Filed 6/6/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON STERLING GEFRERER,

Defendant and Appellant.

 D082223

 (Super. Ct. No. BAF2101033)

APPEAL from a judgment of the Superior Court of Riverside County, 

Timothy F. Freer, Judge. Affirmed.

Arthur Martin, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Steve 

Oetting and Joshua Trinh, Deputy Attorneys General, for Plaintiff and 

Respondent.

The People charged Appellant Aaron Sterling Gefrerer with two counts 

of robbery of two banks. On each occasion, the perpetrator calmly handed a 
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note to the teller demanding $5,000 and stating, “Don’t play.” Both tellers 

testified at trial that they were afraid and gave the perpetrator the money. 

Gefrerer purposely did not request an instruction on the lesser included 

offense of grand theft because it conflicted with his defense that he was not 

the perpetrator of the robbery. Gefrerer’s counsel told the jury that the 

People met their burden to prove that the two robberies took place but argued 

the evidence failed to establish Gefrerer committed the robberies. The jury 

convicted Gefrerer on both counts.

On appeal, Gefrerer argues the court erred by failing to sua sponte 

instruct the jury on grand theft as a lesser included offense of robbery. He 

contends that the bank policies instructing tellers to comply with demands 

during robberies, along with his nonaggressive demeanor during the 

robberies, provide substantial evidence that required the court to instruct the 

jury on theft. We disagree that substantial evidence exists to support a theft 

instruction. Even if the record contained substantial evidence, we conclude 

the doctrine of invited error would bar Gefrerer’s argument that the court 

erred by not providing the theft instruction. We therefore affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Gefrerer was charged with two counts of robbery (Pen. Code,1 § 211) 

arising out of two separate incidents. 

The first incident occurred on April 28, 2021, at a U.S. Bank location in 

Hemet, California. That afternoon, Gefrerer entered the bank, wearing a 

medical face mask, and walked around the check-writing stand several times. 

At the time, Selene B. was working behind a window as a teller. She 

invited Gefrerer to her window after he said he was looking for a pen. He 

requested a withdrawal slip, which Selene B. provided. Gefrerer handed 

1 Further statutory references are to the Penal Code.
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back the slip with a note stating, “Give me $5,000. Don’t play.” After Selene 

B. read the note several times, she felt she “had to comply” because she was 

“afraid that [her] coworkers and the two customers . . . were going to be hurt.” 

She placed her level of fear at a 10 on a scale of 1 to 10. She gathered and 

counted the bills in the cash machine, wanting to comply exactly due to her 

fear he would become upset. Selene B. was also afraid she was taking too 

long and he would become upset. When she was finished counting the 

money, she handed it to Gefrerer. When asked why she did not pursue him, 

she explained: “They always say that you could—they don’t recommend for 

us to follow, because we just don’t know the situation, how it would turn out. 

The policy and procedure states comply, to try to get a note, like a Post-it or 

something, and write the details of the description of what they were 

wearing . . . .” 

After Gefrerer left the bank, Selene B. reported the incident to her 

manager. The incident caused Selene B. to develop anxiety and depression 

and resign from her position. 

At trial, defense counsel questioned Selene B. regarding the 

appearance of the perpetrator, including his clothing, the visible portion of 

his face, his height, and any tattoos. Counsel also asked Selene B. about the 

setup and location of the bank. Counsel did not follow up after she 

mentioned the policy and procedures of the bank during a robbery.

The second incident occurred on May 1, 2021, at a U.S. Bank location in 

Banning, California. That morning, Gefrerer entered the bank, got in line, 

and eventually approached the window of Diana S., who was working as a 

bank teller. He calmly asked for a withdrawal slip, wrote something down on 

it, and handed it back to Diana S. When she saw Gefrerer had written, “Give 

me 5000 don’t play,” she was in shock and froze. Even though she did not see 
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a weapon, she was scared and concerned for the safety of those in the bank. 

She explained, “for someone to come up to me and me not knowing if there’s a 

weapon or I could get hurt or the people at my work could get hurt, that was 

traumatizing to me.” She knew that the procedure under such circumstances 

was to give the person the money. She took out money from her drawer and 

gave it to Gefrerer. She then informed her coworkers over an internal 

messaging system that she had been robbed.

At trial, defense counsel focused her questioning of Diana S. on the 

appearance of the robber and the setup of the bank. Counsel also asked for

the “top lesson” from the workplace training on how to handle a robbery, and 

Diana S. responded: “[I]f the robber asks for the money, just give him the 

money.” Counsel did not ask any follow-up questions regarding this training. 

After informal discussions regarding the lesser included offense of 

grand theft, the court explained, and defense counsel confirmed, “it would be 

contrary to the entire defense theory of the case, which is that the district 

attorney has failed to prove beyond a reasonable doubt sufficient evidence for 

witness identification for the existing charges under Counts 1 and 2.” 

