P. v. Hernandez CA2/7 filed 8/19/26

Filed 8/19/26 P. v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO PEREZ HERNANDEZ,

Defendant and Appellant.

B339282

(Los Angeles County
Super. Ct. No. BA514373)

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.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))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 rapeto the offense of sexual intercourse or sodomy with a child under age 11 because there was substantial evidencethe victim could have been 11 when the offenses occurred; (3)defense counsel provided ineffective assistance of counsel; (4)the trial court made improper comments duringjury voir dire; and (5)the cumulative effect of these errors was prejudicial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
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.
Hernandez and Lopez began living together in 2000, when Eddie was around 16 years old and J.H. was aroundthree 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 withHernandez and his family at various times.
Between 2001 and 2021, Hernandez sexually abused A.H., L.H., J.H., andJ.P., each on separate occasions.All four of the victims testified at trial.
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 16years old,shemoved into Lopez and Hernandez’sapartment.Weeks after A.H. moved in, Hernandez began touchingher breasts and buttocks when Lopez wasnot 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 bedroomshe shared with other women and childrenwhen Hernandez got on top of her, covered her mouth, and raped her. A.H. couldnot 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 rape, A.H. moved out of the apartment. In July 2023, A.H. reported the incident topolice.
Sexual abuse of L.H.
L.H., born inNovember 1998, is Hernandez’s niece through his marriage to Lopez.The charges against Hernandez with respect to L.H. weretwo 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 intoHernandez 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 washome.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.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 multiple occasions. He alsoforced her to touch his penis with her hand. These actsoccurred 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 June1, 2010, L.H. was 11 years six months old.
Mercedes testified that when she and L.H. lived with Hernandez,Mercedesnever 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 shehad ever had sex before.L.H. saidshe had been raped by a maternal uncle several times when she was about seven years old.The doctorthen 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. The notch suggested there was a “penetrating injury” to the hymen that had healed. Wilson testified there was a greater likelihoodof finding such a healed injury in a child who was abusedbefore she got her period, versusafter she got her period, because “the hymenal tissue changesdramatically from pre-puberty to post-puberty” and becomes much less taut and sensitive and thus less susceptible to such an injury.
Sexual abuse of J.H.
With respect to J.H. (Hernandez’s step-daughter), Hernandez was charged withfive 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 herhand and put it on his penis. Healso forced her to perform oral sex on him. Both of those acts happenedmore 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 on J.H.’s vagina andtried to have anal sex with her more than one time.
In 2015, a social workerfrom 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 workereverything “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 12years 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 shesaw 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, shesaw Hernandez touch J.H. on “[h]er vagina and her chest” over her clothing more than 20times when Lopez was not at home. Another time, J.P. sawHernandez 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.
Oscar testified hesawHernandez 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 therestroom 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 tellHernandez to stop. During those occasions, Lopez was home cooking in the kitchenbut 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.”
Sexual abuse of J.P.
With respect to J.P. (Hernandez’s biological daughter), Hernandez was charged withone 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 handsmoved upward underneath her shirt. Before Hernandez’s hands reached her breasts, Adan pushed Hernandez off her and yelled, “ ‘Don’t touch her.’”
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 periodthat 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.
Lopez testified that when A.H. lived with Lopez and Hernandez, Lopez and A.H. slept in the same room. Lopez slept closeto the door in such a way that “[n]obody could open it.” Lopez was “in charge” of taking care of L.H. and neverleft 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,shestayed 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 abuseA.H., L.H., J.H., or J.P.
Hernandez testified he neversexually abusedA.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 heronce 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.
Rebuttal Evidence
Eboni Crowe, a former investigator with DCFS, testified that in September 2015she 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.
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 imposedthe following consecutive sentences:50 years to life (25 years to life, doubled under the Three Strikes law) oneach ofcounts 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
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 (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) 237Cal.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) 136Cal.App.4th 253, 258 (Hiscox).)
Section 288.7 went into effect on September20, 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 September20, 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, 136Cal.App.4th at p. 260[“A prosecutor who relies on generic testimony to support a child molestation charge 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.”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 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 11counts 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 November30, 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 November30, 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 November30, 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 September20, 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.
