and adult plays a role in a child’s compliance during the abuse and
promotes secrecy and delayed disclosure. Common reasons a child may not
immediately disclose sexual abuse include the fear of getting in trouble or
being disbelieved, a desire to protect the non-abusive caregiver or even the
abuser, and fear of rejection if the non-abusing parent sides with the abuser
over the child. Children may also try to protect themselves by making
themselves “inaccessible” in other ways, such as sleeping with a teddy bear,
wearing clothes that are difficult to remove, or trying to appear less
attractive.
Dr. Smith testified about the impact of “betrayal trauma,” which occurs
when an abuser is someone the victim depends on for love and protection. In
that situation the child may come to believe that neither the people around
them nor authority figures such as their teacher, doctor, or police will believe
them. Children are less likely to disclose sexual abuse if they have witnessed
domestic violence against the non-abusing parent. Even when asked directly,
a child may deny the abuse to protect the abuser or from fear of retribution.
Moreover, as children become teenagers they are likely to feel they will not be
believed because they did not come forward earlier. Disclosure often occurs
when the abuser leaves the household, the abuse escalates, the child’s

6
distress becomes overwhelming, or the child becomes older and realizes their
caregiver’s actions were abuse.
The prosecutor argued in closing that the purpose of Dr. Smith’s
testimony was “to help you understand Samantha’s trauma, how people react
to trauma, the [e]ffects of trauma on the brain and the body,” and related the
expert testimony about non- and delayed disclosure to Samantha’s testimony.
The defense emphasized that “all you are going to do with Dr. Smith is say,
okay, the delayed reporting alone does not make me discredit Samantha’s
testimony. There is no other purpose for that testimony.”
The court instructed the jurors: “You have heard testimony from
Dr. Stefanie Smith regarding trauma psychology and the effects of child
sexual abuse on the brain and body. [¶] Dr. Stefanie Smith’s testimony is
not evidence that the defendant committed any of the crimes charged against
him. [¶] You may consider this evidence only in deciding whether or not
Samantha’s conduct was not inconsistent with the conduct of someone who
has been molested, and in evaluating the believability of [her] testimony.”
B. Kelly-Frye
Zambrana-Aleman contends the court erred by admitting Dr. Smith’s
testimony without subjecting it to Kelly-Frye analysis. Although he concedes
that California authority is against him, he urges us to reexamine
longstanding precedent in light of “new scientific evidence that [CSAAS] is
junk science.” He asks that we follow a small minority of other jurisdictions
that have rejected or narrowed the use of CSAAS evidence and remand his
case for “a Kelly-Frye hearing into the continued reliability of CSAAS
evidence, if it was ever reliable at all.” The argument is meritless.
Under the Kelly-Frye test, when a party offers expert testimony based
on a new scientific technique the proponent must establish the reliability of

7
the method by showing the procedure has been generally accepted in the
relevant scientific community. (People v. Harlan (1990) 222 Cal.App.3d 439,
448 (Harlan).) “The Kelly standard provides a framework within which
courts can analyze the reliability of expert testimony based on new or novel
scientific methods or techniques.” (People v. Lucas (2014) 60 Cal.4th 153,
223–224, disapproved on another point in People v. Romero and Self (2015)
62 Cal.4th 1, 53–54, fn. 19; People v. Jackson (2016) 1 Cal.5th 269, 316
[“ ‘Kelly/Frye only applies to that limited class of expert testimony which is
based, in whole or part, on a technique, process, or theory which is new to
science and, even more so, the law.’ ”].)
CSAAS evidence is not “new or novel” scientific evidence for purposes of
Kelly-Frye. (People v. Lucas, supra, 60 Cal.4th at pp. 223–224.) To the
contrary, as appellant acknowledges, over the past 30 years California courts
have widely held such expert testimony is not subject to Kelly-Frye analysis
when it is not offered as proof that a molestation occurred, but rather to
rehabilitate a child’s credibility when it is suggested the child’s conduct after
the incident is inconsistent with having been abused. (See People v. McAlpin
(1991) 53 Cal.3d 1289, 1300–1301 & fn. 4 (McAlpin) [citing collected cases];
People v. Gray (1986) 187 Cal.App.3d 213, 219–220 (Gray); Harlan, supra,
222 Cal.3d at pp. 448–449; People v. Wells (2004) 118 Cal.App.4th 179
(Wells).) Thus, as observed in Wells, at page 188, CSAAS testimony is
admissible “ ‘for the limited purpose of disabusing a jury of misconceptions it
might hold about how a child reacts to a molestation’ ” and “must be tailored
to address the specific myth or misconception suggested by the evidence.”
Appellant argues that even this tailored type of CSAAS testimony
violates due process and should be subject to Kelley-Frye analysis. But the
non-California cases cited are not so broad or clear as appellant suggests.

