Opinion
B294144
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. MISUN YOO, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA459696) APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Misun Yoo of second-degree murder (Pen. Code, § 187, subd. (a)) in the killing of her husband and found true the allegation that she used a deadly weapon (a knife) in the commission of the offense (Pen. Code, § 12022, subd. (b)(1)). She was sentenced to a prison term of 15 years to life for the murder, plus one year for the deadly weapon enhancement.
In this appeal from a judgment of conviction, she contends the trial court prejudicially erred in admitting statements she made to officers who responded to her 911 call, because she was subjected to custodial interrogation in violation of her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). She also contends the court erred in admitting the statements she made when interviewed by a detective because she invoked her right to counsel, and because the detective's responses vitiated her waiver and were improperly coercive. Finally, she insists she received ineffective assistance of counsel. We reject appellant's contentions and affirm the judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
The Incident and Investigation at the Scene of the Crime
At about 10:00 p.m. on July 29, 2017, appellant began an evening of heavy drinking when she met a friend at a restaurant in Koreatown and imbibed a substantial amount of liquor. Around midnight, the women relocated, and met other friends to drink whiskey in a private room at "Bar Code," a karaoke bar managed by appellant's husband, Tae Kyung. Kyung joined the group at about 3:00 a.m., and they continued to drink substantial amounts of whiskey. A friend drove the couple home, dropping them off at about 4:30 a.m.
At 4:52 a.m., a dispatcher for Los Angeles Police Department (LAPD) received a 911 call from a woman who said, "Please help me" but gave only an incomplete address and did not explain what was wrong. The dispatcher determined the caller's location was across from the police station. LAPD Officers Kenneth Rodriguez and Justin Choi responded to a call of "unknown trouble."
When the officers arrived, they saw lights on inside the house but no movement. Choi knocked on the door. Through the window Rodriguez saw a woman inside walk away from the door. He flashed his light into the window several times as Choi kept knocking. After one or two minutes, appellant opened the door and collapsed on the doorjamb. She seemed to be in fear, was panicked, sobbing and had bloodstains on her body. When the officers asked appellant what was wrong, she asked for help and motioned behind her saying, "He's dead." Choi heard appellant say in Korean, "Help. Help. My husband is hurt." He asked where her husband was, and appellant said he was in the back room. Appellant was instructed to go outside.
The officers then drew their guns, announced their presence and began a protective sweep of the house. The house had not been ransacked. When the officers reached the bedroom, they found Kyung's body sitting in a chair with a knife in his chest and blood on his shirt. Choi declared, "It's a homicide." The officers requested backup and an ambulance.
Appellant was placed in handcuffs for officer safety because LAPD policy prohibits male officers from searching women. Rodriguez saw blood on appellant's hands and arms as he put on the handcuffs. While waiting for additional officers to arrive, Choi asked appellant "What happened." Responding in Korean, appellant said she and her husband came home at about 4:00 a.m. after a night of drinking and got ready for bed. A Hispanic man came into the house, fought with and stabbed Kyung and ran off.
Evidence at trial revealed a kitchen knife was stuck into Kyung's chest up to the handle. His body showed no signs of struggle or any defensive wounds. Prints on the knife were too smudged to be analyzed. A second knife, on the bedroom floor, contained Kyung's genetic material. Appellant's DNA was not found on either knife. The shower and bathroom sink appeared to be dry. Kyung's blood alcohol count (BAC) was .15. At 9:00 a.m., appellant's BAC was .16, and she tested positive for cocaine. Blood was found on the back of her shirt.
The investigation revealed no evidence an intruder had entered the house. A kitchen drawer was pulled out. Blood was found in the living room, on a handle of the kitchen sink, on the interior knob and lock of the front door, an interior knob of a side door, on the handle of a bathroom sink, and in the shower drain. Kyung's blood was found inside appellant's bra, on her shorts and T-shirt, on a bedroom light switch and both knives. Kyung's death was deemed a homicide caused by a stab wound to the chest. The pathologist who performed the autopsy acknowledged a person could commit suicide by stabbing themselves in the chest. Kyung's body bore no scarring to indicate he was suicidal.
