LIU, J. —
Defendant Tyris Lamar Franklin was 16 years old at the time he shot and killed another teenager. A jury convicted Franklin of first degree murder and found true a personal firearm-discharge enhancement. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences, so Franklin's total sentence was life in state prison with the possibility of parole after 50 years.
After Franklin was sentenced, the United States Supreme Court held that the Eighth Amendment to the federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller v. Alabama (2012) 567 U.S. ___, ___ [183 L.Ed.2d 407, 132 S.Ct. 2455, 2460] (Miller).) Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero) that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham) applied to sentences that were the "functional equivalent of a life without parole sentence," including Caballero's term of 110 years to life. (Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-to-life sentence under these authorities.
We granted review to answer two questions: Does Penal Code section 3051 moot Franklin's constitutional challenge to his sentence by requiring that he receive a parole hearing during his 25th year of incarceration? If not, then does the state's sentencing scheme, which required the trial court to sentence Franklin to 50 years to life in prison for his crimes, violate Miller's prohibition against mandatory LWOP sentences for juveniles?
We answer the first question in the affirmative: Penal Code sections 3051 and 4801 — recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero — moot Franklin's constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings (Board) to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity" (id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if so, whether it is unconstitutional in Franklin's case.
Although Franklin's constitutional claim has been mooted by the passage of Senate Bill No. 260 (2013-2014 Reg. Sess.) (Senate Bill No. 260), he
On January 10, 2011, Franklin, at age 16, murdered another 16-year-old boy, Gene Grisby. Over the course of a one-year period preceding the crime, Franklin had been involved in numerous and increasingly dangerous altercations with a group of boys who lived in the Crescent Park housing project in Richmond and referred to themselves as the "Crescent Park gang." At first, Franklin engaged in fistfights with members of the Crescent Park gang, including Gene and another juvenile named Kian. But the boys soon began to arm themselves. According to Franklin and his grandmother, Crescent Park gang members had fired multiple gunshots into his home while his family was inside. Franklin believed that Gene associated with the individuals responsible for this incident. Crescent Park gang members had also shot the windows out of Franklin's mother's car and slashed her tires. Franklin also testified that the Friday before the murder, Kian and another Crescent Park gang member had come to his classroom, where Kian pulled up his shirt to display a gun on his hip. Franklin saw this gesture as a serious threat.
After the incident at school, Franklin told his older brother, Demond, that Kian had threatened him with a gun at school. This prompted Demond to loan him a .22-caliber pistol for protection the following Monday morning, the day of the murder. That same day, Kian and other Crescent Park gang members attacked Franklin's 13-year-old brother, Terrell. The attackers told Terrell that they were also looking for Franklin. Demond called Franklin to inform him that Terrell had been attacked.
After learning about the attack, Franklin told his friends that Terrell had been "jumped" and asked an older teenager for a ride to the Crescent Park
Upon arriving at the housing complex, Franklin spotted Gene walking on a street and asked the driver to unlock the car door. Another passenger in the car, Khalifa, asked: "Why we riding up on Gene when he don't have anything to do with the situation?" According to Khalifa, Franklin answered something like, "It don't matter. He is from the Crescents" or, "It doesn't matter. They beat up my brother." According to another passenger, Jaswinder, Franklin said something like, "It doesn't matter. He's still from Crescent Park."
As Franklin exited the car, he pulled the .22-caliber pistol from his waistband. According to a witness who observed the murder from a balcony across the street, Franklin walked around the car and, without saying anything, shot Gene several times. The witness testified that Franklin began shooting "shortly after he got out of the car" and before he reached Gene. Jaswinder and Khalifa also did not hear any conversation between Franklin and Gene before Franklin began shooting.
