Villaneda v. Santoro

Full title: LUIS VILLANEDA, Petitioner, v. KELLY SANTORO, Respondent.

Court: United States District Court, Central District of California

Date published: Sep 21, 2021

2:18-cv-10485 SHK (C.D. Cal. Sep. 21, 2021)

Opinion

2:18-cv-10485 SHK

09-21-2021

LUIS VILLANEDA, Petitioner, v. KELLY SANTORO, Respondent.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

HON. SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER DENYING PETITION, DISMISSING ACTION WITH PREJUDICE, AND GRANTING CERTIFICATE OF APPEALABILITY

HON. SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On December 18, 2018, Petitioner Luis Villaneda (“Petitioner”), proceeding with the assistance of counsel, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254, challenging his 2014 California state conviction for second-degree murder. The Petition raises a single claim and the parties consented to allow the magistrate judge to enter final orders and judgment in this case. See U.S.C. § 636(c) and Fed.R.Civ.P. 73. Because Petitioner failed to demonstrate that the California state courts unreasonably denied his claim, Petitioner's request for habeas relief is DENIED on the merits, in its entirety, and the Petition is DISMISSED, with prejudice.

II. PROCEDURAL HISTORY

In May 2014, Petitioner was convicted in Los Angeles County Superior Court of second-degree murder. Electronic Case Filing Number (“ECF No.”) 14-1, Clerk's Transcript (“CT”) at 200.¹ The jury also found true the allegation that Petitioner personally used a deadly and dangerous weapon in the commission of the offense. Id. The trial court sentenced Petitioner to 16 years to life in prison. Id. at 262.

1 The referenced page number for the state court filings and opinions lodged by Respondent, as well as the briefing documents filed by both parties, will be the number assigned in those documents and not the page number associated with the document through the ECF system.

Petitioner appealed to the California Court of Appeal, raising, among others, the same claim raised in the instant Petition. See ECF No. 14-15, Lodg. No. 3. On June 12, 2017, the state appellate court affirmed the conviction in a reasoned decision. ECF No. 14-18, Lodg. No. 6. Petitioner then filed a Petition for Review in the California Supreme Court, which was denied summarily. ECF Nos. 14-19, Lodg. No. 7 and 14-20, Lodg. No. 8.

In December 2018, Petitioner, assisted by counsel, filed the instant Petition in this Court along with a memorandum of points and authorities (“Petition, Memo.”), asserting that the trial court unreasonably denied his request to unseal juror information after he had been unjustifiably shackled at trial. ECF Nos. 1 and 4. In March 2019, Respondent filed an Answer and a supporting memorandum (“Answer”), arguing that the claim in the Petition failed to raise a cognizable federal question and, in any event, should be denied on the merits, and lodged the various related transcripts and state court filings and opinions. ECF Nos. 13 and 14. In June 2019, Petitioner filed a Traverse. ECF No. 17.

After this initial round of briefing, the Court allowed the parties to file additional briefing on whether Petitioner's shackling in state court violated the Constitution. ECF No. 19. Petitioner and Respondent each filed a supplemental brief (“Supp. Brief”) in support of their position. ECF Nos. 26 and 37.

III. PETITIONER'S CLAIM

Petitioner contends that the trial court unreasonably denied his request to unseal juror information after he was unjustifiably shackled at trial in violation of his rights to due process and a fair trial. ECF No. 1, Petition at 5; ECF No. 4, Petition, Memo. at 12-20.

IV. FACTUAL SUMMARY

Because Petitioner has not rebutted the correctness of the findings of fact made by the California Court of Appeal regarding Petitioner's appeal in state court by clear and convincing evidence, the Court adopts the factual summary set forth in the California Court of Appeal's opinion affirming Petitioner's conviction. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1). To the extent that an evaluation of Petitioner's claim depends on an examination of the trial record, the Court has made an independent evaluation of the record. The California Court of Appeal's Opinion is attached as Exhibit A to this R&R and the factual summary at pages two through six is incorporated and adopted in this R&R. Exh. A, California Court of Appeal's Opinion in The People v. Villaneda, Case No. B268868 (“Cal. CoA Op.”).

V. STANDARD OF REVIEW

The standards in the Anti-Terrorism and Effective Death Penalty Act of 1996 and 28 U.S.C. § 2254 govern this Court's review of this Petition. As a result, and because the California Supreme Court summarily denied Petitioner's claim on direct review, this Court reviews the reasoning of the California Court of Appeal, which denied the claim on the merits. See ECF Nos. 14-18, Lodg. No. 6 and 14-20, Lodg. No. 8; Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (holding “that the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “should then presume that the unexplained decision adopted the same reasoning”). Only if “fairminded jurists” would all agree that the state court's decision was wrong is Petitioner entitled to relief. See Harrington v. Richter, 562 U.S. 86, 102 (2011).

VI. DISCUSSION

In his only claim for relief, Petitioner contends that the trial court unreasonably denied his request to unseal juror information after he was unjustifiably shackled at trial in violation of his rights to due process and a fair trial. ECF No. 1, Petition at 5; ECF No. 4, Petition, Memo. at 12-20.

A. Trial Court Proceedings

During closing argument, Petitioner's left arm was handcuffed to his chair after the courtroom bailiff failed to remove the handcuff before the jury was seated. Apparently, however, neither the judge nor the attorneys were aware of the shackling when arguments began. Immediately after the jurors were sent to the jury room for deliberations, defense counsel informed the court that his “client was handcuffed to his chair, ” which was “totally inappropriate.” ECF No. 14-12, 9 Reporter's Transcript (“RT”) at 3659. The court agreed that Petitioner should not have been handcuffed but told counsel that he did not notice it because Petitioner's “hands were below the table.” Id. The prosecutor indicated that she did not “notice it either.” Id. at 3660. Defense counsel told the court that he first saw the handcuffs while seated beside Petitioner during the “last 20 minutes” of the prosecutor's argument. Id. at 3659.

Later, the trial court supplemented the record, as follows:

During the time [Petitioner] was shackled he had only one hand shackled. That was his left hand shackled to the arm of his chair; that is the side of him which is furthest from the jury. The jury is on his right side; that his right side was free. [¶] As I said, I couldn't see it from my vantage point because [Petitioner] was keeping his arms and hands under the table all the time. I was looking at him so I never saw the shackle . . . .

Id. at 3660-61. Petitioner's counsel told the court that he did not notice the handcuff on Petitioner until after he had made his closing statement from the podium and returned to his chair:

When I came back after my closing argument, I sat down. I sat down for a good-I want to say 30 minutes, maybe even longer before leaning in to my client to talk to him, and that's when I noticed that his left hand was handcuffed to the left side of the chair. I moved in closer to him and closer to the table blocking what I believe to be any potential view of the handcuff. [¶] The table is situated that his hand is down below the table and I'm of the opinion that if there was any view, it was very slight.

Id. at 3661.

The trial court estimated that the jury box was “25 to 30 feet” from Petitioner and noted that Petitioner was already seated when the jury was brought in. Id. at 3662. The prosecutor added that she gave her closing argument “in front of the jury box” while “facing [Petitioner]” and “didn't notice” that he was handcuffed. Id. The court then asked Petitioner's counsel if there was anything else he wanted to add, and counsel simply asked that the record reflect that Petitioner had not been disruptive during any of the proceedings. Id. at 3662-64.

After Petitioner was convicted, he filed a motion to unseal juror identifying information pursuant to California Code of Civil Procedure § 237 in order to inquire whether any of the jurors saw that Petitioner was handcuffed during closing argument. ECF No. 14-13, 10 RT at 6001-11. The court denied the motion, finding that Petitioner had not established a prima facie case that the jury could have seen the handcuff “based on the positioning of [Petitioner], where the hand was, [and] the distance from him to the jury box.” Id. at 6002, 6012. Additionally, the court found that the issue was “waived by the defense for valid tactical reasons” for failing to ask for a jury admonition or a mistrial immediately after the error was discovered. Id. at 6008, 6012.

B. The California Court of Appeal Opinion

On direct appeal, the California Court of Appeal found that Petitioner had forfeited his claim that his conviction should be overturned because he was handcuffed during closing argument:

Here, in the midst of the prosecutor's rebuttal closing argument, defense counsel noticed [Petitioner] was handcuffed to his chair, but he did not immediately alert the trial court. Only after the jury retired to deliberate did defense counsel raise the fact that [Petitioner] had been handcuffed to his chair during closing argument. Yet, while stating that it was “totally inappropriate” for [Petitioner] to have been handcuffed, defense counsel never asked for any sort of relief, such as an admonition to the jury or a mistrial. Indeed, as the trial court conducted its immediate inquiry into what had occurred, defense counsel candidly admitted: (1) that he did not know whether the jury saw the handcuff; (2) that any view of the handcuff was at best “very slight”; and (3) that he personally blocked the jury's view once he noticed the handcuff. Moreover, at the close of the trial court's inquiry, the trial court specifically asked whether defense counsel wanted to add anything else to the discussion. Defense counsel stated that he did not. Defense counsel did not ask for the trial court to make any further inquiry and did not object to the trial court's conclusion of the inquiry without taking any further investigative or remedial action. We thus hold that the failure to object and request any relief from the trial court forfeited [Petitioner's] claim of error on appeal.

Exh. A, Cal. CoA Op. at 25-26.

