(Super. Ct. No. CM030027)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 course of a number of arguments between defendant Henry Kh Tieu and his wife Jenny, defendant made numerous violent threats to Jenny and her family members. As a result, he was convicted of multiple counts of making criminal threats and personally using a firearm in committing those offenses. He appeals one of the criminal threat convictions and the attendant firearm-use enhancement, contending neither is supported by substantial evidence. He also appeals the amount of the restitution fund fine, arguing counsel was ineffective for failing to argue he lacked the ability to pay that fine. We find substantial evidence supports the convictions and the firearm-use enhancement. We further find there was no prejudice in counsel's failure to raise the issue of defendant's ability to pay the restitution fund fine and therefore counsel was not ineffective. Accordingly, we affirm the judgment.
Jenny, her sister Wendy, and her father Xitiang Wu (Wu) owned and operated two restaurants in Chico, Yummy Yummy's and Windy's Chinese. In August 2006 Jenny and her husband, defendant, were arguing at one of the restaurants.*fn1 Defendant claimed he had overheard a conversation between Wendy and Wu suggesting that Wu owed over $10,000 in taxes and the sisters had been using money from the restaurant to help their father. Defendant confronted Jenny about the missing money. During the argument, defendant chased Jenny outside the restaurant and told her he wanted to "beat [her] up." When he failed to catch her, he warned her that if she did not come back and "face the issue of him," he would hurt her father, Wu. Jenny returned to the restaurant and walked up to defendant. He grabbed her hair and placed a gun to her forehead. Jenny was scared and frightened and afraid defendant might kill her.
Wu came out of the kitchen, saw defendant holding the gun on Jenny, and asked, "What are you doing?" Defendant told Wu to "shut up, you don't have the right to talk," slapped him across the face, and pointed the gun at Wu's head. When he pointed the gun at Wu's head and said, "Don't move . . . [i]f you move, I just kill you dead," Wu was very frightened and shaken. Eventually, defendant left the restaurant. Wu stopped working at the restaurant and did not return until 2008.
Over the course of the next year, defendant, Jenny, and Wendy continued to work at the restaurants. Eventually, Yummy Yummy's was closed.
By November 2008 Wu returned to work with Wendy and Jenny at Windy's Chinese. Jenny and her family wanted to discuss the restaurant's finances and debt level with defendant, but the discussion devolved into an argument. Defendant believed he was one of the restaurant owners and yelled at Wu that Wu had no right to interfere; the matter was between Jenny and himself. Wu responded that he owned the restaurant and his daughters managed it. Jenny's mother and Wendy joined the discussion, and defendant threatened to kill them if they did not leave. The family left and Jenny followed. Defendant followed Jenny.
Jenny and defendant continued to argue. Wendy called 911. While Wendy was on the telephone, defendant told Jenny they were making it hard for him and they would have to pay for this. He also threatened that if Wendy did not get off the phone, they were going to reach the point of no return. Jenny begged Wendy not to call the police because defendant would hurt them. Before police arrived, defendant threatened to kill the entire family. He repeated that threat upon being arrested. He told them they would pay when he was out of custody, again threatening to kill the whole family.
Based on the November 2008 argument, defendant was charged with dissuading a witness (Pen. Code, § 136.1, subd. (c)(1) -- count one),*fn2 making criminal threats to Wu (§ 422 -- count two), possession of an assault weapon (§ 12280, subd. (b) -- count three), and misdemeanor possession of a firearm with identification numbers removed (§ 12094 -- count four). As a result of the August 2006 argument, defendant was charged with making criminal threats to both Jenny and Wu. (§ 422 -- counts five and six, respectively.) It was also alleged as to counts ...