Filed 8/19/26 P. v. Hernandez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B339282
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA514373)
v.
EDUARDO PEREZ
HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Steven A. Brody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
A jury convicted Eduardo Perez Hernandez of 14 counts of
sexual offenses against four family members—his niece, L.H.; his
daughter, J.P.; his stepdaughter, J.H.; and his sister-in-law,
A.H.1 Hernandez argues (1) his convictions on two counts of
sexual intercourse or sodomy with a child under 11 years old
(Pen. Code, § 261, subd. (a)(2))2 violate the ex post facto clauses of
the state and federal constitutions; (2) the trial court erred by not
instructing the jury sua sponte on the lesser included offense of
statutory rape to the offense of sexual intercourse or sodomy with
a child under age 11 because there was substantial evidence the
victim could have been 11 when the offenses occurred; (3) defense
counsel provided ineffective assistance of counsel; (4) the trial
court made improper comments during jury voir dire; and (5) the
cumulative effect of these errors was prejudicial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
A. Prosecution Evidence
1. Background
Hernandez and his wife, Elia Lopez, have five children. In
descending order from oldest to youngest, the children are Eddie,
J.H., Oscar P., Adan P., and J.P. Hernandez is the biological
father of the three youngest.
1 We refer to the victims by their first and last initials to
protect their privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)
2 Statutory references are to the Penal Code.
3 We omit facts that are not relevant to the issues on appeal,
such as the expert testimony on child sexual abuse
accommodation syndrome.
2
Hernandez and Lopez began living together in 2000, when
Eddie was around 16 years old and J.H. was around three years
old. Oscar was born in 2001, Adan in 2004, and J.P. in 2006.
Several extended family members, including A.H. and L.H., also
lived with Hernandez and his family at various times.
Between 2001 and 2021, Hernandez sexually abused A.H.,
L.H., J.H., and J.P., each on separate occasions. All four of the
victims testified at trial.
2. Sexual abuse of A.H.
A.H. is Lopez’s sister and Hernandez’s sister-in-law.
Hernandez was charged with one count of forcible rape of A.H.
(§ 261, subd. (a)(2); count 16).
A.H. testified that in December 2000, when she was
16 years old, she moved into Lopez and Hernandez’s apartment.
Weeks after A.H. moved in, Hernandez began touching her
breasts and buttocks when Lopez was not looking. One day,
when A.H. was home alone with Eddie or J.H., Hernandez came
home, pushed A.H. into a closet, and touched her over her
clothing. On another occasion, A.H. was sleeping in the bedroom
she shared with other women and children when Hernandez got
on top of her, covered her mouth, and raped her. A.H. could not
defend herself because Hernandez was larger and stronger than
she was. A.H. was also scared of Hernandez because he had
threatened “to do something to [her] parents or to [her] brother”
if she told anyone about the abuse.
A.H. tried to tell Lopez about the rape, but Lopez said that
A.H. “shouldn’t say anything more” because “she already knew.”
Lopez also got upset with A.H. and accused her of “coming on” to
Hernandez. A.H. did not try again to tell Lopez what happened
because Lopez “never let [A.H.] tell her.” Six months after the
3
rape, A.H. moved out of the apartment. In July 2023, A.H.
reported the incident to police.
3. Sexual abuse of L.H.
L.H., born in November 1998, is Hernandez’s niece through
his marriage to Lopez. The charges against Hernandez with
respect to L.H. were two counts of sexual intercourse or sodomy
with a child under the age of 11 (§ 288.7, subd. (a); counts 1-2),
and two counts of committing a lewd or lascivious act on a child
under the age of 14 years (§ 288, subd. (a); counts 3-4).
When L.H. was five or six years old, she and her mother,
Mercedes H., moved into Hernandez and Lopez’s apartment.
Starting when she was seven or eight years old, Hernandez
forced L.H. to have sexual intercourse with him. It happened in
the apartment “[m]ore than one time,” typically when no one else
was home. It occurred in the closet “more than one time” and on
a bed in the living room “at least one time.”
L.H. could not remember exactly how old she was each time
Hernandez forced her to have sex. Hernandez forced her to have
sex both before she got her period and after she got her period.
She testified she got her period when she was nine or 10 years
old.4 In particular, after the first time Hernandez forced her to
have sex when she was seven or eight years old, “it happen[ed]
another time from the time [she was] seven and ten” years old.
L.H. knew it happened “at that time” because “it was when [she]
had [her] period.”
In addition to sexual intercourse, Hernandez forcibly
touched L.H.’s vagina under her clothes with his hands on
4 L.H. told a forensic nurse that she got her period when she
was 10 years old.
4
multiple occasions. He also forced her to touch his penis with her
hand. These acts occurred in various areas of the apartment,
including the closet, hallway, and living room. During those
times, Lopez and her children were sometimes home.
The sexual abuse stopped before L.H. moved out of the
apartment and while Mercedes was pregnant, and no later than
June 2010, when Mercedes gave birth. On June 1, 2010, L.H.
was 11 years six months old.
Mercedes testified that when she and L.H. lived with
Hernandez, Mercedes never saw Hernandez do anything sexual
to L.H. However, when L.H. was seven or eight years old, L.H.
complained to Mercedes of vaginal pain on four or five occasions.
Mercedes looked at L.H.’s vagina and saw it was red and
scratched each time.
In 2015, when L.H. was 16 or 17 years old, Mercedes
brought L.H. to a doctor for a routine medical examination.