The state appellate court also noted that, even if Petitioner had properly preserved his claim for appeal, any error was harmless:

There is no evidence the jury ever saw the handcuff on [Petitioner], who was seated 25-30 feet away, with both hands under the table and his side with the handcuff facing away from the jury. When not obstructing the jury's view of [Petitioner] with his own body, defense counsel believed any view of the handcuff was only “very slight.” Neither the trial court nor the prosecutor ever saw the handcuff, despite facing [Petitioner] and having every opportunity to see the handcuff had it been in view. Indeed, it took defense counsel nearly half an hour to notice the handcuff even while seated next to [Petitioner]. We thus conclude that the error in leaving [Petitioner's] left hand shackled during argument before jury was harmless. (People v. Anderson (2001) 25 Cal.4th 543, 596 [“[W]e have consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense.”])

Id. at 26.

Thereafter, the California Court of Appeal held, under state law, that the trial court properly withheld the juror identifying information under California Code of Civil Procedure (“Cal. Civ. P. Code”) § 237:

[Petitioner] filed a petition for disclosure of juror information to determine: (1) whether any of the jurors saw [Petitioner] handcuffed to his chair during counsels' arguments; and (2) if [Petitioner's] physical restraints were observed, whether it played “any part” in the jury deliberations. At the hearing on [Petitioner's] petition, the trial court stated: “I just don't think there's a prima fascia [sic] case made because I just don't believe the jury saw anything based on the positioning of [Petitioner], where [his] had was [located], [and] the distance from him to the jury box. And I think I made a fairly complete record. And I just don't think they saw anything. I don't think there's been a prima fascia [sic] case made. [¶] And also, in any event, I think the defense waived it. Since I offered, I said to [Petitioner's counsel], is there anything else you would like me to do or words to that effect. . . . And he indicated no, so there was never any affirmative request for either a mistrial or an admonition to the jury . . . .” After entertaining further argument, the trial court denied the petition.

For the reasons stated by the trial court during the hearing on [Petitioner's] petition, we hold that the trial court acted well within its discretion to deny the request for disclosure of juror information. [Petitioner] failed to meet his burden of providing sufficient evidence to support a reasonable belief that jury misconduct occurred. [Petitioner] made no showing that any juror observed the handcuff, and there is no reason to believe based on the trial court's thorough inquiry that any juror would have seen it. Accordingly, any belief that the jury saw the handcuff is unsupported by the record and speculative, which cannot constitute good cause to justify release of juror identifying information.

Id. at 28-29 (citation omitted).

C. Federal Law and Analysis

It is well established that due process prohibits the “routine use of visible shackles” of a criminal defendant without a determination by the trial court that shackles are specifically justified. Deck v. Missouri, 544 U.S. 622, 626, 632 (2005); United States v. Mejia, 559 F.3d 1113, 1117 (9th Cir. 2009) (“The Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury without a trial court determination that they are justified.”).

Courts have found that shackles “may not only cause jury prejudice and impair the presumption of innocence, they may also detract from the dignity and decorum of the proceeding and impede the defendant's ability to communicate with his counsel.” Duckett v. Godinez, 67 F.3d 734, 747-48 (9th Cir. 1995); see Claiborne v. Blauser, 934 F.3d 885, 889 (9th Cir. 2019) (“Visible shackling undermines the presumption of innocence, impedes the jury's factfinding process, hampers presentation of a defense, and affronts the dignity and decorum of judicial proceedings.”). The use of shackles that are visible to the jury “suggests to the jury that the justice system itself sees a ‘need to separate a defendant from the community at large.'” Deck, 544 U.S. at 630 (citing Holbrook v. Flynn, 475 U.S. 560, 569 (1986)); see Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) (shackling creates “an inherent danger that the jury may form the impression that the defendant is dangerous and untrustworthy”). The Ninth Circuit has held that “the greater the intensity of shackling and the chains' visibility to the jurors, the greater the extent of prejudice.” Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989). Thus, “physical restraints such as a waist chain, leg irons or handcuffs may create a more prejudicial appearance than more unobtrusive forms of restraint.” Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008).

1. Cognizability of Claim

Respondent contends that any error in applying Cal. Civ. P. Code § 237²regarding the unsealing of juror identifying information is not cognizable on federal habeas review. ECF No. 13, Answer at 12-13. To the extent that Petitioner is arguing that the trial court abused its discretion in applying state law when it rejected Petitioner's request for the information, Respondent is correct. “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). The Supreme Court has never identified any constitutional entitlement to juror contact information for a defendant in a criminal trial. See Pha v. Swarthout, 658 Fed.Appx. 849, 851 (9th Cir. 2016) (finding “no Supreme Court decision addressing a defendant's entitlement” to juror contact information); Andrade v. Foulk, No. 2:09-cv-02270-JKS, 2016 WL 8730670, at *11 (E.D. Cal. Feb. 12, 2016) (“[T]he United States Supreme Court has never recognized a constitutional right to have jury information unsealed after the jury reaches its verdict.”).

2 Cal. Civ. P. Code § 237(b) provides that the names of the jurors shall be released only where a declaration in support of the petition for access to these records establishes good cause.

Petitioner's claim, however, is not limited to the narrow argument that the state courts violated Cal. Civ. P. § 237 by failing to disclose the juror information. Clearly, this Court is bound by the state court's determination as a matter of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2006) (per curiam). Rather, Petitioner's claim is premised on the fact that he was improperly shackled at trial and that, as such, he is entitled to the juror identification information to prove that his constitutional rights were violated under Deck. See Petition, Memo. at 13-20. The question for this Court on federal habeas review is one of due process: “[t]he issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point.” Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). Accordingly, the Court concludes that Petitioner has raised a cognizable federal constitutional question: namely, whether his right to a fair trial was violated by being shackled during closing arguments and then denied access to juror identification information to demonstrate prejudice from the unjustified shackling.

2. Waiver of Claim

On direct review, the California Court of Appeal found that defense counsel's failure to ask the trial court to make an inquiry of the jury and failure to object to the trial court's conclusion of the inquiry without taking any further investigative or remedial action forfeited the claim that he was unconstitutionally shackled at trial, citing People v. Williams, 61 Cal.4th 1244, 1259 (2011). Exh. A, Cal. CoA Op. at 25-26. Based on this ruling, Respondent contends that Petitioner's shackling claim is procedurally defaulted by the state court's finding that Petitioner failed to make a timely and specific objection and request for relief. ECF No. 26, Respondent's Supp. Brief at 1-4.

Generally, federal courts will not review a question of federal law previously decided by a state court if the state court's decision rests on a state law ground that is independent of federal law and adequate to support judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The Ninth Circuit has recognized that California's contemporaneous objection rule is an adequate and independent state procedural rule. Zapien v. Davis, 849 F.3d 787, 793 n.2 (9th Cir. 2015).

Furthermore, under California law, it is “well settled” that “the use of physical restraints in the trial court cannot be challenged for the first time on appeal, ” and the failure to make an “appropriate and timely objection” to a criminal defendant being required to remain in physical restraints forfeits the claim on appeal. People v. Ward, 36 Cal.4th 186, 206 (2005) (quoting People v. Tuilaepa, 4 Cal.4th 569, 583 (1992); see also People v. Young, 7 Cal.5th 905, 936 (2019) (holding defendant's failure to object to court's instructional remedy after being informed that the jurors saw defendant in restraints “forfeited any challenge to the instruction on appeal”).

In Ward, the defendant made a motion for a mistrial based on a claim that he had been seen in shackles by several jurors in a courtroom hallway. Ward, 36 Cal.4th at 207. The trial court denied the motion, but, at defense counsel's suggestion, agreed to give a general admonition to the jury that it was not to consider the fact that defendant was in custody. Id. On appeal, the defendant argued that the trial court erred in failing to hold a hearing “to determine what, if any, effect the shackling had on the jurors.” Id. The California Supreme Court held that the defendant had forfeited the claim because “he failed to object or request a further inquiry, and we can conceive of tactical reasons for not making such a request.” Id.

Similarly, here, Petitioner's counsel objected, after closing arguments were given and the jury had been excused, to the improper-though inadvertent- shackling of Petitioner. The trial court agreed that Petitioner should not have been handcuffed and would have done something if he had noticed that Petitioner was shackled or if counsel had informed the court at the time that Petitioner was shackled. ECF No. 14-12, 9 RT at 3659-62. The court specifically asked Petitioner's counsel if there was anything he wanted to add, and counsel simply asked that the record reflect that Petitioner had not been disruptive during any of the proceedings. Id. at 3662-64. Petitioner never requested any remedial action, such as a jury instruction or mistrial, or further inquiry into the likelihood the jury was able to observe Petitioner in handcuffs. Later, when Petitioner requested the disclosure of the jurors' identities, the court found that the issue of whether the jurors saw him in shackles was “waived by the defense for valid tactical reasons” for failing to ask for a jury admonition or a mistrial immediately after the error was discovered. ECF No. 14-13, 10 RT at 6008, 6012. Thus, it appears that Petitioner's claim is procedurally barred from review in federal court.

A procedurally defaulted claim may be heard on the merits if a petitioner establishes cause and prejudice or a fundamental miscarriage of justice to excuse the default. Coleman, 501 U.S. at 749-50. Here, however, Petitioner makes no argument that cause and prejudice or a miscarriage of justice excuses his procedural default.

Instead, Petitioner asserts that the claim was not waived because the state courts alternatively reached the merits of the shackling claim. ECF No. 4, Petition, Memo. at 20; ECF No. 37, Petitioner's Supp. Brief at 6-8. The fact that the California Court of Appeal alternatively rejected Petitioner's claim on its merits, however, does not alter the procedural bar analysis. As the Supreme Court noted, “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.” Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (emphasis in original); see also Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”).