There was evidence appellant and Kyung had a troubled relationship. Appellant disapproved of Kyung's drinking and playing video games with friends, and they frequently argued over those topics. A few months before his death, appellant had threatened to leave Kyung and return to Korea, and twice in May 2017 Kyung told his mother he wanted a divorce. At some point, appellant and Kyung had signed a mutual written "promise" of sorts, reflecting their expectations and how they intended to treat one another. Kyung had been trying to open a karaoke bar in the months before his death and was under additional stress. Two friends had noticed scratches on his body. Kyung told one friend he and appellant had been fighting, were not communicating and he might want a divorce. No one saw the couple engage in any physical violence.
Appellant's Interview with Detective Kim
The jury heard a recording of the interview of appellant conducted by LAPD Detective Ron Kim on the morning of July 30, 2017. At the outset of that interview, Kim informed appellant of her Miranda rights, which she said she understood and she signed a Miranda form. Appellant proceeded to describe various versions of events the night before and was unable to recall many details. At first, appellant told Kim she stepped outside to smoke a cigarette shortly after she and Kyung returned home. When she came back inside, she was struck twice and knocked unconscious. When she awoke and went to lock the back door, she saw Kyung's body with a knife in his chest. Appellant tried but was unable to pull the knife from her husband's chest. Appellant had a wound on her face and assumed an intruder had come into the couple's home and hurt them. Appellant, who had been drinking and had done cocaine, was unsure whether the intruder entered through the back or front door of her home.
A senior criminalist from the Coroner's office testified the knife had easily been extracted from Kyung's body. --------
Later in the interview appellant told Kyung she could not remember what she and Kyung had done after returning home and did not recall going out to smoke. She also claimed not to remember if or how many times she was hit, or whether an intruder entered the house. Appellant acknowledged that her story did not make sense.
When Kim asked appellant what she thought happened to Kyung, appellant paused briefly, then said, "I did it." When the detective asked her to explain what happened, appellant replied, "I just did it," put her arms out and said, "I want to go in."
Kim asked appellant if Kyung hit her. At first, she shook her head and denied Kyung hit her. Later, appellant told Kim that, "[Kyung] did it first. He hit me first and he picked it up." Still later, appellant said that "Nothing happened. I just did it." She did not want to explain what happened between herself and Kyung before the incident. Appellant remembered holding the knife which she assumed she had taken from the kitchen. She told the detective, "It's all my fault," and "I made a mistake." She denied having a prior intent to kill Kyung.
II. Defense Evidence
Based on her analysis of the bloodstain pattern from photographs and reports of the case, Tina Young, a professor in the Forensic Technology Program at Grossmont Community College, opined that Kyung stabbed himself. Young did not believe the crime scene contained bloodstains that would be present if appellant was the assailant. She believed Kyung stabbed himself while standing over a bedroom trashcan, dripped blood onto appellant's shirt, then walked to and collapsed in the chair where he was found. Young concluded appellant tried to administer first aid to Kyung but acknowledged that she was unable to determine why appellant would have touched Kyung. Young opined that blood was dripped onto appellant's shirt, which indicated she had been lying down wearing the shirt when Kyung stabbed himself. Young's report did not address the possibility that a third party had stabbed Kyung and did not include any possible scenario aside from suicide.
III. Prosecution Rebuttal
Tom Bevel, a forensic analyst, disagreed that Kyung stabbed himself. He opined that nothing in the blood pattern suggested Kyung held the knife himself, nor was there any evidence to suggest he was standing when he was stabbed. Bevel opined that the blood on the back of appellant's shirt was transferred there, not dropped onto it. In addition, there was blood inside one of appellant's bra cups. Bevel disagreed with Young's opinion that certain bloodstains should have been present to indicate that a homicide occurred.
DISCUSSION
I. Appellant Was Not Subjected to Custodial Interrogation by the Responding Officers
Appellant maintains the trial court erred in denying her motion to exclude statements she made at her home to Officers Choi and Rodriguez. The court concluded appellant's Miranda rights were not violated because she was not subjected to custodial interrogation when the officers briefly questioned her and placed her in handcuffs after finding her husband dead. We agree.
