Filed 9/23/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT


THE PEOPLE,                          B291137

       Plaintiff and Respondent,     (Los Angeles County
                                      Super. Ct. No. BA441320)
       v.

GIOVANNY RODRIGUEZ,

       Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed.
     Melissa L. Camacho-Cheung, under appointment by the
Court of Appeal, for Defendant and Appellant.
     Xavier Becerra, Attorney General of California, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Stephanie C. Brenan,
Supervising Deputy Attorney General, Wyatt E. Bloomfield,
Deputy Attorney General, for Plaintiff and Respondent.
                      ____________________
       Giovanny Rodriguez shot a man. A jury convicted
Rodriguez of attempted murder and other crimes. On appeal,
Rodriguez argues (1) the trial court should not have admitted his
jailhouse confession, (2) the court should not have instructed the
jury that eyewitness certainty should be considered when
evaluating eyewitness reliability, (3) there was cumulative error,
(4) his sentence is unconstitutional, and (5) we should vacate
court fees and stay his restitution fine. We affirm. Code
references are to the Penal Code.
                                    I
       The facts are these.
       Rodriguez was in a gang. He and a fellow gang member
followed a man to Monterey Park, where Rodriguez shot and
wounded the man. Eight months later, Rodriguez was in jail on
an unrelated matter. Police put an informant in his holding cell.
The informant dressed and acted like an inmate. Rodriguez was
not Mirandized. (Miranda v. Arizona (1966) 384 U.S. 436, 444
(Miranda).) The informant struck up a conversation with
Rodriguez: “What’s up, homie? Player from Harbor City.”
Rodriguez told the informant that Rodriguez and his “crime
partner” “did a shooting . . . [a]ttempted murder.” At one point,
without exposing the undercover operation, a detective entered
the cell to tell Rodriguez he would be charged with attempted
murder. That triggered more discussion between Rodriguez and
the informant about the shooting. Police secretly recorded all
this.
       After Rodriguez spoke to the informant for an hour and
forty minutes, police removed Rodriguez from the holding cell.
The detective Mirandized Rodriguez and, after recounting facts
about the attempted murder, interrogated him. (Miranda, supra,




                                2
384 U.S. at p. 444.) Then police returned Rodriguez to the
holding cell.
        The informant asked Rodriguez, “What happened fool?”
Rodriguez replied, “Fuckin, uh, they know everything fool.” After
talking some more, Rodriguez said to the informant, “Look, here’s
what happened. I can have a little bit of trust in you.”
Rodriguez proceeded to tell the informant the details of the
shooting. This second conversation — after Rodriguez returned
from speaking with the detective — lasted 20 minutes.
        The trial court denied Rodriguez’s motion to exclude his
conversations with the undercover informant. The prosecution
played the recording for the jury.
        Two eyewitnesses identified Rodriguez at trial. The trial
court instructed the jury with CALCRIM No. 315, which tells
jurors to consider a series of questions when evaluating an
eyewitness’s identification, including “How certain was the
witness when he or she made an identification?” (CALCRIM No.
315.) Rodriguez’s counsel did not object.
        The jury convicted Rodriguez of attempted murder and
other crimes. The jury could not reach a unanimous verdict on
whether the attempted murder was premeditated, and the trial
court granted the prosecution’s motion to dismiss this charge.
The trial court sentenced Rodriguez to 45 years and four months
to life. It imposed a $300 victim restitution fine, a $90 criminal
conviction assessment fine, and a $120 court operations
assessment fine.
                                   II
        The trial court properly admitted Rodriguez’s conversation
with the informant.




                                3
       Rodriguez argues admission of the conversation violated (1)
his Fifth Amendment rights because police failed to Mirandize
him before the conversation, and (2) his due process rights
because police coerced him to confess. We address each
erroneous argument in turn. We review the trial court’s findings
of fact for substantial supporting evidence but independently
review the trial court’s legal determinations. (People v. Orozco
(2019) 32 Cal.App.5th 802, 811.)
                                   A
       The government was not required to Mirandize Rodriguez
before his conversation with the informant.
       Miranda, supra, 384 U.S. at page 444, held that, under the
Fifth Amendment, courts may admit statements made by
suspects during a custodial interrogation only if police first warn
suspects of their rights. But Miranda warnings are not required
when suspects give voluntary statements to a person they do not
know is a police officer. (Illinois v. Perkins (1990) 496 U.S. 292,
294.)
       Rodriguez did not know he was speaking to the police when
he talked to the undercover informant, so no Miranda warning
was required. Rodriguez claims he “felt coerced” because the
informant posed as “an older, well-connected gang member.”
Rodriguez says that coercion was especially strong because he
was confined to the same cell as the informant for around two
hours.
       The coercion identified by Rodriguez is not the sort that
concerned the Miranda court. Miranda does not protect suspects
when they describe criminal activities to people they think are
cellmates. (Illinois v. Perkins, supra, 496 U.S. at p. 298.) Rather,
Miranda addressed concerns that a “police-dominated




