The People v. Asencio CA2/6

Filed 9/26/13 P. v. Asencio CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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