Filed 11/18/21 P. v. McMillan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

GIOVANNI DEVON MCMILLAN , Defendant and Appellant. D0 78064

(Super. Ct. No. BAF1600043 )

APPEAL from a judgment of the Superior Court of Riverside County ; Alfonso Fernandez and James S. Hawkins, Judge s . Affirmed and remanded
with instructions

. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Giovanni Devon McMillan of first degree murder (Pe n. Code, 1 § 187 , subd. (a)) . It found true alleg ations that McMillan committed

1 Undesignated statutory references are to the Penal Code.2

the murder while committing a robb ery (§ 190.2, subd. (a)(17)), and personally and intentionally discharged a firearm, causing death (§§ 12022.53, subd. (d) , 1192.7, subd. (c )(8)). The trial court sentenced him to life in prison without the possibility of parole , and imposed a $10,000 parole
revocation restitution fine under section 1202.45, subdivision (c) but suspended it “ unless p a ro le is revoked

. ”
McMillan contends the trial court erroneously (1) failed to instruct the jury on its own motion about how to evaluate the accomplice testimony of two witnesses, S

. W. and S

. B ; (2) instruct ed the jury regarding consciousness of guilt ; and 3) imposed the parole revocation restitution fine. We affirm the judgment , accept the People’s concession and strike th e parole revocation
restitution fine , and remand with directions set forth below

.

FACTUAL AND PROCEDURAL BACKGROUND
S .W. testified that i n December 20 15, she was dating McMillan . H e told her h e plan ned to use his gun to rob his drug dealer, Martin M itchell , who was an easy target because he was e lder ly

. S .W. knew that McMillan always carrie d a .45

- caliber gun. In the days before the incident , S .W. heard
McMillan discuss his plan with a friend, W

. T. , multiple times. S .B. , who se sister has children with McMillan, was not present for th os e discuss ions

. On December 11, 2015, McMillan told S .W. , “ tonight ’ s t he night” for the robbery , and instructed he r to clean her apartment and lay down some plastic for when they returned with some marijuana leaves

. S he complied

. Police review of telephone messages showed t hat McMillan and
M i t chell exchanged message s regarding McMillan’s plan to go to Mitchell’ s house

. M itchell initially protested that i t was late, but subsequently agreed
to meet McMillan

.3

S .B. testified that o n the evening of December 11, 2015, McMillan sent him a text message asking for some tape because S .B. work ed at a warehouse. S .B. replied that he had no tape

. When S .B. returned home
around midnight , McMillan asked him to take him to pick up some marijuana. S .B. drove McMillan and W .T. to Mi tchell’ s house. S .B. did not know about McMillan’s plans, and was not suspicious about a robbery , despite the fact that approximately one week earlier McMillan had
mentioned that he planned on robbing a methamphetamine dealer , and S .B. had warned him against it

. When S .B. drove up to Mitchell ’s house , McMillan got out of the vehicle and walked toward Mitchell ’s front door.
A bout a minute later, W.T. returned and told S .B. about th e plan to rob
Mitchell

. Shortly afterwards, S .B. heard gunshots and saw W .T. run toward
the house. McMillan ran out of the house, fumbling with something near his
waistband

. W .T. followed him

. They left the door wide open and got into the
vehicle

. S .B. drove the m back to S .W. ’s apartment.
S .W. testified that W .T. brought bac k a pproximately a quarter pound of marijuana. McMillan asked S .W. to leave so that he could talk with W .T. and S .B. She left for about 30 minutes

. S .B. testified that shortly after they returned to S

. W

. ’s apartment he
heard McMillan say , “All [ Mitchell ] had to do was what I told him, what I
wanted him to do. Instead of doing what I told him to do, he ran to the back and I shot him.”
S

. W. testified that when she returned to her apartment , she saw
McMillan change out of his blood

- stained cloth es and shoes

. He placed them in a trash bag

. S.W. saw W .T. t a k e the bag , and assumed he would burn the
clothes

. S

. W

. gave McMillan spare clothes to wear

. McMillan told S

. W

. the robbery w ent wrong bec a use Mitchell refused to comply with his commands4

and put up a fight. He said that Mitchell had reached for a gun ; therefore,
McMillan shot him six times. McMillan said that W .T. had entered Mitchell ’s
house too late. A day or two later, S

