Filed 7/17/14
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----

THE PEOPLE,                                                       C066929

                  Plaintiff and Respondent,               (Super. Ct. No. 06F01200)

        v.

XENG SAETERN,

                  Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County, Roland L.
Candee, Judge. Affirmed.

      Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Daniel B.
Bernstein, and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and
Respondent.


        In a succession of cases beginning with Graham v. Florida (2010) 560 U.S. 48
[176 L.Ed.2d 825] (Graham), followed by Miller v. Alabama (2012) 567 U.S. ___
[183 L.Ed.2d 407] (Miller), and concluding with People v. Caballero (2012) 55 Cal.4th
262 (Caballero), the United States and California Supreme Courts explored the
constitutional limits of government’s power to punish minors tried as adults. Responding


                                               1
to these decisions, the California Legislature enacted Senate Bill No. 260, adding
section 3051 to the Penal Code,1 which provides minors sentenced to a determinate term
of years or a life term an opportunity to prove their rehabilitation and secure release on
parole after serving a prescribed term of confinement.
        We consider the principles articulated in Graham, Miller, Caballero, and their
progeny, and the provisions of section 3051, in this appeal brought by Xeng Saetern, who
is serving a 100-years-to-life sentence for a murder he committed at age 14. Saetern
insists that in imposing a sentence that is the functional equivalent of life without
possibility of parole, the trial court failed to consider the factors of youth set forth in
Miller and thus a remand for resentencing is required. According to respondent,
consideration of the factors articulated in Miller is only required where a minor’s
sentence, even as modified by a later legislative enactment, is life without possibility of
parole or the functional equivalent thereof. Respondent insists that Senate Bill No. 260,
which enacted section 3051, resolved any constitutional infirmity in the sentencing
procedure by effectively reducing defendant’s sentence to one offering the possibility of
parole after 25 years.
        The question of whether section 3051 has the effect urged by respondent is
pending before the California Supreme Court; ultimately, Saetern’s arguments and his
fate will be resolved by the higher court. Conscious of the ephemerality of our decision
and that we are writing on shifting sands, we conclude that even assuming the trial
court’s sentencing process failed to comport with the requirements of Miller, the
violation was rendered harmless with the enactment of section 3051, which affords
Saetern more favorable relief than the sentencing court could provide.




1   Undesignated statutory references are to the Penal Code.

                                               2
                                           FACTS
          The facts surrounding the shooting are undisputed. Nai Saechao recruited his
cousin, Khae Saephan, to kill Nai’s wife, Si Saeturn. Neither Nai nor his lover, Mimi Le,
was present at the time of the murder. On December 29, 2005, Khae, Lo Fou Saephanh,
and the 14-year-old shooter, defendant Xeng Saetern, drove to Si’s place of employment
and waited until she got off work. The young marksman walked down to the victim’s car
and shot her in the head and abdomen at close range while the other two waited in their
car. Si and her four-month-old fetus died at the scene. (Facts from our earlier opinion,
People v. Le (Apr. 22, 2011, C057217 & C057150) [nonpub. opn.].)2
          Xeng confessed to the shooting. He did not know why anyone wanted the lady
killed.
          Codefendant Khae testified in his own defense. Despite the fact that during
several interrogations he repeatedly denied shooting the victim, at trial he claimed that
he, not Xeng, was the shooter. He purportedly told Xeng to admit he had shot the victim
because Xeng was a juvenile and therefore would get less time. Khae told the jury he
threatened to shoot Xeng and his parents if he did not “take the rap.” Xeng complied.
          The jury rejected the defense. The trial court sentenced Xeng to two terms of
25 years to life for each of the two murder convictions (§ 187, subd. (a)) and consecutive
terms of 25 years to life for each of the two firearm enhancements (§ 12022.53,
subd. (d)), for a total of 100 years to life in state prison. The court stayed execution of
the 25-years-to-life sentence imposed for conspiracy to commit murder. (§ 654.)




2 Since several individuals share the same or similar surnames, we shall refer to the
parties and others by their first names for clarity and ease of reference. No disrespect is
intended.

