exemplary jor and that any other reading of the record is just flat out and reasonable and the reason that i say that is if we could just step back a minute and and take a look at how this case went to the as the instructions unfolded for the jury the judge told the jury that while the rest of the directs that mr matters testified to was not a defense in another itself it could be considered with all the other facts of this case in determining whether or not the requisite specific intent was present now the the four person of the jury until she was just replaced and then discharged wrote a series of notes to the judge about this very precise legal issue first she says simply that she simply asked for a repetition of the notes by the way or in the in the excerpts of the record of pages two three and following the first clarification of the definition a specific content judge did that that was on the first full day of the of deliberations th second day she asked for more clarification she asked do the circumstances include all the events of the day are they limited to what went on at wendy's or they used only to determine whether the money was to be return the court answer that by saying yes you can look at the whole at that at all these events they go back to deliberate some more then she writes a third note which really kind of focuses which which tells us perhaps more than we should know about what her mental processes were she says what should the jury do if a member of the group to find specific content as the purpose of committing the alleged crime in the rest of the jury understands specific intent in reference to the action that would predict that the defendant would return the money to wendy's now we're not here to talk about obviously whether or not the court's instruction or whether the dress suit all that was raised and decided it's gone but i think what we do have is an example of a juror that was honestly grappling with the instructions that were given to her and not only that her notes make it clear that she was she articulated her position with sufficient clarity that none of the other jurors understand it but that she was able to put it into words that that that her that her note makes clear that this was she was troubled by the fact that in her view the government had not proved specific intent yonder reasonable doubt ok and this went on now for a half hour like an presences marshall but a day and a half and my  question to the court is what more could be expected of this juror and i don't think that's the question you ought to be asking the court you should be asking the court where the where there is a violation of the federal constitution as interpreted by the law the supreme court where here on haiti it's it's a good argument if you were in the state court of appeal thank you that's not our quickly but that's not our question is as moving as you may  may be in that area all our decision here is whether what was done there was a violation of the federal law as interpreted by the supreme court of the united states where if your case from the supreme court that says what occurred if you just charge a juror ok for doubts about the evidence you are as sander says that is the ultimate form o in this case it's clear that the juror who was discharged had doubts about the government's case ok that's we're halfway there we're halfway there the question then becomes is it reasonable to say that there was some other reason in addition to her problems with the evidence i mean it's sort of like in the batson line of cases where there's a private facie case that it a juror was discharged because of race then the question becomes was there some other juror helped her his or her position she would be discharged and there and there would be no remedy so the question comes down to was it reasonable for the state courts the trial judge and the other california courts to conclude that there was something else besides her doubts about the case ok well with the judge with the court of appeals that was well she refused to deliberate she refused to deliberate if that's so then you're right your honor we're not there there's no point being here federal court however my position is that that was an unreasonable determination and here's how i get there even even though she said it no she didn't really say it she said if you really look at it i have to answer to that the first one is that how do we figure out in the absence of something from the u s supreme court about what reasonable deliberation is ok my position in the state courts was what we should look to federal law ok subsequent to arguing this case the first time around the california supreme court decided people versus cleveland said well we're going to use a slightly less demanding test which we think reasonably accommodates the competing interests and the test was does the record show to a demonstrably reality that the juror failed to fail to deliberate and one of the things that they said in cleveland was a juror who has deliberated for a reasonable period of time can't be kicked off ok and we also know that in the absence of very specific supreme court guidance that we can look to the decisions of other court court and other courts in determining whether or not the state court made a reasonable determination if the court of appeals of california or the california supreme court says this is our state law you're telling us that we have a carte blanche to tell him no that's not your state no no i'm not saying that and this is still it's really it's really not a question of whether the court of appeal followed to do so and then later stated well more than being unwilling to deliberate i am unwilling to subject myself to another seven hours of what i went through yesterday and finally she said it's gotten to be a personal issue so  