Filed 7/27/16 P. v. Wohl CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR



THE PEOPLE,                                                          B264398

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA087274)
         v.

KEITH WOHL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E.
Brown, Judge. Affirmed.
         James E. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Corey J.
Robins, Deputy Attorneys General, for Plaintiff and Respondent.




                                  ________________________________
       Appellant Keith Wohl was found guilty by jury verdict of grand theft of personal
                                          1
property. (Pen. Code, § 487, subd. (a).) He argues the jury instruction on aiding and
abetting did not inform the jury that a defendant must share the perpetrator’s criminal
purpose to be found guilty. He also argues that the trial court had a sua sponte duty to
modify the pattern instruction on the defense of duress to clarify that fear of imminent
serious bodily injury is sufficient to establish the defense. Alternatively, he contends that
his counsel rendered ineffective assistance by failing to object to the inadequate jury
instructions.
       Respondent argues that there was no instructional error, and thus no basis for a
claim on inadequate representation.
       Finding no instructional error, we affirm the judgment.
                     FACTUAL AND PROCEDURAL SUMMARY
       In June 2012, appellant agreed to house sit and care for a dog for his friends
                                      2
Daniel Vanoost and Randy Worden. Appellant decided to have a small party at the
victims’ residence. Michael McMahon and his partner James Thomas attended. Later, a
man they knew as Pablo joined the group. The men used crystal methamphetamine.
After some time, Pablo claimed that his bag of drugs had been stolen, and became very
agitated. The four men searched for the missing drugs for hours. McMahon was not
afraid, but was uncomfortable because it was not Pablo’s house, Pablo was searching
through the victims’ things, and they were trying to find something that “was not entirely
      3
legal.” Pablo demanded that each man be searched. McMahon did not hear Pablo
threaten anyone in his presence. Thomas did not take Pablo’s threat to get a gun from his
car seriously because Pablo had said that he arrived at the party in a cab. Thomas also
heard Pablo threaten to call friends who would help him hurt McMahon, Thomas, and
1
       All statutory references are to this code.
2
       We sometimes refer to Vanoost and Worden jointly as “victims.”
3
      McMahon and Thomas testified under grants of immunity from prosecution for
any narcotics related offenses.
                                       2
appellant. Thomas was concerned by that statement, but the threat was general and the
friends Pablo mentioned were not present. No one called 911. The drugs were never
found. McMahon and Thomas left between 7:30 and 8:00 a.m. because McMahon had to
go to work.
       Vanoost and Worden returned home in the early morning hours of June 16, 2012,
earlier than expected. Appellant was not present. They walked their dog and then
unpacked their car. The house was in disarray. Clothing that was not theirs was strewn
all over the house and the kitchen was a wreck. They noticed that the 50 inch television
was missing from the master bedroom. It weighed a little over 100 pounds and had a
speaker mounted underneath that weighed 30 to 40 pounds, and was 48 inches long by 8
inches high. The center of the television screen was about eight feet off the floor,
mounted to the wall. A ladder was required for its installation. To remove the television,
a person would have to unhook the latches from the top of the set and lift it off the wall
mount. At least two people would be required. The television cost $3,800.
       Appellant returned to the house about an hour later, before Vanoost and Worden
discovered that some of their property was missing. He seemed shocked and aggravated
to see them. When they discovered the television was missing, Vanoost questioned
appellant about it. He said it had been stolen. Appellant quickly packed up his clothes,
put them into his car, and left the house. Worden texted appellant to return to explain
what had happened. Appellant returned at 5:00 that morning. He said while he had
friends over, Pablo said something belonging to him went missing. Pablo had threatened
to return the same day with a gun and his cousin and harm the dog if he was not paid for
the missing item.
       Appellant admitted that he helped take the television off the mount and carry it out
to Pablo’s car. Worden testified that appellant told him he had given Pablo the television
                                                                                 4
in payment for his missing property. Two laptop computers also were missing, as was