Controlling Law and the Standard of Review
A suspect's statement obtained as the result of a "custodial interrogation" is not admissible absent a knowing and intelligent waiver of the right to remain silent, the right to presence of an attorney and, in the case of an indigent suspect, the right to appointed counsel. (People v. Elizalde (2015) 61 Cal.4th 523, 541 (Elizalde).) "Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301.) An interrogation is custodial when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444.) An interrogation is not "limited to express questioning. Instead, the term refers to 'any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.' [Citation.]" (Elizalde, supra, 61 Cal.4th at p. 531.)
Only the objective circumstances of the interrogation are relevant to determine if an individual is in custody, not "'"subjective views harbored by either the interrogating officers or the person being questioned."' [Citation.]" (People v. Kopatz (2015) 61 Cal.4th 62, 80; Yarborough v. Alvarado (2004) 541 U.S. 652, 663.) The test is whether a "'reasonable person in the suspect's position [would] experience a restraint on his or her freedom of movement to the degree normally associated with a formal arrest.' [Citations.]" (People v. Bejasa (2012) 205 Cal.App.4th 26, 35.) In determining whether a defendant was in custody for purposes of Miranda, the circumstances surrounding an incident must be considered as a whole. Miranda protections attach only if an individual is both in custody and being interrogated. (Miranda, supra, 384 U.S. at p. 444; People v. Mickey (1991) 54 Cal.3d 612, 648.) The totality of the circumstances considered includes "'(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.' [Citation.] Additional factors are whether the officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement, whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrogation techniques to pressure the suspect. [Citation.]" (People v. Davidson (2013) 221 Cal.App.4th 966, 972.)
Courts "look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) The United States Supreme Court has recognized that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime." (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) However, no Miranda warnings are required "until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive." (People v. Manis (1969) 268 Cal.App.2d 653, 669.) "'In deciding whether particular police conduct is interrogation, [a reviewing court] must remember the purpose behind [the] decision[] in Miranda . . . : preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.' [Citation.]" (People v. Clark (1993) 5 Cal.4th 950, 985, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "Where government actions do not implicate this purpose, interrogation is not present." (People v. Clark, at p. 985.)
We review the trial court's determination that a defendant was not subjected to custodial interrogation as a mixed question of law and fact. We apply a deferential substantial evidence standard to the court's factual findings regarding the circumstances surrounding the interrogation, but exercise our independent judgment to determine whether, given those circumstances, a reasonable person in defendant's position would have felt free to end the questioning and leave. (People v. Moore (2011) 51 Cal.4th 386, 403.)
Analysis
We conclude that the totality of the circumstances indicate appellant was not deprived of her Miranda rights because she was not subjected to custodial interrogation at her home.
When Choi and Rodriguez responded to a dispatch call regarding an unknown danger at appellant's house, appellant opened the door and collapsed on the doorjamb. She was panicked, appeared to be hurt, and had blood on her body. She asked for help, claiming her husband was hurt. At that point, the officers told appellant to move away from the house, drew their weapons, and proceeded to sweep the interior of the home for unknown dangers.
After seeing Kyung dead in a chair with a knife in his chest and concluding a homicide was committed, the officers went outside to summon backup and an ambulance and talked to appellant. Appellant was placed in handcuffs for the officers' safety because she had not been searched and LAPD policy prohibits male officers from searching a woman. While awaiting additional officers, Choi spoke calmly in Korean to appellant on her front lawn and asked what happened. Appellant explained that a Hispanic intruder had entered her home after she and her husband returned home, stabbed Kyung, pushed her away and fled.
On this record, the trial court correctly found appellant was not subjected to custodial interrogation by Officers Choi or Rodriguez. As the court explained, the officers' interactions with appellant were not prolonged, did not occur in a coercive environment and were not accusatory. Only two officers were present, the detention lasted about 15 minutes, and it occurred in a noncoercive atmosphere outside appellant's home. Officer Choi's question was not aggressive, confrontational, or accusatory. Indeed, asking "what happened" is exactly the kind of "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process" that the United States and California Supreme Courts have found does not require a Miranda admonition. (Miranda, supra, 384 U.S. at p. 477; People v. Clair (1992) 2 Cal.4th 629, 679 (Clair) ["'on-the-scene questioning as to facts surrounding a crime'" is not custodial interrogation]; In re B.M. (2017) 10 Cal.App.5th 1292, 1297-1298, reversed on other grounds by In re B.M. (2018) 6 Cal.5th 528 [defendant was not subjected to custodial interrogation where she was not handcuffed, only one officer was present, the officer's questions were not aggressive or coercive and occurred outside defendant's residence]; see also United States v. Fornia-Castillo (1st Cir. 2005) 408 F.3d 52, 64-65 [defendant who was handcuffed for up to 15 minutes, was not subject to custodial interrogation because the interview took place on a public street and the police questioning was not confrontational].)