During the examination, the doctor asked L.H. if she had ever
had sex before. L.H. said she had been raped by a maternal uncle
several times when she was about seven years old. The doctor
then brought Mercedes back into the exam room to discuss the
sexual abuse further. According to Mercedes, the doctor told
Mercedes that L.H. said “ ‘Uncle Eduardo’ ” had sexually abused
her.
L.H. later went to the Rape Treatment Center at UCLA
Medical Center for a forensic exam. Sally Wilson, a family nurse
practitioner, performed the exam. L.H. told Wilson that she got
her period when she was 10 years old, she had not been sexually
active besides the abuse, and she experienced pain during the
sexual abuse. Wilson performed a vaginal examination and saw
a “significant notch” on L.H.’s hymen at the 5 o’clock position.
5
The notch suggested there was a “penetrating injury” to the
hymen that had healed. Wilson testified there was a greater
likelihood of finding such a healed injury in a child who was
abused before she got her period, versus after she got her period,
because “the hymenal tissue changes dramatically from pre-
puberty to post-puberty” and becomes much less taut and
sensitive and thus less susceptible to such an injury.
4. Sexual abuse of J.H.
With respect to J.H. (Hernandez’s step-daughter),
Hernandez was charged with five counts of committing a lewd or
lascivious act on a child under the age of 14 (§ 288, subd. (a);
counts 6-10); two counts of unlawful sexual intercourse with a
minor under age 16 (§ 261.5, subd. (d); counts 12-13); and one
count of unlawful sexual intercourse with a minor more than
three years younger than Hernandez, i.e., statutory rape (§ 261.5,
subd. (c); count 14).
When J.H. was in elementary school, Hernandez began
touching her over her clothes on her chest, buttocks, and thighs.
The touching changed when J.H. turned 12. On multiple
occasions, Hernandez took off her clothes and touched her on her
chest, buttocks, and vagina. He had sexual intercourse with J.H.
“[a]lmost every week” when Lopez was out of the house. One
time, he pulled over while driving and had sex with J.H. in the
back seat of the car. The abuse continued until J.H. was 20 years
old.
When J.H. was in middle school, Hernandez grabbed her
hand and put it on his penis. He also forced her to perform oral
sex on him. Both of those acts happened more than one time. At
the end of middle school, Hernandez kissed J.H. and forced his
tongue in her mouth. In high school, Hernandez put his mouth
6
on J.H.’s vagina and tried to have anal sex with her more than
one time.
In 2015, a social worker from the Los Angeles County
Department of Children and Family Services (DCFS) came to the
apartment and asked J.H. if she felt safe in the home. J.H. told
the worker everything “was normal.” J.H. lied to the social
worker because she was scared that her mother would get mad
and her siblings would be placed in foster care.
When J.H. turned 20, she told Hernandez that she did not
want the sex to continue. A month later, Hernandez and Lopez
got into an argument relating to J.H. Lopez asked questions
about whether J.H. and Hernandez were in a relationship. J.H.
told Lopez that Hernandez had sexually abused her starting
when she was 12 years old and the abuse did not stop until she
turned 20. Lopez got mad and yelled at her. J.H. continued to
live at the apartment until she moved to Oregon in 2021.
J.P. testified she saw Hernandez sexually abuse J.H. on
several occasions. One night, when J.P. was in fifth grade and
she and J.H. were sleeping in the same bed, she saw Hernandez
having sex with J.H. J.P. saw “something like that” happen
again that same year and the year after. On each of those
occasions, Lopez was not home.
J.P. also testified that throughout middle school, she saw
Hernandez touch J.H. on “[h]er vagina and her chest” over her
clothing more than 20 times when Lopez was not at home.
Another time, J.P. saw Hernandez trying to drag J.H. into the
bathroom with him, but J.H. said she did not want to go and held
onto the bed. Hernandez got mad and beat J.H. with a belt until
she cried.
7
Oscar testified he saw Hernandez act inappropriately
toward J.H. on several occasions. When Oscar was in middle
school, he came out of the shower and saw Hernandez on top of
J.H. on the bed with the blankets covering them. Hernandez got
mad at him, and Oscar ran back into the restroom. When Oscar
left the restroom again, he saw J.H. crying.
Every morning, Oscar saw Hernandez go to J.H.’s bed,
touch her, and “start doing things to her.” While that happened,
J.H. would cry and tell Hernandez to stop. During those
occasions, Lopez was home cooking in the kitchen but would “just
turn a blind eye, just be, like ‘oh.’ ” According to Oscar, Lopez
“would always blame [J.H.] for the things that were happening.”
5. Sexual abuse of J.P.
With respect to J.P. (Hernandez’s biological daughter),
Hernandez was charged with one count of committing a lewd or
lascivious act on a child aged 14 or 15 (§ 288, subd. (c)(1); count
5).
One night, when J.P. was 13 or 14 years old, she fell asleep
and woke up to Hernandez touching her on her stomach. His
hands moved upward underneath her shirt. Before Hernandez’s
hands reached her breasts, Adan pushed Hernandez off her and
yelled, “ ‘Don’t touch her.’ ”
B. Defense Evidence
Rosa Hernandez (Rosa), A.H.’s cousin, testified she and
A.H. moved into Hernandez and Lopez’s apartment in December
2000. Rosa lived at the apartment with A.H. the entire period
that A.H. lived there. Rosa never saw Hernandez go into the
room where she and A.H. slept, and she never saw Hernandez
sexually assault A.H. A.H. also never told Rosa that Hernandez
raped her.