                                               3
                                       DISCUSSION
    I. JUVENILE LWOP AND ITS LIMITATIONS: CASES AND STATUTES
       Three court decisions and a statute provide the guiding light that will control our
disposition of this appeal. In Graham, the United States Supreme Court held that the
Eighth Amendment to the Constitution prohibits the imposition of a sentence of life
without parole (LWOP) on a juvenile for any crime other than homicide. (Graham,
supra, 560 U.S. 48 [176 L.Ed.2d 825].) Thereafter, in Miller, heard and decided with a
related case from Arkansas, Jackson v. Hobbs, the Supreme Court held that states cannot
impose “mandatory life-without-parole sentences for juveniles” (Miller, supra, 567 U.S.
___ [183 L.Ed.2d at p. 418]) but permitted the imposition of LWOP on juveniles
convicted of murder following an “individualized sentencing” (id. at p. ___ [183 L.Ed.2d
at p. 414]) that takes into account “how children are different” (id. at p. ___ [183 L.Ed.2d
at p. 424]). More specifically, “The high court noted that such mandatory sentences
preclude consideration of juveniles’ chronological age and its hallmark features–among
them, immaturity, impetuosity, and failure to appreciate risks and consequences. It
prevents taking into account the family and home environment that surround them–no
matter how brutal or dysfunctional. ([Miller, supra, 567 U.S. at p. ___ [183 L.Ed.2d at
p. 423].].) Thus, in Miller the high court did ‘not foreclose a sentencer’s ability’ to
determine whether it was dealing with homicide cases and the ‘ “rare juvenile offender
whose crime reflects irreparable corruption.” ’ (Id. at p. ___ [[183 L.Ed.2d at p. 424],
quoting Roper [v. Simmons (2005)] 543 U.S. [551,] 573 [. . . 161 L.Ed.2d 1];; see
Graham, supra, 560 U.S. at [pp. 67-68] [176 L.Ed.2d at p. 841].)” (Caballero, supra,
55 Cal.4th at p. 268, fn. 4.)
       Miller invalidates LWOP sentences where such a penalty is mandatory and
imposed without respect to consideration of the background or age of the offender.
Conversely, a sentence of LWOP resulting from “individualized sentencing” is
permissible. And what is “individualized sentencing?” The clearest description is set

                                              4
forth in the Miller court’s own summary of its holding: “To recap: Mandatory life
without parole for a juvenile precludes consideration of his chronological age and its
hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. It prevents taking into account the family and home environment that
surrounds him--and from which he cannot usually extricate himself--no matter how brutal
or dysfunctional. It neglects the circumstances of the homicide offense, including the
extent of his participation in the conduct and the way familial and peer pressures may
have affected him. Indeed, it ignores that he might have been charged and convicted of a
lesser offense if not for incompetencies associated with youth--for example, his inability
to deal with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys. [Citations.] And finally, this mandatory
punishment disregards the possibility of rehabilitation even when the circumstances most
suggest it.” (Miller, supra, 567 U.S. at p. __ [183 L.Ed.2d at p. 423].)
       Our Supreme Court in Caballero described the Miller holding thusly: “The
[Miller] court requires sentencers in homicide cases ‘to take into account how children
are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.’ (Miller, supra, 567 U.S. at p. ___ [[183 L.Ed.2d at p. 424]].)”
(Caballero, supra, 55 Cal.4th at p. 268, fn. 4, italics added.)
       However, Caballero was not a homicide case. It involved a 110-years-to-life
sentence imposed on a 16-year-old defendant convicted of attempted murder and the
categorical bar on LWOP imposed by Graham in nonhomicide cases. Miller was cited
for the proposition that the Graham bar applies to “all nonhomicide cases involving
juvenile offenders, including the term-of-years sentence that amounts to the functional
equivalent of a life without parole sentence . . . .” (Caballero, supra, 55 Cal.4th at
p. 268, italics added.) The court concluded that “Graham’s analysis does not focus on
the precise sentence meted out. Instead, as noted above, it holds that a state must provide
a juvenile offender ‘with some realistic opportunity to obtain release’ from prison during