. W

. saw McMillan clean his gun, which
had blood inside the muzzle. He asked her for some toilet paper for that purpose, and she gave it to him and later she disposed of the toilet paper.
McMillan gave the bullets to someone t o dispose of them. McMillan told S.W.
that S .B. was not involved in planning the robbery.
Police officers testified that on December 12, 2015 , they responded to
Mitchell ’s home to undertake a welfare check

. H is neighbors had heard gunshots coming from there shortly after midnight, and Mitchell did not

res pond to their calls later in the morning , despite the fact t he two front
doors of his home were wide open. Police saw blood on the walls and dried
blood underneath Mitchell ’ s body. Mitchell had suffered multiple gunshot
wounds. Ballistics tests showed t hat six expended casings that were recovered from in side the residence had been fired from the same .45

- caliber semiautomatic handgun. M arijuana plants were found in a n enclosure in
Mitchell ’s backyard. S .B. testified that later he refused McMillan’s request to take him to sell his gun. McMillan subsequently told S .B. he had already sold it

. A few days after the murder, investigators located McMillan ’s cell phone , which he had given to someone else

. Mitchell ’s cell phone showed th at his last contact was with a telephone number re g ister ed to McMillan

. In

n umerous messages two months before the murder , the two discussed drug
transactions. M essages from early December indicated McMillan ow ed
Mitchell money. A forensic pathologist determined Mitchell died of multiple gunshot
wounds.5

S .W. testified that she lied multiple times to police investigators about McMillan’s role in t he incident

. S .W. pleaded guilty to being an accessory after a murder , and in exchange would receive a lesser sentence if s he cooperate d with law enforcement and testif ied truthfully. She had not yet been sentenced at the time of trial.
S .B. testified he was arrested and had been incarcerated for three and a half years before he plea ded guilty to robbery, home invasion, and accessory after a murder, for which he would be sentenced to three years eight months
in prison

. I n exchange , he was required to cooperate with law en forcement and testify truthfully . He had not been sentenced at the time of trial.
The d efense did not present any trial evidence. DISCUSSION
I. Jury Instructions Regarding Accomplice Testimony
McMillan contends that because the jury could conclude that S .W. and S .B. were his accomplices, the court on its own motion should have instructed the jury with general principles for evaluating accomplice testimony as set forth in CALCRIM No. 334 (Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice), CALCRIM No. 335 (Accomplice Testimony: No Dispute Whether Witness Is Accomplice), CALCRIM No. 707 (Special Circumstances: Accomplice Testimony Must Be Corroborated

— Dispute Whether Witness Is Accomplice) and CALCRIM No. 708 (Special Circumstances: Accomplice Testimony Must Be Corroborated

— No Dispute Whether Witness Is Accomplice)

. McMillan argues the court’s omission was particularly prejudicial because the court instructed the jury with CALCRIM
No. 301 that the testimony of a single witness can prove any fact. The People counter that at most the evidence established S .W and S .B
were accessories after the fact of murder but not accomplices ; moreover, any6

error was harmless because (1) sufficient other e vidence corroborated S .W. ’s
and S .B. ’s testimony and establish ed McMillan’s guilt , (2) the court also instructed the jury with CALCRIM Nos. 226 [ W itnesses] , 302 [Evaluating Conflicting Evidence] , and 318 [Prior Statements as Evidence] , to view the
witnesse s’ testimony with care and caution and (3) the prosecutor argued to the jury that it should evaluate all the testimony for consisten cy

. Section 1111 provides: “ A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ” The California Supre me Court has defined “ a ccessories ” as “ persons who, after a felony has been committed, harbor, conceal or aid a principal in the felony with the intent that the principal avoid criminal liability therefor and knowing that the principal has committed the fe lony or been charged with or convicted thereof .” ( People v. Coffman & Marlow (2004) 34 Cal.4th 1,
103 .) Accessories “ are not accomplices as to whose testimony corroboration is required. ” [Citations.] Whether a person is an accomplice is a question of
f act for the jury unless the facts and the inferences to be drawn therefrom are undisputed. ” ( Ibid. ) “ The fact that ‘the witness was prosecuted for the same offense as defendant does not alone establish her to be an accomplice [ as a matter of law ] .’ ” ( P

eople v. Tewksbury (1976) 15 Cal.3d 953, 960 .)
We conclude t he trial court did not err by declining to instruct the jury regarding accomplice testimony bec a u s e insufficient evidence support ed those
ins t ruction s