8
Lopez testified that when A.H. lived with Lopez and
Hernandez, Lopez and A.H. slept in the same room. Lopez slept
close to the door in such a way that “[n]obody could open it.”
Lopez was “in charge” of taking care of L.H. and never left her
alone with Hernandez. Lopez never saw Hernandez sexually
abusing L.H., and A.H. did not tell Lopez that Hernandez raped
her.
Lopez also testified that, for many years, she stayed at
home and took care of her children. She said Hernandez was
never alone “with any of the children,” explaining she was
“present the entire time, for over 20 years, from the minute the
children were born until they left the home.” However, she
admitted there was one time in September 2015 when Hernandez
was home alone with the children and a social worker from DCFS
came to the house.
Adan testified that Hernandez never hit him, Lopez, or his
siblings. He never saw Hernandez sexually abuse A.H., L.H.,
J.H., or J.P.
Hernandez testified he never sexually abused A.H., J.P., or
L.H. He also denied sexually abusing J.H. when she was a minor
but admitted having a sexual relationship with her once she was
an adult. He also testified he was never alone with the children,
except one time when the social worker from DCFS came to the
home.
C. Rebuttal Evidence
Eboni Crowe, a former investigator with DCFS, testified
that in September 2015 she went to Hernandez’s home.
Hernandez was home alone with Oscar, Adan, J.H., and J.P.
Hernandez said Lopez was taking an English class. All the
children denied they were being physically or sexually abused.
9
D. Verdict and Sentencing
The jury found Hernandez guilty on all counts. The jury
also found true that Hernandez committed a lewd or lascivious
act on a child under the age of 14 against more than one victim
within the meaning of the “One Strike” law. (§ 667.61, subds.
(c)(8), (e)(4).) In a bifurcated court trial, the court found true that
Hernandez had a prior serious or violent felony within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)-(j);
1170.12).
The court sentenced Hernandez to a total of 340 years to
life. First, the court imposed the following consecutive sentences:
50 years to life (25 years to life, doubled under the Three Strikes
law) on each of counts 1 and 2 for sexual intercourse or sodomy
with a child under the age of 11 (§ 288.7, subd. (a)); 30 years to
life (15 years to life under the One Strike law, doubled under the
Three Strikes law) on each of counts 3, 4, and 6-10 (§ 288, subd.
(a)), and on count 16 (§ 261, subd. (a)(2)). Second, the court
imposed the following determinate terms concurrently: four years
(the middle term, doubled) on each of counts 5 (§ 288, subd. (c)(1))
and 14 (§ 261.5, subd. (c)), and six years (the middle term,
doubled) on each of counts 12 and 13 (§ 261.5, subd. (d)).
Hernandez timely appealed.
DISCUSSION
A. Hernandez’s Convictions for Violations of Section 288.7,
Subdivision (a), Do Not Violate Ex Post Facto Laws
Hernandez argues we must reverse his convictions on
counts 1 and 2 for sexual intercourse with L.H., a child who was
10 years of age or younger (§288.7, subd. (a)), because his
convictions violate the ex post facto clauses of the United States
10
(U.S. Const., art. I, § 9, cl. 3) and California Constitutions (Cal.
Const., art. I, § 9). He contends the People failed to establish the
acts in counts 1 and 2 occurred after section 288.7’s enactment.
We are not persuaded.
Both the state and federal constitutions prohibit ex post
facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; People
v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas).) “Any law
that applies to events occurring before its enactment and which
disadvantages the offender either by altering the definition of
criminal conduct or increasing the punishment for the crime is
prohibited as ex post facto.” (Rojas, at p. 1306.) “ ‘ “ ‘[T]he
necessary reference point for any ex post facto analysis[] is
criminal conduct committed before the disputed law took
effect.’ ” ’ ” (People v. Chhuon and Pan (2026) 19 Cal.5th 1018,
1043.)An ex post facto claim may be raised for the first time on
appeal. (Rojas, supra, 237 Cal.App.4th at p. 1306; People v.
Hiscox (2006) 136 Cal.App.4th 253, 258 (Hiscox).)
Section 288.7 went into effect on September 20, 2006.
(Stats. 2006, ch. 337, § 9.) “The statute created a new offense
which imposes an indeterminate life sentence for sexual
intercourse, sodomy, oral copulation, or sexual penetration of a
child who is 10 years of age or younger. Therefore, any
application of section 288.7 to conduct that occurred prior to
September 20, 2006, is a violation of the state and federal ex post
facto clauses.” (Rojas, supra, 237 Cal.App.4th at p. 1306.) “ ‘[I]t
is the prosecution’s responsibility to prove to the jury that the
charged offenses occurred on or after the effective date of the
statute providing for the defendant’s punishment.’ ” (Ibid.; see
Hiscox, supra, 136 Cal.App.4th at p. 260 [“A prosecutor who
relies on generic testimony to support a child molestation charge
11
must establish a time frame for the offenses sufficient to bring
them within the scope of any statutory or constitutional
limitation on punishment.”].) If the jury was “asked to make
findings on the time frame within which the offenses were
committed,” the verdicts can “be deemed sufficient to establish
the date of the offenses,” and no ex post facto violation will be
found. (Hiscox, at p. 261; accord, Rojas, at p. 1306.)
Hernandez argues his convictions on counts 1 and 2 violate
the ex post facto clauses because (1) “the verdict forms did not
ask the jury to make an independent finding that the offenses
occurred after the effective date of section 288.7,” and (2) the
evidence does not otherwise establish beyond a reasonable doubt
that the jury relied on conduct post-dating section 288.7’s
effective date. Hernandez notes that L.H. was seven years 10
months old on September 20, 2016, the effective date of section
288.7. He points to L.H.’s testimony that the sexual intercourse
started when she was “seven or eight years old.” Thus, he
contends “it is entirely possible that the abuse alleged took place
before September 20, 2006.”
