and its application by the california court of appeals in this case the u s supreme court first announced an allen versus united states and affirmed essentially later in low infield that although the constitution doesn't for bid a trial judge from addressing a jury impasse and returning the jury for further deliberations with instruction regarding the duty to deliberate those instructions may not be coercive and this court has had quite a bit of experience in a acquiesced in the direction of the majority now it's very clear under federal law and california law that the duty of a juror in deliberating is twofold on the one hand to one's own honest conscientious beliefs and what the evidence does or does not show on the other hand to be willing to consider the conscientious beliefs of one's fellows and entertain the question am i wrong without surrendering the duty to his or her duties we similarly have model instructions and other standards that set forth the interpretation of allen and all of those judicial standards clearly state that in order to be proper under alan to be non  judge must equally remind the jurors of the duty to maintain one's own conscientiously held beliefs while considering the views of others in this case the judge only told the jurors to give up their rol advocates and listen to opposing views and said nothing about the duty not to acquiesce in the majority that is what makes it coercive and this is a that's a that's the particular problem with this particular allen charge that it failed to include that particular think that is the primary problem there are other circumstances that i think make the coercive effect even more pronounced but that is the primary problem and when you get there i take it from the fact that the judge reminded them that you are not advocates you are finders of fact that's correct and so we would have to infer from that that that he was speaking to the hol through obviously must have been advocating for a different result than what the majority i think that is an absolutely fair interpretation of the instruction and what the minority jurors would have understood and it's the effect o instruction on the minority jurors that is at issue and the coersion analysis i take it under california law there's nothing improper in the judge asking for the numerical head cow as long as he doesn't ask them which way they're standing that's correct under california law that inquiry itself is not in permissible in the coersion analysis our position is that having asked for that inquiry is one factor which is relevant to the overall impact of the charge on the minority jurors and in jiminez the state court also a california case where it was not improper to ask all the judge did there was to ask twice and explicitly note oh i see there's  movement that's a good thing it means you guys are doing your job keep going that's actually a less problematic construction than the one in this case and this court found it coercive under alan we we have  think this is right we have approved trial judges basically saying look if it looks like there's some movement here it probably would be productive for you to go back and continue deliberations there's nothing wrong with that is there under ending alone no but when that question is coupled with instructions about the duty to deliberate that emphasize reconsidering one's own views without emphasizing not acquiescence there has universally in this circuit been a finding of coercion well i mean we're back to you and i've had this conversation before we're back to the end was and unanswered question under ed the california appellate courts looked at this and concluded is that it was not coersion and you're telling us as members of the ninth circuit court of appeals that we should look at ninth circuit law and revisit that it clear there are two questions one is does the trial judge then the jury back to keep going but even if that is perfectly proper allen alone field say the way in which the jury is instructed about what to do when it goes back may not be coercive and the contents of this primary paragraph talks about how the jury had deliberated long enough and the judge was legitimately persuaded that further deliberations would be productive i point out that even that conclusion however is belied by the record the trial judge had been told that there had already been two votes eight four nine three so there was still considerable dissension and to vote had been taken before the jury sent a note saying we didn't reach our verdict moreover  the trial judge did not ask the four person or the jurors as a body whether further deliberations would be constructive there was no inquiry as to the nature of the impasse if you if you knew that there had been two prior votes and that there had been a change in the voting can't he assume that there might be further movement if you send him back to continue deliberating since there was still so far from unanimity i don't think that one could assume that without inquiring further three votes isn't that far from unanimity i'd agree with your foot with five and seven but rather than argue that particular point although i stand by mine i still think that the overarching point here is that this discussion by the dca has to do with whether the jury had to li long enough or should be asked to deliberate further that is not the issue the issue is that when the judge sent them back to deliberate further assuming that was proper if he was going to tell them don't be an advocate don't stick to your position without being willing to entertain the opposite view you did not also say don't give in just because you're in the minority he was obligated to do that because the failure to do so was course so basically i'm going to say counsel you have any comment on that passage of the same morning they please the court i'm deputy attorney general rob nash and i are presenting respondent gloria henry a very brief statement about the standard in the role that the plays and allen charge cases and then i'd like to address some of the points made by the petitioner we know that they've been around for over one hundred years we know that in law and field the u s supreme court set up the totality of the circumstances test but i think the most important guidance comes from the two thousand and three case