Franklin testified that as he approached Gene, he asked, "Which one of you motherfuckers just jumped my little brother?" Gene replied, "Fuck you and fuck your little brother." Franklin testified that Gene's response angered him and made him feel "numb." According to Franklin: "It was like — it was so much. It was, it was like everything just — I don't know, just — it just, I don't know. Like, I — I wasn't in my body no more. It was like I don't remember everything like." After shooting Gene, Franklin got back into the car, and the car sped off. Inside the car, Franklin said something like, "That Crescent Park dude is a sucker."
Gene's aunt testified that when she heard the gunshots, she looked out the window of the apartment where she and Gene lived and saw a young man with a handgun fire multiple shots. A few minutes later, Gene ran through the front door of the apartment, holding his right shoulder exclaiming, "I've been hit," before collapsing on the floor. Richmond police responded to the shooting and found Gene on the floor of his apartment with multiple gunshot wounds to his head and body. Gene was pronounced dead at the scene.
The district attorney charged Franklin with first degree murder under Penal Code section 187 and alleged a personal firearm-discharge enhancement under Penal Code section 12022.53, subdivision (a)(1). (All undesignated statutory references are to the Penal Code.) Because Franklin was charged with murder and was 16 years of age at the time of the offense, the district
At sentencing, Franklin apologized for his crime: "I do want to say I'm sorry, but sorry is a simple word, though. I didn't have no thoughts about killing him, you know. I don't know. It's hard to explain. But I do want to apologize to the family for taking your son, and I do want to apologize to my mother for taking me away from her and my family. I want to say sorry, but, like I said, sorry is ... sorry can't explain the way I feel. Like you said you can't sleep at night. I can't sleep at night, either. I haven't been able to sleep at night for a lot of years now, you know. I'm not good with emotion, so I'm ... I really wish this didn't happen. I wish I could have found another way, but, like I said, I want to say sorry, but sorry is just — I don't know no other words to use. I don't know. I don't know. I'd like to say sorry to my mother, too. I would like to say sorry to each and every one of you all for what I did."
The trial court imposed a mandatory sentence of 25 years to life for the murder (§ 190, subd. (a)) and a mandatory consecutive sentence of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) for a total term of 50 years to life. Explaining the sentence, the court said: "The sentence is the sentence that's prescribed by law, not one that the Court chooses. And I will impose it in this case, but first I just want to say a couple of words to both families. I see a lot of pain in this courtroom all the time. And so often it's because of senseless things that happen. And if there's a senseless case, this is a senseless case. We've got two young men's lives destroyed.... We've lost two young men. And for what? It's so senseless. I would have loved to have seen these two young men grow up to be people, to be the people they're supposed to be, both of them. And neither of them is going to have that opportunity. It's because of unspeakably stupid choices that you made, Mr. Franklin. And I just hope that something can come out of this that's productive. I'm impressed with Gene['s] ... family's dignity going through this. Their empathy for Mr. Franklin's family and even Mr. Franklin. And I'm impressed with Mr. Franklin's family's understanding and empathy for [Gene]'s family. And if we can take something from this, I would love for it to be, get the guns out of Richmond, get the violence out of Richmond, and don't have these young black men going after each other because we see it so much in this courthouse. And what ends up happening is we have some young men going to prison for the best years of their lives at the least, and other young men who don't get to grow up. And how crazy is this? How crazy. So if both families can do anything to try to make some sense and find some good out of this, work together to try to get the guns out of Richmond,
Franklin appealed, arguing that the trial court made numerous instructional and evidentiary errors and that, because he was 16 years old when he committed the crime, his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment as interpreted in Miller, supra, 567 U.S. ___ [132 S.Ct. 2455]. The Court of Appeal affirmed Franklin's conviction and sentence. The court assumed without deciding that "the sentence, when imposed, violated the Eighth Amendment and that had there been no intervening developments, remand for resentencing would have been required." But the court held that "any potential constitutional infirmity in [defendant's] sentence has been cured by the subsequently enacted Penal Code section 3051, which affords youth offenders a parole hearing sooner than had they been an adult." Thus, "defendant's sentence is no longer the functional equivalent of an LWOP sentence and no further exercise of discretion at this time is necessary."
