matter of the jury instructions as well as the mother matters i'll just address the jury instructions and submit the other matters the attorney general concedes of this case is that this panel is bound by the decision in gibson this this is one of a few cases that are in that time period where the issue was addressed and in the state court and fully presented to the district court judge and it's here for a decision and that's essentially this is as set identical to given the instructions that were given were the same as in gifts and the other instructions regarding reasonable doubt that the gibson court  d is identical and what the gets in court is the proper approach it clearly cites the relevant case law it analyzes these instructions under the supreme court law and then makes its decision and in those in light of that this case has to be reversed because of gibson it is not a situation of ambiguity what gibson said was this is a situation where the instructions are erroneous and they are clear and in boyd the court looks to two in the u s supreme court looked at two there are cases in which instructions are in conflict and in error and they and the gibson case cite school versus the united states which is one of those cases where there is a proper beyond a reasonable doubt instruction and improper instruction regarding how to weigh accomplice testimony and the court has faced looking at that reversed in the cool case and this court in gibson looked at those cases analyzed all realize the impact of the supreme court's opinion in middleton versus mcneil i have to tell you i thought i thought that was a pretty good argument and tell i look at gibson and saw that they cited two middleton so  we believe it's distinguishable mostly because of the prosecutor's argument the prosecutor in gibson actually argued the improper influence the prosecutor said all you have to do is find by a preponderance that he committed t prior offenses and then find that he committed the current offenses that's not what happened in this case and we filed the second supplemental excerpts the record which has some portions of both the prosecutors and defense attorneys closing arguments where the prosecutor repeated lee emphasizes the reasonable doubt standard he says that's the way it is in the united states i welcome that burden he said if there is a question you must err in favor of the defendant when it comes to reasonable doubt and he only mentions a preponderance standard he said this is the only piece of evidence that you can apply the preponderance standard to this prior uncharged act then the defense attorney comes up and he repeatedly argument that clarifies any ambiguity that would otherwise resolve against the defendant so we think that's extremely significant in this case but to go back to my other point that we think th incorrectly decided i'd like to explain that a little bit more in middleton versus mcneil the court was faced with a clearly incorrect instruction and we conceded it was incorrect from the beginning but the court said that fact alone is not enough to find a due process violation the court says we have to look at all the instructions to determine whether there is an ambiguity and that's what the gibson court didn't do the gifts in court that i did look at this after i received your pleadings that said you know you need to make assume the sponsor and bank call on gibbs and see how they handled middleton and i'm referring specifically to pages eight twenty eight twenty that's three eighty seven and third and after citing to middleton versus make me all and pointing out the problem with the instructions here the gibson panel then went on to declare that w just that it's considered structural and thus is not subject to harmless error review but then they go on to say however if a jury instruction is deemed ambiguous it will violate your process only one reasonable like a hood exists that the jury has supplied the challenge an instruction in a manner that violates the constitution citing a still correct and then they add any challenge instruction must be considered in light of the full set of jury instructions and the trial record as a found that you couldn't even consider all of the other instructions and the arguments of counsel that's the methodological approach that we believe is wrong and cannot be reconciled with milton versus mcneil because it middleton like this case there was an instruction that was not ambiguous it was wrong and we can see that it was wrong from the outset but the supreme court said you have to look at all the instructions to determine whether there's an ambiguity and if there is then you look at all these other factors to see if a constitutional violation a rose or did you see rehearing in vain you can give them we did not your honor and off hand or it was simply because we didn't at that point recognize the impact of middleton it was it was new at this point so it probably would have been the better practice to recognize it in the gibson case itself and to seek on bank rehearing then but we think this is an important point because by definition these cases affects the most serious repeat offenders because it's cases where there is a prior and so in all these cases all the ones on calendar today we've noticed some other related cases and then of course there are a number in the district court all these cases if they summarily get reversed it's serious impact on the california justice system and not only that the reason we're seeking a recommendation is because this won't just apply to these cases this methodological approach that we believe conflicts with middleton could apply to any jury instruction case and the state courts don't use that distinction as if it has to be originally ambiguous or not ambiguous they don't do that so it's studying those cases up for automatic framework set up for first looking at just those instructions if they're not ambiguous then it's a due process violation and the stories over and then you can't get to the impact of the other instructions or the prosecutor's argument which again in this keep the davis versus an excuse other than that i would simply say that just a couple of factual things middleton was decided in may of two thousand and four and refused to decide in october two thousand and four i think that the panel certainly had plenty of time to review the impact of that case on there the other matter is that the a court looked at again gibson looked at the instructions and found no ambiguity overall it did the proper analysis it wasn't just whether this was this particular instruction was ambiguous just look at all the instructions and found no ambiguity the the the other matter finally is just that mr  a was a one charge offense so there were no this case does not involve prior convictions at all it's also a case where the charged offenses were clearly disputed in the facts in this case and