                                 4
atmosphere” generates “inherently compelling pressures” that
“undermine the individual’s will to resist” questioning. (Id. at p.
296 [quoting Miranda, supra, 334 U.S. at pp. 445, 467.].) Those
concerns evaporate when, as here, an inmate speaks freely to
someone he believes is a fellow inmate. (Illinois v. Perkins,
supra, 496 U.S. at p. 296.)
      Rodriguez cites no case holding Miranda warnings are
required before an undercover informant speaks to an inmate.
We know of none. During Rodriguez’s conversation with the
informant, the government did not brandish its authority or
intimidate him into speaking. Like the defendant in Perkins,
Rodriguez spoke freely and at his own peril. (Illinois v. Perkins,
supra, 496 U.S. at p. 298.)
                                  B
      The government did not coerce Rodriguez into confessing
involuntarily.
      The due process clauses of the federal and California
constitutions bar courts from admitting involuntary confessions.
(Withrow v. Williams (1993) 507 U.S. 680, 688–689; People v.
Boyette (2002) 29 Cal.4th 381, 411.) To determine whether
Rodriguez’s confession was involuntary, we assess the
circumstances to see if his will was overborne. (Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 225–226; People v. Boyette,
supra, 29 Cal.4th at p. 411.)
      Rodriguez argues the government coerced him into
confessing because he was “put in a locked cell with an older gang
member” to whom Rodriguez was required to “show respect to,
gain respect from, and gain protection from.” Rodriguez was 26
years old; the undercover informant claimed to be 35.




                                5
      No facts support this factual argument. Nothing in the
record shows gang members customarily defer to traditional
figures of authority, like elders. An age gap of nine years is less
than the interval between parent and child. No evidence shows
this gap is meaningful to gang members as a general matter.
Deference to seniority could be a factor in some factual settings,
but we will not embrace this theory as a universal principle based
only on anecdotal speculation.
      The trial court said, “I didn’t hear a scintilla of evidence
that Mr. Rodriguez was in any way pressured to give a
statement. My impression was when they finally split up, they
were new best friends. Sounded to me like they were [having] a
good time in that cell talking, laughing, discussing things. There
was not an iota of evidence to suggest Mr. Rodriguez was
pressured.”
      Rodriguez’s confession was voluntary and admissible.
                                   III
      The trial court properly instructed the jury with CALCRIM
No. 315. We independently review the propriety of a jury
instruction. (Yale v. Bowne (2017) 9 Cal.App.5th 649, 657.)
      Rodriguez argues CALCRIM No. 315 violates his
Fourteenth Amendment due process rights because it tells the
jury to consider eyewitness certainty. Rodriguez’s counsel did not
object at trial. This is forfeiture.
      Rodriguez acknowledges People v. Sánchez (2016) 63
Cal.4th 411, 462 (Sánchez), reiterated three decades of California
Supreme Court precedent that a trial court may instruct the jury
to consider eyewitness certainty. Rodriguez concedes Sánchez
binds us. Rodriguez says he raised this issue on appeal in
anticipation the Supreme Court will overrule Sánchez in a case




                                6
currently before it, People v. Lemcke, review granted October 10,
2018, S250108. The Supreme Court has not issued an opinion in
Lemcke. Sánchez remains valid law. Even were there no
forfeiture, we would find no error in the trial court’s instruction
to the jury.
                                 IV
       Rodriguez argues the trial court deprived him of due
process through the cumulative error of admitting his jailhouse
conversation and using CALCRIM No. 315. Neither action was
error. There was no cumulative error.
                                  V
       Rodriguez challenges his prison sentence. The issue arose
because the jury could not reach a verdict on a premeditation
enhancement to the attempted murder count, and the trial court
later granted the prosecutor’s motion to dismiss the allegation.
Rodriguez argues he is being punished for winning at trial: he
contends the sentence he got is unconstitutional because it is
worse than the one he would have received had he been convicted
of attempted premeditated murder. His constitutional argument
is in two parts. Rodriguez claims his sentence is impermissibly
unusual under the California Constitution because it is more
severe than the sentence he would have received had he lost on
the premeditation enhancement. Rodriguez also claims his
sentence violates the Fourteenth Amendment of the federal
Constitution because it is fundamentally unfair.
       Rodriguez forfeited these constitutional arguments, which
also fail on the merits.
                                  A
       Rodriguez’s argument turns on comparing his actual
sentence against the sentence he would have gotten had he lost