We are not persuaded by Hernandez’s argument. The trial
court instructed the jury that Hernandez was accused of
committing the offenses in counts 1 and 2 “on or between
September 20, 2006, and November 6, 2009.”5 Further, the jury
made an express finding that Hernandez violated section 288.7
after the effective date. The verdict forms for counts 1 and 2
provide, in relevant part: “We, the Jury … find … Hernandez,
guilty of the crime of sexual intercourse or sodomy with child 10
5 November 6, 2009 was the last day that L.H. was 10 years
old.
12
years old or younger upon [L.H.] on or between September 20,
2006 and November 6, 2009.” Because the jury was asked to
make findings on the time frame within which the offenses were
committed, the verdicts are “sufficient to establish the date of the
offenses.” (Hiscox, supra, 136 Cal.App.4th at p. 261.)
Hernandez relies on Hiscox, but that case is
distinguishable. In Hiscox, the defendant was convicted of
11 counts of lewd and lascivious conduct with a child (§ 288), and
due to multiple-victim findings, the court sentenced him under
section 667.61 to consecutive terms of 15 years to life on each
count. (Hiscox, supra, 136 Cal.App.4th at p. 256.) The
information alleged that all 11 counts were committed “ ‘on or
about the years of 1992 through 1996,’ ” and the trial court
instructed the jury that the defendant was accused of committing
the offenses “ ‘on or about a period of time between 1992 and
1996.’ ” (Id. at p. 257.) Section 661.61 went into effect on
November 30, 1994, in the middle of the alleged time period of
the offenses. (Ibid.)
At the defendant’s trial in Hiscox, it was “clear that neither
the prosecution, the defense, nor the court realized that the
effective date of section 667.61 presented a problem of proof
regarding when the charged offenses were committed.” (Hiscox,
supra, 136 Cal.App.4th at p. 258.) As the appellate court noted,
“It would have been a simple matter for the verdict forms to ask
the jury to find whether each offense was committed on or after
November 30, 1994.” (Id. at p. 261, fn. 6.) Because “the jury was
not asked to make findings on the time frame within which the
offenses were committed,” the Court of Appeal had to then
determine whether “the evidence le[ft] no reasonable doubt that
the underlying charges pertained to events occurring on or after
13
November 30, 1994.” (Id. at p. 261.) Upon reviewing the state of
the evidence, the court concluded the record allowed for
reasonable doubt over whether the offenses were committed
when section 667.61 was in effect and thus vacated the sentences.
(Id. at pp. 261-262.)
Unlike in Hiscox, the jury here made an express finding in
the verdict forms that Hernandez committed the offenses in
counts 1 and 2 on or after September 20, 2006. As Hiscox
suggests, such a finding is dispositive. (Hiscox, supra,
136 Cal.App.4th at p. 261.) Hernandez has not cited any
authority establishing that we may disregard the jury’s express
finding. Therefore, we conclude no ex post facto violation
occurred.
B. Any Error in Failing To Instruct on a Lesser Included
Offense for Counts 1 and 2 Was Harmless
For counts 1 and 2, Hernandez argues the trial court had a
sua sponte duty to instruct the jury on statutory rape (§ 261.5,
subd. (c)) as a lesser included offense of section 288.7, subdivision
(a). Section 288.7, subdivision (a), punishes “[a]ny person 18
years of age or older who engages in sexual intercourse or sodomy
with a child who is 10 years of age or younger,” while section
261.5, subdivision (c), punishes “[a] person who engages in an act
of unlawful sexual intercourse with a minor who is more than
three years younger than the perpetrator.”6
6 A person who violates section 288.7, subdivision (a) “ is
guilty of a felony and shall be punished by imprisonment in the
state prison for a term of 25 years to life.” (§ 288.7, subd. (a).) A
person who engages in statutory rape under section 261.5,
subdivision (c), “is guilty of either a misdemeanor or a felony, and
14
As Hernandez correctly observes, the relevant difference in
this case between the greater and the lesser offenses is the age of
the victim. Under the greater offense, the victim must be 10
years old or younger (§ 288.7, subd. (a)), and under the lesser
offense, the victim must be under 18 years old (§ 261.5, subd. (a)).
Hernandez specifically contends (1) statutory rape is a lesser
included offense in this case because it meets the accusatory
pleading test, (2) the trial court had a duty to instruct on
statutory rape because there was substantial evidence that L.H.
was 11 years old when the sexual intercourse occurred, and
(3) the alleged error in failing to instruct was prejudicial.
1. Relevant law and standard of review
“To determine whether a lesser offense is necessarily
included in the charged offense, one of two tests (called the
‘elements’ test and the ‘accusatory pleading’ test) must be met.
The elements test is satisfied when ‘ “all the legal ingredients of
the corpus delicti of the lesser offense [are] included in the
elements of the greater offense.” [Citation.]’ [Citations.] ... [¶]
Under the accusatory pleading test, a lesser offense is included
within the greater charged offense ‘ “if the charging allegations of
the accusatory pleading include language describing the offense
in such a way that if committed as specified the lesser offense is
necessarily committed.” ’ ” (People v. Lopez (1998) 19 Cal.4th 282,
288-289; accord, People v. Smith (2013) 57 Cal.4th 232, 240-242.)