8
For example, in Sanderson v. Commonwealth (Ky. 2009) 291 S.W.3d. 610, the
scope of the CSAAS expert testimony exceeded the limitations required in
Kentucky as well as the scope of the testimony offered here. The Sanderson
expert veered out of bounds when she testified as to “generic characteristics
of child sex abuse victims,” improperly suggesting that children who are
similarly abused “might also develop the same symptoms or traits.”
(Sanderson, at p. 614.) In response to questioning by the prosecution, the
CSAAS expert went on to suggest that “these ‘symptoms’ are what cause
sexually abused children to become prostitutes.” (Ibid.) The Sanderson court
understandably found this to be “the exact type of generic and unreliable
evidence this Court has repeatedly held to be reversible error.” (Ibid.) But it
did not issue a blanket rule that CSAAS testimony is inadmissible, nor did it
require Kelley-Frye analysis.
The distinction in State v. Ballard (Tenn. 1993) 855 S.W.2d 557 is even
more striking where testimony of posttraumatic stress syndrome (rather than
CSAAS), was offered to prove the alleged victim had been sexually assaulted.
The testifying expert stated that the four children he had examined
“exhibited ‘symptom constellations’ consistent with post-traumatic stress
syndrome and that, in his opinion, the ‘stressor’ precipitating the syndrome
in the children was sexual abuse.” (Ballard, at p. 561.) Where the
prosecution “advanced no evidence at trial that the facts underlying Dr.
Luscomb’s testimony were of a type reasonably relied on by experts in the
particular field, [citation] or that it is possible to make a statement that
sexually abused children will exhibit the same characteristics or traits,” this
expert testimony invaded “the province of the jury to decide on the
creditability of witnesses” and was error. (Id. at p. 562.)

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 In State v. Foret (La. 1993) 628 So.2d 1116, 1125, the Louisiana
Supreme Court recognized the distinction between CSAAS testimony used
“appropriately in court testimony not to prove a child was molested but to
rebut the myths which prejudice endorsement of delayed or inconsistent
disclosure” as compared to CSAAS used “as a diagnostic tool to show to a
court that sexual abuse has indeed occurred.” The Foret court explained that
the “proper presentation” of CSAAS testimony must focus on explaining why
“ ‘superficially bizarre’ ” reactions such as delayed reporting take place. (Id.
at p. 1130.) They must use “general terms” to explain “the behavioral
characteristics of child abuse victims in disclosing alleged incidents” without
giving direct testimony “ ‘concerning the particular victim’s credibility.’ ”
(Ibid.) Presented in that form, the testimony will not substitute the expert’s
“ ‘estimation of credibility for that of the jury. Rather, it is to provide a
scientific perspective for the jury according to which it can evaluate the
complainant’s testimony for itself.’ ” (Ibid.) Because the Foret expert
testimony did not follow these standards and instead was proffered to
intentionally bolster the testimony of the victim, it was error. (Id. at
pp. 1130–1131.)
Performing a similar analysis in California, Gray, supra,
187 Cal.App.3d 213, is instructive. Drawing and developing on the Supreme
Court’s discussion of “rape trauma syndrome” evidence in People v. Bledsoe
(1984) 36 Cal.3d 236 (Bledsoe), the Gray court observed that CSAAS evidence
is more akin to expert testimony informing the jury of certain factors that
may affect eyewitness identification—which is not subject to the Kelly-Frye
test—than to “ ‘scientific evidence . . . derived from an apparently “scientific”
mechanism, instrument, or procedure.” (Gray, at p. 219.) Moreover, “ ‘[w]e
have never applied the Kelly-Frye rule to expert medical testimony, even