was this is what i'm arguing to you is that their conclusion was patiently and reasonable what the california court of appeal that the second time around when they had to look at first of all let me just go back and talk about the significance of cleveland for a second ok it's not just a matter of state law cleveland was constr california supreme the supreme court ruling as decided by the united states supreme court which excludes what what the california supreme court thinks is constitutional right i think with all due respect your hon think that whenever a lawyer says well there is i think i disagree with you ok i think that when we have a principle established by the united states supreme court in this case the right not  course jury intermediate courts have an obligation to apply that principle to a myriad of factual situations ok in this case they applied it to this particular factual situation my argument is that their application was on reasonable and that the sources we can look to include include importantly people versus cleveland because let's let's say that cleveland represents a reasonable a reasonable way to approach this ok i mean i suppose that my real when the statute says federal law as stated by the united states supreme court we can say and california no no that's not what i'm saying i'm saying that when you have it's sort of like the shall not commit adultery ok it has to be construed this principle has to be construed in in thousands tens of thousands hundreds of thousands of factual situations ok sounds like you're making the argument that the california court of appeal misapplied we know what i'm saying is that the california court of appeal dishonored just honored the principle that a criminal defendant is entitled to an uncoerced jury verdict and one of the one of the ways that i'm attempting to demonstrate that point is by pointing she started this give me a second to find it yes she said i'm open to the fact that i may be wrong i'm sorry supplemental excellent record ten question do you feel that you cannot continue with deliberations convince you that your decision was wrong and this is that one seventy three she says i'm open to the fact that i may be wrong she says will you be able to change your vote if your fellow jurors convinced you that you were wrong this is after a day and have a deliberations she says i think if that were true i would be able to change my vote i've been i've been unable to but i'm willing but i'm not willing to do with one what went on yesterday they're not trying to can convince me that i'm wrong to try to convince me that i'm stupid ok now we know the jurors don't have the right to take themselves off a jury simply because the heat turns up i mean every time you have a situation like this where you have an eleven to one situation the other jurors are going to say you're not listening you're wrong you're not you're not explaining your position you're i mean this is this is is what's going to happen and so you know in order in order for the courts to have been reasonable they would have point for example of the president as marshal this court made a fine upheld the trial judge's finding that the juror was emotionally incapable of going on there was no such binding by the trial judge here what i'm saying to you is that this record because of the the very over intrusive inquiry of the trial judge gives us here ten years later the opportunity to look at it in other words no this is not based on demeanor this is not based on credibility we have all the information that the trial judge that we have all the information that the california court of appeal had and on the basis of all that information it is clear that this juror deliberated she made her position clear she made the other jurors understood it they simply disagreed with it as as as trial counsel said to the judge way back then she has been if anything overly conscientious jury and at this point what he had with what trial co judge to do was to say to the jury look you know this is going to end ok this is not going to go on forever in other words basically the judge was faced either with recognizing the reality that an impasse had occurred or sending the jury back to deliberate some more the judge didn't do either of those things and what the result of that and the only result of that was a clear violation of law until versus phelps in the sense that the  possibility that this woman will be forced to change her vote ok and that's where the judge i mean because juries don't decide he's matters judges do the trial judge all the issues in this case are clear and governed by twenty two fifty four even one the findings of the state court of appeal are presumed correct and unless this court can find by clear and convincing evidence that those state court misconduct refusing to deliber because the thought process for two reasons one the court was very clear in talking about wanting to make sure that they did not get into the thought process of the jurors and get into what they were thinking and why they were thinking and so that's not in the record i mean the i believe the we have to get back to what you know the trial judge ultimately did which was excuse her for non deliberation and granted her request and the the facts that we tossed that she didn't want to go back in and be beaten up anything that she was willing to talk in right they could talk her out of her position she would consider that but she didn't want to go back in and be beaten up anymore and that's refusing to deliberate i mean i was she different then the then henry fonda in twelve angry m because this is them in the movie not for many years not i not for first degree murder cases they go in they immediately have a quote and he's the only one who votes for not guilty and the reason  judge asking to be excused