4
       Worden testified that while he was still away, he received a text from appellant
asking if his computer had tracking software because it was missing. Appellant did not
                                             3
some money and the sheets off the bed. None of the stolen property was returned.
Vanoost did not give anyone permission to take the property.
       The victims repeatedly asked appellant to file a police report but he refused,
saying he did not want to get anyone into trouble. Appellant stormed out and did not
respond to further messages from the victims asking him to file a police report. They
reported the theft themselves. Appellant later told Thomas that he had seen Pablo on at
least two other occasions after that night.
       Los Angeles Police Department Detective Damon Hogan was assigned to
investigate the theft at the home of Vanoost and Worden. He spoke with appellant by
telephone. Appellant admitted that he helped Pablo remove the television from the wall,
carry it out to Pablo’s car, and load it inside. He said he was intimidated and felt
physically threatened by Pablo, of whom he was fearful. He also said that Pablo
threatened him with immediate physical harm as the television was being taken down.
Appellant told Detective Hogan that Pablo threatened to return with other men and
physically harm him. The Los Angeles Police Department had no record of a report of
this crime filed by appellant. Eventually appellant admitted that he had seen Pablo a
week after the alleged threat, at appellant’s home. Garth Olson, a friend of appellant,
testified that he went to appellant’s home in mid-June 2012. Pablo came in and spent an
hour or longer with appellant and Olson. Pablo walked away with appellant’s telephone.
       Appellant testified in his own defense. He said he volunteered to dog sit for the
victims while they were in Chicago. He invited Thomas, McMahon, and Pablo over to
the house. He had met Pablo recently through an online site. Pablo brought drugs. The
party lasted until 4:15 a.m. when appellant realized that Pablo’s bag of drugs was not on
the desk where it had been all evening. Pablo became very agitated and threatened
everyone. All four men searched for the drugs but nothing was found.




mention anything about the television. Worden did not tell Vanoost at the time because
Vanoost was grieving the loss of his father.
                                             4
       After McMahon and Thomas left, Pablo told appellant he had taken a cab to get to
the party. He demanded to be compensated for the loss of his drugs by taking the
television and computer, “or he would beat [appellant’s] ass.” Appellant was afraid of
Pablo. He asked Pablo what Pablo was going to do after being arrested. Appellant
testified that Pablo said, “Come back and beat [appellant’s] ass again.” Appellant
believed that he would receive a severe beating unless he cooperated with Pablo. He
testified that Pablo said he would pistol whip all three men and clean the place out when
his brother came to pick him up. Pablo jumped on the dresser to unscrew the television
after receiving a text from his brother. He almost dropped the television and speaker,
which fell into appellant’s hands. Pablo told appellant to help him. Appellant testified
                                                       5
that Pablo took the television out to his brother’s car. He spent 15 minutes trying to talk
Pablo out of stealing from the house.
       Pablo returned to the house, distracted appellant, took a computer, and left.
Appellant was in fear of receiving a severe beating while this was going on. He
explained that he did not call the police because the victims were drug dealers who could
get into trouble if police officers found drugs in the house. He also feared that he could
be in trouble if things were found.
       Ten days later, Pablo asked appellant to meet him. Appellant refused. Then Pablo
called again while Olson was at the house, and appellant allowed Pablo to come over
since he would not be alone. Pablo apologized, but accused appellant of stealing the
drugs. Pablo took his phone. After that, appellant could not ask him to return the
property because appellant did not have Pablo’s number.
       Appellant contradicted the victims’ version of events. He said he told the victims
what had happened, and that they did not confront him and say he had to call the police.
Appellant denied telling the victims that he did not want to call the police because he did
not want to get anyone in trouble. According to appellant, an officer at the Pacific
5
       Later appellant testified that he and Pablo carried the television to the door and set
it down. Pablo wrapped the television in a blanket and carried it down the driveway to a
car.
                                              5
Division refused to file a report about the incident on the ground that no crime had been
committed.
       Appellant was charged with grand theft of personal property in violation of section
487, subdivision (a). He pleaded not guilty. The jury found him guilty as charged.
Imposition of sentence was suspended and appellant was placed on formal probation for
three years with the requirement that he serve 90 days in county jail and two days of
community labor. The court ordered restitution be paid, with the amount to be set at a
future hearing. Appellant was ordered to enroll in and complete six months of outpatient
drug treatment. He filed a timely appeal.
                                        DISCUSSION
                                               I
       Appellant argues that the instruction given on the aiding and abetting theory of
guilt was prejudicially incomplete because it did not make clear that appellant had to
share Pablo’s specific intent to steal from the victims and permanently deprive them of
their property. He contends the trial court had a sua sponte duty to so instruct the jury.
       “‘“It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.”’ [Citation.]” (People v. Rangel (2016) 62 Cal.4th 1192, 1223.) We apply the
de novo standard of review in assessing whether jury instructions correctly state the law,
reviewing the instructions as a whole. (People v. Posey (2004) 32 Cal.4th 193, 218;
People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135.)
       The court gave CALCRIM No. 400, the pattern instruction on aider and abettor
liability. This instruction informed the jury that “[a] person may be guilty of a crime in
two ways. One, he or she may have directly committed the crime. I will call that person
the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly
committed the crime. [¶] A person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator.” The court also gave CALCRIM No.
401which provided in pertinent part: “To prove that the defendant is guilty of a crime