of early versus packer the case that we have decided after the think it's also worthy to note that the u s supreme court observed the role that the a t p had to play and that at the end of the opinion indicated even if we agreed with the circuit court that there was coercion that's not enough here it was at least i'm not crowing with you about that but making i'm raising a slightly different issue and it's not perhaps precisely raised in this case but your what your opening brought it to mind and that is this let's assume we have identical cases out of california raising the same issue free under identical circumstances to make the opposite conclusion i think it would be your own i think it would be ted don't think so because i think that is the law of the circuit and that's a separate question from the strict application of a d p i guess what i'm saying suggesting i'm just asking for your reactions once but it eventually gets into how do we think about we've heard some of these other cases and this one once a circuit has spoken out as a matter of and if you take his hypothetical and we cannot distinguish the facts of this case from a case which a prior ninth circuit panel has ruled on under ed why wouldn't we be bound by a prior panel decision assuming that in good faith we can't honestly distinguish the facts of that prior case if we're going to look at a case of the term that they're identical facts and there's a persuasive and guiding this is the finding that but how do we reconcile that with the law of the circuit concept i understand your point completely if it's if it's a case that it was simply a federal case one direct appeal only enunciated federal principles but if we've decided the question of what this means and the habeas context and again hypothetically you have identical cases it's hard for me to see how the circuit wouldn't preclude a panel from varying counterbalancing destruction in early versus packers two thousand and three u s supreme court case and the need for the counterbalancing destruction came from the original allen charge where the court specifically addressed the minority jurors and said of them if you're in them if you're in the minority and the  reason people feel so feel a certain way listen to them the counter to that was did then tell them look you don't have to sacrifice your sincerely conscientiously beliefs in this case the judge did not specifically address the minority jurors  addressed the jurors as a whole and encouraged all of them to go back and look at the evidence and consider their position he did not see my error i think agreed with my summary that if you look at that portion of his instruction which discusses the role of advocates that that that's who he was talking to was the minority jurors but i regarded the statement regarding advocates first that is part of the standard celtic's instruction seventeen point four one don't be the jurors are not advocates they were given that instruction before this case so i would submit that the judge is repeating part of the standard construction second telling the jurors not to be advocates was part of that stuff was part supplemental instruction lowenthal be phelps the u s supreme court case and it wasn't faulted in that case but once that celtic instruction given i don't recall seeing the actual instructions that were given to the seventeen point four one it's in my supplemental that sort of record i believe it's the fourth ok and so i think i think the judge was trying to place the evidence in context and asking the entire jury to go back and have a look at the case and then make a determination based on the evidence that had been submitted ask for some testimony i'm sorry they go out for about two hours to ask for some testimony to go to watch the testimony is read to them then they come back and they deliberate further for a little over an hour then they send out a note saying that not come up with a verdict right then and a half hour possession which i think is indicative of no coercion and they asked for further guidance on a principle point of law then they go for another twenty seven minutes then they say they're going to say and come up with a verdict but ultimately there were more thanks to the side of the case so i don't think we there were two counts and then there were two counts of prior serious felonies and two counts of prior prison terms but i don't think it's a fair statement at say that the state court just got it wrong because ultimately the verdicts were returned at five twenty five we can draw an inference if we would like do that by sending out the know it it after they deliberated for an hour after being instructed that they had reached you know a decision on the substantive issue but the fact remains that the verdicts were still on the table because they were returned to the co where it's worthy to note that even if we want to assume that that's the best case scenario the jury deliberated for three hours they were instructed they were deliberate for half an hour they got a structures on they got a structural constructive possession and then they players are naturally have a very important point twenty he said that the jury had been instructed generally before its deliberations as to the duty to listen to each other on the one hand but maintain one's own honest beliefs on the other when they reached an impasse only half of that instruction was repeated to them the half about listening to other people's opinions and not sticking to remember we can't ignore the fact that the jury had been given the full set of instructions before ca no i don't think you can ignore it but i do we have to look at it in the totality of the circumstances and i believe the most important fact about the totality of the circumstance is that the jury instruction the jury was given about deliberating changed from a theoretical one to one addressed to their impasse and when the instruction was addressed to the fact of an impasse the need not to acquiesce dropped out what did that tell the minority jurors but that under these circumstances the most important  deadlocked the judge then changed the instruction and said listen to each other and be willing to question your position then they reached a verdict that suggests coercion thank you counsel the case just argued will be submitted for decision