Appellant is incorrect that the fact that she was handcuffed when Choi asked what happened transformed the interaction into a custodial interrogation. Use of handcuffs is just one factor in determining whether an individual is in custody and does not always render an investigatory detention a custodial interrogation. (See People v. Davidson, supra, 221 Cal.App.4th at pp. 972-973.)
Nor was appellant subjected to custodial interrogation because Choi told Rodriguez "it [was] a homicide" after seeing Kyung's body. That Choi believed a homicide was committed did not itself transform his questions into an interrogation. The record indicates he spoke to and made inquiries of appellant in a calm, non-accusatory fashion. Even if Choi did suspect appellant, an officer "who lacks probable cause but whose 'observations lead him reasonably to suspect' that a particular person has committed . . . a crime, may detain that person briefly in order to 'investigate the circumstances that provoke suspicion.'" (Berkemer v. McCarty (1984) 468 U.S. 420, 439, fn. omitted; see People v. Moore, supra, 51 Cal.4th at pp. 402-403 [officer's expressions of suspicion or skepticism do not, by themselves, require a custody finding].) "Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." (Berkemer v. McCarty, supra, at p. 439.)
Appellant also argues she was subjected to a custodial interrogation because the officers had drawn their weapons. Not so. Choi and Rodriguez drew their guns only upon entering the home, after appellant was outside and had claimed her husband remained in danger. The officers did not draw weapons on appellant. In any event, use of guns is not dispositive in determining whether a custodial interrogation occurred. In People v. Clair, supra, 2 Cal.4th 629, the court held that when an officer found the defendant in bed at the burglary victim's house and drew his gun, the officer was permitted to ask the defendant, without providing a Miranda warning, who he was, why he was there and whether he knew the woman who lived there. (Id. at pp. 648-649, 675, 679-680.) Here, the officers' brief use of handguns upon entering the home while appellant remained outside did not transform the subsequent interview into a custodial interrogation.
We agree with the trial court that the totality of the circumstances indicates appellant was not in custody when briefly interviewed at her house.
II. The Trial Court Did Not Err in Admitting Appellant's Statements to Detective Kim
The Stationhouse Interview
There is no dispute that, at the outset of his interview of appellant at the station, Detective Kim specifically advised her of her Miranda rights. With respect to her right to an attorney, he stated: "You have the right to have an attorney present before or during questioning. Do you understand?" Appellant responded, "Yes." Kim also told appellant, "If you cannot afford an attorney, before the questioning, if you want, [a public defender] can be appointed to you free of charge. Do you understand?" Appellant nodded her head and signed a Miranda waiver form.
Appellant then told Kim she had gone outside to smoke a cigarette after she and Kyung got home. When she came back inside, appellant said someone (presumably an intruder) knocked her out. When she regained consciousness, appellant discovered her husband had been stabbed. Kim confronted appellant with the prospect that CCTV and DNA evidence could reveal a different story. Kim then asked when appellant had locked the side door. Appellant said she "[didn't] know the time" and asked, "When can I get an attorney?" In response, the detective said "well, anytime. But see here. Right now—it's like this, huh? Your story, right?" and continued to ask questions. Appellant continued to answer Kim's questions, and admitted to stabbing her husband. Sometime later, this exchange took place:
"[APPELLANT]: I asked you when the attorney will get here.
"[KIM]: Yes, and I said that it's possible whenever, right?
"[APPELLANT]: But I told you everything anyway, so [unintelligible] then . . . if I'm guilty . . . what happens?
"[KIM]: I told you everything before. Before I told you about the attorney.
"[APPELLANT]: Okay.
"[KIM]: Now, this statement was not forced or anything like that, right? You made this statement, and gave up your right to remain silent. I read you all of the right to remain silent, right?