Any Error in FailingTo 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.”
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 evidencethat L.H. was 11 years old when the sexual intercourse occurred, and (3)the alleged error in failing to instruct was prejudicial.
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 substantial enough to merit consideration by the jury.’”(People v. Nieves (2021) 11Cal.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) 12Cal.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) 11Cal.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) 19Cal.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 reviewde novo whether the trial court improperly failed to instruct on a lesser included offense. (People v. Wilson (2021) 11Cal.5th 259, 295.)
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) 46Cal.2d 818, 836-837. (People v. Rogers (2006) 39Cal.4th 826, 867-868.) “Reversal is required only if it is 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) 13Cal.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 thatwhenL.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 sodomy with a child who is 10 years of age or younger under section288.7, 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” andL.H. “moved out of the apartment a few months after her 11th birthday” and thusthe 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.
With respect to counts 1 and 2, the closing arguments thus directedjurors to focus only onthetwo 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 jurycoulddo, but what such a jury islikelyto 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) 205Cal.App.4th 810, 833 [failure to give instruction was harmless error considering “the nature of the argument presented”].)
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.
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 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.)
Failure to object to A.H.’s testimony
During A.H.’s direct examination, the following exchange occurred:
Q: Back around the time you werestill living at the apartment, did you try to share with [Lopez] alittle bit about what was happening between you and thedefendant?
A: Yes.
Q: And what was her response—not theconversation you had,but her response to you telling her something was happeningwith the defendant?
A: It’s just that she said to me that—that that’s enough, that Ishouldn’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 anout-of-court declarant and “offered to prove the truth of the matter stated.” (Evid. Code, §1200, subd. (a).) Unless the statement falls within a hearsay exception, hearsay evidence is inadmissible. (Id., subd. (b).)
Hernandez argues thatLopez’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 statementwas 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.
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 thiscase?
A: Yes.
Q: And in doing that, did I provide you with some notes relatedto this case?
A: Yes.
Q: And did you review those notes?
A: I did.
Q: Now, do you have an independent recollection or memory ofyour 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 withD.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.
Q: Now, when you … arrived at that location -- and, specifically, wasthat 1111 South Norton Avenue in the County of LosAngeles?
A: Possibly. If that’s where the family was indicated to havelived, 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 werehome?
A: It says here it was [J.H.], Adan, Oscar, and [J.P.]
Q: Did the … father … indicate where his wife was when youcame to visit?
A: Yes. According to my notes, she wasn’t in the home at thetime; she was at a night class, taking an English class.
Q: Now, through this investigation, you went to the home. Didyou speak to each child?
A: Yes, I did.
Q: And did any of the children indicate that they were beingsexually abused at the time?
A: They did not.
Q: Did any of the children indicate that there was physical abusegoing 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) 11Cal.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) 14Cal.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) 9Cal.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) 4Cal.3d 955, 960-961.)
We agree with HernandezthatCrowe 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, 14Cal.App.5th at p1036; People v. Parks, supra, 4Cal.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) 47Cal.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. 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 andadded 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) 60Cal.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) 39Cal.4th 641, 708-709 [any error in admitting testimony was harmless beyond a reasonable doubt because “it was cumulative of other evidence”].)
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 the concept of proving something beyond a reasonable doubt.

… Now, as you sit here today and you look over at thedefendant, 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 whenyou’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 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) 51Cal.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) 106Cal.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 dire are prejudicial only if it is “reasonably possible” that the error affected the verdict. (People v. Seumanu(2015) 61Cal.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) 11Cal.4th 694, 741.)
There is no reasonable likelihood the court’s comment misled the jurors tobelieve 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 clarifiedthat 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,106Cal.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, 61Cal.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 harmless because court informed jurors they would receive formal jury instructions and later properly instructed the jury].) The courtlater 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) 19Cal.5th 1117, 1152.)There is thus no reasonable probability that the court’s isolated comment during voir dire affected the verdict.
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) 7Cal.5th 989, 1017.) We haveassumed 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 judgmentis affirmed.

STONE, J.
We concur:

SEGAL, Acting P. J.FEUER, J.