                                 7
on the premeditation issue. Thus we begin by comparing these
two sentences: the one Rodriguez would have received if he had
been convicted of attempted willful, deliberate, and premeditated
murder (which we shorten to attempted premeditated murder)
versus Rodriguez’s actual sentence.
                                    1
        Had Rodriguez been convicted of the premeditation
enhancement, his sentence would have been two indeterminate
life terms with parole eligibility after 40 years. The analysis
supporting this conclusion requires a substantial tour of current
California sentencing law, as follows.
        The prosecution charged attempted premeditated murder
under section 187, subdivision (a), and section 664, subdivision
(a). A conviction for this charge and allegation carries a sentence
of “life with the possibility of parole.” (§ 664, subd. (a).) This is
an indeterminate sentence. (See People v. Felix (2000) 22
Cal.4th 651, 659 [explaining “both straight life sentences and
sentences of some number of years to life are indeterminate
sentences not subject to the” Determinate Sentencing Act].)
        The prosecution alleged a section 186.22 gang
enhancement. Section 186.22 defines the punishment that
follows if the jury finds an alleged gang enhancement is true.
The punishment varies with the seriousness of the gang
member’s actions. When the gang member commits a crime
punishable by imprisonment “for life,” this section prohibits
parole until the defendant serves at least 15 years in prison.
(§ 186.22, subd. (b)(5).) It states: “any person who violates this
subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.” (§ 186.22,




                                 8
subd. (b)(5).) Attempted premeditated murder carries a life
sentence. Rodriguez thus would have been ineligible for parole
for 15 years.
       The prosecution also charged Rodriguez with the section
12022.53, subdivision (d), gun enhancement. This charge carries
a consecutive term of 25 years to life. (§ 12022.53, subd.
(d).) This is an indeterminate sentence. (See People v. Felix,
supra, 22 Cal.4th at p. 659.)
       To determine Rodriguez’s parole eligibility we look to
section 3046. It provides, “If two or more life sentences are
ordered to run consecutively to each other pursuant to Section
669, an inmate so imprisoned shall not be paroled until he or she
has served the term specified in subdivision (a) on each of the life
sentences that are ordered to run consecutively.” (§ 3046, subd.
(b); see also People v. Franklin (2016) 63 Cal.4th 261, 273
[applying section 3046].) The relevant term specified in
subdivision (a) is the “term as established pursuant to any other
law that establishes a minimum term or minimum period of
confinement under a life sentence before eligibility for parole.”
(§ 3046, subd. (a)(2).) Thus, Rodriguez would be ineligible for
parole until he served 15 years under section 186.22, subdivision
(b)(5), followed by 25 years under section 12022.53, subdivision
(d).
       So if Rodriguez had been convicted of the willful,
deliberate, and premeditated enhancement, his sentence would
have been two indeterminate life terms with parole eligibility
after 40 years.
                                   2
       Next we discuss the sentence Rodriguez actually received.
The jury could not reach unanimity on the premeditation




                                 9
enhancement. Eleven jurors found the enhancement true; one
found it not true. Without the premeditation allegation, section
187 and section 664 did not provide a life sentence and, in turn,
section 186.22, subdivision (b)(5), did not require Rodriguez to
serve 15 years before becoming parole eligible. Instead, the trial
court sentenced Rodriguez to the determinate upper term of nine
years for attempted murder. The true finding on the gang
enhancement required a different punishment upon Rodriguez’s
conviction of attempted, non-premeditated murder, a violent
felony, which does not have a base term of life. Specifically,
section 186.22, subdivision (b)(1)(C), provided an additional term
of 10 years. As a result, Rodriguez received a determinate term
of 19 years rather than an indeterminate life sentence with
parole eligibility after 15 years.
       The trial court imposed a consecutive 25 years to life
sentence for the section 12022.53, subdivision (d), gun
enhancement.
       The determinate term must run before the indeterminate
sentence, and the time Rodriguez serves on the determinate term
does not count toward the minimum term of the indeterminate
sentence. (§ 669.) Rodriguez is eligible for custody credit of up to
15 percent of the time he serves on the determinate term. (See
§§ 2933, 2933.1.) If he earns these custody credits, he will serve
only 16.15 years on the determinate sentence.
       Thus, Rodriguez will serve a determinate term of 16.15 to
19 years, plus a single indeterminate life sentence. He will
become parole eligible after 44 years, or 41.15 years if he earns
custody credits.