Petitioner also contends that Respondent has waived the procedural default defense because Respondent did not raise it in the Answer but, instead, raised it for the first time in a supplemental brief following the Court's Order for further briefing. ECF No. 37, Petitioner's Supp. Brief at 4-6. As Respondent explained in the supplemental brief, however, Respondent initially construed Petitioner's claim “narrowly, ” assuming that Petitioner was only raising a claim of state law error under Cal. Civ. P. Code § 237 based on the cursory single claim raised in the form Petition. See ECF No. 26, Respondent's Supp. Brief at 1-2 n.2; ECF No. 1, Petition at 5. After the Court's subsequent Order for further briefing, indicating that it interpreted Petitioner's claim as premised on an alleged constitutional violation for unjustified shackling that was included in the accompanying memorandum to the Petition, Respondent addressed the “broader issue” of whether the shackling violated the Constitution. Id. As such, this does not appear to be an intentional act to “withhold raising a defense until after the main event.” Granberry v. Greer, 481 U.S. 129, 132 (1987) (internal quotation marks omitted).

Furthermore, the Court does not find Petitioner's argument that he had “absolutely no notice the procedural bar would be an issue for consideration by this Court.” ECF No. 37, Petitioner's Supp. Brief at 5. Petitioner addressed the issue of procedural default in the supporting memorandum to his Petition and, thus, was plainly aware that it was a potential issue in the federal habeas proceedings. For these reasons, the Court does not find that Respondent waived the defense of procedural default.

Accordingly, Petitioner's claim that is premised on a violation of his constitutional rights due to being shackled at trial is barred from federal habeas review. See, e.g., Blacher v. McEwen, No. C 12-4775 RMW(PR), 2015 WL 5590771, at *8 (N.D. Cal. Sept. 22, 2015) (finding shackling claim procedurally defaulted for failure to make appropriate and timely objection); Packard v. Cash, No. 11-cv-1589-VAP (DTB), 2012 WL 1616964, at *10 (C.D. Cal. Apr. 11, 2012) (same); Audette v. Sisto, No. 2:06-cv-00738-JWS, 2009 WL 224906, at *3-4 (E.D. Cal. Jan. 29, 2009) (same). Nevertheless, even assuming that this claim was not procedurally defaulted, federal habeas relief would not be warranted because the claim fails on the merits.

3. Merits of Claim

The California Court of Appeal also denied Petitioner's claim on its merits, finding that any error in handcuffing Petitioner during closing arguments was harmless because there was “no evidence the jury ever saw the handcuff.” Exh. A, Cal. CoA Op. at 26. The state appellate court further found that there was “no reason to believe based on the trial court's thorough inquiry that any juror would have seen” the handcuff. Id. at 29. Respondent argues that Petitioner is foreclosed from relief under 28 U.S.C. § 2254(d) because the decision was not contrary to, or an unreasonable application of, clearly established Supreme Court law. ECF No. 26, Respondent's Supp. Brief at 4.

Under the AEDPA, the “clearly established Federal law” that controls federal habeas review of state court decisions consists of the “holdings, as opposed to the dicta, ” of Supreme Court decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see Bell v. Cone, 543 U.S. 447, 455 (2005) (“Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation.”).

Clearly established Supreme Court law prohibits the unjustified use of physical restraints on a defendant at trial that are “visible to the jury.” Deck, 544 U.S. at 629-30 (“Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.”); see Ghent, 279 F.3d at 1132 (holding that to “prevail on a claim” of improper shackling a habeas court must find that the “shackling was seen by the jury”); see also Cruz v. Ryan, No. CV-13-0389-TUC-JGZ, 2018 WL 1524026, at *43 (D. Ariz. Mar. 28, 2018) (“There is no clearly established federal law requiring a trial court to make a finding that non-visible shackling is justified by a compelling state interest.”) (emphasis in original).³ Thus, courts in the Ninth Circuit have found any error in the use of unjustified restraints to be harmless when not visible to the jury. See Williams v. Woodford, 384 F.3d 567, 591-92 (9th Cir. 2004) (even assuming “physical restraints at trial were unjustified, ” any error was harmless because the shackles were not visible to the jury); Duckett v. Godinez, 109 F.3d 533, 535 (9th Cir. 1997) (finding that shackling defendant was harmless where restraints not visible to jury).

3 The Supreme Court has noted that shackles, even if not visible to the jury, can produce other harms. See Deck, 544 U.S. at 631 (stating that shackles may diminish a criminal defendant's Sixth Amendment right to counsel since they may “interfere with the accused's ability to communicate with his lawyer” and “can interfere with a defendant's ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf”) (internal quotation marks omitted). This passage, however, appears to be dicta and not the holding of the Supreme Court in Deck, as the “record in th[e] case . . . makes clear that the jury was aware of the shackles.” Id. at 634; see also Mendoza v. Berghuis, 544 F.3d 650, 655 (6th Cir. 2008) (finding the holding in Deck is “expressly limited to cases where the defendant's shackles are ‘visible to the jury' during trial”). Moreover, in Petitioner's case, he makes no argument that the handcuffs impinged on his Sixth Amendment right to counsel. Nor would such an argument likely be convincing, as Petitioner was only handcuffed during the closing arguments, a procedural step in the trial that was after he took the stand and testified and during which he was less likely to assist or participate in his defense.

Here, Petitioner concedes that there is no evidence that any of the jurors at his trial saw that he was handcuffed to his chair during the parties' closing arguments. Without evidence that the handcuffs were visible to any jurors, the state court's rejection of this claim could not have been contrary to, or an unreasonable application of, clearly established Supreme Court law.

4. Evidentiary Hearing

Petitioner contends that the state court's conclusion that placing Petitioner in handcuffs during closing argument was harmless because none of the jurors actually saw Petitioner in handcuffs was nothing more than “unsupported speculation” and, as such, constituted an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). ECF No. 4, Petition, Memo. at 16-17. He argues that the Court should not weigh the state court's findings with deference under the AEDPA but, rather, hold an evidentiary hearing to determine de novo whether any of the jurors viewed Petitioner in handcuffs during the trial. Id. at 20; ECF No. 17, Traverse at 2-3, 7.

In Cullen v. Pinholster, the Supreme Court made clear that review under § 2254(d) is generally limited to the evidence that was before the state court. 563 U.S. 170, 181-82. However, “[u]nder § 2254(d)(2), a petitioner may challenge a state court's conclusion that is based upon an unreasonable determination of the facts.” Jones v. Ryan, 1 F.4th 1179, 1193 (9th Cir. 2021). If the federal reviewing court determines, after considering only the evidence presented to the state court, that the state court's “decision was based on an unreasonable determination of the facts, ” the federal court conducts a de novo review of the claim and may “consider evidence properly presented for the first time in federal court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014).

A state court has made an unreasonable determination of the facts under Section 2254(d)(2) when either its findings were not supported by substantial evidence in the state court record or its fact-finding process was unreasonably deficient. Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012); see also Hurles, 752 F.3d at 790-91 (holding that if a state court makes factual findings without an “evidentiary hearing or other opportunity for the petitioner to present evidence, ” the fact-finding process is deficient and the state court opinion is “not entitled to deference”). The state court's refusal to hold an evidentiary hearing, however, “does not render its fact-finding process unreasonable” when “the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question.” Hibbler, 693 F.3d at 1147; see also Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (holding that a state court is not required to hold an evidentiary hearing when a factual question can be resolved based on the evidence of record).

Petitioner argues that the Ninth Circuit decisions in Dyas v. Poole, 317 F.3d 934 (9th Cir. 2003); Parrish v. Small, 315 F.3d 1131 (9th Cir. 2003); and Rhoden v. Rowland, 10 F.3d 1457 (9th Cir. 1993) support his request for de novo review and an evidentiary hearing.

In Dyas, the defendant was kept in leg restraints for the entire trial and was also “shackled while being led to and from the courtroom.” 317 F.3d at 936. The trial judge rejected Dyas's request to not be shackled while seated in the courtroom, stating that “he did not believe the shackles would be so visible that they [would] come to the attention of the jury.” Id. (internal quotation marks omitted). In denying the request, the judge “conducted no inquiry or test when the jury was seated to see whether Dyas's shackles were visible to the jurors.” Id. On appeal, the state appellate court determined that the shackling was constitutional error but found it to be harmless based on the trial judge's findings that no jurors could see the shackles. Id. On habeas review, the federal district court reversed, holding that the “trial judge had simply made a presumption of fact” of what the jurors could see and had “denied an evidentiary hearing to determine the actual facts.” Id.

After holding an evidentiary hearing, the district court found that “at least one juror was able to see the shackles” and granted the writ. Id. The Ninth Circuit affirmed the decision, noting that in “the absence of any inquiry to establish the facts concerning what the jury could see” any reliance on the state court's factual finding that the shackles were not visible was unreasonable under § 2254(d)(2). Id. at 936-37.

In Parrish, the defendant's left arm was handcuffed to his chair for the entire trial. 315 F.3d at 1133. The state appellate court determined the unconstitutional shackling was harmless despite the fact it was undisputed that “the jurors saw the handcuff at least once” and that the trial record suggested that “the handcuffs were visible to the jury throughout the trial.” Id. at 1134. On habeas, the federal district court agreed that the shackling was harmless without holding an evidentiary hearing because the handcuff was “relatively unobtrusive” and “visible to the jury only once.” Id. at 1133. Noting that the “case would benefit from additional information about what was visible in the court-room, what jurors could actually see, and what the trial participants recall, ” the Ninth Circuit remanded the matter to the district court for an evidentiary hearing to determine the prejudicial effect of the visible shackling. Id. at 1135.

