People v. Jacobs CA4/1

Filed 10/14/22 P. v. Jacobs CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079892

Plaintiff and Respondent,

v. (Super. Ct. No. BF161419A)

JOSUE JONATHAN JACOBS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County,
Judith K. Dulcich, Judge. Affirmed in part, reversed in part, and remanded
for further proceedings.
William J. Capriola, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman, Michael Dolida and R. Todd Marshall, Deputy
Attorneys General, for Plaintiff and Respondent.
 I.
INTRODUCTION
A jury convicted defendant Josue Jonathan Jacobs of one count of
active participation in a gang (count 2) and one count of assault with force
likely to cause great bodily injury (count 3) in connection with an assault that
Jacobs and another prison inmate committed in a prison yard. The jury also
found true a gang enhancement allegation with respect to count 3.
In his original briefing on appeal, Jacobs raises two contentions.
Jacobs first contends that the trial court abused its discretion in discharging
Juror No. 6 during jury deliberations. Jacobs next contends that Senate Bill
No. 1393 applies retroactively to his nonfinal judgment and requires that his
sentence be vacated and that the case be remanded to permit the trial court
to exercise its recently granted discretion to strike or dismiss prior serious
felony conviction enhancements.
After briefing was complete, Jacobs sought, and was granted, leave to
file a supplemental brief. Jacobs raises three additional arguments in his
supplemental briefing based on other recent legislative amendments. 1
Jacobs’s additional arguments are that (1) amendments to Penal Code2
section 186.22 apply retroactively to his case and require that his conviction
for active participation in a gang be reversed and that the gang enhancement
found true in connection with his conviction for assault with force likely to
cause great bodily injury be vacated; (2) Senate Bill No. 567’s amendments to
section 1170 require that his sentence be vacated and that the case be

1 Jacobs also filed a “Supplemental Reply Brief” in which he addressed
the People’s response to his initial supplemental brief.

2 Further statutory references are to the Penal Code unless otherwise
indicated.
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remanded for resentencing under the new statute; and (3) Assembly Bill No.
518’s amendments to section 654 require that we vacate his sentence and
remand to allow the trial court to exercise recently granted discretion under
that provision.
We reject Jacobs’s contention that the trial court abused its discretion
in discharging a juror. However, we agree with Jacobs that we must reverse
his conviction on the substantive gang offense as charged in count 2, and that
we must vacate the jury’s true finding on the gang enhancement allegation
associated with his conviction for assault as alleged in count 3, based on
retroactive application of the amendments to section 186.22, enacted in
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1–5)
(Assembly Bill 333), which went into effect on January 1, 2022. These
amendments to section 186.22 substantially narrow the definition of a
“criminal street gang” and add new elements to both the substantive gang
offense and the gang enhancement that must be found true by a jury.
Following remand, the People shall be afforded the opportunity to retry these
allegations.
We therefore affirm Jacobs’s conviction on count 3, the assault
conviction, but reverse Jacobs’s conviction on count 2 and vacate the jury’s
true finding with respect to the gang enhancement associated with count 3.
The case is remanded to the trial court for further proceedings, including
possible retrial if the People choose to retry the gang offense and/or
enhancement. In resentencing Jacobs, whether after a retrial on those
counts and enhancements that remain if the People elect not to retry the

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gang offense and/or the gang enhancement, the court shall resentence Jacobs
pursuant to sentencing laws in effect at the time of the resentencing.3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Kern Valley State Prison is a level four, maximum security prison. At
the time of the relevant events, Jacobs and Joe Herrera were inmates at Kern
Valley State Prison and were active members of the Surenos criminal street
gang.
On April 22, 2015, B.A., a correctional officer at Kern Valley State
Prison was in an observation tower monitoring a yard at Facility A of the
prison. Approximately 100 inmates were in the yard at the time.
Another inmate, Michael Lopez, who was also a Sureno, was sitting at
a table in the yard by himself. Lopez was apparently not in good standing
with the gang. B.A. observed Jacobs and Herrera approach Lopez from
behind and begin to punch Lopez in the head and face. Lopez appeared to
lose consciousness, but Jacobs and Herrera continued to punch him.
J.E., a correctional officer who was working in the yard on April 22,
2015, saw Jacobs and Herrera punching Lopez in the head; J.E. used his
radio to alert correctional staff that a “Code 1 emergency” was occurring.
Multiple correctional officers, including D.B., responded to the call. J.E. and
D.B. ordered all of the inmates to get down; all of the inmates complied with

3 Because Jacobs’s sentence is necessarily vacated by our disposition in
this appeal, we need not consider Jacobs’s contentions regarding various
amendments to applicable sentencing statutes. Jacobs will eventually be
resentenced, and when he is resentenced, the trial court will apply sentencing
laws that are in effect at the time of the resentencing.
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exception of Jacobs, Herrera, and Lopez. Jacobs and Herrera proceeded to
pull Lopez to the ground and continued hitting and kicking him.
Some of the officers at the scene threw chemical grenades toward
Jacobs and Herrera to try to bring an end to the attack, but Jacobs and
Herrera continued to attack Lopez.
From his perch in an observation tower, B.A. fired a warning shot
toward Jacobs and Herrera. This caused Jacobs and Herrera to stop
attacking Lopez and get down on ground. However, Lopez regained
consciousness and stood up. He appeared dazed, but started yelling at Jacobs
and Herrera and staggered toward them. Jacobs and Herrera got up from
the ground and began attacking Lopez again. Lopez fell to the ground as the
attack continued. At that point, B.A. fired a second shot toward Herrera.
The bullet hit Herrera in the chest. Herrera grabbed his chest, took a few
steps, and fell to the ground. Jacobs stepped away from Lopez and got on the
ground.
Herrera died as a result of the gunshot to his chest. An autopsy
performed on Herrera disclosed the presence of two bindles in Herrera’s
rectum. The bindles contained drugs, razor blades, and lead, as well as a
handwritten note, which is known as a “kite,” which referred to Lopez and
indicated that Lopez “can not [sic] stay on this yard” and “[t]herefore, you
camaradas will smash on him.”4
B. Procedural background
On May 26, 2016, the Kern County District Attorney filed an
information charging Jacobs with the murder of Herrera, under the
provocative act doctrine (§ 187; count 1); active participation in a criminal