                                               6
based on aiding and abetting that crime, the People must prove that: [¶] 1. The
perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND
[¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid,
facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
(Italics added.)
       Appellant argues the instruction omitted the requirement that he had to share
Pablo’s criminal purpose. He also argues that the evidence demonstrated that he did not
share Pablo’s purpose of permanently depriving the victims of their property, but instead
acted out of duress because of Pablo’s threats to harm him. In support of his argument,
appellant cites his testimony at trial that he aided Pablo only because he was afraid and
believed Pablo’s threats, not because he shared Pablo’s intent to steal the victims’
property.
       Appellant asserts that this instructional error violated his right to due process
under the federal and state constitutions. Appellant relies on People v. Balderas (1985)
41 Cal.3d 144, which addressed whether the defendant’s associate was an accomplice.
(Id. at p. 193.) The Supreme Court held: “An aider and abettor may be an accomplice
since he is chargeable as a principal [citation], but we recently affirmed that one is not
guilty of aiding and abetting a crime unless he promotes, encourages, or assists the
perpetrator and shares the perpetrator’s criminal purpose. It is not enough that the
person charged as an aider and abettor give assistance with knowledge of the
perpetrator’s criminal purpose. (People v. Beeman (1984) 35 Cal.3d 547, 556-561.)” (Id.
at p. 194.) Appellant relies on the italicized language in People v. Balderas to argue that
“A person can even assist a principal, as occurred in this case, and know of the
principle’s [sic] criminal intent, and still not be an aider and abettor.”

                                               7
       Appellant also relies on People v. McCoy (2001) 25 Cal.4th 1111, and People v.
Nero (2010) 181 Cal.App.4th 504, to support his argument that an aider and abettor’s
mens rea is personal and may be different than the direct perpetrator’s. ~(AOB 12-14,
17)~ The cited cases concluded that an aider and abettor may be guilty of a greater
offense than the perpetrator (McCoy) or a lesser offense (Nero, and People v. Samaniego
(2009) 172 Cal.App.4th 1148). In response to this line of cases, CALCRIM No. 400 was
revised to eliminate language stating that “[a] person is [equally] guilty of a crime
whether he or she committed it personally or aided and abetted the perpetrator [who
committed it]. . . . ” (People v. Loza (2012) 207 Cal.App.4th 332, 348, fn. 8.) The jury
in this case was given the revised version of CALCRIM No. 400.
       Respondent argues that the issue was not preserved for appeal because defense
counsel did not seek modification or clarification of the intent element of the pattern
instruction on aiding and abetting. “‘A party may not argue on appeal that an instruction
correct in law was too general or incomplete, and thus needed clarification, without first
requesting such clarification at trial.’ [Citation.].” (People v. Livingston (2012)
53 Cal.4th 1145, 1165.)
       We agree that appellant failed to preserve the issue for appeal because no request
for clarification or modification of the language describing the aider and abettor’s
required intent was made. But even had the issue been preserved, we would find no error
because the instruction as given correctly stated the law on aider and abettor liability.
       Appellant argues that “[o]ne does not become an aider and abettor simply by being
in a place where a crime is being committed, even if that person knows about the crime,
and does nothing to stop it.” The jury was correctly instructed under the third element in
CALCRIM No. 401 that to convict, it was required to find that the defendant had to
intend “to aid and abet the perpetrator in committing the crime.” This is a correct
statement of California law. “An aider and abettor . . . must ‘act with knowledge of the
criminal purpose of the perpetrator and with an intent or purpose either of committing, or
of encouraging or facilitating commission of, the offense.’ (People v. Beeman[, supra,]