“ ‘A trial court must instruct the jury on a lesser included
offense, whether or not the defendant so requests, whenever
evidence that the defendant is guilty of only the lesser offense is
shall be punished by imprisonment in a county jail not exceeding
one year, or by imprisonment pursuant to subdivision (h) of
Section 1170.” (§ 261.5, subd. (c).)
15
substantial enough to merit consideration by the jury.’ ” (People
v. Nieves (2021) 11 Cal.5th 404, 463.) “ ‘The obligation to instruct
on lesser included offenses exists even when as a matter of trial
tactics a defendant not only fails to request the instruction but
expressly objects to it being given.’ ” (People v. Barton (1995)
12 Cal.4th 186, 195; see Nieves, at p. 463.)
“Although instruction on a lesser included offense ‘is not
required when the evidence supporting such an instruction is
weak’ [citation] or based on speculation [citation], it is required
when the lesser included offense is supported by ‘ “evidence that
a reasonable jury could find persuasive.” ’ ” (People v. Steskal
(2021) 11 Cal.5th 332, 345.) “In deciding whether there is
substantial evidence of a lesser offense, courts should not
evaluate the credibility of witnesses, a task for the jury.” (People
v. Breverman (1998) 19 Cal.4th 142, 162.) “ ‘ “Doubts as to the
sufficiency of the evidence to warrant instructions should be
resolved in favor of the accused.” ’ ” (Steskal, at p. 345.)
We review de novo whether the trial court improperly
failed to instruct on a lesser included offense. (People v. Wilson
(2021) 11 Cal.5th 259, 295.)
2. Any error was harmless
We need not resolve whether statutory rape was a lesser
included offense or whether there was substantial evidence
warranting the instruction. Even assuming the instruction on
statutory rape should have been given, we conclude any
instructional error was harmless.
In a noncapital case, failure to instruct on a lesser included
offense is state law error subject to harmless error review under
People v. Watson (1956) 46 Cal.2d 818, 836-837. (People v. Rogers
(2006) 39 Cal.4th 826, 867-868.) “Reversal is required only if it is
16
reasonably probable the jury would have returned a different
verdict absent the error or errors complained of.” (Id. at p. 868.)
The Supreme Court has “ ‘ “ ‘made clear that a “probability” in
this context does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ ” ’ ”
(People v. Hendrix (2022) 13 Cal.5th 933, 944.)
L.H. had trouble remembering how many times Hernandez
had sexual intercourse with her when she was a young child. She
testified Hernandez had sex with her at least three times: more
than one time in the closet and at least one time in the living
room. She said it first occurred when she was seven or eight
years old, and it happened another time “from the time [she was]
seven and 10” years old. L.H. did not identify when the sexual
intercourse happened for a third time. However, she said that
overall, the sex started when she was seven or eight years old,
happened both before and after she got her period at age nine or
10, and ended before she moved out of Hernandez’s apartment
when she was 11 years six months old. Mercedes testified that
when L.H. was around seven or eight years old, on four or five
occasions, L.H. complained to Mercedes of pain to her vagina, and
Mercedes observed it appeared red and “scratched.” In addition,
the forensic nurse testified L.H. had healed injuries to her hymen
consistent with sexual penetration when she was pre-pubescent
and not yet menstruating. Both Lopez and Hernandez denied
that L.H. was abused at all. Notably, no evidence was introduced
that the first or second sexual intercourse occurred after L.H.
turned 11.
Although L.H. testified to at least three times that
Hernandez forced her to have sexual intercourse, the People
charged only two counts of engaging in sexual intercourse or
17
sodomy with a child who is 10 years of age or younger under
section 288.7, subdivision (a). The People had originally charged
three counts of section 288.7, subdivision (a), as to L.H., but at
the close of the evidence moved to amend the information to
change the third count (count 3) to a count for lewd act on a child.
The information also alleged a fourth count (count 4) for lewd act
on L.H.
During closing arguments, the prosecutor told the jury that
“one of the things” she had to prove for counts 1 and 2 was that
“[L.H.] was 10 [years old] or younger.” The prosecutor argued she
could “prove at least two of the acts of rape happened while she
was 10 or younger.” As the prosecutor explained, “the first one
happened around 7 or 8, and the second one [L.H.] described
happened around 9 or 10, when she got her period.” The
prosecutor acknowledged that L.H. “was not able exactly to say
when the third time happened” and L.H. “moved out of the
apartment a few months after her 11th birthday” and thus the
People could “only prove beyond a reasonable doubt two counts of
the penetration.” The prosecutor added that if the jury “believed
[L.H.] was raped in the time period … after she turned 11,” it
could rely on that rape to convict Hernandez of one of the charged
counts for lewd acts upon a child.7
7 As discussed, both counts 3 and 4 were for lewd conduct
upon a child under section 288, subdivision (a). However, the
verdict form for count 3 required the jury to find the offense
occurred before L.H.’s 11th birthday, which appears to be a
mistake left over when the People amended the information to
make count 3 a violation of section 288 rather than a third count
of section 288.7, subdivision (a). In any event, if the jury
determined there was a third rape but the People could not prove
18
With respect to counts 1 and 2, the closing arguments thus
directed jurors to focus only on the two acts of sexual intercourse
that occurred before she was 11 years old. Although L.H.
described a third act of intercourse, the prosecutor told the jury
the People could not prove beyond a reasonable doubt that this
third instance occurred before L.H. turned 11. And, had any of
the jurors believed the third sexual intercourse occurred when
L.H. was 11 years old, they had the option of using that evidence
to convict Hernandez of committing lewd acts on a child as
charged in count 4.