4 A correctional officer testified that the term “smash” means to “batter”
someone.
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street gang (§ 186.22, subd. (a); count 2); and assault with force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 3).
With respect to count 3, the information alleged that Jacobs personally
inflicted great bodily injury upon the victim, Lopez (§ 12022.7, subd. (a)), and
that Jacobs committed the offense for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)). The
information further alleged as to all counts that appellant had suffered two
prior serious felony convictions within the meaning of section 667,
subdivisions (a)(1)) and (b)-(i), and section 1170.12, subdivisions (a)-(d).
A jury trial was held, and on May 8, 2018, the jury began deliberating.
On May 15, 2018, after receiving a note from the jury indicating a question as
to whether one of the jurors was following the law as instructed, the court
individually interviewed multiple members of the jury, including Juror No. 6,
the juror who was the subject of the jury’s note. After hearing from these
jurors, the court found that there was good cause to remove Juror No. 6 based
on his indication that he would not follow the law as instructed. The court
replaced Juror No. 6 with an alternate juror.
The following day, the jury returned guilty verdicts on counts 2 and 3,
and also found true the allegation of infliction of great bodily injury and the
gang enhancement. The jury was unable to reach a unanimous decision
regarding the murder charge in count 1, and the trial court declared a
mistrial as to that count.
After the jury returned its verdicts, the trial court held a bench trial
regarding the allegations that Jacobs had suffered two prior serious felony
convictions. The court made true findings with respect to these allegations.
In June 2018, the trial court sentenced Jacobs to state prison for an
aggregate term of 26 years, comprised of a term of eight years for the assault

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conviction in count 3, a term of three years for the great bodily injury
enhancement and a term of ten years for the gang enhancement, plus an
additional term of five years for the prior serious felony enhancement.
Pursuant to section 654, the court stayed imposition of punishment with
respect to count 2.
Jacobs filed a notice of appeal.
III.
DISCUSSION
A. The trial court did not abuse its discretion in excusing Juror No. 6
Jacobs contends that the trial court abused its discretion when it
excused Juror No. 6 from the jury panel during deliberations and replaced
him with an alternate juror after concluding that Juror No. 6 would not
follow the law as instructed.
1. Additional background
Jacobs was charged with murder under the provocative act doctrine,
under the theory that B.A. shot and killed Herrera after Jacobs and Herrera
attacked Lopez in the prison yard. “ ‘A provocative act murder case
necessarily involves at least three people – . . . the perpetrator of the
underlying offense, an accomplice, and a victim of their crime.’ [Citation.]”
(People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez).) “[T]he provocative
act doctrine holds the perpetrator of a violent crime vicariously liable for the
killing of an accomplice by a third party, usually the intended victim or a
police officer. [Citations.]” (Ibid.) “Under the provocative act doctrine, when
the perpetrator of a crime maliciously commits an act that is likely to result
in death, and [a third party] kills in reasonable response to that act, the
perpetrator is guilty of murder. [Citations.] ‘In such a case, the killing is
attributable, not merely to the commission of a felony, but to the intentional

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act of the defendant or his accomplice committed with conscious disregard for
life.’ ” (Id. at p. 655.)
In order for a jury to find a defendant guilty under the provocative act
doctrine, there must be “proof that the defendant personally harbored the
mental state of malice, and either the defendant or an accomplice
intentionally committed a provocative act that proximately caused an
unlawful killing.” (Gonzalez, supra, 54 Cal.4th at p. 655.) “Malice will be
implied if the defendant commits a provocative act knowing that this conduct
endangers human life and acts with conscious disregard of the danger.”
(Ibid.)
The trial court instructed the jury in this case with a modified version
of CALCRIM No. 560, the instruction regarding the provocative act doctrine,
as follows:
“The defendant is charged in Count 3 with assault with
force likely to produce great bodily injury.

“The defendant is also charged in Count 1 with murder.
A person can be guilty of murder under the provocative act
doctrine even if someone else did the actual killing.

“To prove that the defendant is guilty of murder under the
provocative act doctrine, the People must prove that:

“1. In committing assault with force likely to produce great
bodily injury, the defendant intentionally did a provocative
act;

“2. The defendant knew that the natural and probable
consequences of the provocative act were dangerous to
human life and then acted with conscious disregard for life;

“3. In response to the defendant’s provocative act, Officer
[B.A.] killed Jose Herrera;

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 “AND

“4. Jose Herrera’s death was the natural and probable
consequence of the defendant’s provocative act.

“A provocative act is an act that goes beyond what is
necessary to accomplish the assault with force likely to
produce great bodily injury and whose natural and
probable consequences are dangerous to human life,
because there is a high probability that the act will provoke
a deadly response.