                                              8
35 Cal.3d [at p.] 560.)” (People v. Mendoza, supra, 18 Cal.4th at p. 1123.) “In order for
aiding and abetting liability to attach, the intent to render aid must be formed prior to or
during commission of the offense. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)”
(People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
       A similar argument was rejected in People v. Stallworth (2008) 164 Cal.App.4th
1079 (Stallworth), in which the appellant contended that CALCRIM No. 401 did not
explicitly state that mere presence or mere knowledge is insufficient to establish aiding
and abetting. The Stallworth court concluded that the language of CALCRIM No. 401
“demonstrates otherwise.” (Id. at p. 1103.) It reasoned: “CALCRIM No. 401 clearly
provides that knowledge that the perpetrator intends to commit the crime is only one of
the four elements for aiding and abetting liability. If the jury found mere knowledge
alone, by the terms of CALCRIM No. 401, that would be insufficient to establish aiding
and abetting liability. This point is even emphasized by the portion of the instruction that
reads as follows: ‘Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.’
(CALCRIM No. 401.)” (Ibid., italics omitted.)
       As in Stallworth, we conclude that CALCRIM No. 401 clearly and correctly
informed the jury that it was required to find that appellant acted with the intent to aid,
facilitate, promote, encourage, or instigate Pablo’s theft of the victims’ property. There
was no error in the instruction on aiding and abetting.
                                               II
       Appellant also challenges the sufficiency of the instruction on the defense of
duress, arguing that it should have stated that his fear of great bodily injury is a sufficient
evidentiary basis for the defense.
       Section 26 enumerates circumstances in which a person is not capable of
committing a crime. Subdivision six codifies the defense of duress: “Persons (unless the
crime be punishable with death) who committed the act or made the omission charged

                                               9
under threats or menaces sufficient to show that they had reasonable cause to and did
believe their lives would be endangered if they refused.”
       During the colloquy on jury instructions, the trial court proposed giving
CALCRIM No. 3402, the pattern instruction on duress: “The defendant is not guilty of
grand theft if he acted under duress. The defendant acted under duress if, because of
threat or menace, he believed that his life would be in immediate danger if he refused a
demand or request to commit the crime. The demand or request may have been express
or implied. [¶] The defendant’s belief that his life was in immediate danger must have
been reasonable. When deciding whether the defendant’s belief was reasonable, consider
all the circumstances as they were known to and appeared to the defendant and consider
what a reasonable person in the same position as the defendant would have believed. [¶]
A threat of future harm is not sufficient; the danger to life must have been immediate. [¶]
The People must prove beyond a reasonable doubt that the defendant did not act under
duress. If the People have not met this burden, you must find the defendant not guilty of
grand theft.”
       Neither counsel commented on that instruction. The court then considered a
special instruction proposed by the prosecution: “Under the duress defense, the
immediacy requirement means that the person committing the crime has only the choice
of imminent death or executing the requested crime. The person being threatened has no
time to formulate what is a reasonable and viable course of conduct nor to formulate
criminal intent.” Defense counsel argued that duress does not require fear of being killed.
The trial court acknowledged that it thought the same, but cited section 26, which
requires fear for life to trigger the duress defense. Defense counsel said “I
misunderstood. I confused myself, yes.” The trial court then ruled that the special
instruction would be given.




                                             10
       The court then noted that the pattern instruction on the defense of necessity,
                       6
CALCRIM No. 3403, had not been requested, and asked whether defense counsel
wanted it given. Defense counsel requested the instruction. The prosecutor objected to
language identifying the lack of an adequate legal alternative as one element of the
necessity defense. The court noted that unlike the defense of duress, which must be
disproven by the prosecution, the defendant bears the burden of proof on the defense of
necessity. The court ruled that it would give the necessity instruction.
       Appellant’s argument is based on a long-standing split of California authority
about the nature of the fear required to establish the duress defense. In People v. Heath
(1989) 207 Cal.App.3d 892, the court explained that common law duress “was said to
excuse criminal conduct where the actor was under an unlawful threat of imminent death
or serious bodily injury, which threat caused the actor to engage in conduct violating the
literal terms of the criminal law.” (Id. at p. 899, italics added.) Appellant acknowledges
that fear of serious bodily injury is not included in section 26, subdivision six, but asserts
that it should be implied, citing People v. Otis (1959) 174 Cal.App.2d 119, which
discussed the split of authority and questioned whether the legal distinctions between fear
of serious bodily harm and fear of life itself remained viable in light of modern
psychological research. (Id. at pp. 124-125.)