Moreover, the verdict forms for counts 1 and 2 required the
jury to find the sexual intercourse occurred “on or between
September 20, 2006, and November 6, 2009.” L.H. turned 11 on
November 7, 2009. Thus, the jury explicitly found the sexual
intercourse occurred before L.H. turned 11 years old. Under our
harmless error review, we ask not “what a reasonable jury could
do, but what such a jury is likely to have done in the absence of
the error under consideration.” (People v. Breverman, supra,
19 Cal.4th at p. 177.) Given the state of the evidence, the closing
arguments, and the verdict forms, there is not a reasonable
probability the jury would have come to a different verdict had it
been instructed on the lesser included offense of statutory rape
for either count 1 or 2. (See People v. Larsen (2012)
205 Cal.App.4th 810, 833 [failure to give instruction was
harmless error considering “the nature of the argument
presented”].)
it happened before L.H. turned 11, it still could find Hernanez
liable for that offense by attributing it to count 4.
19
C. Defense Counsel Did Not Provide Ineffective Assistance of
Counsel
Hernandez contends that his defense counsel provided
ineffective assistance by failing to object to multiple evidentiary
errors. Specifically, he asserts trial counsel should have objected
on hearsay grounds to A.H.’s testimony that Lopez said she
“already knew” about the rape and to Crowe’s testimony about
visiting Hernandez’s home and finding him alone with some of
the children. We are not persuaded.
1. Relevant law
“ ‘ “To establish ineffective assistance of counsel, a
defendant must show that (1) counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’ ” ’ ” (People v. Rices (2017) 4 Cal.5th 49, 80; accord,
People v. Johnson (2016) 62 Cal.4th 600, 653; In re Roberts (2003)
29 Cal.4th 726, 744-745; see Strickland v. Washington (1984)
466 U.S. 668, 694.)
“ ‘Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a “strong presumption that counsel’s
conduct falls within the wide range of professional assistance.” ’
[Citations.] ‘[W]e accord great deference to counsel’s tactical
decisions’ [citation], and we have explained that ‘courts should
not second-guess reasonable, if difficult, tactical decisions in the
harsh light of hindsight.’ ” (People v. Weaver (2001) 26 Cal.4th
20
876, 925-926; accord, People v. Ledesma (2006) 39 Cal.4th 641,
746.) Accordingly, to prevail on a claim that counsel’s
performance fell below an objective standard of reasonableness, a
defendant must show “counsel had ‘ “ ‘no rational tactical
purpose’ ” ’ for an action or omission.” (People v. Mickel (2016)
2 Cal.5th 181, 198.) “ ‘ “ ‘[If] the record on appeal sheds no light
on why counsel acted or failed to act in the manner challenged[,]
... unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory
explanation,’ the claim on appeal must be rejected.” ’ ” (People v.
Carrasco (2014) 59 Cal.4th 924, 982.)
2. Failure to object to A.H.’s testimony
During A.H.’s direct examination, the following exchange
occurred:
Q: Back around the time you were still living at
the apartment, did you try to share with
[Lopez] a little bit about what was happening
between you and the defendant?
A: Yes.
Q: And what was her response—not the
conversation you had, but her response to you
telling her something was happening with the
defendant?
A: It’s just that she said to me that—that that’s
enough, that I shouldn’t say anything more,
because she already knew.
Hernandez argues that defense counsel should have
objected to A.H.’s testimony that Lopez said she “already knew”
on hearsay grounds and counsel’s failure to do so was deficient.
However, Lopez’s statement was not hearsay.
Hearsay is a statement made by an out-of-court declarant
and “offered to prove the truth of the matter stated.” (Evid. Code,
21
§ 1200, subd. (a).) Unless the statement falls within a hearsay
exception, hearsay evidence is inadmissible. (Id., subd. (b).)
Hernandez argues that Lopez’s statement that she
“ ‘already knew’ ” was “offered for the truth of the matter
asserted: that [Lopez] had prior knowledge of [Hernandez’s]
sexual conduct.” Hernandez is mistaken. Lopez’s statement was
not offered for its truth, but instead for the effect such a
statement had on A.H.—causing her to delay her ultimate
disclosure of the rape. Because Lopez’s statement that “she
already knew” was not offered for its truth and thus was not
hearsay, defense counsel was not ineffective for failing to object to
the admission of this statement.
3. Failure to object to Crowe’s testimony
During Crowe’s direct examination, the following exchange
occurred:
Q: Now, recently have I contacted you to be a
witness in this case?
A: Yes.
Q: And in doing that, did I provide you with some
notes related to this case?
A: Yes.
Q: And did you review those notes?
A: I did.
Q: Now, do you have an independent recollection
or memory of your contact related to this case?
A: Outside of the note, no, I don’t.
Q: Okay. Is it fair to say that, while you were
working with D.C.F.S. -- well, how many years
did you work with them?
A: Sixteen years.
Q: Is it fair to say you contacted a lot of families …
then?
A: Yes.
22
Q: Now, when you … arrived at that location --
and, specifically, was that 1111 South Norton
Avenue in the County of Los Angeles?
A: Possibly. If that’s where the family was
indicated to have lived, that’s where I would
have gone.
Q: And when you went to that location, who, if
anyone … was present?
A: According to my notes, it was the children and
the father.
Q: Would that be … Hernandez?
A: I don’t remember the name.
Q: Would looking at a copy of your notes … help
refresh your recollection?