“In order to prove that Jose Herrera’s death was the
natural and probable consequence of the defendant’s
provocative act, the People must prove that:

“1. A reasonable person in the defendant’s position would
have foreseen that there was a high probability that his or
her act could begin a chain of events resulting in someone’s
death;

“2. The defendant’s act was a direct and substantial factor
in causing Jose Herrera’s death;

“AND

“3. Jose Herrera’s death would not have happened if the
defendant had not committed the provocative act.

“A substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that caused
the death. If you decide the defendant committed murder,
that crime is murder in the second degree.”

During deliberations, the jury sent two notes to the court regarding the
CALCRIM No. 560 instruction and the provocative act doctrine. The first
note, sent by the jury on May 10, 2018, stated:

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 “In the jury instructions under the header 560, there are
seemingly different definitions regarding the provocative
act doctrine that we would like clarification on.

“Under the definition, #2 states that there must be a high
probability that the act will provoke a deadly response.

“Whereas, under the area at the bottom of the same page
(#1) states that ‘his or her act could begin a chain of events
resulting in someone’s death.’

“Is the qualifier could or will when referring to foreseeing a
deadly response?”

In responding to the jury’s May 10 note, the trial court told the jurors,
“Th[e] phrase [referenced in the second paragraph of the note] is part of the
definition of the term ‘provocative act’ and should be considered in defining
that term, along with the rest of the definition.” With respect to the third
paragraph of the jury’s note, the court stated, “[T]his phrase is part of the
definition of the term natural and probable consequences and should be
considered in defining that term along with the rest of the definition.”
Four days later, the jury sent another note to the court:
“Could you please clarify the definition of a reasonable
person in the defendant’s position? Would the defendant’s
position be defined as a Southern Hispanic inmate at a
Level 4 facility (i.e. Kern Valley State Prison)?

“The trial court answered the jury’s May 14 note as follows:

“Words and phrases not specifically defined in these
instructions are to be applied using their ordinary,
everyday meanings.

“The issue is a factual question to be resolved by the jury in
light of all of the circumstances surrounding the incident.

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 “The issue does not turn on the defendant’s subjective state
of mind, but depends on whether, under all the
circumstances presented a reasonable person in the
defendant’s position would have or should have known that
there was a high probability that his or her act could begin
a chain of events resulting in someone’s death.”

On May 15, 2018, the jury informed the trial court that it had
“thoroughly discussed and considered all the evidence and [could not] reach a
unanimous decision on any of the counts.”
The trial court called the jurors into the courtroom and instructed them
with a modified version of CALCRIM No. 3551:
“Sometimes juries that have had difficulty reaching a
verdict are able to resume deliberations and successfully
reach a verdict on one or more counts. Please consider the
following suggestions:

“Do not hesitate to re-examine your own views. Fair and
effective jury deliberations require a frank and forthright
exchange of views.

“Each of you must decide the case for yourself and form
your individual opinion after you have fully and completely
considered all of the evidence with your fellow jurors.

“It is your duty as jurors to deliberate with the goal of
reaching a verdict, if you can do so, without surrendering
your individual judgment.

“Do not change your position just because it differs from
that of other jurors or just because you or others want to
reach a verdict.

“Both the People and the defendant are entitled to the
individual judgment of each juror.

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 “It is up to you to decide how to conduct your deliberations.
You may want to consider new approaches in order to get a
fresh perspective.

“Let me know whether I can do anything to help you
further, such as give additional instructions or clarify
instructions I have already given you. I can also offer
additional closing argument from the attorneys if there was
a narrowed-down particular area. If you need additional
testimony -- I should have told you this in the beginning.
You can narrow it to an area. So if there is a particular
area you remember a witness testifying about, the reporter
is able to search for that, and you can have only that
portion read back. You do not have to have an entire
witness[’s testimony read back].”

Less than an hour after the trial court provided this instruction, the
jury sent another note:
“We would like to formally request an alternate juror
because there is a juror who refuses to follow the law or
does not fully understand law regarding the provocative act
doctrine.”

The trial court brought the jury foreperson into the courtroom to
inquire about the situation. The court asked the foreperson why he believed
that a juror was not following the law. The foreperson responded, “Well,
because he told us.” When the court asked the foreperson to explain what he
meant by that statement, the following exchange occurred:
“THE FOREPERSON: What he said is, and he said it in his
preinterview before he became a juror, he asked for
clarification on the law, and he was told the judge would
give that to him eventually, and he feels he’s never gotten
the full explanation of the law. He doesn’t think the jury
instructions are detailed enough of the Provocative Act Law
for him to really fully understand it; so it could just be that
he doesn’t think he understands it completely, but the

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 consensus among the jurors, they think he just doesn’t like
it.

“THE COURT: Okay. Has he said anything along those
line[s], that I disagree with that, or I can’t follow that?

“THE FOREPERSON: He says, in my understanding from
the jury instructions, I’m not sure I understand the law,
but if the law applies this way, then I can only vote this
way.”