Indeed, in closing, defense counsel conceded that the prosecution met 

its burden to establish that the crimes were robberies and explained to the 

jury that the only issue in the case was the identification of the perpetrator: 

“When I stood up here and talked to you in the beginning, I 

told you this case was about a whodunit, not about a what 

is it. And I still stand firm that the People have met their 

burden, two robberies took place. You will easily be able to 

check that box and acknowledge that two robberies 

happened. The issue is who did this.”

Counsel proceeded to discuss the evidence of the witnesses’ description 

of the perpetrator of the robberies compared with Gefrerer, focusing on the 

witnesses’ failure to remember any tattoos on the perpetrator, while Gefrerer
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had tattoos that would have been visible. She further stated, “I believe that 

the witnesses, the bank tellers specifically, were traumatized.” She finished 

by arguing, as to identity, “The People have not met their burden. They have 

not proven beyond a reasonable doubt. And, in fact, if anything, there’s a lot 

more factors in my client’s favor that he is not the one that did the Bank 

Robbery 1 or 2, and he is not the one that traumatized those ladies.” 

The jury convicted Gefrerer on both counts. 

DISCUSSION

Gefrerer argues the court erred by failing to instruct the jury on the 

lesser included offense of grand theft because the evidence of his 

nonthreatening demeanor and the bank’s policy to give the money to a person 

who demands it would permit a reasonable factfinder to conclude he did not 

take the money by force or fear. We conclude: (1) the record does not contain 

substantial evidence that Gefrerer took property without using force or fear; 

and (2) even if such substantial evidence existed, Gefrerer would be

precluded from asserting the instructional error based on the doctrine of 

invited error. 

1. Substantial Evidence

Courts are obligated to instruct the jury on lesser included offenses 

“where there is ‘substantial evidence’ from which a rational jury could 

conclude that the defendant committed the lesser offense, and that he is not 

guilty of the greater offense.” (People v. DePriest (2007) 42 Cal.4th 1, 50 

(DePriest).) We independently review a trial court’s decision not to instruct 

on the lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)

The Penal Code defines robbery as “the felonious taking of personal 

property in the possession of another, from his person or immediate presence, 

and against his will, accomplished by means of force or fear.” (§ 211.) Theft 
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is the felonious taking of personal property of another. (§§ 484, subd. (a), 

487, subd. (a) [defining the minimum value of property required for grand 

theft].) Theft involves the same elements as robbery, except that the taking 

does not occur by means of force or fear. (DePriest, supra, 42 Cal.4th at 

p. 50.) Thus, theft is a lesser included offense of robbery. (Ibid.) 

“ ‘ “The element of fear for purposes of robbery is satisfied when there is 

sufficient fear to cause the victim to comply with the unlawful demand for 

[her] property.” ’ [Citation.] ‘The extent of the victim’s fear “do[es] not need 

to be extreme . . . .” ’ [Citation.] ‘[T]he fear necessary for robbery is 

subjective in nature, requiring proof “that the victim was in fact afraid, and 

that such fear allowed the crime to be accomplished.” ’ ” (People v. Bordelon

(2008) 162 Cal.App.4th 1311, 1319 (Bordelon).) As long as the victim has 

subjective fear, “it makes no difference whether the fear is generated by the 

perpetrator’s specific words or actions designed to frighten, or by the 

circumstances surrounding the taking itself.” (People v. Flynn (2000) 

77 Cal.App.4th 766, 772 (Flynn).) 

Gefrerer acknowledges that the tellers were “shocked and frightened” 

but contends there was evidence the bank’s policy in combination with his 

calm demeanor caused them to acquiesce to the demand, rather than fear. 

We disagree. Testimony by a witness that she was “trained as a teller to 

remain calm and follow robbers’ instructions during a robbery” is not

substantial evidence to support a theft instruction when the teller testifies 

she “was in fact ‘shocked’ and ‘traumatized’ by [the robber’s] actions.” 

(Bordelon, supra, 162 Cal.App.4th at pp. 1319–1320.) And it is not relevant 

that the shock and trauma derived from written words rather than outward 

actions. (See Flynn, supra, 77 Cal.App.4th at p. 772.)
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Gefrerer also argues “the contents of the note, ‘don’t play’ can 

reasonably be interpreted not as a threat but as an indication of a serious 

invocation of the ‘hand it over’ policy.” We disagree that this was a 

reasonable interpretation of the note and that this point would be relevant. 

There is no evidence that Gefrerer was aware of the bank’s policy, let alone 

that he sought to invoke it. And if such evidence did exist, it is the subjective 

fear of the victim, not the existence of intent to cause fear by the perpetrator, 

that is relevant. (People v. Anderson (2011) 51 Cal.4th 989, 995; Bordelon,

supra, 162 Cal.App.4th at p. 1319.) Here, both victims testified as to their 

subjective fear caused by the threating note.

