1

Filed 7/17/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

XENG SAETERN,

Defendant and Appellant.

C066929

(Super. Ct. No. 06F01200)

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 
2

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.
3

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.
4

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 
5

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 
6

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.
7

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)).
8

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 
9

(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 
10

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 
11

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 
12

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 
13

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 
14

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 
15

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 
16

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.