A: Uh-huh.
Q: After you have reviewed the notes, if you can
look up.
A: Okay. Uh-huh.
Q: Has your memory been refreshed?
A: A little bit.
Q: Was the father … Hernandez?
A: Yes.
Q: And you said the children were home. Which
children were home?
A: It says here it was [J.H.], Adan, Oscar, and
[J.P.]
Q: Did the … father … indicate where his wife was
when you came to visit?
A: Yes. According to my notes, she wasn’t in the
home at the time; she was at a night class,
taking an English class.
Q: Now, through this investigation, you went to
the home. Did you speak to each child?
A: Yes, I did.
Q: And did any of the children indicate that they
were being sexually abused at the time?
23
A: They did not.
Q: Did any of the children indicate that there was
physical abuse going on in the home at the
time?
A: They did not.
Hernandez argues defense counsel should have objected to
Crowe’s testimony on hearsay grounds. Specifically, Hernandez
contends that Crowe’s notes did not refresh her recollection about
her visit to Hernandez’s house and thus she improperly testified
based on her out-of-court notes. We agree with Hernandez but
conclude no prejudice occurred.
In general, a witness must have “personal knowledge of the
matter” to which he or she testifies. (Evid. Code, § 702, subd.
(a).) “ ‘ “Personal knowledge” means a present recollection of an
impression derived from the exercise of the witness’ own
senses.’ ” (People v. Valencia (2021) 11 Cal.5th 818, 831, fn. 12.)
A witness may “use[ ] a writing to refresh his [or her]
memory with respect to any matter about which he [or she]
testifies.” (Evid. Code, § 771, subd. (a).) “However, when a
writing is used to refresh a witness’ recollection, ‘ “[t]he writing is
used by the witness solely to assist [the witness] in giving his oral
testimony.” ’ [Citation.] ‘ “It has no independent evidentiary
value for the party calling [the witness], and is not admissible in
evidence at his instance.” ’ ” (People v. Vasquez (2017)
14 Cal.App.5th 1019, 1036.) This is because a writing “prepared
before trial and offered to prove the truth of the words it contains
… is hearsay.” (Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th
442, 447.) “Statements which have no independent basis of
admissibility may not be introduced under the guise of refreshing
a witness’ memory.” (People v. Parks (1971) 4 Cal.3d 955, 960-
961.)
24
We agree with Hernandez that Crowe did not appear to
have an independent recollection of most of the details about her
visit to Hernandez’s house. Indeed, when asked at the beginning
of her testimony if she had “an independent recollection or
memory of [her] contact,” she responded, “Outside of the note, no,
I don’t.” She then continued to testify based on what her notes
indicated, instead of based on her own memory. This testimony
was inadmissible hearsay. (See People v. Vasquez, supra,
14 Cal.App.5th at p 1036; People v. Parks, supra, 4 Cal.3d at
pp. 960-961.)
The People point to Crowe’s testimony that her memory
was refreshed “[a] little bit” and her testimony about speaking to
the children, arguing there was “a sufficient record” that her
memory was refreshed. But, in between that testimony, Crowe
testified from her notes, even saying at one point, “It says here.”
Indeed, throughout most of Crowe’s testimony, she referred to her
notes in front of her and “merely recit[ed] its content without
personal knowledge of the facts being conveyed.” (People v. Bell
(2020) 47 Cal.App.5th 153, 194 [when asked during direct
examination why a shooting was significant, the officer
improperly testified from the police report in front of him, saying,
“[I]t was a violent shooting, and there were – there was – let me
count. One, two, three, four – it looks like five firearms
recovered”].) Such “testimony … convey[s] hearsay.” (Ibid.)
Nonetheless, Hernandez has not demonstrated prejudice
from his counsel’s failure to object. As Hernandez recognizes, the
purpose of Crowe’s rebuttal testimony was to impeach Lopez’s
testimony during direct examination that Hernandez was never
alone with the children. But, before Crowe testified, the
prosecutor had already impeached Lopez on that same point.
25
During Lopez’s cross-examination, Lopez admitted that
Hernandez was alone with the children when a social worker
from DCFS came to the home in September 2015. Lopez stated,
“Yes, I wasn’t there.” Further, multiple other witnesses at trial
provided substantially the same testimony as Crowe: L.H., J.H.,
and J.P. all testified that Lopez was not home when sexual abuse
occurred. Therefore, Crowe’s rebuttal testimony, which was only
a minor part of the prosecution’s case, was cumulative and added
nothing that was not already established. Because of that, there
is not a reasonable probability that the result would have been
more favorable to Hernandez had Crowe not testified. (See
People v. Merriman (2014) 60 Cal.4th 1, 69 [any error in
admitting evidence did not prejudice defendant because the
evidence “which comprised but a minor part of the prosecution’s
case, was cumulative of … the properly admitted evidence at
trial”]; People v. Ledesma (2006) 39 Cal.4th 641, 708-709 [any
error in admitting testimony was harmless beyond a reasonable
doubt because “it was cumulative of other evidence”].)
D. Even Assuming the Court’s Comments During Voir Dire
Were Improper, They Were Harmless
Hernandez contends the trial court erred by telling the jury
during voir dire that the presumption of innocence “carries … up
until the point of deliberation.” He asserts the comment
improperly described the People’s burden of proof.
The court made the following statements to the jury about
the presumption of innocence and burden of proof:
As I said to you before, it’s the People that filed
charges against the defendant and the People have
the burden of proving this case to you beyond a
reasonable doubt. Now, I’m sure … you’ve heard of
26
the concept of proving something beyond a reasonable
doubt.
