People v. Sermeno CA3

DISCUSSION

Defendant claims the assessments, restitution fine, and parole revocation fine imposed by the trial court without first holding an ability to pay hearing violated his rights to due process, equal protection, and the Eighth Amendment prohibition against excessive fines. Defendant has forfeited these claims by failing to raise them in the trial court. In general, a defendant who fails to request an ability to pay hearing based on Dueñas forfeits the issue on appeal. (See, e.g., People v. Greeley (2021) 70 Cal.App.5th 609, 624 [failure to request ability-to-pay hearing during sentencing forfeited Dueñas issue].) The same principle applies to defendant’s constitutional claims. (See, e.g., People v. McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional challenge to booking fee forfeited]; People v. Torres (2019) 39 Cal.App.5th 849, 860, & fn. 4 [excessive fines claim forfeited in absence of timely objection].) “ ‘ “[N]o procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having…