. N o evidence showed that either S .W. or S .B. conspired with7

McMillan or W .T. to commit the crimes , aided or abetted their commission , shared McMillan ’s criminal intent, or had any knowledge of hi s plan s to murder Mitchell

. ( People v. Beeman (1984) 35 Cal.3d 547, 560 [“an aid er and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime”].)
U ndisputed evidence established that S

. W

. did not participate in the robbery and the murder or share McMillan’s intent to commit those crimes. Although she knew about McMillan’s plan to rob Mitchell , that knowledge
did not provide clear and undisputed evidence that she shared McMillan ’ s intent. ( People v. Anderson (2018) 5 Cal.5th 372, 411 [witness es ’ “presence might establish that they knew of the conspiracy” but it did “not establish beyond reasonable dispute that either did any thing to further the conspiracy or did so with the required intent ”].) The extent of S

. W

. ’s involvement i n the
incident i s that s he cleaned up her apartment for McMillan before the robbery, gave him a change of clothes after the murder, and also helped hi m dispose of toilet paper evidence. At most, just as her guilty ple a indicated, S

. W

. was an accessory after the fact, and that did not i mplicate accomplice corroboration requirements. ( People v. Snyder (2003) 112 Cal.App.4th 1200, 1220, citing People v. Sully (19 9 1) 53 Cal.3d 1991, 1227 [“[m]erely giving assistance without sharing the perpetrator’s purpose and intent establishes liability only as an accessory, not as an accomplice”].)
As to S .B. , t he evidence showed that his involvement in the crimes was limited to driving McMillan and W .T. to and from Mitchell ’s home . No
evidence showed he had prior knowledge of McMillan ’s criminal purpose or shar ed his crim inal intent. The evidence did not show that S .B. intend ed to8

participate in a r obbery or murder

. ( People v. Stankewitz (1990) 51 Cal.3d 72, 90 [an individual’s mere presence at the crime scene or his failure to prevent the commission of the crime is insufficient to establish aiding and abetting]; People v. Hoover (1975) 12 Cal.3d 875, 879 [“[m]erely aiding in the escape of a principal does not result in liability as a principal, but only as an accessory under sections 32 and 33”]; People v. Cisneros (1973) 34 Cal.App.3d 399, 415 [“[t]he combination of the furnishing of t he gun and the driving away, in the absence of further evidence showing an intent to enter into a common undertaking to shoot [the victim], is also insufficient to create the liability for prosecution necessary to make [the witness] an accomplice”].) More over, after the crime, S .B. refused to aid McMillan further by giving him a ride to sell his gun. We conclude that on this record, the court did not err by failing

to instruct the jury regarding accomplice testimony as to either S .W. or S .B

. Contrary to McMillan ’s claim, the fact that S .W. and S .B. “were originally charged in connection with this case” is not dispositive o f whether they were accomplice s

. Even when witnesses are charged or convicted for their roles in the offenses against a particular vic tim, they are not considered accomplices if the record lacks evidence tending to suggest that they “aided or abetted, or otherwise facilitated, with the requisite intent ,” the defendant’s
criminal actions. ( People v. Coffman and Marlow ( 2004) 34 Cal.4th 1, 105, [witness convicted as an accessory was not an accomplice as a matter of law because they lacked the “requisite intent”]; Cisneros , supra , 34 Cal.App.3d at p. 415 [“neither [the witness’s] act in aiding the defendant after he committed

t he crime, nor [his] plea of guilty to [accessory after the fact to the homicide], furnishes the basis for a finding that he was an accomplice”]; People v. Kosta (1910) 14 Cal.App. 696, 698 [that a witness had been jointly charged with the defendant does no t render him an accomplice as a matter of law because “the9

evidence is ample that neither of these two witnesses had any criminal or guilty connection with the appellant or the offense of which he was found guilty, and about which they gave evidence”].)

