concurring in part and concurring in the judgment.
T 39 I agree fully with the majority's decision to overrule the court of appeals holding in People v. Raglin, 21 P.3d 419 (Colo.App.2000), and to hold instead that an additional advisement concerning mistrial need not be included in a modified-4len instruction. I do not concur, however, in the remainder of the majority opinion, advising as it does that "[a] trial court has discretion to instruct a deadlocked jury about the possibility of a mistrial when, considering the content of the instruction and the context in which it is given, the instruction will not have a coercive effect on the jury." Maj. op. 133. While I can appreciate the majority's reluctance to impose an absolute ban on notifying juries about the possibility of a mistrial, as the opinion below would apparently do, I believe the majority's opinion fails to articulate any principled basis for doing otherwise. More particularly, I fear the majority opinion is likely to create more uncertainty and fuel even more litigation over the decision to give or not to give an additional, mistrial advisement, by failing to make clear the sense in which it uses the term "discretion"; by offering precious little guidance concerning the "content" and "context" according to which it intends this discretion to be exercised; and ultimately by conflating an abuse of discretion itself with the reversibility of the error caused by it.
1 40 Initially, I consider it unwise to tinker with the content of the so-called modified-*103Allen instruction at all. As a matter of policy and psychology every bit as much as law, and (as the majority notes) as the result of much debate and development within the profession, we in this jurisdiction long ago arrived at a group of advisements we believed could safely encourage a jury having difficulty reaching a unanimous verdict to do its duty, without unduly pressuring it to reach consensus. See Allen v. People, 660 P.2d 896, 898 (Colo.1983) (recounting the 1971 directive of the Chief Justice of this court paralleling Standard 15-5.4 of the American Bar Association Standards for Criminal Justice Relating to Trial by Jury). To the extent the majority is concerned with matters other than the jury's inability to reach a verdict, such as specific questions the jury asks or the effect of counsel's conduct on the standard of review for error, those considerations are adequately controlled by other bodies of law altogether. See, e.g., Leonardo v. People, 728 P.2d 1252, 1256 (Colo.1986) (instructing trial courts concerning their duty to answer jury questions); see also Horton v. Suthers, 43 P.3d 611, 618-19 (Colo.2002) (discussing the invited error doe-trine). Making the content of the modified-Allen charge contingent upon some amorphous and ill-defined notion of discretion, rather than the more specific law developed to govern these largely procedural variations, simply makes less, rather than more, clear the choices facing a trial court.
1 41 In its self-described holding, the majority concludes that a trial court is not required to provide a mistrial advisement when giving a modified-Allen instruction, but that it has the discretion to do so when a mistrial advisement will not have a coercive effect on the jury. Maj. op. 114, 88. Apart from the fact that the very question before this court is whether giving or failing to give a mistrial advisement does, in fact, have a coercive effect, this formulation leaves unclear (at least to me) whether the majority intends that a trial court will remain safe from reversal by choosing not to give any such advisement at all or whether the exercise of its discretion to give or not to give such an advisement must depend upon the extent to which giving or failing to give it would be more coercive; and if the former, whether by discretion to instruct the majority simply means the trial court has the option to do what it wants, without being subject to review for abuse of discretion at all.
{42 Although the term "discretion" can have a wide-range of meanings, see generally George C. Christie, An Essay on Discretion, 5 Duke L.J. 747 (1986), we have on a number of occasions made clear its meaning with regard to judicial review in this jurisdiction. In its abstract sense, judicial discretion implies the absence of any settled legal standard that controls the controversy at hand. People v. Riggs, 87 P.3d 109, 114 (Colo.2004) (citing Buckmiller v. Safeway Stores, Inc., 727 P2d 1112, 1115 (Colo.1986)). Judicial discretion therefore means that the court is not bound to decide the issue one way or another, but has the power to choose between two or more courses of action and is not bound in all eases to choose one over the other. Id. (citing Buckmiller, 727 P.2d at 1115; People v. Milton, 732 P.2d 1199, 1207 (Colo.1987), see also R. Aldisert, The Judicial Process 704, 706 (2d ed. 1996)). Because there is no single correct answer, under any given set of facts, the outcome is never predetermined by the failure of either party to shoulder a burden of persuasion, and review of the court's decision is limited to an inquiry into whether the court abused its discretion in making the choice that it did. Discretionary decisions will not be disturbed unless the court's action was manifestly arbitrary, unreasonable, or unfair. Id. (citing Milton, 732 P.2d at 1207). However, discretionary decisions by trial courts clearly are not free from judicial review for arbitrariness.
[ 43 In its only example of a circumstance in which a trial court should consider exercising its discretion to give a mistrial advisement, the majority suggests that giving one might be appropriate "when a jury has actually indicated a mistaken belief in indefinite deliberations." Maj. op. 183. Apart from the far-fetched nature of the premise, it is unclear to me why instructing about the possibility of a mistrial would be any less improper in this cireumstance, or what the trial court could possibly tell the jury that would not violate our strong disapproval of so-called "time-fuse" instructions, on the one hand, see *104Allen, 660 P.2d at 899 n. 2 (expressly disapproving "the practice of threatening a mistrial if a verdict is not returned by a specific time"), or create even more uncertainty in the minds of the jurors, on the other. Presumably even the majority would consider it improper to answer what the jury is most certainly concerned about: either how much longer it must deliberate before being permitted to leave or what effect its failure to reach a unanimous verdict will ultimately have on the defendant's fate. Should a jury ever be kept so long, or be so desperate, as to actually believe it might be sequestered in perpetuity, rather than giving a further instruction, anything short of declaring a mistrial would seem, according to the rationale of the modified-Allen charge, to strongly imply an abuse of discretion.
1 44 If by never saying never the majority is primarily concerned not to create a rule mandating reversal whenever a trial court instructs in a manner that could be considered a time-fuse instruction, then I believe it confuses the question whether the court has actually abused its discretion, with the question whether there is a sufficient likelihood that its abuse of discretion affected the outcome of the case. See Maj. op. 1830. Whether the court's instruction is given in response to a jury question, or the acquiescence (or even request) of defense counsel are all matters affecting the reversibility of any error, not the content required, or permitted, of a modified-Allenr instruction. Unlike the majority, I would find that the modified-Allen instruction, approved for encouraging a jury having difficulty in reaching a unanimous verdict, represents an objective determination of the extent to which a jury may safely be encouraged to do its duty, without applying undue pressure. To the extent a trial court has failed to properly answer a question from the jury or has erred by instructing or declining to instruct as moved by one or the other of the parties, I consider that to be a matter controlled by other applicable law-not the content of the modified-Allen instruction.
4 45 I therefore coneur in part and concur in the judgment of the court.
I am authorized to state that CHIEF JUSTICE RICE and JUSTICE EID join in the concurrence in part and concurrence in the judgment.