                                 10
                                   3
      The difference between what Rodriguez might have gotten
and what he did get is an indeterminate life term with the
possibility of parole after 15 years versus a determinate term of
16.15 to 19 years. With a determinate term of 16.15 to 19 years,
Rodriguez has certainty the term will end at 19 years and the
possibility the term will end as early as 16.15 years.
      This difference stems from the interaction of section 664
and section 186.22. If the murder attempted is premeditated,
section 664, subdivision (a), provides a life sentence, and section
186.22, subdivision(b)(5), requires a minimum of 15 years served
before a defendant becomes parole eligible. If the murder
attempted is not premeditated, section 664, subdivision (a),
provides a determinate upper term of nine years, and section
186.22, subdivision (b)(1)(C), adds an additional 10 years.
                                   B
      First we address forfeiture. Then we analyze the merits.
                                   1
      We begin with forfeiture. Rodriguez forfeited his
sentencing argument by failing to raise it in the trial court.
(People v. Baker (2018) 20 Cal.App.5th 711, 720.)
      Rodriguez does not dispute he forfeited his Fourteenth
Amendment argument. Yet he insists his California Constitution
argument is “purely legal” and so is exempt from forfeiture.
      Arguments about unusual punishment generally require a
fact-specific inquiry into the offense and offender. (See People v.
Norman (2003) 109 Cal.App.4th 221, 229.) Rodriguez identifies
no authority holding an as-applied constitutional challenge to a
sentence is “purely legal.”




                                11
       In any event, even purely legal questions can be forfeited.
Appellate courts review the decisions that trial lawyers ask trial
judges to make. By skipping the trial court, lawyers deny trial
courts and opposing counsel the ability to respond and to fix the
problem on the spot. Here, for instance, the trial court
announced the case was before the court for sentencing and also
for the prosecutor to determine whether she wanted to proceed on
the premeditation allegation on which the jury hung 11 to one.
Had Rodriguez mentioned the constitutional objection he now
raises for the first time on appeal, the court and the parties
would have learned about the objection. This could have changed
a lot. The prosecutor could have retried the enhancement. Or
the parties could have entered plea negotiations to compromise
their differences. Or the group could have generated other
options and remedies that we cannot imagine. Or defense trial
counsel may have decided to remain silent on the evaluation that
a 19-year determinate sentence followed by one indeterminate
life term was preferable to two consecutive indeterminate life
terms.
       Forfeiture rules create and enforce incentives. As a
practical matter, it is highly desirable for litigants to raise issues
when the trial court and the parties can resolve them swiftly and
cheaply. This principle is traditional, just, fair, and socially
rational. Identifying an issue and determining the cure before
the jury leaves is better than years of appellate delay. Tardy
remands make for duplicative processes on stale records.
       Every trial judge of experience appreciates the wisdom of
the rule requiring timely objections. Appellate courts should
respect and enforce this fundamental element of our process.
       Rodriguez has forfeited his argument.




                                 12
                                   2
       We consider the merits of Rodriguez’s argument to forestall
a habeas petition premised on ineffective assistance of counsel.
       Rodriguez argues his sentence is unusual because it is
“Longer Than The One He Would Have Served Had He Been
Convicted” of attempted premeditated murder. For support, he
cites People v. Schueren (1973) 10 Cal.3d 553 (Schueren).
       This case differs from Schueren.
       The Schueren prosecutor charged John Otto Schueren with
assault with a deadly weapon with intent to commit murder,
which carried a sentence of one to 14 years. (Schueren, supra, 10
Cal.3d at pp. 555–556.) The jury found Schueren guilty of the
lesser included crime of assault with a deadly weapon, which
carried a sentence of six months to life. (Id. at p. 556.) The
Schueren court held Schueren’s sentence of six months to life was
unconstitutional because “an accused is normally not subject to
an increased maximum prison term as a consequence of . . .
exercising his constitutional rights [and] successfully defending
against the crime charged.” (Id. at pp. 560–561, italics added.)
       Rodriguez’s situation is different. Rodriguez, unlike
Schueren, does not face “an increased maximum prison term”
because he “successfully defend[ed] against the crime charged.”
Rodriguez distracts from this distinction by focusing on his
minimum parole eligibility. But Schueren instructs us to look to
defendants’ “maximum prison term,” not to their minimum
potential term. (Schueren, supra, 10 Cal.3d at p. 560, italics
added.)
       Schueren’s focus on defendants’ maximum prison term
rather than their minimum parole eligibility makes sense.
Courts cannot predict how parole authorities will exercise their