Rhoden was a pre-AEDPA case in which the defendant had his legs “shackled throughout the trial.” 10 F.3d at 1458. On appeal, the state appellate court determined that Rhoden had been unconstitutionally shackled at trial but found the error harmless because there was no evidence establishing that any juror actually saw the shackles, despite a declaration for the defendant and an affidavit from an investigator that the jurors could see the shackles from the jury seats. Id. at 1458-59. On habeas, Rhoden presented an additional affidavit establishing that three jurors had seen him in shackles during the trial. Id. at 1459. Nevertheless, the federal district court deferred to the state court's finding that the jury did not see the shackles and denied the claim. Id. Noting that Rhoden's attorney had argued that the “jurors could see the shackles and offered evidence to support his claim, ” the Ninth Circuit reversed the decision on the shackling claim and remanded the matter to the district court to hold an evidentiary hearing to “develop the record” to determine whether there was prejudice that “threatened the fairness of the trial.” Id. at 1460, 1462.

The instant case, however, differs materially from each of these cases. First, Petitioner was inadvertently handcuffed to his chair during counsels' closing arguments, not intentionally throughout the entire trial.

Second, immediately upon learning that Petitioner had been improperly shackled, the trial court held a hearing to establish the factual circumstances. The court indicated that it had not noticed Petitioner's arm was handcuffed because it was “under the table all the time.” ECF No. 14-12, 9 RT at 3661. The court heard from the prosecutor, who stated that she did not see the handcuff despite standing in front of the jury box and facing Petitioner. Id. at 3660, 3662. Defense counsel told the court that he only noticed the handcuff after his argument had finished and while seated beside Petitioner and “leaning in” to talk to him. Id. at 3660-61. Defense counsel further indicated that because Petitioner's hand was below the table any view of the handcuffs would have been “very slight” and that he attempted to block any “potential view” of the handcuff. Id. at 3661. Finally, the trial court determined that the jury box was “25 to 30 feet” from Petitioner and that his shackled hand was the “furthest from the jury.” Id. at 3660, 3662.

Third, Petitioner was given the opportunity to supplement the record to present further evidence or ask for further relief. At the conclusion of the hearing, the trial court specifically asked whether defense counsel wanted to add anything else to the discussion. Defense counsel did not ask for the trial court to make any further inquiry and did not object to the trial court's conclusion of the inquiry without taking any further investigative or remedial action.

The question for this Court is whether, given these circumstances, the trial court's factual finding that the jury did not see Petitioner in shackles was reasonable. See Hurles, 752 F.3d at 778. Given the substantial evidence adduced at the trial court's hearing and the fact that Petitioner has not presented any reasonable argument or evidence that any of the jurors were able to view Petitioner's arm handcuffed underneath the table, the Court concludes that the state courts' factual inquiry and findings were sufficient. Accordingly, the California Court of Appeal's finding that any error in shackling Petitioner was harmless is entitled to deference. See Hooper v. Shinn, 985 F.3d 594, 634 (9th Cir. 2021) (“Given the lack of any evidence that the jury saw Hooper's shackles, no reasonable jurist could disagree with the district court's decision to defer to the Arizona Supreme Court's factual findings that the shackles were not visible.”); Dixon v. Ryan, 932 F.3d 789, 810-11 (9th Cir. 2019) (holding that the state court's factual conclusion that restraints were not visible was reasonable because there was “no evidence” to the contrary).

Petitioner insists that access to the juror identifying information via a post-trial Cal. Civ. P. Code § 237 request was the “only legal mechanism available to vindicate his right to appear at trial free of restraints.” ECF No. 17, Traverse at 3. That is not correct. As discussed previously, Petitioner had the opportunity to request a jury admonition or a mistrial immediately following the error. Petitioner could have also requested a further inquiry by the trial court into whether any of the jurors had seen the handcuffs prior to the verdict. As the trial court noted in denying Petitioner's request for juror identifying information, Petitioner's counsel may well have elected not to seek such relief for tactical reasons. Finally, counsel could have had an investigator interview any willing jurors at the end of the trial. See People v. Tuggles, 179 Cal.App.4th 339, 381 (2009) (noting that “counsel and investigators routinely interview jurors before they leave the courthouse”) (internal quotation marks omitted).

In sum, there is no evidence in the record that any of the jurors saw that Petitioner was handcuffed during the closing arguments. Nor has Petitioner presented any evidence or credible argument that the handcuff was visible to the jurors. Therefore, Petitioner has failed to show that the state court's decision to reject his claim and refuse to give the jurors' identifying information was not supported by substantial evidence in the state court record or that the state court's fact-finding process was unreasonably deficient. In other words, Petitioner has not met the standard of demonstrating an unreasonable determination of the facts under § 2254(d)(2). Accordingly, Petitioner is not entitled to an evidentiary hearing in federal court to develop new evidence. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”)

VII. CERTIFICATE OF APPEALABILITY

The Court finds that reasonable jurists could differ on the disposition of this Petition and that it is proper to encourage further consideration of the claim. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that a certificate of appealability may be granted only if the applicant has made “a substantial showing of the denial of a constitutional right, ” i.e., a showing that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further”) (internal quotation marks and citations omitted). The Court will, therefore, grant a certificate of appealability on the issue of whether the trial court unreasonably denied his request to unseal juror information after the he was unjustifiably shackled at trial in violation of his rights to due process and a fair trial. See 28 U.S.C. § 2253(c)(2); Slack, 529 U.S. at 484.

VIII. CONCLUSION

For these reasons, the Petition is denied and the action is dismissed with prejudice. Because, however, Petitioner has made a substantial showing of the denial of a constitutional right, a certificate of appealability is issued. See 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b).

EXHIBIT A

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v.

LUIS VILLANEDA, Defendant and Appellant.

B268868

Filed 6/12/17

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA099258 Douglas Sortino, Judge. Affirmed.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

KIN, J. ^[*]

INTRODUCTION

After a jury trial, defendant and appellant Luis Villaneda (defendant) was convicted of second degree murder (Pen. Code, § 187, subd. (a) ¹) for the killing of victim Gonzalo Robles. On appeal, defendant makes the following claims of reversible error: (1) the prosecutor committed misconduct in three different respects at trial; (2) defendant was handcuffed during closing argument; and (3) the trial court denied defendant's petition for disclosure of juror information. We affirm the judgment.

1 All statutory citations are to the Penal Code unless otherwise indicated.

BACKGROUND

I. Factual Background

A. Prosecution Evidence

Robles, his girlfriend Jennifer Yepez, and Monica Dominguez lived in a house on a piece of property located in West Covina. Defendant and his girlfriend lived in the “back house” of that property. Son Tran and his girlfriend, Trinh Nguyen, lived in a garage on the property. Elizabeth Laplant and Geoffrey Brooks were the owners of the property, and they also resided there.

During the summer of 2012, people would come from the street in the middle of the night, jump the wall, and head to defendant's room on the property. The occupants of the front house were upset about this foot traffic.

In the evening of August 29, 2012, Robles, Yepez, and Dominguez approached defendant at Laplant's direction and told defendant he needed to pay rent owed to Laplant. They also told defendant that he needed to stop having so many people visit his home. Defendant appeared angry and said they lacked the authority to confront him. Yepez and defendant exchanged profanity. During the exchange, Yepez knocked defendant's phone out of his hand after defendant indicated he was on the phone with a gang member who would help defendant harm them.

Defendant and the others then went to Laplant's residence on the property. After discussing the issues between Laplant and defendant, they all shared methamphetamine provided by defendant, which apparently resolved the dispute.

After leaving Laplant's residence, defendant went to the room shared by Tran and Nguyen. He told Tran and Nguyen about his encounter with Robles, Yepez, and Dominguez, and he said they had disrespected him. Before leaving the room, defendant took a knife he had previously loaned Tran and Nguyen.

In the morning of August 30, 2012, defendant called his friend Ryan Munns and described the prior evening's argument. Defendant was upset that the “women” had disrespected him. Defendant then told Munns “he needed to get out of the house before he did something stupid.” Munns suggested they go to the gym and agreed to come by later that day.

Munns came to defendant's house at about noon and went to defendant's room. Munns and defendant then walked to the main house on the property. Defendant, who was extremely angry about the prior night's events, intended to demand an apology from Robles, Yepez, and Dominguez. Either defendant or Munns, or both, loudly knocked on the door, and then one of them struck the door so hard that it broke.

Robles, Yepez, and Dominguez came outside and confronted defendant and Munns. Robles commented that defendant had “brought backup.” Defendant demanded an apology, but Robles laughed at him. Defendant then exchanged profanity and insults with Dominguez and Yepez.

For his part, Munns called Yepez a “bitch.” In turn, Yepez yelled at Munns, and Munns told her to “get the fuck out of my face.” In response, Robles told Munns, if “you hit my girl . . . I'll beat the shit out of you.” Munns then dropped his keys and sunglasses and dared Robles to hit him. The two men then engaged in a fistfight. Robles knocked Munns down, and then Munns struck Robles.

Meanwhile, defendant took a knife out of his pocket. While displaying the knife, defendant said to Yepez, “you're not so hard now.” He also said, “Your boyfriend is not so tough.” According to Yepez, defendant lunged at her with the knife, which grazed her right above the waist. During this exchange with defendant, Yepez yelled out that defendant had a knife. By this point, Robles stopped fighting with Munns and turned his attention to defendant and Yepez.

