People v. Xiong CA3, C093103

Sou Xiong pleaded no contest to assault by means likely to cause great bodily injury and was sentenced to the upper term of four years in prison.
The court imposed a $300 restitution fine, a $40 court operations assessment, and a $30 conviction assessment; defense counsel did not object or request an ability-to-pay hearing at sentencing.
People v. Dueñas (2019) had held that courts must consider a defendant’s ability to pay before imposing certain fines and fees; Xiong was sentenced on October 28, 2020 (after Dueñas).
Xiong moved postjudgment under Penal Code §1237.2 to stay the fines and fees pending an ability-to-pay hearing; the trial court denied the motion.
On appeal Xiong argued the fines must be stayed (Dueñas), that the restitution fine was unconstitutionally excessive, and that trial counsel’s failure to object amounted to ineffective assistance.
The Court of Appeal held Xiong forfeited his challenges by not objecting at sentencing and that counsel was not constitutionally ineffective; the judgment was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether fines/fees must be stayed pending an ability-to-pay hearing (Dueñas claim)	Forfeited because Xiong did not object at sentencing	Dueñas requires an ability-to-pay hearing before imposing fines/fees	Forfeited; normal preservation rules apply
Whether restitution fine is unconstitutionally excessive (Eighth Amendment/equal protection)	Forfeited by failure to object	Fine is excessive/unconstitutional	Forfeited; court did not reach the merits
Whether counsel was ineffective for not objecting under Dueñas	No prejudice because trial court later considered and denied §1237.2 motion	Counsel ineffective for failing to invoke Dueñas at sentencing	Counsel not ineffective: defendant cannot show prejudice

People v. Dueñas, 30 Cal.App.5th 1157 (requires an ability-to-pay inquiry before imposing certain fines and fees)
People v. Nelson, 51 Cal.4th 198 (failure to object forfeits claim that court erred in assessing fines without considering ability to pay)
People v. Gamache, 48 Cal.4th 347 (same forfeiture principle applied to fines)
People v. Trujillo, 60 Cal.4th 850 (constitutional nature of ability-to-pay claim does not excuse forfeiture)
People v. Scott, 9 Cal.4th 331 (to preserve sentencing issues for appeal, they must be raised in the trial court)
Strickland v. Washington, 466 U.S. 668 (two-prong standard for ineffective assistance of counsel)
People v. Ledesma, 43 Cal.3d 171 (California authority articulating prejudice requirement for ineffective assistance)