                                              5
his or her expected lifetime. (Graham, supra, 560 U.S. at p. [82] [[176 L.Ed.2d at
p. 850]].)” (Caballero, at p. 268.)3 The court encouraged legislative action: “We urge
the Legislature to enact legislation establishing a parole eligibility mechanism that
provides a defendant serving a de facto life sentence without possibility of parole for
nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain
release on a showing of rehabilitation and maturity.” (Id. at p. 269, fn. 5.)
       While this appeal was pending, the Legislature heeded the advice of the Supreme
Court and enacted Senate Bill No. 260.4 The measure finds “that, as stated by the United
States Supreme Court in Miller[, supra, 567 U.S. ___] 183 L.Ed.2d 407, ‘only a
relatively small proportion of adolescents’ who engage in illegal activity ‘develop
entrenched patterns of problem behavior,’ and that ‘developments in psychology and
brain science continue to show fundamental differences between juvenile and adult
minds,’ including ‘parts of the brain involved in behavior control.’ The Legislature
recognizes that youthfulness both lessens a juvenile’s moral culpability and enhances the
prospect that, as a youth matures into an adult and neurological development occurs,
these individuals can become contributing members of society. The purpose of this act is
to establish a parole eligibility mechanism that provides a person serving a sentence for
crimes that he or she committed as a juvenile the opportunity to obtain release when he or
she has shown that he or she has been rehabilitated and gained maturity, in accordance
with the decision of the California Supreme Court in [Caballero] and the decisions of the




3 The court in Caballero indicated that “ ‘life expectancy’ means the normal life
expectancy of a healthy person of defendant’s age and gender living in the United
States.” (Caballero, supra, 55 Cal.4th at p. 267, fn. 3.)
4 At our request, the parties submitted supplemental briefs regarding the application of
the measure to the present appeal.

                                              6
United States Supreme Court in [Graham] and [Miller].” (Sen. Bill No. 260 (2013-2014
Reg. Sess.) ch. 312, § 1, pp. 2-3.)5
       Senate Bill No. 260, codified as section 3051, provides an opportunity for a
juvenile offender to be released on parole irrespective of the sentence imposed by the trial
court by requiring the Board of Parole Hearings to conduct “youth offender parole
hearings” (Sen. Bill No. 260 (2013-2014 Reg. Sess.) ch. 312, § 4, p. 7) to consider the
release of juvenile offenders sentenced to prison for specified crimes.6 It provides for a
youth offender parole hearing during the 15th year of incarceration for a prisoner serving
a determinate sentence (§ 3051, subd. (b)(1)), a hearing during the 20th year of
incarceration for a prisoner serving a life term less than 25 years to life (§ 3051,
subd. (b)(2)), and a hearing during the 25th year of incarceration for a prisoner serving a
life term of 25 years to life (§ 3051, subd. (b)(3)). Section 3051, subdivision (d) requires
the Board of Parole Hearings to “conduct a youth offender parole hearing to consider
release.” Section 3051, subdivision (f)(1) requires that any psychological evaluations and
risk assessment instruments be administered by a licensed psychologist employed by the
board and that the evaluations and instruments “take into consideration the diminished
culpability of juveniles as compared to that of adults, the hallmark features of youth, and
any subsequent growth and increased maturity of the individual.”


5 Earlier, the Legislature enacted amendments to section 1170 that became effective
January 1, 2013. (Stats. 2013, ch. 508, § 5.) Subject to exceptions not relevant here,
section 1170, subdivision (d)(2) retroactively permits a defendant who was sentenced to
LWOP for a crime committed as a juvenile to petition the court for recall and
resentencing after serving at least 15 years of that sentence. Defendant was not sentenced
to LWOP, and therefore section 1170, subdivision (d)(2) does not apply by its terms to
his sentence.
6 The measure exempts from its provisions inmates who were sentenced pursuant to the
three strikes law (§§ 667, subds. (b)-(i), 1170.12), the Chelsea King Child Predator
Prevention Act of 2010 (formerly and more commonly known as Jessica’s Law)
(§ 667.61), or “to life in prison without the possibility of parole” (§ 3051, subd. (h)).