Yepez took out her phone and loudly described Munns' appearance, as if she was speaking to the police. Upon hearing her, Munns said he was leaving, suggested defendant leave as well, and fled. In the meantime, Robles moved towards Yepez and repeatedly told defendant to drop the knife. Defendant refused and told Robles “Come on, come on.”

Dominguez tossed Robles her knife. Robles cut defendant in the shoulder. Defendant then stabbed Robles in the heart. Robles fell to the ground and died moments later. After stabbing Robles in the heart, defendant said, “That's what you get.”

Defendant immediately fled the property, threw away the knife, and called Munns to pick him up. Munns picked up defendant and tried to convince defendant to go to the hospital because defendant was bleeding. Defendant refused, saying the hospital was “too close to the incident.” Munns instead dropped defendant off with defendant's father. Defendant was located and arrested a few hours later.

B. Defendant's Evidence

In the defense case, defendant presented the testimony of several witness (including defendant) in an attempt to establish that Robles was the aggressor and that defendant acted in self defense.

Defendant testified that the day before the stabbing, Robles called him and said Laplant wanted defendant to vacate his room. Later that day, when defendant returned home, Robles, Yepez, and Dominguez were in the yard. Yepez slapped defendant's telephone out of his hand, and Yepez, Robles, and Dominguez laughed about it. Robles also told defendant that Laplant was evicting him. During the exchange, Yepez and Dominguez called defendant a “bitch.”

The following day, defendant was still angry about the events of the day before. Defendant admitted that he told Munns that he wanted to “smoke them out with a bowl and light them on fire, ” but he testified that it was just a stupid comment.

After Munns arrived at defendant's place, defendant and Munns went to Laplant's residence. Defendant knocked on the door. Dominguez opened and then immediately shut the door. Munns kicked the door and called Dominguez a bitch.

Robles then came out and asked defendant why they banged on the door. Munns and Robles began to fight. Robles fell to the ground, and defendant held his knife by his side. According to defendant, he did not lunge at anyone with it.

Yepez said, “He has a knife. He has a knife.” Robles walked toward defendant, and Dominguez gave Robles a knife. Robles attacked defendant, stabbing him in the left shoulder. Defendant then stabbed Robles. Robles approached defendant with the knife again. Afraid for his life, defendant again stabbed Robles, who fell to the ground. Defendant left.

As part of the defense case, additional witnesses testified, each stating, inter alia, that defendant did not stab Robles until after Robles had possession of a knife during the altercation.

II. Procedural Background

Defendant was charged in a three-count information. Count One charged defendant with the murder of Robles in violation of section 187, subdivision (a). Count Two charged defendant with assault with a deadly weapon with respect to Yepez, in violation of section 245, subdivision (a)(1). Count Three charged defendant with the attempted murder of Yepez, in violation of sections 664 and 187. As to counts one and three, the information alleged that defendant personally used a deadly weapon in violation of section 12022, subdivision (b)(1). The information also alleged that defendant had served a prior prison term as defined by section 667.5, subdivision (b).

At trial, the jury found defendant not guilty of first degree murder, but guilty of second degree murder with respect to Robles. The jury also found the deadly weapon allegation to be true. With respect to counts two and three, the jury found defendant not guilty. The prosecutor dismissed the prior prison term allegation.

Ultimately, the trial court sentenced defendant to state prison for a term of 16 years to life, consisting of a term of 15 to life on count 1, plus an additional year for the deadly weapon enhancement. Defendant timely appealed.

DISCUSSION

I. Prosecutorial Misconduct

Defendant contends that the prosecutor committed misconduct in three respects: (1) misrepresenting the burden of proof in her closing and rebuttal arguments; (2) stating in her closing argument, without any supporting evidence, that victim Robles had saved the lives of Yepez and Dominguez from defendant; and (3) making an argumentative comment when cross-examining defendant. We reject such claims.

A. Applicable Law

“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”'” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”'” [Citation.]' [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)

When the claim of misconduct focuses on the prosecutor's comments made during argument, the defendant must “‘show that, “[i]n the context of the whole argument and the instructions” [citation], there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' [Citation.] If the challenged comments, viewed in context, ‘would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' [Citation.]” (People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).

To preserve a claim of prosecutorial misconduct, the defendant must object at the time the claimed misconduct occurs and request a curative admonition to the jury or instruction. (People v. Tully (2012) 54 Cal.4th 952, 1010; People v. Thomas (2012) 54 Cal.4th 908, 938-939.) An objection on a different ground may not be sufficient to preserve a claim of misconduct. (People v. Dykes (2009) 46 Cal.4th 731, 766-767.) “‘The primary purpose of the requirement that a defendant object at trial to . . . prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.' [Citation.]” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.]” (People v. Hill, supra, 17 Cal.4th at p. 820.)

B. Alleged Misstatements of the Burden of Proof

1. Background Facts

The prosecutor began her closing argument by asking the jury to “apply the law to the facts of this case, ” and said “it's a big responsibility. It's solely your responsibility. It doesn't matter what I say.” Later, referring to a scenario she described during jury selection concerning “pink glitter, Superman, and a pink tutu, ”² the prosecutor said:

2 The record on appeal does not contain the reporter's transcript for the proceedings involving jury selection when the prosecutor may have discussed pink glitter, Superman, and a pink tutu.

“That's something you will have to try to be, reasonable and logical, in your task in finding the truth because Superman in a tutu logically does not exist.

“Superman in a tutu has no place in this trial. Superman in a tutu is not going to help you know the truth about how and why Mr. Robles was killed. Use your common sense. Use your reason and logic. That's going to lead you to the truth.”

The prosecutor continued: “In this trial we have done a lot to make sure you get all the evidence you can;” “you can determine what you believe and what you don't believe;” and, “You have to decide is a witness just mistaken now or are they lying now?” The prosecutor then said:

“Your responsibility as jurors in finding the truth is to reject what is unreasonable. You have to reject Superman in a tutu. You may want to accept it. You may want to believe it. You might hope that that's the truth, but you must reject what is unreasonable. You must accept what is reasonable. You have to use your common sense and logic in finding the truth.”

The prosecutor proceeded to state that defendant's version of events did “not make sense, ” discussed why self-defense did not apply in the case, and also said: “The Law, as well as your decision in this case, has to be based on reason. The law is also based on reason.” The prosecutor continued:

“The truth is, this case is not about speculation. It's not about the poor little defendant that felt bullied.

“This case is about justice and the truth and the law. And the truth in this case and the law in this case say that the defendant is guilty.”

In his closing argument, defendant's counsel said:

“As you know, the People have the burden of proof. They have to prove this case beyond a reasonable doubt and to an abiding conviction.

“That has to be done on each and every count.

“It has to be done on each and every case whether it's a murder case or whether it's a simple misdemeanor. It's the same standard.

“It's the same standard that is applied each and every time, and it will be applied in this particular case.

“You will apply that standard, and your job-your purpose for being here is to make sure that that standard is applied to the facts in this particular case. If there is anything that needs to be done by you, you have to determine what the facts are and you have to determine [the] facts beyond a reasonable doubt.

“That's the standard that's applicable in this case, and that's the standard that's applicable in all cases.”

Defendant's counsel then described the prosecutor's interpretation of the stabbing as simply “guessing, ” and told the jury “that is not the standard of evidence.” Defendant's counsel told the jury he did not want them to reach a guilty verdict and then “wake up in the middle of the night in a panic . . . hyperventilating” upon realizing they had made the wrong choice. He reminded the jury, “You are the triers of facts, not [the prosecutor].” Defendant's counsel also repeatedly asked the jury to use its common sense in evaluating the evidence: “you have been asked to use your common sense. Use it. Don't leave it in the parking lot, ” “Don't lose sight of your common sense. Don't lose sight of reality, ” and, “Don't lose your common sense.” Thereafter, defendant's counsel made numerous additional comments on the burden of proof, including: “Put the facts together. Use your common sense, ” “when somebody is not giving you all the truth, you have doubts and then it becomes reasonable doubt, ” and “consider what a reasonable person in a similar situation with similar knowledge would have believed.”

At the commencement of the prosecutor's rebuttal argument, she reminded the jury that the burden of proof was “beyond a reasonable doubt, ” and said the interpretation of the evidence by defendant's counsel was “unreasonable.” She continued:

“Is there really a question in your mind after hearing all of these witnesses, their prior statements and their in-court testimony, is it really so hard to know what happened and why it happened? The law does not require that a play by play is known by you. That is not required by the law. You do not need to account for every second of action by the parties. The elements that you have need to be satisfied and that's it. They need to be satisfied by the burden of proof and that is it. You don't need to have a video replay of the events for you to know what happened and for you to come to a determination of the truth.”

The prosecutor told the jury that it was the judge's job to describe the law, again cited the burden of proof as beyond a reasonable doubt, and said that it was the jury's task to determine the facts based on evidence and to apply the facts to the law. The prosecutor then said:

“I like to talk about the Lady Justice is what she's called. Originally she was referred to as Justitia, J-U-S-T-I-T-I-A. Now, her name is Lady Justice. She's blindfolded, and a lot of people joke about that because the law is blind and can't see. But that's not what the blindfold means. The blindfold is to symbolize objective [sic] and impartiality. That is how you need to be in this case. The scales that she carried in her hand measure the strength of a case and its opposition. They weigh in the balance, one side or the other, because that is the system that we have. It's adversarial. There's one against another and it's a fluid balance because you determine beyond a reasonable doubt. You determine exactly what that balance is that convinces you beyond a reasonable doubt. It's not a set number. It probably changes from jury to jury a little bit. But that's for you to decide.”