as juror number four did hear inquiry that then took place the following day which precipitated in essence by a letter or our police preceded by a letter from the trial juror number four requesting to be excused then we get into these questions of her where she said i was i'm i'm going to deal with what went on there i can't go back i'm unwilling to  yesterday was too painful the jury process you know requires deliberation and she's refusing to do what we require jurors to do and expect jurors to do which is to deliberate and she's refusing to get engaged in the process and that state court of appeals decision under twenty two you know is presumed correct under twenty to fifty for each one and with this record where it starts with this asking to be excused it's then followed up with the the various statements that we've talked about on the the small and with other statements she's made you know clearly shows that she refused to well she won't deliberate she won't look at the facts they send a no doubts asking the judge to excuse the juror because she's not deliberating and we said that that violated the constitution but here we have the situation where know refused to deliberate and that's what i believe the difference in this juror is i take your point but in essence and answer the question the jury comes out and she says i'm not going to give up my firmly held beliefs and then the judge and sanders kicked her off the jury in her of misconduct slightly different facts at that point but what's different about it's of course the verdict when you know there's one holdout and you kick that that i mean you know there's a hold out you kick the judge kicks the juror the holdout off the jury and there's a conviction twenty minutes later what happened in difference is the fact that she sent the not in the no doubt and that's the pivotal difference between well that and all the other statements that she made me where she said that i'm refusing to engage in the process communication going first from the jurors opposed to the foreman but it's pretty close case i think i understand the court's position and you know it's not just physically and our you know i understand the question but i think under i and i would i keep going back to this idea that this is a finding of fact as the state court of appeals twice in their opinion you know said you know we find substantial evidence they said you know the i mean this state court of appeals sag and i'm trying to find the actual quote right now i had it march you know the record indicates that juror number four is refusal to continue deliberating that's a finding of fact under anyone that is presumed correct unless there's clear and convincing evidence to rebut that and there isn't in this record at another court of appeal to deal with the misconduct issue nine five ms i'll leave out her name is guilty of misconduct and prevents her from serving the state trial judge said she is my only did the california criminal law at this point what's the factual basis for that and isn't that an unreasonable application of the law to conclude that you engaged in misconduct criminal misconduct when you are at this point i can only have to say i don't recall that particular passage and i apologize to the court for not being able to answer the court's question i focused as all the briefing in this case has been focused since this from the state court of appeals two times to the california supreme court  to deliberate and that's what the state i've read to you from the transcript judge concluded she had violated california criminal law again i'm not familiar with that particular penal code section excuse yourself for the purpose of moving deliberations forward and that's what prompted the form and us on the note it is a really and needful difference from her saying ok i'm going to i will i will excuse myself to jurors and the foreman then saying asking for her to be excused and this circumstance where she sends an order self absolutely your honor for the same reason which is that she never you know juror never said i want to you know i'll give up you know get another juror in there and they can do it we don't have those facts what we have here is a juror who is refusing to engage in the process as found by the straight trial court a and you know that cases are replete with jurors screaming in each other and no error founder no misconduct found so we know that a jury deliberation is not always going to take place on should be what happens it should be remanded to the district court on that particular issue if that is viewed as separate from the overall issue i don't believe it as i believe everything is controlled by twenty two fifty four the finding that this sure was not deliberating and that that controls everything if the court does divided up into the separate issues and we lose the procedural default it would be appropriate to remand thank clear that if the discharge is motivated motivated by a desire for a unanimous jury verdict which is clearly what the other jurors wanted in this case that that just simply cannot be squared with the basic principle even though she rejected the first argument that we've been talking about that mr matters could quite conceivably prevail on the second and i i think persuasively demonstrated that there was no procedural  case because the state appellate court's refusal over the dissent of justice klein to deal with the overly intrusive inquiry of the jurors was inter california appellate courts have the power to consider any points raised by the record whether or not counsel in this case me effectively raise them  which means that in refusing to deal with it with the overly intrusive argument they decided that justice did not require which is in essence deciding a constitutional issue and for that reason this was not independent a