6
        As given, CALCRIM No. 3403 provided: “The defendant is not guilty of Grand
Theft if he acted because of legal necessity. [¶] In order to establish this defense, the
defendant must prove that: [¶] 1. He acted in an emergency to prevent a significant
bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. He had no adequate
legal alternative; [¶] 3. The defendant’s acts did not create a greater danger than the one
avoided; [¶] 4. When the defendant acted, he actually believed that the act was
necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also
have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The
defendant did not substantially contribute to the emergency. [¶] The defendant has the
burden of proving this defense by a preponderance of the evidence. This is a different
standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by
a preponderance of the evidence, the defendant must prove that it is more likely than not
that each of the six listed items is true.”
                                              11
       The other line of cases requires that a defendant be in imminent fear for his or her
life based on the express language of section 26, subdivision six. (People v. Saavedra
(2007) 156 Cal.App.4th 561, 567; People v. Petznick (2003) 114 Cal.App.4th 663, 676-
677; People v. Condley (1977) 69 Cal.App.3d 999, 1012.) In People v. Subielski (1985)
169 Cal.App.3d 563, the court rejected an argument that an instruction on duress was
required sua sponte where there was no evidence that the defendant “ever believed--
reasonably or unreasonably--that his life was in danger, but only feared that he might be
subjected to a physical beating if he did not participate in the robbery.” (Id. at p. 567.)
~(italics in original)~
       As respondent suggests, we need not resolve this split of authority because the
evidence did not establish that appellant assisted Pablo out of a fear of immediate harm.
“‘The common characteristic of all the decisions upholding [a duress defense] lies in the
immediacy and imminency of the threatened action: each represents the situation of a
present and active aggressor threatening immediate danger; none depict a phantasmagoria
of future harm.’” (People v. Vieira (2005) 35 Cal.4th 264, 290, quoting People v. Otis,
supra, 174 Cal.App.2d at p. 125; see also People v. Petznick, supra, 114 Cal.App.4th at
pp. 676-677.)
       The evidence at trial of appellant’s admissions and his own testimony establish
that Pablo threatened appellant with a future beating when his relatives or friends arrived.
Thomas testified that everyone was amused when Pablo said he would go get a gun from
his car because he had told them that he arrived by taxicab. Thomas heard Pablo say “he
would call his friends and have his friends assist him in coming to hurt us . . . .”
Appellant told Vanoost that Pablo threatened that he was going to go home and get a gun
and bring his cousin back and harm the victims’ dog if he did not get paid for what was
missing. Detective Hogan testified that appellant told him that Pablo said he was going
to get unknown males and then come back and physically harm him. Appellant testified
that Pablo threatened him with a severe beating, but explained that Pablo said “he would
pistol whip all three of us, including clean the place out, when the brother got there to

                                              12
pick him up.” Appellant knew that Pablo’s brother was not present when this statement
was made. He testified that while Pablo removed the property, he was in fear of
receiving a severe beating but did not indicate whether this was because Pablo said he
would return with others to beat him. Appellant testified that he spent 15 minutes trying
to talk Pablo out of stealing from the victims.
       This evidence does not support a duress defense because appellant’s testimony,
even if credited, did not demonstrate that he acted out of a fear of immediate harm rather
than some future harm, whether it was of death or serious bodily injury. The court had
no sua sponte duty to instruct the jury as appellant suggests.
                                             III
       Appellant argues that his defense counsel failed to object to the duress and aiding
and abetting jury instructions. (Strickland v. Washington (1984) 466 U.S. 668, 685;
People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) In light of our conclusion that there
was no instructional error, we do not find ineffective assistance of counsel. (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 108; People v. Orlosky (2015) 233
Cal.App.4th 257, 275.)
                                      DISPOSITION
       The judgment of conviction is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                         EPSTEIN, P. J.


We concur:




WILLHITE, J.                                             COLLINS, J.

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