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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

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THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN HINES,

Defendant and Appellant.

C098199

(Super. Ct. No. 21FE000998)

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 

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 Undesignated statutory references are to the Penal Code. 
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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 
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in trouble if she told her mother. She also said she had been feeling the “burning and 

pain” for two or three months.

A medical doctor who specialized in sexual assault examinations explained to the 

jury that Doe’s genital area showed multiple ulcers. Laboratory tests revealed that Doe 

had an infection typically transmitted through sexual contact. Hines also tested positive 

for the same STI.

II

Procedural Background

A. Jury Instructions 

Before the parties made their closing arguments, the trial court instructed the jury

that Hines was presumed to be innocent; this presumption required the prosecution to 

prove him guilty beyond a reasonable doubt; proof beyond a reasonable doubt is proof 

that leaves one with an abiding conviction that the charge is true; and, unless the evidence 

proved Hines guilty beyond a reasonable doubt, he was entitled to an acquittal. The trial 

court further instructed the jury to follow its explanation of the law, even if they 

disagreed with it, and if the attorneys’ “comments on the law” conflict with the trial 

court’s instructions, the jury must follow the trial court’s instructions. The trial court said 

it would give a copy of its instructions to the jury to use in the jury room.

B. Closing Arguments

1. Prosecutor’s Closing Argument

“[B]elieve [Doe],” the prosecutor told the jury in closing argument. “[T]hat little 

girl . . . had the confidence to come forward with what this man was doing to her, stick 

with the case for two and a half years, and then come in here and talk to a room full of 

strangers about what he did, sitting ten feet away from him after not having seen him that 

whole time.” The prosecutor acknowledged it was “absolutely [her] burden in th[e] case, 

beyond a reasonable doubt.” The prosecutor argued she met that burden in light of “the 

mountain of corroboration” of Doe’s allegations, including (1) Doe’s “emotional 
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disclosure” to a doctor, (2) the “scientific corroboration” that Hines and Doe had the 

same STI, the “innocent transfer” of which, while possible, was unlikely, and (3) Doe had 

no reason to lie.

The prosecutor told the jury she expected the defense would argue Doe was lying, 

“because for you to find the defendant not guilty, you have to find that she is lying, that 

she is making it up. And I anticipate, based on the questions they asked her, they’re 

going to say that [Doe] saw the arguments between Mr. Hines and her mother and was 

mad at him for those arguments. Or that she wanted her mom all to herself, so she made 

it up because she was jealous. [¶] You might be sitting there thinking, ‘I already don’t 

believe that,’ but I have to address it because this is their whole argument. They have to 

convince you she made it up.” (Italics added.)

Later, the prosecutor asked the jury to “assume for a second” that Doe “made it all 

up because she doesn’t like” Hines. “Let’s examine what that actually looks like. So this 

little girl . . . is such a mastermind to come up with this idea to oust her potential stepdad,

she either willingly or coordinates contracting [an STI]. She waits until she has a very

painful outbreak to go to the doctor. Then she is the world’s greatest actress and sobs to 

the doctor, telling these lies about him. And then, by the most insane coincidence, he 

tests positive for the exact same virus. [¶] That is the very perfect example of an

unreasonable doubt. That explanation is unreasonable. It’s not based in reason, in logic, 

or common sense. What is reasonable is that [Doe] is telling the truth and you should 

believe her.” (Italics added.) Defense counsel did not object to any of the statements 

above.

2. Defendant’s Closing Argument

Near the beginning of his argument to the jury, defense counsel emphasized he

had no obligation to provide answers. “The burden of proof always rests with the 

prosecution to prove each and every element of the crime beyond a reasonable doubt.” 

Despite the absence of such an obligation, defense counsel told the jury he would indeed 
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provide an “answer”: Doe “flat-out did not tell you the truth.” “Why would [Doe] 

fabricate allegations of sexual abuse against . . . Hines?” counsel asked rhetorically. 

Because her mother and Hines often argued in her presence and that “made her angry and 

made her wish that . . . Hines was no longer around.” Also, Doe “may have resented . . . 

Hines for taking up so much of her mother’s time,” reducing the amount of time she 

spent with her mother. Counsel commented that because the STI can be transmitted 

innocently it was possible Doe contracted it from her mother, who had previously been 

diagnosed with the same infection.

Toward the end of his remarks, defense counsel again emphasized the burden of 

proof: “[Y]ou should be asking yourself, am I convinced beyond a reasonable doubt that 

the defendant committed the crimes with which he’s been charged? Or is there that little 

nagging doubt, that little voice inside of you that says, you know, I’m just not convinced 

beyond a reasonable doubt? Something doesn’t add up.” “[T]he prosecutor has that 

heavy, heavy burden of proving the charges beyond a reasonable doubt. That means each 

and every element of the charges.”

C. Verdicts, Sentence, and Restitution Order

After the jury found Hines guilty of seven counts of forcible lewd acts on a child 

under age 14 (§ 288, subd. (b)(1)) and one count of sexual penetration of a child under 

age 11 (§ 288.7, subd. (b)), the trial court imposed a determinate sentence of 125 years 

and an indeterminate sentence of 30 years to life.