10
when the witness is a psychiatrist and the subject matter is as esoteric as the
reconstitution of a past state of mind or the prediction of future
dangerousness, or even the diagnosis of an unusual form of mental illness not
listed in the diagnostic manual of the American Psychiatric Association.’ ”
(Id. at p. 220.) Applying the Supreme Court’s reasoning in People v.
McDonald (1984) 37 Cal.3d 351, 372 (holding Kelly-Frye does not apply to
expert testimony on eyewitness identification), the Gray court held that
general testimony about traits and characteristics of child victims of
molestation as a class does not fall into the category of scientific evidence for
purposes of Kelly-Frye when introduced for the limited purpose of rebutting a
suggestion that a child’s behavior is inconsistent with abuse. (Gray, at
p. 220.)
Since Gray, California courts have consistently authorized the
admission of CSAAS evidence to disabuse a jury’s possible misconceptions
about a child’s reaction to and reporting of sexual abuse without need for
analysis under Kelly-Frye. (See, e.g., People v. Munch (2020) 52 Cal.App.5th
464, 468–470 [expressly rejecting minority out-of-state view]); Harlan, supra,
222 Cal.App.3d at pp. 448–450; Wells, supra, 118 Cal.App.4th 179, 188–190;
People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745; People v. Housley
(1992) 6 Cal.App.4th 947, 954–956; People v. Sanchez (1989) 208 Cal.App.3d
721, 734–735; cf. People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099–1100;
People v. Bowker (1988) 203 Cal.App.3d 385, 391–394.)
The Supreme Court has also signaled its agreement with these cases.
In McAlpin, supra, 53 Cal.3d 1289, the court held a police officer could
properly testify that it is not unusual for parents to refrain from reporting a
known molestation of their child. (Id. at pp. 1300–1301.) The court noted its
recognition in People v. Bledsoe, supra, 36 Cal.3d 236, that expert testimony

11
on rape trauma syndrome, although inadmissible to prove the complaining
witness had been raped, is admissible to rehabilitate her when the defense
impeaches by suggesting her post-incident conduct was inconsistent with
having been raped. “[I]n such a context expert testimony on rape trauma
syndrome may play a particularly useful role by disabusing the jury of some
widely held misconceptions about rape and rape victims, so that it may
evaluate the evidence free of the constraints of popular myths.” (Id. at
pp. 247–248.)
In the court’s view, expert testimony on CSAAS provides “[a]n even
more direct analogy.” (McAlpin, supra, 53 Cal.3d at p. 1300.) “In a series of
decisions the Courts of Appeal have extended to this context both the rule
and the exception of People v. Bledsoe, supra, 36 Cal.3d 236, i.e., expert
testimony on the common reactions of child molestation victims is not
admissible to prove that the complaining witness has in fact been sexually
abused; it is admissible to rehabilitate such witness’s credibility when the
defendant suggests that the child’s conduct after the incident—e.g., a delay in
reporting—is inconsistent with his or her testimony claiming molestation.”
(McAlpin, at p. 1300.) Although the case before it concerned the failure of the
parent, rather than the child, to report abuse, the court held the rule
developed in the context of CSAAS was equally applicable. (Id. at p. 1301.)
More recently, the court cited McAlpin with approval in People v.
Brown (2004) 33 Cal.4th 892, 905–906, when it extended the same principles
to expert testimony about the common behaviors of domestic violence victims.
Zambrana-Aleman suggests the court’s endorsement of CSAAS evidence in
McAlpin and Brown is dictum because neither case squarely presented the
admissibility of such evidence under the Kelly-Frye test. But not all dicta are
created equal. “When the Supreme Court has conducted a thorough analysis