                                              7
       So, to summarize:
       1. A sentence of LWOP cannot be imposed on a juvenile defendant for a
nonhomicide offense.
       2. A mandatory sentence of LWOP cannot be imposed on a juvenile defendant for
any offense.
       3. A discretionary LWOP sentence can be imposed on a juvenile defendant for a
homicide offense provided the sentencing takes into account the factors described in the
Miller case that make children different for sentencing purposes.
       4. In California, the bar on limitations on juvenile LWOP sentences applies to
sentences for a term of years that is the functional equivalent of an LWOP sentence; a
juvenile defendant must be provided with a realistic opportunity to obtain release during
the juvenile’s expected lifetime.
       5. Under section 3051, juveniles who qualify are afforded a periodic opportunity
for release on parole regardless of the sentence imposed.
         II. XENG’S SENTENCE AND THE EFFECT OF SECTION 3051
A.     The sentence is not a mandatory LWOP sentence.
       Xeng was convicted of murder and thus the categorical bar on LWOP punishment
imposed by Graham does not apply. The sentence imposed by the trial court was not by
its terms an LWOP sentence, and thus the principles of Miller are pertinent only if we
apply our Supreme Court’s reasoning in Caballero, a nonhomicide case, to the sentence
imposed here. Xeng urges us to do so and argues that his sentence violates Miller
because at least 75 of the 100 years the court imposed are mandatory.
       He calculates his sentence as follows: the court had the option to impose
consecutive or concurrent sentences for each of the two counts of murder. Pursuant to
section 12022.53, former subdivision (d), however, each of the enhancements must be
served consecutively: “Notwithstanding any other provision of law, any person who, in
the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or

                                             8
(d) of section 12034, personally and intentionally discharges a firearm and proximately
causes great bodily injury, as defined in Section 12022.7, or death, to any person other
than an accomplice, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life.”
       There is no question that the court must order an enhancement pursuant to
section 12022.53, former subdivision (d) to run consecutively to the underlying count.
But we disagree with Xeng that the entire sentence (the count plus the enhancement)
cannot run concurrently to other counts, including the enhancements applicable to those
counts. In People v. Oates (2004) 32 Cal.4th 1048, 1060, the Supreme Court observed:
“[A]s the People note, a trial court can mitigate concerns about sentencing inequities by
imposing concurrent, rather than consecutive, sentences where multiple subdivision (d)
enhancements are found true.” Thereafter, the court upheld concurrent sentencing in the
factually analogous case, People v. Smith (2005) 37 Cal.4th 733 (Smith).
       In Smith, the defendant was convicted of the attempted murder of a mother and her
baby, having fired one shot into the car in which they were traveling. (37 Cal.4th at
p. 736.) Because the bullet missed the mother and child, the enhancement for
discharging a firearm set forth in section 12022.53, subdivision (c) was found true.
(Smith, at p. 738.) Subdivision (c), like former subdivision (d) of section 12022.53, states
that the enhancement must run consecutively. The trial court imposed the middle term of
seven years for the attempted murder of the mother, with a consecutive 20-year term for
the firearm enhancement, to be served concurrently with an identical 27-year combined
term for the attempted murder of the baby and the accompanying firearm enhancement.
(Smith, at p. 738.) Both the Court of Appeal and the Supreme Court affirmed the
sentence. (Id. at p. 736.)
       According to the Supreme Court, therefore, Xeng’s maximum mandatory sentence
was 50, not 75, years. Xeng’s threshold proposition that he was subject to a mandatory



                                              9
sentence of 75 years, which constitutes cruel and unusual punishment under a
Miller/Caballero analysis, is not supportable.