After describing the defense characterization of the evidence as unreasonable, the prosecutor said:

“Lady Justice tells you that even a defendant can lie, and you must reject what is unreasonable. You have to reject it. Just because the defense says it, doesn't make it true. Just because the defense says it, doesn't make it relevant. Just because the defense wants you to believe it, doesn't make it believable.

“Don't be fooled by any witness, any attorney or the defendant. This is your responsibility, to use your reason and common sense. Justice relies upon you.”

The prosecutor continued:

“Reasonable doubt is proof that leaves you with an abiding conviction not certainty. Like the defense said, abiding conviction, a belief that the charge is true. It need not eliminate all possible doubt. Everything is open to some doubt. . . . [¶] It is not about any imaginary doubt.”

After explaining why the defense version of events was not credible, the prosecutor said, “This is about the evidence. It's not about me. I wasn't there.” The prosecutor concluded her argument by repeatedly reminding the jury that it could find defendant guilty only if convinced beyond a reasonable doubt.

2. Forfeiture

Throughout the entirety of the prosecutor's closing argument and rebuttal, defense counsel never objected on any ground to any statement, illustration, or argument by the prosecutor concerning the burden of proof, let alone made even a suggestion or hint that the prosecutor had engaged in misconduct. Defendant has therefore forfeited the claim he now makes on appeal concerning purported misconduct in connection with the prosecutor's arguments concerning the burden of proof. (People v. Seumanu, supra, 61 Cal.4th at p. 1328; People v. Tully, supra, 54 Cal.4th at p. 1010; People v. Thomas, supra, 54 Cal.4th at pp. 938-939.)

In holding that defendant has forfeited this claim of misconduct, we reject defendant's contention that his failure to object should be excused because an objection would have been futile. (See People v. Jackson (2016) 1 Cal.5th 269, 367 [“A defendant's ‘failure to object and request an admonition waives a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective.' [Citation]”) In claiming futility, defendant merely states in a conclusory fashion that objections and requests for admonitions would have been “ineffective” because “the prosecutor kept making improper statements on the standard of proof throughout her argument.” We are unpersuaded. The prosecutor continued to make the statements defendant now complains of because defendant never objected to any of them as they were made. Assuming arguendo such statements were improper, nothing in the record suggests the prosecutor would have defied the trial court and continued to make them if the trial court had sustained an objection to them. Moreover, there is nothing in the record to suggest the jury would not have followed an admonition by the trial court to follow its instructions of law concerning the burden of proof and disregard any argument by the prosecutor to the contrary. (People v. Archer (1989) 215 Cal.App.3d 197, 204 [“[T]he jury is presumed to consist of intelligent persons who are fully able to understand, correlate and follow the instructions given to them”].)

Accordingly, we conclude defendant has forfeited his claim of prosecutorial misconduct concerning the prosecutor's statements regarding the burden of proof.

3. Ineffective Assistance of Counsel

Defendant argues in the alternative that, if we conclude defendant forfeited his misconduct claim by failing to object, we should nonetheless reverse because defense counsel was constitutionally ineffective by failing to object on this ground. (See People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno) [“'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to effective assistance of counsel.' [Citation]”)

In order to establish a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma)) “Unless a defendant establishes the contrary, we shall presume that ‘counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation]” (Ledesma, supra, 43 Cal.3d at p. 746.) When the record on appeal is silent as to why counsel did not act in the manner challenged, defendant bears the burden of demonstrating that there was “no conceivable tactical purpose” for counsel's omission. (Centeno, supra, 60 Cal.4th at p. 675.) Our Supreme Court has long recognized that “a mere failure to object to evidence or argument seldom establishes counsel's incompetence.” (People v. Ghent (1987) 43 Cal.3d 739, 772.)

Here, defendant fails to show that his counsel was constitutionally ineffective by failing to object. Defendant merely surmises that the absence of an objection must have been error because his counsel “could not have wanted jurors to believe [defendant] could be found guilty based on a lesser standard of proof.” While defendant undoubtedly supposes correctly his counsel did not want the jury to apply a lower burden of proof, that supposition does not address the pertinent question of whether the lack of an objection to the prosecutor's comments was for some tactical purpose. Defendant actually answers that question himself when positing in his opening brief that “an objection and request for admonition for the prosecutor's comments would have been harmful because it would have called more attention to them, making the prejudice worse.” (See People v. Fernandez (2013) 216 Cal.App.4th 540, 565 [recognizing a reasonable trial strategy to refrain from objecting to prosecutor's remarks in closing argument because counsel did want the remarks emphasized to the jury].) While we do not necessarily agree an objection and admonition would have made matters worse for defendant, we recognize a decision not to object for fear of that effect was a reasonable and “conceivable tactical purpose.” We therefore conclude defendant has failed to meet his burden of establishing his counsel was ineffective. (Centeno, supra, 60 Cal.4th at p. 675.)

We additionally note that defense counsel might also not have objected because he reasonably concluded the prosecutor's statements regarding the burden of proof were not improper. Unlike Centeno, where our Supreme Court found defense counsel constitutionally ineffective for failing to object where “the problems with the prosecutor's comments were not difficult to discern” (Centeno, supra, 60 Cal.4th at p. 675), the purported impropriety of the prosecutor's statements is not so clear in this case.

Defendant claims the prosecutor's statements regarding the burden of proof “essentially directed the jurors that they could find [defendant] guilty by rejecting what they found unreasonable, accepting what they decided was reasonable, and finding the evidence tipped in favor of the prosecution.” More specifically, defendant contends the prosecutor's reference to Lady Justice and her scales “conveyed the impression that a lesser standard of proof, e.g., preponderance of the evidence applied, and that it was enough to find [defendant] guilty if the scale tipped in favor of the prosecution, e.g., 51 percent or more of the evidence was there.” Defendant further contends the prosecutor's comments “diluted the prosecutor's burden of proof by arguing that the jury's rejection of what it found unreasonable and acceptance of what it found reasonable sufficed for proof of [defendant's] guilt.”

We do not find defendant's interpretation of the prosecutor's comments as improper so readily discernible. In referencing “Lady Justice, ” the prosecutor said, “The scales that she carried in her hand measure the strength of a case and its opposition. They weigh in the balance, one side or the other, because that is the system that we have. It's adversarial. There's one against another and it's a fluid balance because you determine beyond a reasonable doubt. You determine exactly what that balance is that convinces you beyond a reasonable doubt.” Contrary to defendant's interpretation, the prosecutor's illustration merely informed the jury that, in weighing the evidence of defendant's guilt, at some point the scales may tip so far as to constitute proof beyond a reasonable doubt. Thus, while the prosecutor's reference to the scales of justice was perhaps inartful or even unwise (see People v. Katzenbeger (2009) 178 Cal.App.4th 1260, 1269 (Katzenberger) [“[P]erils undoubtedly attend a prosecutor's attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph or chart . . . .”]), it was not legally incorrect or clearly misleading. More to the point, the analogy as phrased by the prosecutor was not so easily discernible as improper such that defense counsel was constitutionally ineffective for failing to object to it.

Likewise, we do not find so easy to discern as improper the prosecutor's comments that the jury should reject what is unreasonable and accept what is reasonable. We recognize that it is error for a prosecutor to leave the jury “with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden.” (Centeno, supra, 60 Cal.4th at p. 672.) But our Supreme Court has held explicitly that a prosecutor's comments asking the jury to “accept the reasonable and reject the unreasonable” does not improperly lessen the prosecution's burden of doubt. (People v. Romero (2008) 44 Cal.4th 386, 416.) That is all the prosecutor communicated here. Nothing about the prosecutor's argument as a whole could be construed as telling the jury it could convict merely by finding the prosecution's view of the evidence reasonable. Indeed, throughout her closing argument and rebuttal, the prosecutor consistently reminded the jury that the burden of proof was beyond a reasonable doubt, and she correctly reiterated in her rebuttal the court's instruction that “reasonable doubt is proof that leaves you with an abiding conviction.”³

3 The trial court instructed the jury pursuant to a modified version of CALCRIM No. 220, stating in relevant part: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” During his closing argument, defense counsel similarly stated that the prosecutor had “to prove this case beyond a reasonable doubt and to an abiding conviction.”

Moreover, the prosecutor's use of the image of Superman, glitter, and a pink tutu may have been a confusing and misguided attempt to illustrate the concept of what is unreasonable. (See Katzenberger, supra, 178 Cal.App.4th at p. 1269 [“[W]e caution prosecutors who are tempted to enliven closing argument with visual aids that using such aids to illustrate the ‘beyond a reasonable doubt' standard is dangerous and unwise.”]) But we do not find that the Superman illustration misled the jury as to the prosecution's burden of proof. (Cf. id. at p.1267-1268 [eight-piece puzzle depicting the Statue of Liberty “inappropriately suggest[ed] a specific quantitative measure of reasonable doubt” where the puzzle depicted “an easily recognizable iconic image” and the prosecutor argued “this picture is beyond a reasonable doubt” while showing six of the eight pieces assembled].) Indeed, even a flawed example of what is unreasonable does not necessarily convey erroneously what constitutes proof beyond a reasonable doubt. (See People v. Romero, supra, 44 Cal.4th at p. 416 [“The prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt.”])

Accordingly, we find that defense counsel's lack of objection to any of the prosecutor's arguments concerning the burden of proof fell well within the wide range of professional competence that is deemed constitutionally effective. (Ledesma, supra, 39 Cal.4th at p. 746.)