                                13
discretion in the future. No one can know the attitudes of
California’s governors and voters in the decades ahead. It is
possible the minimum term will be completely meaningless
because authorities will never grant parole on a first application,
or ever. But courts can calculate defendants’ maximum prison
terms.
       When we focus on Rodriguez’s maximum term, we see
Schueren undercuts rather than supports Rodriguez’s argument.
Rodriguez’s ultimate sentence of a 19-year determinate term and
a single indeterminate life sentence is not more severe than his
potential sentence of two indeterminate life terms. Each
sentence has one indeterminate life term, but his actual sentence
has an additional 19-year determinate term while his potential
sentence has an additional indeterminate life sentence.
       Schueren found a sentence with a higher potential
minimum (one year) but lower maximum (14 years) less severe
than a sentence with a lower potential minimum (six months) but
higher maximum (life). (Schueren, supra, 10 Cal.3d at pp. 555–
556.) Rodriguez’s ultimate sentence is analogous to the one
Schueren found less severe: it has a higher minimum (44 years)
but lower maximum (one life term) than his potential sentence,
which had a lower minimum (40 years) but higher maximum (two
life terms).
       Even if Rodriguez’s minimum term were relevant, and we
tried to predict decisions of some future parole board, we still
would confront in this case a record that fails to address whether
Rodriguez’s actual sentence is more severe than his potential
sentence. This is exactly the sort of factual issue that could have
been and should have been addressed at the trial court; because
trial counsel did not object, the trial court did not make this




                                14
factual inquiry, which bolsters our conclusion that Rodriguez’s
argument is forfeited.
      Rodriguez has made no showing that a future, or even
current, parole board will parole someone convicted of attempted
premeditated murder, serving two indeterminate life sentences,
before someone convicted of attempted murder, serving a single
indeterminate life sentence. Common sense suggests a parole
board would be inclined to parole Rodriguez later had the jury
found the murder he attempted was premeditated. Presumably
Rodriguez’s trial counsel thought so too, which explains his
challenge to the premeditation enhancement.
      Rodriguez’s argument that his sentence violates the
Fourteenth Amendment’s due process clause also fails.
Rodriguez identifies neither procedural shortcoming in his
sentencing nor a substantive due process right to a fair sentence.
 (See People v. Watson (2017) 8 Cal.App.5th 496, 519–520.)
                                   VI
      Rodriguez’s opening brief requests we vacate court fees and
stay his restitution fine in light of People v. Dueñas (2019) 30
Cal.App.5th 1157. Rodriguez concedes he did not object to the
fees or fines at the trial court, so he has forfeited this argument.
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155;
People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
                               DISPOSITION
      The judgment is affirmed.

                                           WILEY, J.
I concur:

            BIGELOW, P. J.




                                15
STRATTON, J., Concurring in part and dissenting in part.
       Any way you slice it, defendant is serving more minimum
prison time before he is eligible for parole because he successfully
exercised his right to trial on the premeditation allegation. So,
even though he is legally less culpable without a finding of
premeditation, he faces more minimum time in custody. There is
no doubt he is suffering adverse consequences because he decided
to go to trial and succeeded.
       Unlike the majority, I would not limit the analysis in
People v. Schueren (1973) 10 Cal.3d 553 (Schueren) to cases
involving only maximum sentences. Schueren lays down a
bedrock principle: criminal defendants should not be subject to
more punishment as a consequence of successfully defending
against the crime charged. Serving more minimum time in
prison before being eligible for parole is more punishment.
       This analysis does not require any additional fact finding.
It is axiomatic that a defendant may challenge a sentence on
purely legal grounds. That is the case here.
       Who among us thinks it is logical and usual to keep a
defendant imprisoned longer for an unpremeditated crime than
for the same premeditated crime? This consequence of
defendant’s successful defense against the premeditation
allegation is as unusual as the maximum sentence problem
resolved in Schueren. It is an unanticipated and uncommon
aspect of our sentencing structure in California. Neither the
People nor defendants benefit from this anomaly nor should the
People or a defendant have to do this type of comparative
mathematical calculation when the People decide to charge, or
the defendant decides to exercise trial rights. Whatever happens
at trial should be accurately reflected in exposure to punishment.




                                 1
      Here, defendant ended up being less legally culpable.
Common sense dictates it is not normal or usual to then imprison
him for a longer minimum term than he would have faced had he
pled guilty to all charges.
      I would remand for resentencing to an aggregate term of no
more than 40 years to life, defendant’s minimum exposure had he
not successfully defended against the premeditation allegation.




                                   STRATTON, J.




                               2