B.     Xeng’s eligibility for parole consideration under section 3051 and its
       consequences.
       Xeng asserts that he does not fall within the ambit of section 3051 because he was
sentenced to a life term with a minimum greater than 25 years. Not so. Defendant is
eligible even though his aggregate term is 100 years to life in prison because, pursuant to
section 3051, subdivision (b)(3), any of his four 25-years-to-life sentences can serve as
the “controlling offense” and the new parole eligibility scheme is based on the sentence
for the controlling offense. Thus, he will be eligible for a youth offender parole hearing
once he serves one of his 25-years-to-life sentences.
       The youth offender parole hearing to which Xeng is entitled will provide “some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation” as discussed by the United States and California Supreme Courts.
(Graham, supra, 560 U.S. at p. 75 [176 L.Ed.2d at pp. 845-846]; see Miller, supra,
567 U.S. at p. ___ [183 L.Ed.2d at p. 424]; see also Caballero, supra, 55 Cal.4th at
p. 266.) The question, however, is whether this legislative remedy corrects the
constitutional violation in sentencing alleged here. Justice Werdegar, who wrote in
Caballero “that the Legislature is an appropriate body to establish a mechanism to
implement Graham’s directives for the future” (Caballero, at p. 273, conc. opn. of
Werdegar, J.), nonetheless opined: “But irrespective of whether the Legislature, in the
future, steps in to enact procedures under which juveniles in defendant’s position may be
resentenced, the trial court in this case must resentence defendant to a term that does not
violate his rights. . . . Graham does not require defendant be given a parole hearing
sometime in the future; it prohibits a court from sentencing him to such a term lacking
that possibility at the outset” (ibid). No other justice concurred in her views. Our
colleagues in other districts have put forth conflicting opinions, most of which have been


                                             10
granted review and thus are not authority that we can rely on here. (See In re Alatriste
(2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014, S214652; People v. Martin
(2013) 222 Cal.App.4th 98, review granted Mar. 26, 2014, S216139; In re Heard (2014)
223 Cal.App.4th 115, review granted Apr. 30, 2014, S216772; People v. Franklin (2014)
224 Cal.App.4th 296, review granted June 11, 2014, S217699.)
       Two appellate court decisions remain viable, People v. Gonzalez (2014)
225 Cal.App.4th 1296 and People v. Garrett (June 30, 2014, C067436, C069886)
___ Cal.App.4th ___ [2014 Cal.App. Lexis 575] (Garrett). In Gonzalez, the court noted
that section 3051 “affords Gonzalez a substantial parole period outside prison if he
demonstrates reform, even under the earliest end-of-life projections. Consequently,
Gonzalez’s incarceration, although lengthy and under a mandatory sentence, does not
implicate Miller’s per se ban on mandatory LWOP terms for juveniles. He similarly falls
outside Caballero’s holding that de facto LWOP terms may be tantamount to an LWOP
for constitutional purposes. Simply put, under the new legislation, Gonzalez does not
face the prospect of LWOP. Therefore, Miller does not apply, and neither does
Caballero’s recognition that a lengthy term of years may amount to an LWOP sentence.”
(Gonzalez, at p. 1309.) The same could be said here of Xeng’s future prospects and
supports the Attorney General’s position that because Xeng is provided some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation, his
sentence is not the functional equivalent of an LWOP sentence.
       Xeng disagrees. He insists that the United States Supreme Court rejected the
notion that the possibility of relief in the future cures an unconstitutional sentence. He
reminds us that Miller and Graham instruct that a child is constitutionally entitled to
individualized sentencing at the outset. (Miller, supra, 567 U.S. at p. ___ [183 L.Ed.2d at
pp. 429-430]; Graham, supra, 560 U.S. at pp. 77-78 [176 L.Ed.2d at p. 847].) Where
Miller is applicable, “the state may not deprive [juvenile offenders] at sentencing of a
meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society

