People v. Hines CA3

Filed 2/21/24 P. v. Hines CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C098199

Plaintiff and Respondent, (Super. Ct. No. 21FE000998)

v.

KEVIN HINES,

Defendant and Appellant.

After a jury found defendant Kevin Hines guilty of committing forcible lewd acts on a child under age 14 (Pen. Code, § 288, subd. (b)(1))1 and sexual penetration of a child under age 11 (§ 288.7, subd. (b)), the trial court sentenced him to prison and ordered him to pay $1,950.59 in restitution to the California Victim Compensation Board (the Board). On appeal, Hines argues (1) the prosecutor committed misconduct by

1 Undesignated statutory references are to the Penal Code.

1

misstating the burden of proof in closing argument to the jury and his trial counsel was ineffective in failing to object to the prosecutor’s remarks, and (2) the restitution order must be reversed due to inadequate proof. We agree with the People that the first claim is unpersuasive because trial counsel may have had tactical reasons for not objecting and the second claim has merit. Accordingly, we will reverse the restitution order and remand the matter for a new restitution hearing. We affirm the judgment in all other respects. BACKGROUND The underlying facts of Hines’s crimes are largely irrelevant to our resolution of this appeal. We provide a brief summary for context. I Factual Background Doe testified at trial that she was born in 2011 and first met Hines when she was about seven years old. Hines lived with Doe and her mother until 2020 when Doe revealed during a medical appointment that Hines had been sexually abusing her. Doe’s mother made the medical appointment after Doe told her it was painful to urinate. After a test indicated no urinary tract infection, a doctor examined Doe’s vaginal area in Doe’s mother’s presence and observed discharge and multiple ulcers, leading the doctor to suspect Doe had a sexually transmitted infection (STI). The doctor asked Doe’s mother if anyone else lived in the home or looked after Doe. Doe’s mother replied that Hines did. The doctor asked Doe “if anyone had touched her or hurt her in any way, and . . . told her . . . she would not get into any trouble if she told . . . the truth.” Doe started crying and said, “Mommy, he touched me.” It was clear to the doctor that Doe was referring to her mother’s boyfriend. Sobbing, Doe said her mother’s boyfriend had put his fingers and his penis inside her genitalia multiple times and indicated she was scared to talk about it because the boyfriend told her she would get