I I. Consciousness of Guilt I nstruction
McMillan contends the court err oneously instruct ed the jury on consciousness of guilt with CALCRIM No. 371 [Consciousness of Guilt: Suppression and Fabrication of Evidence] 2 and CALCRIM No. 372 [Defendant’s Flight] , 3 which were duplicative, argumentative, lessened the prosecution’s burden of proof, and embodied improper permissive inferences

. He specifically claims the instructions were duplicative of CALCRIM No. 223 regarding circumstantial evidence. He adds that this instructional error violated his constitutional “rights to due process, a fair trial, a jury trial, equal protection and reliable jury determinations on guilt and the special circumstance allegation.”
We conclude that b oth instructions were appropriate in this case because sufficient evidence supported the m. It is “an elementary principle of law that before a jury can be instructed that it may draw a particular

2 The court instructed the jury with CALCRIM No. 371: “If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”

3 The court instructed the jury with CALCRIM No. 372: “If you conclude that the defendant fled or tried to flee, that conduct ma y show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to determine the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itse lf.”10

inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.” ( People v. Hannon (1977) 19 Cal.3d 588, 597, disapproved on other grounds in People v. M ar tinez (2000) 22 Cal.4th 750, 762.) “A trial court properly gives consciousness of gui lt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instructions.” ( People v. Bowman (2011) 202 Cal.App.4th 353, 366; People v.
Alexander (2010) 49 Cal.4th 846 , 921.) The facts giving rise to an inference of consciousness of guilt need not be conclusively established before the instruction may be given; there need only be some evidence in the record that would sufficiently support the suggested inference. ( Ale xander , supra , at p. 921.)
McMillan ’s efforts to conceal or destroy incriminating evidence connecting him to the crimes demonstrated his attempt to hide evidence

. He disposed of his cell phone , the contents of which w ere erased

. He placed his bloody clothes and shoes into a trash bag and then gave it to W .T. to burn.
McMillan clean ed his gun, which had Mitchell ’s blood inside the muzzle.
McMillan dispose d of the remaining bullets. McMillan also asked S .B. to give
him a ride so he could sell his gun, and when S .B. refused, McMillan eventually sold the gun. These acts of suppressing evidence were more than sufficient to permit an inference of consciousness of guilt. (See People v. Cooper (1991) 53 Cal.3d 771, 833 [defendant dis posed of shoes]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1296 [defendant attempted to get rid of gun].)
The flight instruction wa s suppor ted by e vidence showing that
McMillan left Mitchell ’s home immediate ly after robbing and killing him

. (See People v. Zapien (1993) 4 Cal.4th 929, 983.) We conclude the court did11

not err by instruct ing the jury on consciousness of guilt. ( People v. Johnson (1992) 3 Cal.4th 1183, 1236.) McMillan recognizes that the Californ ia Supreme Court in People v.
Nakahara (2003) 30 Cal.4th 705, 713 has rejected his claim that the consciousness of guilt instructions are argumentative, but he claims the high court’s reasoning in that case and in People v. Kelly (1992) 1 Cal.4th 495, 531

- 53 2 and other cases “is equally flawed.” He also cites to state court decisions from eight states that “have held that flight instructions should not be given because they unfairly highlight isolated evidence.” However, this court is bound by the Califor nia Supreme Court ’s decisions ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455

- 456 ) , and not those of other state

courts. Based on the overwhelming evidence support ing McMillan ’s convictions
as set forth above, e ven assuming the court err ed by instructing the jury regarding consciousness of guilt, any error was harmless. ( People v. San
Nicolas (2004) 34 Cal.4th 614, 667 [error in giving consciousness of guilt instructions reviewed for prejudice under People v. Watson (1946) 46 Cal.2d
818 , 837] ; see People v. Pride (1992) 3 Cal.4th 195, 249 [where evidence of defendant’s guilt was strong, giving consciousness of guilt ins tructions was at worst superfluous and “reversal on such a minor, tangential point is not warranted”].)

III. Parole Revocation Restitution Fine
T he People concede and we agree the trial court erred by imposing a $10,000 parole revocation restitution f ine under section 1202.45 , subdivision (c) because the court sentence d McMillan to life in prison without possibility of parole. Section 1202.45, subdivision (a), provides that the court “shall”12

assess an additional parole revocation restitution fine “[i] n every case where a person is convicted of a crime and his or her sentence includes a period of parole.” Such a “fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is n o period of parole.” ( People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) We strike the parole revocation restitution fine.

DISPOSITION
T he judgment of conviction is affirmed. The matter is remanded with
directions that the trial court prepare an amended abstract of judgment striking the $10,000 parole revocation restitution fine under s ection 1202.45, subdivision ( c ) , and forward a certified copy to the Departmen t of Corrections
and Rehabilitation.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.