The trial court also ordered Hines to pay $1,950.59 in restitution to the Board for 

victim “relocation” costs. It did so after the courtroom clerk observed the presentencing 

report indicated probation officers “asked for certain receipts and did not receive them as 

of yet.” Hines appealed.
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DISCUSSION

I

Counsel’s Tactical Reasons for Not Objecting to the Prosecutor’s Misstatements

Hines contends the prosecutor committed misconduct by misstating the burden of 

proof in closing argument. Recognizing that such a claim is forfeited if not first raised by 

a timely objection in the trial court (People v. Samayoa (1997) 15 Cal.4th 795, 841),

Hines contends his trial counsel was ineffective in failing to object to the remarks. We 

agree with the People that the claim is forfeited on appeal because trial counsel did not 

object and may have had tactical reasons for not objecting.

To demonstrate ineffective assistance of counsel, a defendant must show both that 

(1) counsel’s performance was deficient because the representation fell below an 

objective standard of reasonableness under prevailing professional norms and (2) 

prejudice resulted from the deficient performance. Prejudice is shown when there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. In examining a claim of ineffective assistance of 

counsel, reviewing courts should not second-guess reasonable, if difficult, tactical 

decisions. Rather, there is a strong presumption that counsel’s conduct fell within the 

wide range of reasonable professional representation. If counsel’s reasons for the 

challenged decisions do not appear on the record in a direct appeal, reviewing courts will

not find ineffective assistance of counsel unless there could be no conceivable reason for 

counsel’s acts or omissions. (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

Competent counsel may forgo even a valid objection for tactical reasons. (People 

v. Campbell (2020) 51 Cal.App.5th 463, 506.) “ ‘[I]n the heat of a trial,’ ” counsel is in 

the best position to determine proper tactics “ ‘in the light of the jury’s apparent reaction 

to the proceedings,’ ” and the decision whether to object “ ‘is inherently a matter of trial 

tactics not ordinarily reviewable on appeal.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 

1197-1198.) 
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Here, we agree that at least some of the prosecutor’s remarks italicized above were 

misstatements of law to which competent counsel might have objected. But trial counsel 

may have had tactical reasons for not objecting. He knew the trial court (1) correctly 

instructed the jury on the presumption of innocence and the prosecution’s burden to 

prove Hines’s guilt beyond a reasonable doubt, (2) instructed the jury to disregard the 

attorneys’ comments on the law if they conflicted with its instructions, and (3) said it was 

going to give a copy of its instructions to the jury to use during deliberations. He also 

knew that he would argue to the jury that he had no obligation to provide any answers 

and that the prosecution had a “heavy, heavy burden of proving the charges beyond a 

reasonable doubt.” This knowledge may have led counsel to conclude that the 

prosecutor’s remarks would not mislead the jury and that objecting to them would appear

overly combative. (See People v. Campbell, supra, 51 Cal.App.5th at p. 506; cf. People 

v. Dalton (2019) 7 Cal.5th 166, 259-261 [no reasonable probability that the prosecutor’s 

misstatements to the jury in closing argument regarding the burden of proof confused or 

misled the jury because, inter alia, defense counsel emphasized the trial court’s correct 

instructions on reasonable doubt, the trial court instructed the jury to follow its 

instructions if the attorneys said anything in their arguments that conflicted with its

instructions, and the trial court gave its written instructions to the jury to consult during 

deliberations].)

Accordingly, Hines’s claim of prosecutorial error is forfeited on appeal and his 

claim of ineffective assistance of counsel is unpersuasive.

II

Restitution Order

Section 1202.4, subdivision (f)(4) provides that if a criminal defendant’s conduct 

leads to the provision of assistance to a victim, the amount of assistance provided shall be 

presumed to be a direct result of the defendant’s criminal conduct, shall be included in 

the amount of the restitution ordered, and “shall be established by” certified copies of 
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bills submitted to the Board “together with a statement made under penalty of perjury by 

the custodian of records that those bills were submitted to and were paid by the [B]oard.” 

(§ 1202.4, subd. (f)(4)(A), (B).)

The parties agree that the trial court’s restitution order payable to the Board must 

be reversed because the proof for it was not produced in accord with section 1202.4, 

subdivision (f)(4). Specifically, the People concede the restitution order “was not 

supported with certified copies of bills in compliance with section 1202.4, subdivision 

(f)(4)(B).” We agree. The record indicates that the trial court did not have before it 

certified copies of bills submitted to and paid by the Board. Accordingly, the restitution 

order was unauthorized. (See People v. Franks (2019) 35 Cal.App.5th 883, 893 [striking 

the trial court’s order of payment to the Board in part because of insufficient 

documentation in light of § 1202.4, subd. (f)(4)(B)].)

DISPOSITION

The restitution order of $1,950.59 is reversed, and the matter is remanded to the 

trial court to conduct a new restitution hearing, after which it shall prepare an amended 

abstract of judgment and forward a certified copy to the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed.

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

MAURO, Acting P. J.

 /s/

MESIWALA, J.