People v. Xiong CA3 ( 2021 )

Filed 10/27/21 P. v. Xiong 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C093103
Plaintiff and Respondent, (Super. Ct. No. 20CF02785)
v.
SOU XIONG,
Defendant and Appellant.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant Sou Xiong
appeals the imposition of fines and fees without an ability to pay hearing. Recognizing
trial counsel did not object to the imposition of these fines and fees, despite the fact that
sentencing occurred after the publication of Dueñas, defendant also contends the failure
to object was ineffective assistance of counsel. We conclude his counsel was not
constitutionally ineffective and affirm the judgment.
1
FACTUAL AND PROCEDURAL HISTORY
The facts underlying defendant’s conviction are not relevant to the appeal. It
suffices to say defendant pleaded no contest to assault by means of force likely to cause
great bodily injury. (Pen. Code, § 245, subd. (a)(4)).1 The trial court sentenced
defendant to the upper term of four years in prison. The court further imposed a $300
restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a
$30 conviction assessment (Gov. Code, § 70373). Defense counsel did not object and did
not request an ability to pay hearing. Defendant appealed.
Pursuant to section 1237.2, defendant moved for the trial court to stay the fines
and fees pending an ability to pay hearing. The trial court denied the request.
DISCUSSION
Defendant contends that his fines must be stayed pending a hearing on his ability
to pay. He further argues that the restitution fee was unconstitutionally excessive in
violation of the Eighth Amendment and equal protection principles. To the extent
defendant forfeited his challenge to the fines and fees by failing to raise the issue in the
trial court, defendant contends his counsel was constitutionally ineffective. We conclude
defendant forfeited his claims on appeal and defendant’s counsel was not constitutionally
ineffective for failing to raise the issue in the trial court.
It is a longstanding and well-recognized rule that a defendant must first object and
demonstrate his inability to pay amounts imposed at sentencing. (See, e.g., People v.
Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the court erroneously failed to
consider ability to pay a $10,000 restitution fine is forfeited by the failure to object];
People v. Gamache (2010) 48 Cal.4th 347, 409 [same].) This is true regardless of
whether a defendant’s ability to pay claims are constitutional in nature. (See People v.
1 Undesignated statutory references are to the Penal Code.
2
Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant’s claim
regarding her ability to pay did not justify a deviation from the forfeiture rule].)
Here, defendant was sentenced on October 28, 2020, close to two years after the
January 8, 2019, filing of Dueñas. (People v. Dueñas, supra, 30 Cal.App.5th 1157.)
Therefore, his failure to raise Dueñas at sentencing forfeits his Dueñas arguments by
operation of normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331,
351-354 [to preserve a sentencing issue for appellate review, the defendant must raise it
in the trial court].)
Nor has defendant established that his counsel was ineffective for failing to object.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694; People v. Ledesma
(1987) 43 Cal.3d 171, 216-218.) To show prejudice, defendant must show a reasonable
probability that he would have received a more favorable result had counsel’s
performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) Here, defendant cannot
show his counsel was ineffective because he cannot show prejudice.
In this case, the trial court had the opportunity to consider defendant’s Dueñas
claims under the section 1237.2 motion. The court denied the motion. As a result of this
consideration and denial, defendant cannot demonstrate that he was prejudiced by
counsel’s failure to object at the sentencing hearing.
3
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.
4