Filed 9/26/13 P. v. Asencio CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v.
JOSE EDUARDO ASENCIO,
Defendant and Appellant. 2d Crim. No. B241296 (Super. Ct. No . LA069259) (Los Angeles County)

Jose Eduardo Asencio appeals the judg ment 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. Ap pellant contends (1) the court abused its discretion in finding appellant's minor daughter competent to te stify; and (2) trial counsel provided ineffective assistance by failing to present evidence or argument to support a defense of voluntary into xication. We affirm.
STATEMENT OF FACTS On October 25, 2011, a ppellant 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.2 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. Kare m got up and hid her cell phone in the bed to prevent appellant fro m breaking it, as he had in the past. Appellant smelled of alcohol and called Kare m a "cunt," a "slut," and a "whore," then forcefully "head-bu tt[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 be en 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 an d told Karem he was going to tie her up and tape her mouth. Appellant said he woul d make Karem watch him hang Marianna from the door frame before hanging Karem and himsel f. He repeatedly told her, "If you leave tomorrow, you'll die tomorrow." Karem was "scared" and believed a ppellant would carry
out the threat. Karem called 911 when ap pellant went to the bathroom. She gave the operator her address and said, "[h]e's gonna wa nt to kill me." Ka rem kept the line open and hid the phone under her to pr event 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 wa s 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 Eviden ce Code section 1109 regarding two prior acts of domestic violence. One night in Ja nuary 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 be gan choking her, then put the knife to her neck and said he was going to kill her. Du ring another incident in September 2011, appellant got drunk and "elbowed [Karem] re ally hard" in the arm. After seeing the bruise he caused, appellant said he was sorry and blamed the incident on his intoxication.3 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 s hown 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 appella nt 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 sme lled of alcohol. Karem told the officer appellant had discovered she was moving out and dating so meone else and "grabbed the hammer and told her . . . where he was going to hang her and her daughter, and th at then he was going to hang himself. Then he proceeded to te ll her that he had met a gentleman at a liquor store that was going to provid e 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 Testif y (Evid. Code, § 701, subd. (a)) Appellant contends the court abused its discretion in finding Marianna competent to testify under Evidence Code se ction 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 th e 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 he rself concerning the matter so as to be understood, either directly or through inte rpretation 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 part y bears the burden of establishing lack of competence, and the trial court's dete rmination of the issue will be upheld absent a clear abuse of discretion. ( People v. Avila (2006) 38 Cal.4th 491, 589.)4 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 trut h and respond, "I don't know" if asked a question to which she did not know the answer. She answ ered "yes" when asked if everything her mother, teacher, or the judge told her was the truth. At the conclusion of the hearing, a ppellant 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 Ma rianna went on to testify at tr ial that she had never told a lie. According to appellant, "[ i]f a witness is unable to comp rehend that another person is even capable of lying or that she herself ha s never lied, how can she be relied upon to possess sufficient intel ligence to recount her impressions ?" Appellant also offers Marianna's negative response to a question wh ether defense counsel would be lying if he said Marianna like pizza better than ice cream, even though she had pr eviously stated her preference for the latter. Fina lly, 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 th e determination whether she was capable of truthfully and accurately recounting her eyew itness observations. Her trial testimony was
not before the court when it made the thresh old finding of competence and appellant did not renew his objection. 3 Moreover, any inconsistencie s in Marianna's trial testimony

3 Subdivision (b) of Evidence Code secti on 701 provides that "[i]n any proceeding held outside the presence of a jury, the court may reserve cha llenges to the competency of a witness until the conclusion of the direct examination of that witness." Here, the court5 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 pres ent questions of credib ility for resolution by the trier of fact. [Citations.]" ( People v. Mincey (1992) 2 Cal.4t h 408, 444-445 ( Mincey ).) The record belies appellant's asserti on 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 criti cal need for the court to inquire of the child witness that they [ sic ] have some minimal understanding of . . . the possible negative consequences that possibl y 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.) A ppellant 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 determ ination that a person is competent to be a witness." ( Mincey, supra , 2 Cal.4th at p. 444, italics added.) Competency is sufficiently demonstrated wher e the trial court has "ascertained that [the potential witness] could distinguish betw een 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 instru ction 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 fa iling to present any evidence or argue in support of the defe nse. We conclude otherwise.

was not asked to reserve the challenge to Ma rianna's testimony, no r did appellant renew his challenge after direct examination had conc luded. 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.)6 "When challenging a conviction on gr ounds of ineffectiv e assistance, the defendant must demonstrate counsel's inadequa cy. To satisfy this burden, the defendant must first show counsel's perfo rmance 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 reas onable probability that, but for counsel's deficient performance, the outcome of the pr oceeding would have be en different. When examining an ineffective assi stance 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 assist ance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the re cord affirmatively di scloses counsel had no rational tactical purpose for the challenged ac t 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 ar e more appropriately re solved 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 th at counsel lacked a legitimate tactical reason for hi s lack of action. Counsel argued that appellant did not make any threat against Karem, while a th eory 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 pr esentation of conf licting defenses is often tactically unwise because it tends to weaken counsel's credib ility with th e jury"].) Counsel's purported failure to presen t a defense of involuntary intoxication was also objectively reasonable because there was scant evidence to su pport the defense. As the jury was instru cted, evidence of appellant's intoxi cation was relevant only for the limited purpose of determining whether he "act ed with the specific intent that his
statement be understood as a threat and inte nded that the threat be communicated to the alleged victim." (CALCRIM No. 3426.) Karem testified that appellant spoke to her in a7 "calm" voice when he th reatened to kill her, and those thre ats were detailed and coherent. The responding officer similarly testified that although appellant "appeared intoxicated,"
he was also "calm." Given the dearth of evid ence 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 es tablish a reasonable probability that he would
have achieved a more favorable result if c ounsel had presented a defense of voluntary intoxication. Appellant's claim of ineffectiv e assistance accordingl y 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.8 Martin Larry Herscovitz, Judge
Superior Court County of Los Angeles

________________ ______________

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