12
of the issues and such analysis reflects compelling logic, its dictum should be
followed.” (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169; see
Howard Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914,
925 [“Even if the court’s conclusions technically constitute dicta, we will not
reject dicta of the Supreme Court without a compelling reason”]; Smith v.
County of Los Angeles (1989) 214 Cal.App.3d 266, 297 [the dictum of the
Supreme Court “while not controlling authority, carries persuasive weight
and should be followed where it demonstrates a thorough analysis of the
issue or reflects compelling logic”].)
We cannot say the Supreme Court’s analysis of CSAAS evidence in
McAlpin and Brown was “ ‘inadvertent, ill-considered or a matter lightly to
be disregarded.’ ” (Hubbard, supra, 66 Cal.App.4th at p. 1169.) Moreover,
the rule first articulated in Gray has been consistently followed for over 30
years. In these circumstances, “[w]hether the Supreme Court’s obvious
awareness of the consequences of its statement elevates the dictum to a
holding or whether it is a dictum that we must follow, does not make much
difference. We follow.” (People v. Trice (1977) 75 Cal.App.3d 984, 986–987.)
We accordingly decline Zambrana-Aleman’s demand to depart from precedent
in favor of a handful of out-of-state authorities and professional articles that
criticize the continued validity of CSAAS evidence. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
These conclusions also lead us to reject Zambrana-Aleman’s related
assertion of a due process violation. Dr. Smith’s testimony does not cross the
boundaries set forth within or outside California case law. The trial court
specifically prohibited the use of CSAAS testimony to show “whether sexual
abuse can be determined based solely on looking at the victim’s behavior” and
focused the testimony on the context of delayed disclosure and how abused

13
children try to protect themselves. Dr. Smith’s trial testimony followed these
parameters, focusing on the situational dynamics that may impact the timing
and manner of disclosure of sexual abuse. While Dr. Smith did acknowledge
reading the preliminary examination transcript and the victim’s statements,
she did not testify or opine about the victim herself. The only questions
about any potential “diagnosis” and related symptoms came from defense
counsel and were answered in the abstract with the court’s permission. The
testimony in this form was properly admitted to explain Samantha’s initial
denials of the abuse and her delayed disclosure and did not violate
Zambrana-Aleman’s constitutional right to a fair trial. (See People v. Patino,
supra, 26 Cal.App.4th at p. 1747 [“introduction of CSAAS testimony does not
by itself deny appellant due process”].)
C. Improper “Vouching”
Alternatively, Zambrana-Aleman contends the court should have
excluded the CSAAS testimony as unduly prejudicial pursuant to Evidence
Code section 352 because Dr. Smith improperly “vouched” for Samantha’s
truthfulness when she testified that she “reviewed all the facts of the case”
and then “provided testimony verifying the key aspects of Samantha’s
testimony.”6 Therefore, he maintains, “[a] reasonable juror could only
conclude[] that Dr. Smith was opining in her capacity as an expert, that
Samantha was telling the truth and that [he] was guilty.”

6 Zambrana-Aleman’s sole record support for his claim of “vouching” is
Dr. Smith’s testimony that she “reviewed the transcript of the preliminary—
preliminary hearing specific to Samantha’s testimony, and I reviewed the
audio recording of the investigation by the special victim’s unit. And then I
reviewed the report of—the initial police officers[’] report, the initial police on
the scene.”