The court asked whether there was “anyone else on the jury,” other
than Juror No. 6, with whom the court should speak. In response, the
foreperson suggested that the trial court speak with Juror No. 3, and the
court called that juror into the courtroom. The court asked Juror No. 3
whether the juror shared the opinion expressed in the note that a member of
the jury was “refusing to follow the law or does not fully understand the law.”
Juror No. 3 responded, “Yes,” and when asked for an explanation, he said,
“The instructions are very clear for each count, and there is -- each count
references a law, and [Juror No. 6] is trying to base one law based on all
three counts; so there is a sense that he might not be taking it seriously or
that he is not applying [the law] the way he should be applying [it].” Juror
No. 3 further indicated that Juror No. 6 “kind of switched sides back and
forth,” and his conduct gave Juror No. 3 a sense that Juror No. 6 was not
taking the deliberations “seriously.” Juror No. 3 also stated that most of the
other jurors agreed with Juror No. 3’s impression in this respect.
Based on Juror No. 3’s suggestion that the court speak with Juror
No. 9, the trial court called Juror No. 9 into the courtroom. After the court
asked Juror No. 9 whether he shared the view indicated in the jury’s note,
the court and Juror No. 9 engaged in the following colloquy:

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 “JUROR [NO.] 9: I mean, to an extent, I understand where
they are kind of caught between it, but I do feel like it is
kind of hindering us from being able to make progress due
to them not feeling like they understand what it means.[ 5]

“THE COURT: Do you think it is not understanding the
law, or do you think it is not liking the law and refusing to
follow it?

“JUROR [NO.] 9: I feel like it is a little bit of both, but I
think it is more of, like, personally not being able to follow
it, and their justification is that they don’t understand it,
but that is kind of just what I’m getting out of it.”

The trial court then called Juror No. 6 into the courtroom to discuss the
matter. The court and Juror No. 6 engaged in the following exchange:
“THE COURT: Okay. So let me ask you a few questions.
[The jury note] gives two different scenarios. One is that
you refuse to follow the law or that you do not fully
understand the law. [¶] Which do you think it is, or is it
both?

“JUROR [NO.] 6: I hope it is I don’t understand the law,
but I really don’t understand the law, and I tried to make
that clear when the law was first presented to me.

“THE COURT: Okay. And have you discussed the jury
instruction that defines the law with the other jurors?

“JUROR [NO.] 6: Oh, yeah.

“THE COURT: Okay. Is there any part of it that you feel I
just can’t agree with this, and I just -- if that is what it
means, I can’t do this?

“JUROR [NO.] 6: Well, I mean, I was being asked how I felt
about the law before I was selected. I gave a scenario of

5 Although Juror No. 9 referred to “they” and “them,” the court and the
attorneys later clarified that Juror No. 9 was speaking of Juror No. 6, only.
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 what I thought it meant, and I was told -- well, I wasn’t told
no, that is it, but I was given another story, and that didn’t
help, and it sounds like, to me, that -- this person is
committing a crime. This person over here has an action,
and now this person is responsible for a crime that they
would never commit.

“I have -- that is not logical to me; so maybe it is the law
itself, if that is what the law says. If we carry that line of
reasoning, anyone that is forced into a situation or -- you
know, they are not guilty because it is the person that
forced them into it, the person that pushed their hand.

“In this particular case, the act that is taking place has
almost the same consequence as far as the law -- I don’t
know the law, but I would assume. It has almost the same
consequence under the law as the imaginary crime.

“THE COURT: When you say imaginary crime, what are
you referring to?

“JUROR [NO.] 6: Well, one person shot a person. That is
not necessarily a crime. It is his job under what he saw.
And he understood he felt it was necessary; so he shot a
person. Now, a little bit of what we have to determine is
what is going on in the other person’s mind,[6] but the
other person has no intent of harming that person, and he
is harming another person possibly, but we don’t know his
intent. It just -- it makes my mind spongy.

“THE COURT: So when you first started talking about
what you thought the understanding of the law was, if that
was the law and you were told that is the law, would you be
able to follow it?

“JUROR [NO.] 6: If the law says that without any intent or
malice or action, this person can be accused of a crime

6 At a later point in the transcript, the trial court stated that Juror No. 6
was motioning “towards the defendant” when he was discussing having “to
determine what is in this person’s mind.”
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when this person provided the action. This person has no
intent to hurt that person. This person has nothing against
that person. In fact, they are partners. They are working
together. If he has nothing against him, and this guy
sho[o]ts him, how can he be responsible? I can’t
comprehend it.

“THE COURT: So if you were told that that is the law --

“JUROR [NO.] 6: I have little respect for that law.

“THE COURT: But would you be able to follow it?

“JUROR [NO.] 6: No.

“THE COURT: Is there anything else that you can tell us
about your issue as to whether you think it is confusion or
you think it is lack of respect for the law, so a decision not
to follow the law?’

“JUROR [NO.] 6: I have great respect for the law. I stop at
stop signs in the middle of the night when there is nobody
around. I have never had anything more than a traffic
ticket, and I haven’t had a traffic ticket in probably over
20 years.

“I think if the question could have been asked specifically
before the trial began when I explained that I didn’t
understand and I was told that I would understand later, I
think it would have been a good time to decide I wouldn’t
be a good juror. That is far away from me. I understand.
But I have been very frustrated, and I have tried very hard
and so has everybody else in there. Those are wonderful
people. You couldn’t have picked a better jury except for
me.

“THE COURT: So do you feel that you -- and not everybody
agrees with every law, but like you said, people follow the
law. Do you feel like, in your heart, you do understand
what the instruction is telling you as to what the law is, but
you just can’t agree with that; so you can’t follow it?

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 “JUROR [NO.] 6: You would probably understand that
better than I would, because I haven’t seen the law.
From -- as I understand it, it doesn’t fit with some extremely
basic building blocks of my personality. I can’t go there.

