Filed 9/26/13 P. v. Asencio CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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 COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B241296
                                                                           (Super. Ct. No. LA069259)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

JOSE EDUARDO ASENCIO,

     Defendant and Appellant.




                   Jose Eduardo Asencio appeals the judgment entered after a jury convicted
him of making a criminal threat (Pen. Code,1 § 422). The trial court sentenced him to
one year four months in state prison. Appellant contends (1) the court abused its
discretion in finding appellant's minor daughter competent to testify; and (2) trial counsel
provided ineffective assistance by failing to present evidence or argument to support a
defense of voluntary intoxication. We affirm.
                                           STATEMENT OF FACTS
                   On October 25, 2011, appellant and Karem F. were living in an apartment
with their five-year-old daughter Marianna. Appellant saw Karem packing some of her



         1 All further undesignated statutory references are to the Penal Code.
belongings and asked if she was moving in with another man. After Karem answered in
the negative, appellant grabbed her and pushed her onto the bed.
                  Appellant left the apartment later that evening. At about 2:00 a.m., Karem
was awakened by appellant pulling "really hard" on her leg. Karem got up and hid her
cell phone in the bed to prevent appellant from breaking it, as he had in the past.
Appellant smelled of alcohol and called Karem a "cunt," a "slut," and a "whore," then
forcefully "head-butt[ed]" her in the face. Marianna, who had been asleep in the bed next
to Karem's, woke up and began crying.
                  Appellant told Karem he had just been talking to a "homie" who was going
to give appellant a gun the following day. Appellant repeatedly told Karem she would
die if she ever left him. He got a hammer and told Karem he was going to tie her up and
tape her mouth. Appellant said he would make Karem watch him hang Marianna from
the door frame before hanging Karem and himself. He repeatedly told her, "If you leave
tomorrow, you'll die tomorrow." Karem was "scared" and believed appellant would carry
out the threat.
                  Karem called 911 when appellant went to the bathroom. She gave the
operator her address and said, "[h]e's gonna want to kill me." Karem kept the line open
and hid the phone under her to prevent appellant from seeing it.
                  Appellant returned from the bathroom and reiterated in a "very calm" voice
that he would kill Karem if she left him. The police arrived shortly thereafter and
arrested appellant.2
                  Marianna testified that "[m]y dad was slapping my mom, and he said he
was going to get a hammer and a gun; and he left the hammer on the T.V., and he was
going to get a gun." Marianna heard appellant say "that he was going to hang me in the


        2 Karem also testified pursuant to Evidence Code section 1109 regarding two prior
acts of domestic violence. One night in January 2010, appellant cut off the vacuum's
electrical cord with a knife and told Karem he was going to "hang" and "stab" her.
Appellant threw Karem to the ground and began choking her, then put the knife to her
neck and said he was going to kill her. During another incident in September 2011,
appellant got drunk and "elbowed [Karem] really hard" in the arm. After seeing the
bruise he caused, appellant said he was sorry and blamed the incident on his intoxication.
                                                2
door; and then he was going to tie my mom down, and he was going to put tape on my
mom's mouth, and he was going to hang her in the bathroom door; and he was going to
hang his [sic] self." Marianna drew pictures of the incident that were shown to the jury.
              One of the officers who responded to the incident was called by the defense
to testify. The officer did not recall Karem stating that appellant had head-butted her. On
cross-examination, the officer testified that Karem was "hysterical," "crying," and
"freaked out" and repeatedly stated, "He's going to kill me." Appellant's eyes were
bloodshot and his breath smelled of alcohol. Karem told the officer appellant had
discovered she was moving out and dating someone else and "grabbed the hammer and
told her . . . where he was going to hang her and her daughter, and that then he was going
to hang himself. Then he proceeded to tell her that he had met a gentleman at a liquor
store that was going to provide him with a gun, and that when he obtained that gun, he
was going to come back and shoot her."
                                         DISCUSSION
                                              I.
             Marianna's Competency to Testify (Evid. Code, § 701, subd. (a))
              Appellant contends the court abused its discretion in finding Marianna
competent to testify under Evidence Code section 701. He claims that Marianna's
responses during voir dire indicated she "was unable to distinguish a truth from a lie."
He also asserts the court failed to conduct the requisite inquiry as to whether Marianna
understood her duty to tell the truth.
              In general, every person, regardless of his or her age, is competent to
testify. (Evid. Code, § 700.) A person is disqualified to testify only if he or she
is "[i]ncapable of expressing himself or herself concerning the matter so as to be
understood, either directly or through interpretation by one who can understand him"
(Evid. Code, § 701, subd. (a)(1)) or "[i]ncapable of understanding the duty of a witness to
tell the truth" (id. at subd. (a)(2)). The objecting party bears the burden of establishing
lack of competence, and the trial court's determination of the issue will be upheld absent
a clear abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 589.)