Selene B. testified that she was afraid, and she rated that fear as a 10 

on a scale of 1 to 10. Her testimony clearly establishes that she complied 

with the note due to that fear caused by Gefrerer’s note. For example, she 

stated, “The message that I got was comply and don’t get the individual 

upset, that may trigger for him to do who knows what,” and “my first instinct 

was just to get him out . . . I was just afraid for him to be upset that I was 

taking too long . . . . I just don’t want anybody to get hurt.” She testified that 

she subsequently locked the door and did not pursue the robber because of 

the bank’s policy, but she did not state that she complied with the demand 

because of the policy, even in part.

Likewise, Diana S. testified that she was in “shock” throughout the 

incident, even after Gefrerer exited the bank, and “traumatiz[ed]” by the 

experience. Her testimony also firmly establishes she acted based on these 

feelings. She explained her shock caused her to initially “just st[an]d 

there . . . and just stare[ ] at the note” before she gave him some money 

without counting. She explained that the incident traumatized her because 

he “c[a]me up to me and [I did] not know[ ] if there’s a weapon or I could get 
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hurt or the people at my work could get hurt.” Diana S.’s mention of the 

policy to comply, as she stood looking at the note in shock, would not permit a 

reasonable jury to conclude that the robbery occurred without the use of fear.

Gefrerer’s citation to People v. Brew (1991) 2 Cal.App.4th 99 does not 

alter our analysis. He cites Brew as an example of a case in which the trial 

court erred by not giving a theft instruction because “the evidence raised the 

issue whether [the victim’s] fear was necessary for the theft.” In that case, 

the court of appeal concluded that the trial court erred by failing to instruct 

the jury on theft because substantial evidence arguably supported a finding 

that the offense occurred without force or fear. (Id. at p. 105.) The facts of 

the offense and the defense strategy at trial, however, distinguish Brew from 

the present case. In Brew, the defendant committed the offense by coming 

behind the counter and taking money after the cashier opened the cash 

register. (Ibid.) The cashier moved out of the way; during the offense, the 

defendant “said nothing to [the cashier]. Nor did he touch her.” (Ibid.) To 

the contrary, in this case, Gefrerer communicated an implied threat directly 

to the tellers and relied on them to comply with his demand to provide him 

the money. Additionally, in Brew, “[i]n his defense at trial, appellant argued 

strongly against a finding of fear or force.” (Ibid.) On the other hand, here, 

Gefrerer conceded at trial that two robberies occurred.

In sum, the court properly declined to instruct the jury as to grand 

theft.

2. Invited Error

Even if the lesser included offense of theft, but not robbery, was 

supported by substantial evidence, Gefrerer would be precluded from 

claiming that instructional error on appeal under the doctrine of invited 

error. 
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“ ‘[A] defendant may not invoke a trial court’s failure to instruct on a 

lesser included offense as a basis on which to reverse a conviction when, for 

tactical reasons, the defendant persuades a trial court not to instruct on a 

lesser included offense supported by the evidence. [Citations.] In that 

situation, the doctrine of invited error bars the defendant from challenging on 

appeal the trial court’s failure to give the instruction.’ [Citation.] The record 

here shows that defendant’s ‘lack of objection to the proposed instruction was 

more than mere unconsidered acquiescence.’ [Citation.] Rather, defendant 

did not want the instructions because they were inconsistent with his defense 

that he did not commit the crime at all. . . . Accordingly, he cannot complain 

on appeal of the court’s failure to give the instruction.” (People v. Horning

(2004) 34 Cal.4th 871, 905–906.)

The record is abundantly clear that Gefrerer discouraged the court 

from providing a grand theft instruction for tactical reasons. After informal 

discussions with the parties, which were not reported or transcribed, the 

court explained on the record that the defense did not want the grand theft 

instruction because it conflicted with the defense theory that Gefrerer did not 

commit the robberies. Defense counsel confirmed the court’s summary of the 

conversation. This strategy was clear throughout trial. During the crossexamination of the tellers, defense counsel focused on their memories of the 

appearance of the perpetrator and used their states of fear, shock, and 

trauma to suggest that their ability to identify the perpetrator was impaired. 

Then, in closing, defense counsel conceded that the prosecution had carried

the burden of proving that two robberies had taken place. Under these 

circumstances, the doctrine of invited error bars Gefrerer from claiming on 

appeal that the court erred by failing to instruct the jury on a lesser included 

offense of robbery.
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DISPOSITION

We affirm the judgment. 

HUFFMAN, Acting P. J.

WE CONCUR:

BUCHANAN, J.

RUBIN, J.