“THE COURT: Because of how you feel about what --

“JUROR [NO.] 6: As I understand it, if I understand it, yes.
I’m not going to say I couldn’t be schooled, and if I did
understand it, maybe I have got it all wrong. From what I
have said in here, you have a better idea of that than I do.

“THE COURT: Are you saying if your understanding to this
point is correct, that you would not be able to follow that?

“JUROR [NO.] 6: No.[7]

“THE COURT: All right. I’m going to let you go back and
join the other jurors, and then we will get back to you as a
group.” (Italics added.)

After hearing argument from the attorneys, the court determined that
good cause existed to remove Juror No. 6 on the ground that he was unwilling
to follow the law, as opposed to having a lack of understanding the law. The
court explained its reasoning:
“So I think what I asked him was if that is the law, would
you be able to follow it? Because he gave a pretty good
description, if you will, of the acts leading up to this
provocative act murder. He also did talk about and then
we have to determine what is in this person’s mind and he
was motioning towards the defendant, and so it is clear -- I

7 Although Juror No. 6 stated “No” in response to the court’s question,
“Are you saying if your understanding to this point is correct, that you would
not be able to follow that,” it is clear from the context of the discussion that
Juror No. 6 was indicating that he would not be able to follow the law as he
understood it, and was not indicating that he would be able to follow the law
as he understood it.
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 think . . . it is clear he has an understanding of provocative
act murder and that he just morally is having issues with
that and can’t follow that once he gets to the point of that is
the law. And juror misconduct doesn’t just include refusal
to deliberate. It includes refusal to follow the law. That
was my main concern when I saw this note was that
phrase, refuses to follow the law, and I wanted to find out if
it was a refusal to follow the law or if it was a non-
understanding.

“The other jurors indicated he’s gone back and forth, and
one of them indicated they feel like it is refusing to follow
that law, then being couched in terms of being confused,
which I heard him, and I think in looking at him and
hearing what he is saying, when he gets to that point of
understanding what the law is, he just can’t believe that
that is the law, and so if that is the law, which is set forth
in the jury instructions -- and I think he has a good grasp of
it, because he did not only give us that scenario of what he
thought was involved, but he also talked about then looking
into the defendant’s mind, and we have had many
discussions about how the defendant’s mind is --his state of
mind [and] the foreseeability of this are very important in
this case as well.

“So based on what I am finding to be a refusal to follow the
law as given, I am going to find good cause to excuse him
from the jury and seat an alternate.

2. Analysis
Penal Code section 1089 grants a trial court authority to discharge a
juror, providing in relevant part: “If at any time, whether before or after the
final submission of the case to the jury, a juror dies or becomes ill, or upon
other good cause shown to the court is found to be unable to perform his or her
duty, or if a juror requests a discharge and good cause appears therefor, the
court may order the juror to be discharged and draw the name of an
alternate, who shall then take a place in the jury box, and be subject to the

18
same rules and regulations as though the alternate juror had been selected
as one of the original jurors.”
“A juror who ‘refuses to follow the court’s instructions is “unable to
perform his duty” within the meaning of Penal Code section 1089.’ ” (People
v. Salinas-Jacobo (2019) 33 Cal.App.5th 760, 775.)
“Although [a] court reviews for abuse of discretion a [trial] court’s
ruling discharging a juror pursuant to section 1089 [citation], we have made
clear that such review involves a ‘heightened standard [that] more fully
reflects an appellate court’s obligation to protect a defendant’s fundamental
rights to due process and to a fair trial by an unbiased jury.’ [Citations.]
Specifically, the juror’s ‘inability to perform’ his or her duty ‘must appear in
the record as a demonstrable reality.’ [Citations.]” (People v. Armstrong
(2016) 1 Cal.5th 432, 450 (Armstrong).)
“Under the demonstrable reality standard, a reviewing court’s task is
more ‘than simply determining whether any substantial evidence in the
record supports the trial court’s decision.’ [Citation.] ‘A substantial evidence
inquiry examines the record in the light most favorable to the judgment and
upholds it if the record contains reasonable, credible evidence of solid value
upon which a reasonable trier of fact could have relied in reaching the
conclusion in question. Once such evidence is found, the substantial evidence
test is satisfied. . . . [¶] The demonstrable reality test entails a more
comprehensive and less deferential review. It requires a showing that the
court as trier of fact did rely on evidence that, in light of the entire record,
supports its conclusion that [good cause for removing the juror is]
established. It is important to make clear that a reviewing court does not
reweigh the evidence under either test. Under the demonstrable reality
standard, however, the reviewing court must be confident that the trial

19
court’s conclusion is manifestly supported by evidence on which the court
actually relied. [¶] In reaching that conclusion, the reviewing panel will
consider not just the evidence itself, but also the record of reasons the court
provides.’ [Citation.]” (Armstrong, supra, 1 Cal.5th at pp. 450-451.)
Applying this heightened standard of review, we conclude that the trial
court did not abuse its discretion in discharging Juror No. 6 because Juror
No. 6’s inability to perform his duty as a juror appears in the record as a
demonstrable reality. Juror No. 6’s statements to the court demonstrated
that Juror No. 6 understood the provocative act doctrine, that he disagreed
with the law, and that he was unwilling to apply the law as instructed. Juror
No. 6 not only accurately described the provocative act doctrine, but also
demonstrated his understanding of its application to the facts of this case.
Under questioning from the court, Juror No. 6 explained that B.A. shot
Herrera because B.A. thought it was necessary to do so to stop the attack on
Lopez, and noted that “[i]t [was] [B.A.’s] job under what he saw.” Juror No. 6
then said that the jury had to determine “what [wa]s going on in [Jacobs’s]
mind” at that time. Juror No. 6 proceeded to describe his understanding of
the provocative act doctrine, stating, “This person [Jacobs] has no intent to
hurt [his accomplice, Herrera]. [Jacobs] has nothing against [Herrera]. In
fact, they are partners. They are working together. If [Jacobs] has nothing
against [Herrera], and [B.A.] sho[o]ts [Herrera], how can [Jacobs] be
responsible? I can’t comprehend it.” Based on Juror No. 6’s description of the
facts and his demonstrated understanding of the court’s instruction regarding
the provocative act doctrine, the court correctly concluded that Juror No. 6
“ha[d] a good grasp of it, because he did not only give us that scenario of what
he thought was involved, but he also talked about then looking into [Jacobs’s]
mind, and we have had many discussions about how [Jacobs’s] mind is --his