                                             11
in the future.” (Caballero, supra, 55 Cal.4th at p. 268.) More to the point, he argues that
the new legislation does not abrogate the court’s responsibility to impose a proportionate
sentence by taking account at the time of sentencing of the diminished culpability of
young offenders.
       Even if we accept Xeng’s argument that a post facto remedy cannot cure a past
constitutional error, here the error has been rendered harmless by the Legislature’s action.
We are confronted here with the practical, and dispositive, fact that the new sentencing
hearing defendant urges us to compel cannot provide him any more favorable relief than
does the new legislation. Under California law, defendant faced a mandatory prison
sentence of 25 years to life for each murder, increased by a mandatory 25 years to life for
each gun enhancement. If we remand the case for resentencing as defendant requests, the
sentencing court’s only discretion would be to order concurrent, rather than consecutive,
50-years-to-life terms, meaning that defendant would not be eligible for parole until he
had served 50 years in prison. But with the benefit of section 3051, defendant will be
eligible for parole after 25 years of incarceration. Even if he is denied parole at his first
youth offender parole hearing in 25 years, section 3051 provides for additional hearings.
Section 3051, subdivision (g) provides, in part: “If parole is not granted, the board shall
set the time for a subsequent youth offender parole hearing in accordance with paragraph
(3) of subdivision (b) of Section 3041.5. In exercising its discretion pursuant to
paragraph (4) of subdivision (b) and subdivision (d) of Section 3041.5, the board shall
consider the factors in subdivision (c) of Section 4801.”
       We acknowledge the support provided Xeng’s argument by Garrett, supra,
___ Cal.App.4th ___ [2014 Cal.App. Lexis 575], a recent decision by another panel of
this court. Garrett, age 17 at the time he committed the offenses of robbery, kidnapping
for robbery, attempted robbery, and assault with a firearm, was sentenced to serve a total
of 74 years 4 months to life in prison for the offenses and associated firearm
enhancements. (Id. at p. ___ [2014 Cal.App. Lexis at pp. *1-*2].) There, as here, the

                                              12
Attorney General argued the parole opportunities afforded by section 3051 provide all
that Caballero requires, viz.: a realistic opportunity for Garrett to obtain release from
prison during his lifetime. (Garrett, at p. ___ [2014 Cal.App. Lexis at p. *21].) The
Garrett court disagreed. The constitutional analysis set forth in the Garrett opinion
largely mirrors our own. (Id. at p. ___ [2014 Cal.App. Lexis at pp. *24-*25].) Garrett’s
account of what the cases hold is correct, but those holdings were in factual and legal
contexts far different from the present case. Neither Graham, Miller, nor Caballero
address what an appellate court should do when a defendant is afforded a better deal
under an ameliorative statute like section 3051 than he could possibly obtain on remand
to the trial court for a new sentencing hearing.
       Garrett discusses People v. Gutierrez (2014) 58 Cal.4th 1354, but Gutierrez sheds
little light on the issues involved here. Gutierrez involved a juvenile defendant sentenced
to LWOP under section 190.5 (Gutierrez, at p. 1360) and a statute, section 1170,
subdivision (d)(2), that permits him to seek recall and modification of the sentence in the
future (Gutierrez, at pp. 1384-1385). A pivotal issue in the case is the constitutionality of
section 190.5, a statute construed as creating a presumption in favor of LWOP for 16- or
17-year-old juveniles who commit special circumstance murder. In explaining why
section 1170 does not cure the constitutional issue resulting from construing
section 190.5 as creating a presumption, the court declared: “But even for juvenile
offenders such as Gutierrez, the potential for relief under section 1170[,
subdivision] (d)(2) does not eliminate the serious constitutional doubts arising from a
presumption in favor of life without parole under section 190.5[, subdivision] (b) because
the same questionable presumption would apply at resentencing. The statute makes clear
that if the sentencing court grants an inmate’s petition for a resentencing hearing, the
hearing must be conducted ‘in the same manner as if the defendant had not previously
been sentenced.’ (§ 1170, subd. (d)(2)(G).) Thus, if section 190.5[, subdivision] (b)
establishes a presumption in favor of life without parole, a court acting pursuant to