14
 Neither the record nor common sense supports this claim. However, we
need not decide the point because it was forfeited by Zambrana-Aleman’s
failure to object when Smith testified about her review of Samantha’s
testimony and portions of her case file. “Under Evidence Code section 353,
subdivision (a), a reviewing court cannot grant relief on a claim that evidence
was erroneously admitted unless a timely objection was made ‘and so stated
as to make clear the specific ground of the objection or motion.’ ‘ “What is
important is that the objection fairly inform the trial court, as well as the
party offering the evidence, of the specific reason or reasons the objecting
party believes the evidence should be excluded, so the party offering the
evidence can respond appropriately and the court can make a fully informed
ruling.” ’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214, disapproved
on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) While
Zambrana-Aleman contends an objection would have been futile because the
court had already addressed the admissibility of CSAAS evidence at the
section 402 hearing (see People v. Tuggles (2009) 179 Cal.App.4th 339, 356
[failure to make futile objection does not forfeit issue for appeal]), nothing in
the record indicates how the court would have ruled on the “vouching”
objection now raised for the first time on appeal.
II. Juror Misconduct
Zambrana-Aleman asserts the trial court abused its discretion when it
denied his new trial motion without conducting an evidentiary hearing to
evaluate his allegations of juror misconduct. Here too, we disagree.
A. Background
Following his conviction, Zambrana-Aleman moved for a new trial
based on a juror’s alleged misconduct in concealing relevant information
during voir dire. According to defense counsel’s supporting declaration,

15
counsel interviewed two jurors after trial and asked how they reconciled
Samantha’s testimony that she was abused every night for a decade in a
crowded household with the fact that no one ever witnessed or suspected
abuse. Both jurors responded that the jury had considered the possibility the
abuse never happened but eventually concluded that Samantha’s mother
must have been in denial. They explained that another juror7 had disclosed
that a family member had been sexually abused throughout his childhood but
that, even though there were always people around, none of his family
members were aware of the abuse until he disclosed it as an adult. After
hearing this story, the two jurors came to believe it was not unreasonable
that Samantha’s abuse may have gone undetected.
The defense investigator spoke with Juror No. 2 and provided a
declaration describing their conversation. Juror No. 2 said her brother-in-law
had been molested for many years without anyone knowing, and that his
experience had shaped her own sense of the present case. Juror No. 2
“shared this story during deliberations ‘to show that things can happen
behind closed doors.’ ” She told the investigator that she believed she had
disclosed her brother-in-law’s experience in her juror questionnaire. The
investigator prepared a statement for Juror No.2’s signature, but the juror
declined to sign it.
Zambrana-Aleman also submitted Juror No. 2’s juror questionnaire.
One question asked, “Have you, or anyone close to you, ever been sexually
molested as a child? This includes attempted molestation by a stranger,
acquaintance or family member.” Juror No. 2 answered “no.” Another

7 For clarity, we will adopt Zambrana-Aleman’s convention of referring
to this juror as Juror No. 2.

16
question stated Zambrana-Aleman was accused of committing continuous
sexual abuse of his stepdaughter from ages 10 or 11 through 20 and asked,
“[D]o you believe you will have an emotional or other reaction when you hear
the evidence that may prevent you from being a fair and impartial juror in
this case?” Juror No. 2 wrote, “Such charges sound horrific. I can, however,
listen to & weigh the evidence.”
Zambrana-Aleman argued Juror No. 2’s failure to disclose her brother-
in-law’s experience on the questionnaire or in voir dire was prejudicial
misconduct or, alternatively, required an evidentiary hearing at which the
juror could be subpoenaed to testify. In opposition, the prosecutor argued the
defense declarations contained inadmissible hearsay and impermissibly
described the jury’s decisionmaking processes. On the merits, the prosecutor
argued there was no evidence regarding the nature of Juror No. 2’s
relationship with her brother-in-law and, given that the questionnaire did
not define “close,” she “may not have considered her brother-in-law given the
phrasing of the question itself.” The nondisclosure was thus unintentional
and did not establish misconduct or bias.
The trial court accepted the declarations as an offer of proof and
declined to strike them on hearsay grounds but struck substantial portions
that discussed the jurors’ thought processes. From defense counsel’s
declaration, the court struck paragraphs that described (1) counsel’s initial
conversation with the two jurors about Juror No. 2’s comment about her
brother-in-law; and (2) how the other jurors decided that the prolific abuse
could have occurred without being suspected or detected. However, the court
admitted Juror No. 2’s statement to the other jurors about her brother-in-
law’s experience.