20
state of mind, the foreseeability of this are very important in this case as
well.”
Further, when the trial court specifically asked Juror No. 6 whether he
could still follow the law, despite not agreeing with it, Juror No. 6 informed
the court that he would not follow the law:
“THE COURT: So if you were told that that is the law [i.e.,
what Juror No. 6 had just correctly described] --

“JUROR [NO.] 6: I have little respect for that law.

“THE COURT: But would you be able to follow it?

“JUROR [NO.] 6: No.” (Italics added.)

Juror No. 6 did not stop there. He explained further: “[A]s I
understand [the law], it doesn’t fit with some extremely basic building blocks
of my personality. I can’t go there.” He then acknowledged that “if [his]
understanding to this point is correct,” he would not “be able to follow that.”
In view of Juror No. 6’s clear indication to the trial court that he would
not be able to perform his duty of applying the provocative act doctrine as
instructed by the court, the court had an adequate basis to dismiss Juror
No. 6 for good cause.
B. Jacobs’s conviction on count 2 must be reversed and his gang
enhancement vacated

1. Additional background
The People called a gang expert who testified that Jacobs and Herrera
were both active members of the Surenos at the time of the assault on Lopez.
However, Jacobs was not “validated” as a gang member by relevant
authorities until after the incident. The expert further testified that Lopez

21
was also a Sureno, but that he was not in good standing with the gang at the
time the assault occurred.
The People presented evidence of two “predicate” offenses to
demonstrate a pattern of gang activity. One offense occurred in December
18, 2013, when two inmates at Kern Valley State Prison, Michael Bohen and
Lopez, the victim of the attack by Jacobs and Herrera that led to the current
charges, attacked a third inmate, G.D. Lopez used a weapon during the
attack. The People presented evidence that all three inmates were Surenos
gang members. Although Bohen and Lopez were charged in connection with
the attack on G.D., no gang charges were brought against either man.
The People also presented evidence about another attack that occurred
on or around April 16, 2013. This attacked was perpetrated by two other
Kern Valley State Prison inmates, Manuel Ocampo and Daniel Cowie,
against a third inmate, J.C. The gang expert testified that all three of the
inmates involved in this attack were also Surenos, and that J.C. was also a

“validated Mexican Mafia associate.”8 Ocampo and Cowie pleaded guilty to
committing assault with force likely to produce great bodily injury. The
People did not file gang charges or allegations against either man in that
case.
2. Relevant law
Effective January 1, 2022, Assembly Bill No. 333 amended section
186.22 in several ways that increased the evidentiary burden necessary to
prove a substantive gang offense under section 186.22, subdivision (a), as

8 The gang expert testified that a “validated Mexican Mafia associate” is
“a Sureno who, through our validation system, there was enough evidence to
show their active participation with the Mexican Mafia.”
22
well as a gang enhancement under section 186.22, subdivision (b)(1). (See
People v. Rodriguez (2022) 75 Cal.App.5th 816, 822.)
Assembly Bill No. 333 “amends section 186.22 to require proof of
additional elements to establish a gang enhancement.” (People v. Lopez
(2021) 73 Cal.App.5th 327, 343 (Lopez).) When Jacobs was tried, former
section 186.22 defined a “ ‘criminal street gang’ ” as “any ongoing
organization, association, or group of three or more persons . . . whose
members individually or collectively engage in, or have engaged in, a pattern
of criminal gang activity.” (Former § 186.22, subd. (f).) Assembly Bill
No. 333 narrowed the definition to “an ongoing, organized association or
group of three or more persons . . . whose members collectively engage in, or
have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
This change requires that the People “prove that two or more gang members
committed each predicate offense.” (People v. Delgado (2022) 74 Cal.App.5th
1067, 1072; accord, Lopez, at pp. 344–345.)
In addition, under the former version of section 186.22, the phrase
“ ‘pattern of criminal gang activity’ ” was defined as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more of [specified] offenses,
provided at least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years after a
prior offense, and the offenses were committed on separate occasions, or by
two or more persons.” (Former § 186.22, subd. (e).) Assembly Bill No. 333
changed this definition; under the new definition of “ ‘pattern of gang
activity,’ ” the predicate offenses must have been committed by two or more
“members” of the gang (as opposed to two or more persons) and must have
“commonly benefited a criminal street gang”; further, “the common benefit of