C. Alleged Misrepresentation of the Evidence

Defendant contends that the prosecutor committed misconduct by arguing, without any evidentiary basis in the record, that Robles saved the lives of Yepez and Dominguez. Specifically, the prosecutor said during her closing argument: “The truth is, Gonzalo Robles saved the lives of Jennifer Yepez and Monica Dominguez that day. In so doing, he lost his own life.”

Defendant did not object to this statement as prosecutorial misconduct or request that the trial court admonish the jury to disregard it. Defendant therefore forfeited the claim he now makes that this comment constituted misconduct. (People v. Seumanu, supra, 61 Cal.4th at p. 1328; People v. Tully, supra, 54 Cal.4th at p. 1010; People v. Thomas, supra, 54 Cal.4th at pp. 938-939.) In so concluding, we reject defendant's claim that his failure to object should be excused. As noted above with respect to the prosecutor's argument regarding the burden of proof, there is no indication in the record that it would have been futile to object to this comment either. If the trial court had found merit to the defendant's objection, it could have instructed the jury to disregard the comment, stricken the comment from the record, and/or reminded the jury that arguments of counsel are not evidence-all of which we presume the jury would have understood and followed. (See People v. Edwards (2013) 57 Cal.4th 658, 764; People v. Pearson (2013) 56 Cal.4th 393, 434-435.)

We also reject defendant's claim that his counsel was constitutionally ineffective for not objecting to this comment. Contrary to defendant's contention that there was “no evidence” to support the view that Robles may have saved the lives of Yepez and Dominguez, the record indicates otherwise. Yepez testified at trial that, before fighting with Robles, defendant tried to stab Yepez and his knife actually grazed her body. Yepez further testified that Robles then told defendant to drop the knife. Dominguez also testified that Yepez yelled out that defendant had tried to stab her, which caused both Yepez and Dominguez to further engage defendant and cuss at him. Defendant himself testified that Yepez said, “Look he has a knife. He's going to stab me with it” and that Robles switched his attention to defendant upon hearing that. In addition, Munns testified that defendant was “furious” at the “women” and had stated he wanted to set them on fire. Munns also testified that he heard both Dominguez and Yepez dare defendant to stab them.

Thus, while there may have been other conflicting or contradictory evidence adduced at trial, there was ample evidence that defendant stabbed Yepez and that defendant continued to engage both Yepez and Dominguez in a hostile manner while holding the knife until Robles drew defendant's attention. From this, we find it was well within the realm of permissible argument for the prosecutor to state that Robles lost his life by intervening to save Yepez and Dominguez. (People v. Bonilla (2007) 41 Cal.4th 313, 336-337 [“[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.”]) It was therefore reasonable not to object to the prosecutor's characterization of the evidence, and we accordingly do not find defense counsel's lack of an objection to have been constitutionally ineffective.

D. Alleged Argumentative Comment during Questioning

During cross-examination, the prosecutor asked defendant why he pulled out a knife instead of calling 911 when Munns was fighting Robles. Defendant answered “I don't know. I was frozen. I was not in the state of mind.” The following exchange then occurred:

“[The Prosecutor]: So you don't freeze until after you pull out your knife, is that what you are telling us?

“[Defendant]: Yes.

“[The Prosecutor]: How lucky for you, [defendant].”

Defense counsel objected on the ground that the prosecutor's comment was “argumentative.” The trial court sustained the objection, struck the comment, and instructed the jury to disregard the prosecutor's statement.

Defendant now contends on appeal that the prosecutor's argumentative comment about defendant's answer constituted reversible prosecutorial misconduct. Even assuming arguendo that defendant's objection was sufficient to preserve a claim of prosecutorial misconduct (cf. People v. Dykes, supra, 46 Cal.4th at p. 766 [objection on different ground insufficient to preserve misconduct claim]), and that the prosecutor's single comment could rise to the level of prosecutorial misconduct (cf. People v. Cox (2003) 30 Cal.4th 916, 952 [prosecutor's errors do not constitute misconduct where they do not constitute a “pattern of conduct so egregious” that renders the trial “fundamentally unfair”], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), defendant was not prejudiced by the comment such that reversal is warranted. (Katzenberger, supra, 178 Cal.App.4th at 1268 [“Prosecutorial misconduct is reviewed for prejudice.”])

As noted above, the trial court sustained defendant's objection to the statement and immediately struck the statement from the record while instructing the jury to disregard it. Moreover, when instructing the jury prior to deliberations, the trial court told the jury that they must disregard any testimony stricken from the record and may not consider it for any purpose. Further, the trial court instructed the jury that “[n]othing the attorneys say is evidence” and that “their remarks are not evidence.” We presume the jury understood the court's multiple instructions to ignore the prosecutor's comment and followed them. (People v. Archer, supra, 215 Cal.App.3d at p. 204.) We also note that the prosecutor's comment was brief and that it was never repeated. We thus find that even if the single comment by the prosecutor were deemed misconduct, the defendant suffered no prejudice from it.

II. Defendant Being Handcuffed During Closing Arguments

Defendant contends that the judgment should be reversed because he was handcuffed during closing argument. We conclude that defendant forfeited this claim and that the error was harmless in any event.

A. Background Facts

With about 20 minutes remaining during the prosecutor's rebuttal closing argument, defendant's counsel noticed that defendant was handcuffed to his chair. After the jury left the courtroom to deliberate, defendant's counsel advised the trial court that defendant had been handcuffed during the arguments.

The trial court immediately began an inquiry into the circumstances. The bailiff explained that defendant was handcuffed during argument because the trial court had not instructed him to take the handcuff off defendant. The trial court told the bailiff that, although handcuffing defendant is normally the procedure when they do not have a jury, defendant should not be handcuffed in the presence of the jury. Defense counsel contended, and the trial court agreed, that there was no reason defendant should have been handcuffed to the chair, as defendant had not been disruptive during trial.

In attempting to assess the potential impact of defendant's having been handcuffed, the trial court determined that only defendant's left hand, the hand furthest from the jury, was handcuffed to the arm of the chair. Defendant had been seated approximately 25-30 feet from the jury. The jury was to the defendant's right side, and defendant's right hand was not handcuffed.

Defense counsel stated he did not know if the jury observed the handcuff on defendant. Defense counsel indicated he only noticed the handcuff about 30 minutes after he had sat down next to defendant upon finishing his closing argument. Defense counsel also explained that, upon noticing the handcuff, he moved in closer to the defendant and closer to the table, “blocking what [he] believe[d] to be any potential view of the handcuff.” Indeed, defense counsel stated his opinion that “if there was any view, it was very slight” because the table was situated such that defendant's hand was below the table.

The trial court confirmed the observation that defendant's hands were below the table throughout. The trial court stated it never saw the handcuff on defendant, even though the trial court looked around the entire courtroom periodically. The trial court explained that defendant was already seated in that position before both he and the jury entered the courtroom.

The prosecutor stated that she never noticed the handcuff either. The prosecutor indicated that she was facing defendant throughout her presentation of argument and at one point directly referred to defendant and said to “look at him.” However, the prosecutor explained that she was “not searching for his hands” and was “oblivious” to the handcuff.

The trial court concluded the inquiry by directly asking defense counsel and the prosecutor whether either had anything else to add. Both responded that they did not.

B. Analysis

“Under California law, ‘a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.' [Citation.] Similarly, the federal ‘Constitution forbids the use of visible shackles . . . unless that use is “justified by an essential state interest”-such as the interest in courtroom security-specific to the defendant on trial.' [Citation.]” (People v. Virgil (2011) 51 Cal.4th 1210, 1270.) When a defendant fails to object to restraints, he forfeits his claim on appeal. (People v. Williams (2015) 61 Cal.4th 1244, 1259.)

Here, in the midst of the prosecutor's rebuttal closing argument, defense counsel noticed defendant was handcuffed to his chair, but he did not immediately alert the trial court. Only after the jury retired to deliberate did defense counsel raise the fact that defendant had been handcuffed to his chair during closing argument. Yet, while stating that it was “totally inappropriate” for defendant to have been handcuffed, defense counsel never asked for any sort of relief, such as an admonition to the jury or a mistrial. Indeed, as the trial court conducted its immediate inquiry into what had occurred, defense counsel candidly admitted: (1) that he did not know whether the jury saw the handcuff; (2) that any view of the handcuff was at best “very slight”; and (3) that he personally blocked the jury's view once he noticed the handcuff. Moreover, at the close of the trial court's inquiry, the trial court specifically asked whether defense counsel wanted to add anything else to the discussion. Defense counsel stated that he did not. Defense counsel did not ask for the trial court to make any further inquiry and did not object to the trial court's conclusion of the inquiry without taking any further investigative or remedial action. We thus hold that the failure to object and request any relief from the trial court forfeited defendant's claim of error on appeal.

Even assuming the mere raising of the issue and calling defendant's shackling “totally inappropriate” could be deemed sufficient to preserve his claim for appeal, we find that any error was harmless. There is no evidence the jury ever saw the handcuff on defendant, who was seated 25-30 feet away, with both hands under the table and his side with the handcuff facing away from the jury. When not obstructing the jury's view of defendant with his own body, defense counsel believed any view of the handcuff was only “very slight.” Neither the trial court nor the prosecutor ever saw the handcuff, despite facing the defendant and having every opportunity to see the handcuff had it been in view. Indeed, it took defense counsel nearly half an hour to notice the handcuff even while seated next to defendant. We thus conclude that the error in leaving defendant's left hand shackled during argument before jury was harmless. (People v. Anderson (2001) 25 Cal.4th 543, 596 [“[W]e have consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense.”])