17
 As to the investigator’s declaration, the court struck the statement that
Juror No. 2 said her brother-in-law’s experience had shaped her sense of the
Zambrana-Aleman case. Finally, the court struck similar statements from
Juror No. 2’s unsigned witness statement.
Following these evidentiary rulings, the court ruled that Zambrana-
Aleman had not made a prima facie case of juror misconduct. “The question
on the questionnaire was: Have you or anyone close to you ever been
sexually molested as a child? Her answer was no. [¶] As noted by the
parties, the questions did not define the term ‘close.’ According to Defense
Exhibit A, her husband’s family is a large family. There is no evidence that
[Juror No. 2] has ever met her brother-in-law or has—let alone that she
considered him to be close. I don’t think the fact that she couldn’t remember
whether she included it on the questionnaire indicates that they have a close
relationship. She couldn’t even remember telling the story in voir dire.”
In addition, the court found that, even had the defense established a
prima facie case of misconduct, it had not shown a substantial likelihood of
actual bias. Juror No. 2’s nondisclosure appeared to be unintentional; her
statements in voir dire and on the jury questionnaire confirmed that she
could be fair and follow the law; and she voluntarily disclosed that she found
the charges horrific. “If she wanted to get her way onto the jury and hide an
experience that she had, she wouldn’t have written that.” Observing that
jurors are properly allowed to view the evidence “through the lens of their
experience,” the court found no evidence of bias and denied the new trial
motion without an evidentiary hearing.
B. Analysis
The relevant principles are stated in People v. Duran (1996)
50 Cal.App.4th 103, 111–113 (Duran).) “ ‘ “Voir dire examination serves to

18
protect [a criminal defendant’s right to a fair trial] by exposing possible
biases, both known and unknown, on the part of potential jurors.
Demonstrated bias in the responses to questions on voir dire may result in a
juror’s being excused for cause; hints of bias not sufficient to warrant
challenge for cause may assist parties in exercising their peremptory
challenges. The necessity of truthful answers by prospective jurors if this
process is to serve its purpose is obvious.” [Citations.] [¶] “A juror who
conceals relevant facts or gives false answers during the voir dire
examination thus undermines the jury selection process and commits
misconduct. ” ’ ” (Id. at pp. 111–112.)
When a party seeks a new trial based on jury misconduct, the trial
court must first determine whether the moving party’s evidence is
admissible. If it is, the court must then consider whether the facts establish
misconduct and may, at its discretion, hold a hearing to determine the truth
of the allegations of misconduct. “ ‘The hearing should not be used as a
“fishing expedition” to search for possible misconduct, but should be held only
when the defense has come forward with evidence demonstrating a strong
possibility that prejudicial misconduct has occurred. Even [then], an
evidentiary hearing will generally be unnecessary unless the parties’
evidence presents a material conflict that can only be resolved at such a
hearing.’ ” Finally, if the court finds that misconduct occurred, it must
determine whether it was prejudicial. (Duran, supra, 50 Cal.App.4th at
p. 113.)
“Intentional concealment of relevant facts or the giving of false answers
by a juror during the voir dire examination constitutes misconduct [citations],
and the occurrence of such misconduct raises a rebuttable presumption of
prejudice.” (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.)