23
the offense [must be] more than reputational.” (§ 186.22, subd. (e)(1), italics
added.)9 In addition, the currently charged offense may no longer be
considered as a predicate offense. (§ 186.22, subd. (e)(2).) The new law also
reduced the number of qualifying offenses that may be used to establish a
pattern of criminal gang activity by removing, among other offenses,
vandalism, looting and several fraud-related offenses from the list. (§ 186.22,
subd. (e)(1)(A)-(Z).)
Assembly Bill No. 333 also added section 1109, which requires
bifurcation of substantive gang offenses from other substantive offenses that
do not require gang evidence as elements of the offense (id., subd. (b)), and
also requires that gang enhancements charged under section 186.22,
subdivision (b) or (d) be tried separately from the underlying charges upon
request by the defense (id., subd. (a)). (Stats. 2021, ch. 699, § 5.)
3. Analysis
Jacobs and the People agree that Assembly Bill No. 333’s amendments
to section 186.22 apply retroactively to nonfinal judgments under the
reasoning of In re Estrada (1965) 63 Cal.2d 740 and its progeny. We accept
the People’s concession and conclude that the recent changes to section
186.22 apply to Jacobs’s case. (See, e.g., People v. Rodriguez (2022)
75 Cal.App.5th 816, 819; People v. E.H. (2022) 75 Cal.App.5th 467, 478;
People v. Delgado (2022) 74 Cal.App.5th 1067, 1087; Lopez, supra,
73 Cal.App.5th at p. 344.)

9 Under section 186.22, subdivision (g), “[e]xamples of a common benefit
that are more than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous witness or
informant.”
24
 Jacobs contends that because the changes to section 186.22 apply to
nonfinal judgments, his conviction for a substantive gang offense in count 2
must be reversed and the jury’s true finding on the gang enhancement
alleged in connection with the assault conviction in count 3 must be vacated.
According to Jacobs, the failure of the trial court to instruct the jury with
respect to the elements added to section 186.22 by Assembly Bill No. 333
requires remand. Jacobs asserts that “[a]lthough the prosecution did submit
evidence of two non-current predicate offenses . . . , that evidence did not
establish that the predicate offenses commonly benefited a criminal street
gang, let alone that the benefit was more than reputational,” as is required
under the current version of section 186.22, subdivision (e)(1). Jacobs also
points out that while the People presented evidence of two potential predicate
offenses apart from the charged offense, the jury was instructed, as was
permissible under the prior version of the law, that it could rely on the
charged offense as one of the predicate offenses for purposes of determining

whether a pattern of criminal gang activity had been proven. 10 In addition,
the prosecutor specifically argued this point to the jury in closing argument,
telling jurors “Now, assuming you find this defendant guilty of the 245 on
Michael Lopez, you can use this as a predicate . . . .”11

10 Jacobs notes that the jury was instructed as follows: “If you find the
defendant guilty of a crime in this case, you may consider that crime in
deciding whether one of the group’s primary activities was commission of that
crime and whether a pattern of criminal gang activity has been proved.”

11 The prosecutor also told the jury that “[t]he predicates do not have to
be gang related,” and that the People were not required to prove that the
perpetrators of the predicates were gang members. Neither of these
statements remains true under current law. (See § 186.22, subd. (e)(1).)
25
 According to the People, remand for retrial on the gang charge and the
gang enhancement is unnecessary “because, in light of compelling evidence
supporting the gang-related offense and enhancement, it is beyond a
reasonable doubt that the jury would have found the substantive gang
offense and enhancement to be true even under AB 333’s more stringent new

requirements.”12 The People argue that Jacobs is “not entitled to any
remand because the two predicate assaults admitted into evidence
(Lopez/Bohen and Ocampo/Cowie) were indisputably shown to have been
gang-related and perpetrated by gang members.” Thus, the People contend,
there was “overwhelming evidence” supporting a finding that the predicate
offenses meet the new requirements of section 186.22, and that therefore the
prejudice standard articulated in Chapman is met. We disagree.
It is clear that the jury was not instructed to find that the predicate
gang offenses “commonly benefited” the gang, much less that any common
benefit was something beyond merely a reputational benefit. The People
suggest that despite the lack of such a finding by the jury, we can conclude
beyond a reasonable doubt that the jury would have made such findings
because, the People assert, “[a]ssaults like [the ones supplying the predicate

12 The People concede, and we agree, that when jury instructions are
deficient for omitting an element of an offense, the omission implicates a
defendant’s federal constitutional rights, and therefore, such error is
reviewed for prejudice under the prejudice standard articulated in Chapman
v. California (1967) 386 U.S. 18 (Chapman). (See People v. Sek (2022)
74 Cal.App.5th 657, 668 (Sek) [applying Chapman standard to omission of
elements of gang enhancement added pursuant to Assem. Bill No. 333].)
Under the Chapman standard for prejudice review, the absence of jury
instructions addressing the substantive changes to section 186.22 requires
reversal unless “it appears beyond a reasonable doubt that the error did not
contribute to th[e] jury’s verdict.” (People v. Flood (1998) 18 Cal.4th 470,
504.)
26
offenses] benefitted the Surenos and the Mexican Mafia and allow these gang
associations to control the prison and jail populations through fear and
intimidation.” Unfortunately for the People, the record does not support this
assertion. The record citations on which the People rely in support of this
claim do not indicate that there was testimony linking the two predicate
assaults to a common benefit for the Surenos or Mexican Mafia gangs.
Instead, one record citation is to a portion of the transcript in which a witness
admits that there were no gang charges alleged against any of the
perpetrators of the predicate assaults; other record citations are to testimony
from a former Mexican Mafia gang member. Included in the testimony cited
by the People is this former member’s testimony that “someone [would] want
to put in work on behalf of the Mexican Mafia” in order “to gain attention of
the members as possible membership in the future or to be in good
standing[ ] with them.” The People also cite to a transcript page where the
former member stated that “the Mexican Mafia control[s] Southern Hispanic
California inmates within the prisons” “[t]hrough fear and intimidation,” and
further explained that he “would have to get permission from [a Mexican
Mafia member]” to do things, and that, without permission, “[one] could be
killed for not following the rules.” Finally, the People cite to the former gang
member’s testimony to the effect that, even though the Surenos have greater
numbers, the Mexican Mafia members are in charge and the Surenos do not
rebel against the Mexican Mafia because of the “fear and intimidation and
the mystique of the Eme [i.e., Mexican Mafia] has [sic] in these men that
stops them from doing that”; the “Eme has a mystique of being all powerful
and having people everywhere, you know, and having things done whenever
they want and people believe that; so that drives them to have fear of the
Eme.” However, the former gang member does not discuss the predicate

