People v. Xiong CA3

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.

Undesignated statutory references are to the Penal Code.

2 Trujillo…