THE PEOPLE, Plaintiff and Respondent, v. SOU XIONG, Defendant and Appellant.
C093103
(Super. Ct. No. 20CF02785)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
Filed 10/27/21
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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. (
Pursuant to
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.
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
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.