III. Petition for Disclosure of Juror Information

After he was convicted and the jury was discharged, defendant filed a petition to unseal juror identifying information to investigate whether any juror had seen the handcuff on defendant during closing arguments. The trial court denied the petition. We hold the trial court did not abuse its discretion in so doing.

A. Applicable Law

After a jury's verdict in a criminal case is recorded, jurors' identifying information (names, addresses, and telephone numbers) is sealed. (Code Civ. Proc., § 237, subds. (a)(2) & (3).) Discovery of jurors' identifying information “is a sensitive issue which involves significant, competing, public policy interests.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 548; People v. Tuggles (2009) 179 Cal.App.4th 339, 380.) To protect those interests, there are procedures in place by which a defendant may “petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g); People v. McNally (2015) 236 Cal.App.4th 1419, 1430.) Such a petition “‘shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information.' Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the juror's right to privacy outweighs the defendant's interest in disclosure.” (People v. McNally, supra, 236 Cal.App.4th at p. 1430 [quoting Code Civ. Proc., § 237, subd. (b)].)

“Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires ‘a sufficient showing to support a reasonable belief that jury misconduct occurred. . . .' [Citations.]” (People v. Johnson (2015) 242 Cal.App.4th 1155, 1162-1163.) “Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported.” (People v. Cook (2015) 236 Cal.App.4th 341, 346 (Cook).)

We review the denial of a petition to disclose juror identification information under the deferential abuse of discretion standard. (Cook, supra, 236 Cal.App.4th at p. 346; People v. Jones (1998) 17 Cal.4th 279, 317.)

B. Analysis

Defendant filed a petition for disclosure of juror information to determine: (1) whether any of the jurors saw defendant handcuffed to his chair during counsels' arguments; and (2) if defendant's physical restraints were observed, whether it played “any part” in the jury deliberations. At the hearing on defendant's petition, the trial court stated: “I just don't think there's a prima fascia case made because I just don't believe the jury saw anything based on the positioning of [defendant], where [his] had was [located], [and] the distance from him to the jury box. And I think I made a fairly complete record. And I just don't think they saw anything. I don't think there's been a prima fascia case made. [¶] And also, in any event, I think the defense waived it. Since I offered, I said to [defendant's counsel], is there anything else you would like me to do or words to that effect. . . . And he indicated no, so there was never any affirmative request for either a mistrial or an admonition to the jury . . . .” After entertaining further argument, the trial court denied the petition.

For the reasons stated by the trial court during the hearing on defendant's petition, we hold that the trial court acted well within its discretion to deny the request for disclosure of juror information. Defendant failed to meet his burden of providing sufficient evidence to support a reasonable belief that jury misconduct occurred. Defendant made no showing that any juror observed the handcuff, and there is no reason to believe based on the trial court's thorough inquiry that any juror would have seen it. Accordingly, any belief that the jury saw the handcuff is unsupported by the record and speculative, which cannot constitute good cause to justify release of juror identifying information. (Cook, supra, 236 Cal.App.4th at pp. 345-346.)

DISPOSITION

The judgment is affirmed.

We concur: KRIEGLER, Acting P. J.

BAKER, J., Concurring

I concur in the result reached by the majority. I write separately to set forth my views concerning the misstatement of law claims defendant Luis Villaneda (defendant) raises in connection with the prosecution's summation and rebuttal argument. (I join fully in the majority's rationale for rejecting defendant's remaining misconduct claims, as well as his other claims of error.)

I agree that defendant's failure to raise a contemporaneous objection at trial forfeited his contention that the prosecution during closing argument misstated its burden of proof. Anticipating a forfeiture issue, defendant argues his attorney's failure to make such an objection constitutes ineffective assistance of counsel warranting reversal. The majority correctly states the standard of review for evaluating such a claim on direct appeal-a standard our Supreme Court has described as “particularly difficult” to meet. (People v. Scott (1997) 15 Cal.4th 1188, 1212.) In my judgment, a faithful application of that standard turns out to be critical to the proper resolution of the contention that the prosecution misstated the law. I will briefly explain why.

As explained in People v. Carter (2005) 36 Cal.4th 1114 and legion other cases, it is defendant's burden to establish he received constitutionally inadequate assistance of counsel. (Id. at p. 1189.) If the appellate record “‘sheds no light on why counsel acted or failed to act . . ., '” a reviewing court on direct appeal must reject an ineffective assistance of counsel claim “‘unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.'” (Ibid; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Boiling defendant's argument down to its essentials, he identifies two points made by the prosecution during closing argument that he believes misstated its burden of proving him guilty beyond a reasonable doubt. The first was the prosecution's exhortation during summation that jurors “must reject what is unreasonable. You must accept what is reasonable. That is your duty. You have to use your common sense and logic in finding the truth.” The second involved the prosecution's invocation of the image of “Lady Justice” during rebuttal argument. The prosecution stated: “She's blindfolded, and a lot of people joke about that because the law is blind and can't see. But that's not what the blindfold means. The blindfold is to symbolize objectiv[ity] and impartiality. That is how you need to be in this case. You are justice in this case. The scales that she carried in her hand measure the strength of a case and its opposition. They weigh in the balance, one side or the other, because that is the system that we have. It's adversarial. There's one against another and it's a fluid balance because you determine beyond a reasonable doubt. You determine exactly what that balance is that convinces you beyond a reasonable doubt. It's not a set number. It probably changes from jury to jury a little bit. But that's for you to decide.”

When evaluating a claim that the prosecution has misstated the law in closing argument, we must decide how jurors likely understood the challenged remarks in the context in which they were made. (People v. Cortez (2016) 63 Cal.4th 101, 130-131 [defendant must show “[i]n the context of the whole argument and the instructions, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner”], internal quotation marks and citation omitted.) The majority accepts defendant's position that the remarks he challenges would have been understood as statements regarding the prosecution's burden of proof. I, however, see the issue somewhat differently.

As to the first point made by the prosecution during closing argument (the statements about rejecting what is unreasonable and accepting what is reasonable), I do not believe jurors would have reasonably understood the point as a comment on the burden of proof at trial. Rather, the remarks arose in context of the prosecution's discussion of how the jury should evaluate evidence and the believability of witnesses. In that context, I believe the point was proper argument, and the ineffective assistance of counsel claim predicated on that aspect of the prosecution's summation fails for that reason. (People v. Centeno (2014) 60 Cal.4th 659, 672 [citing precedent “approv[ing] the prosecutor's argument that the jury must ‘“decide what is reasonable to believe versus unreasonable to believe” and to “accept the reasonable and reject the unreasonable”'”]; People v. Dickey (2005) 35 Cal.4th 884, 915.)

As to the second point, however, (the invocation of the image of Lady Justice) the context of the prosecution's remarks provides far less assurance that the jury would not have understood the remarks as a troubling mischaracterization of the standard of proof that must be met to convict defendant. True, the excerpt of the prosecution's argument I have quoted arose in the course of the prosecution's appropriate warning to jurors that they must be impartial in reaching a decision-a warning that both preceded and followed the comments concerning the scales of justice. But the prosecution does make a specific reference to the burden of proof while discussing Lady Justice and her scales.

In my view, there are obviously grounds on which defense counsel could have objected to the prosecution's use of the Lady Justice image to describe the beyond a reasonable doubt standard of proof. As commonly imagined and depicted (a Google image search would tend to confirm this), the scales Lady Justice holds are often closely balanced, even if one is shown to outweigh the other. If imagery can ever be appropriate to describe the beyond a reasonable doubt standard (the majority rightly cautions against it), the image of closely balanced scales would nevertheless be an entirely inapposite representation of the beyond a reasonable doubt formulation that is the highest standard of proof known to California law. (See People v. Centeno, supra, 60 Cal.4th at pp. 669-670 [disapproving use of image in the shape of California]; People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266-1267 [disapproving use of puzzle pieces forming the Statute of Liberty].) Not only did the prosecution invoke this inapposite image, it exacerbated matters by simultaneously telling the jury that the beyond a reasonable doubt standard was a “fluid balance” and that it was for the jury to “determine exactly what that balance is.” This advisement would have tended to (1) reinforce the idea that the beyond a reasonable doubt standard of proof for conviction could be tantamount to an imagined picture of closely balanced scales and (2) undermine the trial court's instruction that the jury must define proof beyond a reasonable doubt as proof that would leave the jury with an abiding conviction that the charges against defendant were true.

Although there was a clear basis to object, I agree it is conceivable defendant's attorney might have made a tactical choice to refrain from objecting. While the context of the challenged Lady Justice comments does not assuage my concern that the jurors may well have understood the remarks in an improper or erroneous manner, it is possible that counsel for defendant at trial could have decided that the brief reference to Lady Justice's scales in context of a discussion of the need to be impartial (and in light of the overall content of the prosecution's closing argument) was not likely to prompt the jurors to misapply the law.

On direct appeal, however, we do not know what defense counsel's actual reasons were for opting not to object during the prosecution's rebuttal argument. Because I believe it is possible (I reserve judgment on whether it is likely) that the absence of an objection could have been a reasonable tactical choice, I agree defendant's ineffective assistance of counsel argument does not carry the day. Precedent makes clear that such claims are better resolved on habeas review, where presumably there would be a fuller record of the reasons for counsel's actions (or omissions). (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267 [“[C]laims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding”].) Should we again confront the issue in a habeas proceeding with a more developed record, the“particularly difficult” standard of review that now applies will apply no longer.

^[*]Judge of the Superior Court of the County of Los Angeles, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.