"[APPELLANT]: You did read me the right to remain silent but you didn't tell me when I should exercise the right to silence.
"[KIM]: You understood everything, right? What I read to you earlier, exactly, exactly?
"[APPELLANT]: I understood all of that. Tell me what's going to happen to me now."
Appellant sought to exclude her statements during this exchange at trial, arguing that Kim violated her rights under Miranda by failing to respect her request for counsel. (Davis v. United States (1994) 512 U.S. 452, 459 (Davis).) Appellant argued her statements to Kim ("When can I get an attorney?", and "I asked you when the attorney will get here") reflected that she had not knowingly and voluntarily waived her right to counsel before speaking with Detective Kim. The court concluded otherwise. It found it was not necessary for appellant to expressly waive her Miranda rights. She impliedly waived the right to counsel once Kim informed her of her Miranda rights at the outset of the interview and she voluntarily participated in the police interview.
Properly relying on a litany of well-established authority (which need not be recited here), the trial court rejected the assertion that appellant's statements constituted unequivocal, unambiguous invocations of her right to counsel, and refused to exclude the evidence. (See e.g., People v. Cunningham (2015) 61 Cal.4th 609, 646 (Cunningham); People v. Shamblin (2015) 236 Cal.App.4th 1, 20; People v. McCurdy (2014) 59 Cal.4th 1063, 1087.) The trial court found appellant's request for counsel was equivocal, she had impliedly waived her Miranda rights by voluntarily participating in the interview, and her subsequent statements regarding an attorney were not unambiguous, unequivocal invocations of her right to counsel.
Controlling Law and the Standard of Review
Miranda, supra, 384 U.S. 436, requires that a suspect in police custody not be interrogated unless she has been advised of, and knowingly and intelligently waived, her right to remain silent and to the presence of counsel even if she is indigent. (Id. at pp. 444, 478-479; Maryland v. Shatzer (2010) 559 U.S. 98, 104.) If a suspect clearly and unequivocally articulates her desire for counsel in a manner sufficiently clearly that a reasonable police officer would recognize it as such, the interrogation must cease, and the officer must honor that request. (Davis, supra, 512 U.S. at p. 459 [detective's interrogation need not cease because of a suspect's "ambiguous or equivocal reference to an attorney"; Cunningham, supra, 61 Cal.4th at p. 646; People v. Bacon (2010) 50 Cal.4th 1082, 1107 [same].) Once properly advised of her Miranda rights, a suspect may waive her right to remain silent and to counsel. (People v. Nelson (2012) 53 Cal.4th 367, 376.) Further, if a suspect's inquiry regarding counsel is ambiguous, the police "may, but are not required to, seek clarification . . . before continuing substantive interrogation." (People v. Williams (2010) 49 Cal.4th 405, 427; see Davis, supra, 512 U.S. at pp. 455, 462 ["Maybe I should talk to a lawyer" was ambiguous]; People v. Stitely (2005) 35 Cal.4th 514, 535 ["'I think it's about time for me to stop talking'" was ambiguous].)
Whether a suspect has invoked the right to counsel is an objective inquiry. (Davis, supra, 512 U.S. at p. 459.) The inquiry is whether, under the circumstances, "a reasonable officer would have understood a defendant's reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant's subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant." (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.)
When evaluating whether a statement or confession is inadmissible because it was obtained in violation of the defendant's Miranda rights, we accept the trial court's credibility evaluations, and its resolution of disputed facts and inferences if the court's evaluation enjoys substantial evidentiary support. However, we independently determine from undisputed facts, and those properly found true by the trial court, whether a challenged statement was obtained illegally. (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) We apply the "federal standards in reviewing defendant's claim that the challenged statements were elicited . . . in violation of Miranda." (Id. at p. 1033; People v. Lessie (2010) 47 Cal.4th 1152, 1163-1164.)