                                             13
section 1170, subdivision (d)(2)(G) would be required to apply the same presumption in
evaluating the circumstances at resentencing (only this time, unlike at the initial
sentencing, the defendant would have no guarantee of counsel).” (Gutierrez, supra,
58 Cal.4th at p. 1385.)
       One may be tempted to treat sections 1170 and 3051 the same and to apply the
same constitutional analysis to both as they each provide a form of relief to juvenile
defendants sentenced to extended prison terms, but that would be a mistake. Unlike
section 3051, which makes a defendant eligible for parole consideration after 25 years,
section 1170 merely permits a defendant to petition for recall and resentencing before the
same court. The Garrett panel failed to appreciate the difference between the two
statutory schemes, and the difference between the two cases. After repeating the standard
incantation regarding the need for the sentencing court to consider the factors of youth,
the panel reached the sweeping conclusion: “In short, the California Supreme Court
recognized a statutory promise of future correction of a presently unconstitutional
sentence does not alleviate the need to remand for resentencing that comports with the
Eighth Amendment.” (Garrett, supra, ___ Cal.App.4th at p. ___ [2014 Cal.App. Lexis at
pp. *28-*29].) The Supreme Court may well reach such a conclusion in the future, and
the Garrett panel may have correctly discerned where the court is headed on this issue.
But read in context, against the background of prior decisions and accepting the language
of the opinion as written, the Supreme Court simply recognized that a statute violating
Miller’s bar against mandatory LWOP sentences cannot be saved by affording a
defendant the right to petition for a new sentencing hearing before the same court
applying the same sentencing standards.
       It is difficult to understand, and the Garrett panel does not explain, how a
defendant who has been given a right to parole consideration by the Legislature under
section 3051 is in any worse position than a defendant whose right to parole
consideration derives from a sentence imposed by a trial court following review of the

                                             14
multiple factors set forth in Miller. Garrett’s holding suggests that no action taken by the
Legislature to reduce the severity of a sentence imposed on a juvenile and, one would
surmise, no act of clemency by the Governor could obviate the need to remand a case to
the trial court for a new sentencing hearing–even though the outcome of the hearing
would be less favorable than the punishment as modified by statute or executive action.
We decline to decree such an outcome and conclude section 3051 has the effect of
rendering Xeng’s sentence as one that includes the right to parole consideration after
25 years. As such, any Miller violation was rendered harmless with the enactment of
section 3051, which affords Xeng more favorable relief than any that could be provided
by this court.
                 III. THE IMPLICATIONS OF PEOPLE V. DILLON
       Relying on the extraordinary facts of People v. Dillon (1983) 34 Cal.3d 441
(Dillon), defendant makes the radical request that we order the trial court to ignore the
statutory sentencing scheme if necessary to comport with Miller. But Miller is much
more humble in its aspirations than defendant appreciates, and he strays far from both the
holding and the spirit of Miller in suggesting we encourage a trial court to ignore the
Legislature’s sentencing regimen in the name of individualized sentencing. His argument
need not detain us long.
       As a fundamental attribute of the separation of powers, it is the legislative, and not
the judicial, branch that is imbued with the responsibility to design a comprehensive
sentencing scheme for those offenders who break the social contract and violate our
criminal laws. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1086.) We can find
nothing in Miller at odds with this fundamental principle. Indeed, Miller itself eschewed
the more aggressive opportunity it had to declare that all mandatory LWOP sentences for
homicides committed by juveniles are categorically unconstitutional under the Eighth
Amendment. The court concluded: “We therefore hold that the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of parole for

                                             15
juvenile offenders. . . . Because that holding is sufficient to decide these cases, we do not
consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires
a categorical bar on life without parole for juveniles, or at least for those 14 and
younger.” (Miller, supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 424].)
       Nor does an outlier like Dillon justify wholesale dismantling of a statutory
sentencing scheme under the guise of the Eighth Amendment. We recognize that the
California Supreme Court took the unusual step of reducing a juvenile’s first degree
murder conviction to second degree murder based on a unique combination of facts
clearly demonstrating diminished culpability with the vagaries of the felony murder rule.
But none of those anomalies are present here. Simply put, the circumstances of the
murders defendant committed are not clouded by any of the factors that reduced Dillon’s
culpability. If, as Miller advises, defendant’s culpability should be diminished because of
his age and attendant misfortunes, it is only in the context that a Legislature cannot
mandate he spend his natural life in prison without the opportunity to demonstrate that he
no longer poses a threat to society. Because California does not mandate life terms
without the possibility of parole and section 3051 provides defendant with a meaningful
opportunity to obtain parole, defendant was not harmed by any claimed constitutional
violation.
                                      DISPOSITION
       The judgment is affirmed.

                                                              RAYE              , P. J.

We concur:


      NICHOLSON              , J.


      DUARTE                 , J.



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