                                              3
              During voir dire, Marianna testified it is "good" to tell the truth and "bad"
to lie. She also recognized it would be "[a] lie" to say that the prosecutor's red pen was
black. Marianna promised to tell the truth and respond, "I don't know" if asked a
question to which she did not know the answer. She answered "yes" when asked if
everything her mother, teacher, or the judge told her was the truth.
              At the conclusion of the hearing, appellant argued that Marianna was not
competent to testify because she was unable to distinguish between "what she's heard and
what she's been told." The court disagreed and found Marianna was not disqualified
under Evidence Code section 701 "in that she is capable of understanding the duty to tell
the truth as any witness."
              Appellant contends the court abused its discretion in light of Marianna's
statements that she would believe anything said by her mother, her teacher, or the judge.
Appellant also points out that Marianna went on to testify at trial that she had never told a
lie. According to appellant, "[i]f a witness is unable to comprehend that another person is
even capable of lying or that she herself has never lied, how can she be relied upon to
possess sufficient intelligence to recount her impressions?" Appellant also offers
Marianna's negative response to a question whether defense counsel would be lying if he
said Marianna like pizza better than ice cream, even though she had previously stated her
preference for the latter. Finally, he identifies inconsistencies in Marianna's trial
testimony regarding the date of her birth.
              None of the highlighted statements renders the court's competency finding
an abuse of discretion. Marianna's statement that she trusts what her mother, her teacher,
or the judge told her has no bearing on the determination whether she was capable of
truthfully and accurately recounting her eyewitness observations. Her trial testimony was
not before the court when it made the threshold finding of competence and appellant did
not renew his objection.3 Moreover, any inconsistencies in Marianna's trial testimony


       3 Subdivision (b) of Evidence Code section 701 provides that "[i]n any proceeding
held outside the presence of a jury, the court may reserve challenges to the competency of
a witness until the conclusion of the direct examination of that witness." Here, the court
                                              4
were merely relevant to assess her credibility, not her competency. "Inconsistencies in
testimony and a failure to remember aspects of the subject of the testimony . . . do not
disqualify a witness. [Citation.] They present questions of credibility for resolution by
the trier of fact. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 444-445
(Mincey).)
              The record belies appellant's assertion that the court failed to establish
Marianna understood her moral obligation to tell the truth. In arguing to the contrary, he
discusses several older cases that he purports "demonstrate the critical need for the court
to inquire of the child witness that they [sic] have some minimal understanding of . . . the
possible negative consequences that possibly result from telling a lie." (See, e.g., People
v. Carpenter (1935) 3 Cal.App.2d 746, 748; People v. Delaney (1921) 52 Cal.App. 765,
770; People v. Thourwald (1920) 46 Cal.App. 261.) Appellant overlooks our Supreme
Court's more recent holding that "an actual direct threat of punishment for not telling the
truth is not a prerequisite for a trial court's determination that a person is competent to be
a witness." (Mincey, supra, 2 Cal.4th at p. 444, italics added.) Competency is
sufficiently demonstrated where the trial court has "ascertained that [the potential
witness] could distinguish between truth and falsity, and that she understood she had to
tell the truth." (Id. at p. 444.) Here, the court emphasized the importance of telling the
truth and elicited Marianna's promise that she would do so. Nothing more was required.
                                              II.
                              Ineffective Assistance of Counsel
              The court gave a sua sponte instruction on the defense of voluntary
intoxication (CALCRIM No. 3426) based on evidence that appellant was under the
influence of alcohol when the charged incident took place. Appellant claims his trial
counsel provided constitutionally ineffective assistance by failing to present any evidence
or argue in support of the defense. We conclude otherwise.

was not asked to reserve the challenge to Marianna's testimony, nor did appellant renew
his challenge after direct examination had concluded. Appellant thus forfeited his right to
claim that Marianna's trial testimony renders the court's ruling an abuse of discretion. (In
re Katrina L. (1988) 200 Cal.App.3d 1288, 1298.)
                                              5
              "When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant
must first show counsel's performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel's
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel's
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986 [pp. 37-38].)
              The record does not provide counsel's reasons for declining to present a
defense of voluntary intoxication. Nor does the record disclose that counsel lacked a
legitimate tactical reason for his lack of action. Counsel argued that appellant did not
make any threat against Karem, while a theory of voluntary intoxication would have
required counsel to concede that the threat was in fact made. Counsel thus may have
made a legitimate tactical decision to refrain from raising inconsistent defenses. (See
People v. Jones (1991) 53 Cal.3d 1115, 1138 ["The presentation of conflicting defenses
is often tactically unwise because it tends to weaken counsel's credibility with the jury"].)
              Counsel's purported failure to present a defense of involuntary intoxication
was also objectively reasonable because there was scant evidence to support the defense.
As the jury was instructed, evidence of appellant's intoxication was relevant only for the
limited purpose of determining whether he "acted with the specific intent that his
statement be understood as a threat and intended that the threat be communicated to the
alleged victim." (CALCRIM No. 3426.) Karem testified that appellant spoke to her in a

                                              6
"calm" voice when he threatened to kill her, and those threats were detailed and coherent.
The responding officer similarly testified that although appellant "appeared intoxicated,"
he was also "calm." Given the dearth of evidence to support a finding that appellant was
intoxicated to the point he was unable to form the specific intent to make a criminal threat
against Karem, appellant is also unable to establish a reasonable probability that he would
have achieved a more favorable result if counsel had presented a defense of voluntary
intoxication. Appellant's claim of ineffective assistance accordingly fails for lack of
prejudice. (People v. Mai, supra, 57 Cal.4th 986 [pp. 37-38].)
                                      DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                          PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.




                                             7
                            Martin Larry Herscovitz, Judge

                        Superior Court County of Los Angeles

                         ______________________________


             Dawn M. Dunbar for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee,
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.




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