Analysis
The trial court found appellant's statements regarding the presence of a lawyer equivocal. She asked only when she could get an attorney and when one would arrive. In response to both inquiries Kim said appellant could have an attorney any time. Thereafter, appellant did not ask for an attorney. Appellant's question regarding when an attorney would be available did not constitute an unambiguous assertion of her right to counsel. (See Davis, supra, 512 U.S. at p. 455 ["I think I want a lawyer before I say anything else" was insufficient to invoke suspect's right to counsel]; Cunningham, supra, 61 Cal.4th at p. 646 ["'Should I have somebody here talking for me, is this the way it's supposed to be done?'" was not an invocation of the right to counsel]; People v. Gonzalez, supra, 34 Cal.4th at pp. 1119-1120 [defendant's statements, "'one thing I want to ask you to that, if for anything you guys are going to charge me I want to talk to a public defender too, for any little thing,'" and "'Sir, I was going to ask you that, is there any, like—cause they told me about a public defender. . . . They said that he would show up for anything,'" were too equivocal to constitute invocation of the right to counsel]; People v. Crittenden (1994) 9 Cal.4th 83, 124, 130-131 [suspect's question, "'Did you say I could have a lawyer?'" was not an unequivocal request for counsel]; People v. Simons (2007) 155 Cal.App.4th 948, 955 [the question, "[h]ow long would it take for a lawyer to get here for me?" was insufficient to invoke suspect's right to counsel].)
Appellant's reliance on Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995 (Alvarez), is misplaced. In distinguishing Alvarez from circumstances akin to those here, the California Supreme Court explained that the suspect in Alvarez "began requesting an attorney as soon as he was asked whether he wished to waive his right to remain silent and submit to questioning . . . '"Can I get an attorney right now, man?"'" (People v. Williams, supra 49 Cal.4th at p. 430.) The defendant in Alvarez did not waive his Miranda rights before invoking his right to counsel. Here, after having stated she understood and had waived her Miranda rights, appellant's questions about when an attorney would be available did not constitute a clear, unequivocal assertion of a right to counsel. Appellant's inquiry regarding the availability of an attorney were far more ambiguous than those made by the defendant in Alvarez. The trial court properly concluded that appellant waived her rights under Miranda at the outset of the interrogation by Detective Kim and did not thereafter clearly and unequivocally invoke her right to counsel.
III. Appellant Forfeited her Claim that Detective Kim Vitiated her Waiver of her Right to an Attorney
Appellant makes the alternative, but equally unavailing, argument that Kim's response to her questions about an attorney vitiated her waiver of the right to counsel. A claim that evidence was erroneously admitted requires a timely "objection to or a motion to exclude or strike the evidence . . . so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353, subd. (a); see People v. Alvarez (1996) 14 Cal.4th 155, 186 [to preserve claim on appeal, the objection must be "specific and timely"].)
Appellant's claim of error on this ground is forfeited because her counsel objected to admission of her statements to Kim only on the ground that appellant unequivocally requested counsel.
In any event, we reject appellant's claim that Detective Kim coerced her waiver. The cases upon which appellant relies apply to circumstances markedly different than those involved here. (See e.g., People v. Suff (2014) 58 Cal.4th 1013, 1080 [interviewing office informed defendant she was not yet under arrest].) Detective Kim specifically told appellant she could have an attorney "anytime." Kim's statements to appellant at the outset accurately informed her of her right to counsel and he did not subsequently coerce her statements. (See, e.g., Davis, supra, 512 U.S. at pp. 461-462 [officers need not seek clarification where defendant makes an ambiguous or equivocal request for counsel]; People v. Martinez (2010) 47 Cal.4th 911, 947-948 [officers need not clarify whether defendant is invoking right to silence].)
IV. Appellant Has Not Shown she Receive Ineffective Assistance of Counsel
Finally, appellant contends she received ineffective assistance of counsel because her attorney failed to argue that Detective Kim vitiated her waiver of her right to counsel. However, defense counsel need not assert a futile objection at trial in order to avoid a later attack on the ground of ineffective assistance of counsel. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836, overruled on another ground by People v. Dalton (2019) 7 Cal.5th 166, 214; People v. Anderson (2001) 25 Cal.4th 543, 587.) Given our conclusion that Kim did not vitiate appellant's waiver, trial counsel had no obligation to object on that ground. For the same reason, it is not reasonably probable that a different result would have been reached had her attorney objected. "A claim of ineffective assistance of counsel . . . entails . . . prejudice under a test of reasonable probability of an adverse effect on the outcome." (People v. Huggins (2006) 38 Cal.4th 175, 205-206.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.