… Now, as you sit here today and you look over
at the defendant, and you walked in and you saw him
over there, and maybe after I identified him, some of
you might be thinking, “Well, I wonder what he did.”
The mind-set has to be, “I wonder what he’s accused
of doing.”
Because as he sits here before you right now,
he is presumed to be innocent. As he sits here right
now, he is presumed to be innocent. Now, that
presumption carries through this, up until the point
of deliberation.
What I mean by that is that I’m going to talk to
you a little bit about your background and
experiences; that presumption remains. You’re going
to hear … some of the law at the beginning; that
presumption remains. After the first, second, third,
fifth witness, that presumption remains. When I give
you the instructions at the end, and when counsel
make their closing remarks to you, that presumption
remains.
The only time you ask yourself, “Have the
People proven this to me beyond a reasonable doubt?”
is when you’re back in the jury room … and the case
has been presented to you. That’s when you start to
ask, “Have the People proven this case to me beyond
a reasonable doubt?”
Because, by law, you have to be able to compare
and consider all the evidence, and, obviously, you
won’t have all the evidence until after everything has
27
been presented. So we need you to keep an open
mind. We need you to listen to the evidence and not
make up your mind until you have the benefit of
going back there and deliberating or talking and
exchanging ideas with your fellow jurors and
evaluating the evidence.
Now, after evaluating the evidence and you
find, “You know what? I believe that the People have
proven this count beyond a reasonable doubt,” that
presumption goes away, and you come back with a
guilty. But in your evaluation, if you find, “You know
what? I’m just not convinced beyond a reasonable
doubt,” that presumption remains, and you must
come back with a not guilty.
Hernandez contends the court erred in telling the jury that
he was presumed innocent only “until the point of deliberation”
because “[t]he law unequivocally requires that the presumption
continue during deliberations.” Of course, “[a] defendant is
presumed innocent until proven guilty, and the government has
the burden to prove guilt, beyond a reasonable doubt, as to each
element of each charged offense.” (People v. Booker (2011)
51 Cal.4th 141, 185.) “ ‘ “The presumption of innocence, although
not articulated in the [federal] Constitution, is a basic component
of a fair trial under our system of criminal justice.” ... “[T]he
presumption of innocence continues not only during the taking of
the testimony, but during the deliberations of the jury and until
they reach a verdict.” ’ ” (People v. Jones (2024) 106 Cal.App.5th
1085, 1100.)
However, even assuming the court misstated the law on the
presumption of innocence, Hernandez has failed to establish
prejudicial error. A trial court’s erroneous comments during voir
28
dire are prejudicial only if it is “reasonably possible” that the
error affected the verdict. (People v. Seumanu (2015) 61 Cal.4th
1293, 1358.) “ ‘[A]s a general matter, it is unlikely that errors or
misconduct occurring during voir dire questioning will unduly
influence the jury’s verdict in the case. Any such errors or
misconduct “prior to the presentation of argument or evidence,
obviously reach the jury panel at a much less critical phase of the
proceedings....’ ” ” (Ibid., quoting People v. Medina (1995)
11 Cal.4th 694, 741.)
There is no reasonable likelihood the court’s comment
misled the jurors to believe the presumption of innocence ended
at the start of deliberations. Although the court’s comment that
the presumption continues “up until the point of deliberation”
was inartfully worded when considered in isolation, the court
later clarified that during deliberations, the “presumption
remains” if the jury “come[s] back with a not guilty” verdict, and
the presumption only “goes away” if the jury “come[s] back with a
guilty” verdict. These clarifications were correct in the law (see
People v. Jones, supra, 106 Cal.App.5th at p. 1100), and thus
dispelled any likelihood the jurors were misled.
Further, “ ‘[t]he trial court ... was not instructing the jury
at the time it made the comments in question. Indeed it was
conducting voir dire of prospective jurors. Its “comments ‘were
not intended to be, and were not, a substitute for full instructions
at the end of trial.’ ” ’ (People v. Seumanu, supra, 61 Cal.4th at
pp. 1357-1358.) “This is especially true” here because the trial
court, when informing the jury the presumption continued “up
until” deliberations, also told the jury that it would give the
jurors formal instructions at numerous points in the trial. (Id. at
p. 1358 [any error due to court’s comments during voir dire was
29
harmless because court informed jurors they would receive
formal jury instructions and later properly instructed the jury].)
The court later formally instructed the jury on the presumption
of innocence and the prosecution’s burden of proof twice: during
voir dire, with CALCRIM No. 103, and at the close of evidence,
with CALCRIM No. 220. We presume the jury followed those
instructions. (People v. Demolle (2026) 19 Cal.5th 1117, 1152.)
There is thus no reasonable probability that the court’s isolated
comment during voir dire affected the verdict.
E. There Was No Cumulative Error
Hernandez argues the cumulative effect of the errors
requires reversal. “Cumulative error is present when the
combined effect of the trial court’s errors is prejudicial or harmful
to the defendant.” (People v. Capers (2019) 7 Cal.5th 989, 1017.)
We have assumed error but found no prejudice, regarding the
trial court’s failure to instruct on the lesser included offense for
counts 1 and 2, defense counsel’s failure to object to Crowe’s
testimony, and the court’s comments during voir dire. We
conclude the cumulative effect of these assumed errors does not
warrant reversal.
DISPOSITION
The judgment is affirmed.
STONE, J.
We concur:
SEGAL, Acting P. J. FEUER, J.
30