We granted review.
As the trial court noted, Franklin's sentence was statutorily mandated at the time it was imposed. The interaction of two features of California law gives rise to the possibility of mandatory lengthy sentences for juvenile offenders: (1) statutes authorizing and sometimes requiring a criminal court to exercise jurisdiction over juvenile offenders and (2) statutes restricting the trial court's discretion to impose concurrent sentences or to strike certain sentencing enhancements.
Once a juvenile offender is tried and convicted in criminal court, the trial court may be statutorily obligated to impose a lengthy sentence. In this case, the jury convicted Franklin of first degree murder (§ 187) and found true an enhancement for the personal and intentional discharge of a firearm that proximately caused great bodily injury or death (§ 12022.53, subd. (d)). Section 190, subdivision (a) required the trial court to impose a term of 25
Franklin claims that this sentence violates the Eighth Amendment because it is effectively a term of life without parole imposed by statute, without judicial consideration of his youth and its relevance for sentencing. This claim is grounded in a series of United States Supreme Court cases assigning constitutional significance to characteristics of youth long known to common sense and increasingly substantiated through science.
Since Graham and Miller, courts throughout the country have examined whether the high court's restrictions on LWOP sentences apply to lengthy sentences with a release date near or beyond a juvenile's life expectancy. In Caballero, we held that the defendant's 110-year sentence was the "functional equivalent" of life without parole and thus violated Graham's prohibition against LWOP sentences for juvenile offenders convicted of nonhomicide
As noted, Franklin would first become eligible for parole at age 66 under the sentence imposed by the trial court. That sentence was mandatory; the trial court had no discretion to consider Franklin's youth as a mitigating factor. According to Franklin, the 50-year-to-life sentence means he will not experience any substantial period of normal adult life; instead, he will either die in prison or have the possibility of geriatric release. He contends that his sentence is the "functional equivalent" of LWOP (Caballero, supra, 55 Cal.4th at p. 268) and that it was imposed without the protections set forth in Miller.
After Franklin's sentencing, the Legislature passed Senate Bill No. 260, which became effective January 1, 2014, and added sections 3051, 3046, subdivision (c), and 4801, subdivision (c) to the Penal Code. The Attorney General contends these new provisions entitle Franklin to a parole hearing during his 25th year in prison and thus renders moot any infirmity in Franklin's sentence under Miller. We agree with the Attorney General: Senate
Our interpretation of section 3051 begins with the recognition that the Legislature passed Senate Bill No. 260 explicitly to bring juvenile sentencing into conformity with Graham, Miller, and Caballero. Section 1 of the enactment states in part: "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 People v. Caballero[, supra,] 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] and the decisions of the United States Supreme Court in Graham v. Florida[, [supra,] 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011], and Miller v. Alabama[, supra,] [183 L.E.2d 407].... It is the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established." (Stats. 2013, ch. 312, § 1, italics added.) Since its passage, the statute and associated Penal Code provisions have been amended to apply to offenders sentenced to state prison for crimes committed when they were under 23 years of age. (Stats. 2015, ch. 471.)
In this case, the trial court sentenced Franklin to a mandatory term of 25 years to life under section 190 for first degree murder and to a consecutive mandatory term of 25 years to life under section 12022.53 on the firearm enhancement. Either the homicide offense or the firearm enhancement could be considered the "controlling offense" under section 3051, subdivision (a)(2)(B). Regardless of which is considered controlling, Franklin is a "person who was convicted of a controlling offense that was committed before the person had attained 23 years of age and for which the sentence is a life term of 25 years to life." (§ 3051, subd. (b)(3).) As such, Franklin "shall be eligible for release on parole by the board during his ... 25th year of incarceration at a youth offender parole hearing." (Ibid.)