27
offenses in the testimony cited, and neither he nor the agent who testified
about the predicate offenses provided a link between the two assaults
charged as predicate offenses and a common benefit to the gang of “allow[ing]
these gang associations to control the prison and jail populations through
fear and intimidation,” as the People suggest.
Rather, the record is effectively silent regarding the possible reasons
for the Lopez/Bohen assault on G.D. and the Ocampo/Cowie assault on J.C.,
and there was no expert opinion provided to the effect that assaults such as
these identified predicate offenses would have been undertaken for a common
gang benefit that went beyond a reputational benefit. Given that in both
situations the victims and the perpetrators were all members of the same
gang, there could have been any number of reasons for the assaults, including
personal, as opposed to gang, vendettas. The People’s suggestion that the
evidence in the record can support the conclusion the People offer about how
these predicate offenses may have commonly benefitted the gang is
effectively a request that this court engage in factfinding and make a
determination that should be left to a jury. We decline to do so. In the
absence of any evidence that these assaults “commonly benefited” Jacobs’s
gang, much less evidence that the common benefit to the gang was more than
reputational, we have no basis for concluding that a jury would have found
that these predicate offenses satisfy the definition of “ ‘pattern of criminal
gang activity’ ” under the current version of section 186.22, subdivision (e)(1).
We therefore cannot conclude beyond a reasonable doubt that if the
jury had been properly instructed on the law as it currently stands it would
have found Jacobs guilty of the substantive gang offense charged in count 2,
or that it would have found true the gang enhancement alleged in connection
with the assault charged in count 3. Jacobs’s conviction on count 2 for active

28
participation in a gang must therefore be reversed, and the jury’s true finding
on the gang enhancement alleged in connection with charge 3 must be

vacated.13
The People contend that if we conclude that reversal of the gang offense
and vacatur of the gang enhancement are appropriate, then it would also be
appropriate to remand the matter to provide the prosecution an opportunity
to prove the gang offense and gang enhancement under the newly amended
version of section 186.22. We agree. As the court in Sek explained,
“ ‘Because we do not reverse based on the insufficiency of the evidence
required to prove a violation of the statute as it read at the time of trial, the
double jeopardy clause of the Constitution will not bar a retrial. [Citations.]
“ ‘Where, as here, evidence is not introduced at trial because the law at that
time would have rendered it irrelevant, the remand to prove that element is
proper and the reviewing court does not treat the issue as one of sufficiency of
the evidence.’ [Citation.]” [Citations.]’ ” (Sek, supra, 74 Cal.App.5th at
pp. 669-670; see Lopez, supra, 73 Cal.App.5th at p. 346 [“the gang-related
enhancement findings must be vacated and the matter remanded to give the
People the opportunity to prove the applicability of the enhancements under
the amendments to section 186.22”].) We agree with this analysis and
conclude that on remand, the prosecution may elect to retry Jacobs on the
gang offense and gang enhancement.

13 As we have previously noted, because we are reversing Jacobs’s
conviction in count 2 and vacating the jury’s true finding regarding the gang
enhancement alleged with respect to count 3, there is no need to address
Jacobs’s claims regarding the application of amendments to various
sentencing statutes. This case will be remanded for further proceedings,
including resentencing, and the trial court will apply sentencing law that is
in effect at that point in time.
29
 On remand, trial court shall resentence Jacobs, either after retrial if
the People elect to retry the gang offense and/or the gang enhancement, or
with respect to count 3 if the People elect not to retry the gang offense and
enhancement. The court shall apply all sentencing provisions and exercise
its discretion as allowed by sentencing law in effect at the time resentencing

occurs.14
IV.
DISPOSITION
Jacobs’s conviction on count 3 is affirmed. Jacobs’s conviction on
count 2 is reversed, and the jury’s true finding with respect to the gang
enhancement alleged in connection with count 3 is vacated. The case is
remanded to the trial court for further proceedings consistent with this
opinion.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.

14 On remand, “the resentencing court has jurisdiction to modify every
aspect of the sentence, and not just the portion” that was the basis of the
resentencing hearing. (People v. Buycks (2018) 5 Cal.5th 857, 893.) “This
rule is justified because an aggregate prison term is not a series of separate
independent terms, but one term made up of interdependent components.
The invalidity of one component infects the entire scheme.” (People v. Hill
(1986) 185 Cal.App.3d 831, 834.) The only restriction on the trial court is
that the new sentence must be no more severe than the original one. (People
v. Hanson (2000) 23 Cal.4th 355, 358–360.)
30