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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

JOSUE JONATHAN JACOBS,

Defendant and Appellant.

 D079892

 (Super. Ct. No. BF161419A)

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.
2

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.
3

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 
4

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.
5

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.
6

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 
7

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 
8

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;
9

“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:
10

“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.
11

“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.
12

“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 
13

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:
14

“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.
15

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.”
16

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?
17

“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.
18

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 nonunderstanding.

“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 
19

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 
20

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 
21

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 
22

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.”
23

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 
24

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.”
25

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).)
26

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.)
27

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 
28

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 
29

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.
30

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.)