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Inadvertent or unintentional failures to disclose, however, are not accorded
the same effect. (People v. McPeters (1992) 2 Cal.4th 1148, 1175.) In such
cases, the test is “whether the juror is sufficiently biased to constitute good
cause for the court to find . . . that he is unable to perform his duty.” (Ibid;
People v. San Nicolas (2004) 34 Cal.4th 614, 644.) “[A]n honest mistake on
voir dire cannot disturb a judgment in the absence of proof that the juror’s
wrong or incomplete answer hid the juror’s actual bias. Moreover, the juror’s
good faith when answering voir dire questions is the most significant
indicator that there was no bias.” (In re Hamilton (1999) 20 Cal.4th 273,
300.) The trial court’s determination on a new trial motion rests within its
discretion and will not be disturbed unless a manifest and unmistakable
abuse of that discretion clearly appears. (Duran, supra, 50 Cal.App.4th at
p. 113.)
With these principles in mind, we turn to Zambrana-Aleman’s
contention that the court abused its discretion in finding no intentional
nondisclosure and declining his request for an evidentiary hearing at which
Juror No. 2 would be subpoenaed to testify.8 He asserts the court placed
undue weight on the fact that the juror questionnaire failed to define “close”
in asking whether anyone close to the prospective juror had been molested as
a child. Observing that several other jurors disclosed relationships that were
more remote, Zambrana-Aleman argues those disclosures should have made
it obvious to Juror No. 2 that her relationship to her brother-in-law was
within the scope of the question. Similarly, he criticizes the court’s
observation that there was no evidence Juror No. 2 had ever met her brother-
in-law, let alone considered him to be close, arguing the juror’s ability to

8 Zambrana-Aleman does not challenge the court’s evidentiary rulings.

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remember her brother-in-law’s experience during jury deliberations indicated
that they were in fact close.
Neither point is persuasive. While select segments of the voir dire
could arguably support Zambrana-Aleman’s suggested inferences, the totality
does not. In addition, Juror No. 2’s voluntary disclosure that she found the
charges “horrific” further supports the court’s finding any nondisclosure was
inadvertent. As the trial court noted, “If she wanted to get her way onto the
jury and hide an experience that she had, she wouldn’t have written that.”
The court also reasonably found the fact that Juror No. 2 initially did not
recall that she had mentioned her brother-in-law’s experience in the jury
room was further evidence that “she didn’t have an agenda or she wasn’t
biased against Mr. Zambrana-Aleman.” On this record, the trial court’s
determination that Juror No. 2’s nondisclosure was inadvertent and without
bias was well within its discretion.
Zambrana-Aleman’s cited federal authorities, which present
significantly different factual circumstances, do not support a contrary
conclusion. In United States v. Allsup (9th Cir. 1977) 566 F.2d 68, 71–72, the
Ninth Circuit presumed bias because of the employee relationship of two
jurors who worked for a different branch of the same bank the defendant was
accused of robbing because “[t]he potential for substantial emotional
involvement, adversely affecting impartiality, is evident when the prospective
jurors work for the bank that has been robbed.” (Id. at p. 71.) In United
States v. Eubanks (9th Cir. 1979) 591 F.2d 513, the court reversed a heroin
conspiracy conviction for retrial because a juror was found to have failed to
disclose that two of his sons were incarcerated for serious felonies committed
in an effort to obtain heroin. (Id. at pp. 516–517.) In Dyer v. Calderon (9th
Cir. 1998) 151 F.3d 970, the court found a juror “lied repeatedly” in order to

21
“secure her seat on the jury.” When asked whether any relative had been
accused of any offense other than a traffic case, the juror failed to disclose
that her husband had recently been arrested and was then incarcerated for
rape, and her brother had been shot and killed in a manner similar to the
case before her. These are significantly different factual situations than the
case before us. Here, without evidence showing what, if any, relationship
Juror No. 2 had with her brother-in-law, there is no basis to presume bias.
Nor does the record otherwise establish falsity or intentional concealment
that would constitute misconduct. Moreover, Juror No. 2 clearly affirmed
that, despite her personal belief in the “horrific” nature of the charges, she
could still “listen to & weigh the evidence.” The trial court reasonably
credited her explanation and found that, under these circumstances, there
was no showing of actual bias. We find no reason to disturb its
determinations here.9
DISPOSITION
The judgment is affirmed.

Because the court properly found no bias, we will not address
9

Zambrana-Aleman’s contention that the alleged bias was prejudicial.

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 _________________________
Desautels, J.*

WE CONCUR:

_________________________
Pollak, P.J.

_________________________
Streeter, J.

A161473 People v. Zambrana-Aleman

*Judge of the Alameda County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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