Franklin does not argue that a life sentence with parole eligibility during his 25th year of incarceration, when he will be 41 years old, is the functional equivalent of LWOP. We conclude that such a sentence is not the functional equivalent of LWOP, and we are not aware of any court that has so held. Instead, Franklin urges us to conclude that his 50-year-to-life sentence is the functional equivalent of LWOP and, in light of that conclusion, to "construe [section 12022.53, subdivision (h)'s] prohibition on striking section 12022.53 enhancements as inapplicable to cases involving juvenile offenders, in which imposition of the enhancement would result in a functional life without parole sentence." He seeks relief in the form of resentencing whereby the trial court would strike the firearm enhancement and impose only a single term of 25 years to life for the first degree murder. But we see no basis for rewriting section 12022.53, subdivision (h)'s prohibition on striking firearm allegations in light of the Legislature's determination that inmates such as Franklin, despite the mandatory character of their original sentences, are now entitled to a youth offender parole hearing during their 25th year of incarceration. Even if section 12022.53, subdivision (h) could be construed to authorize the trial court to strike the firearm enhancement, it is not clear how the imposition of a single term of 25 years to life for first degree murder would put Franklin in a better or different position, from the standpoint of Miller's concerns, than section 3051's requirement of a youth offender parole hearing during his 25th year of incarceration.
Franklin relies on our reasoning in People v. Gutierrez (2014) 58 Cal.4th 1354, 1386-1387 [171 Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez), that the availability of a procedure under section 1170, subdivision (d)(2) to petition for recall an LWOP sentence after a juvenile offender has served 15 years in prison does not remedy the constitutional difficulty under Miller of applying a presumption in favor of LWOP under section 190.5, subdivision (b) in cases of special circumstance murder. In Gutierrez, the Attorney General argued that section 1170, subdivision (d)(2) "eliminate[d] any constitutional problems" arising from an otherwise unconstitutional LWOP sentence because the possibility of recall and resentencing converted the juvenile's sentence to a
But this argument misses a crucial difference between section 3051 and section 1170, subdivision (d)(2). Section 1170, subdivision (d)(2)(A)(i) provides that a juvenile offender sentenced to LWOP may, after serving at least 15 years of that sentence, "submit to the sentencing court a petition for recall and resentencing." If the sentencing court determines "by a preponderance of the evidence that the statements in the petition are true," the court "shall hold a hearing to consider whether to recall the sentence ... and to resentence the defendant" to a term not exceeding that of the defendant's original sentence. (§ 1170, subd. (d)(2)(E).) In deciding whether to recall the sentence and resentence the defendant, the statute instructs the court to consider a variety of factors addressing his culpability for the original offense and efforts toward rehabilitation. (§ 1170, subd. (d)(2)(F).) If the court does not recall the sentence, the defendant may petition again after serving 20 years and, if unsuccessful, again after serving 24 years. (§ 1170, subd. (d)(2)(H).)
Although nothing in Miller prohibits reliance on an administrative hearing to determine Franklin's ultimate release date, Franklin contends that the statutory scheme does not set forth adequate procedures to ensure a "meaningful opportunity for release" (§ 3051, subd. (e)) and that his sentence, even with parole eligibility during his 25th year of incarceration, thus remains the functional equivalent of a mandatory LWOP sentence imposed in violation of Miller. Senate Bill No. 260 directs the administrative entity that will determine if and when Franklin is released to "give great weight" (§ 4801, subd. (c)) to the salient characteristics of youth outlined in Miller, Graham, and Caballero. Franklin argues that the Board will not be able to give great weight to these characteristics at a youth offender parole hearing because "there would be no reliable way to measure his cognitive abilities, maturity, and other youth factors when the offense was committed 25 years prior."
Franklin notes that his own sentencing proceeding resulted in a record that may be incomplete or missing mitigation information because the trial court deemed such information irrelevant to its pronouncement of his mandatory sentence. Franklin was sentenced in 2011, before the high court's decision in Miller and before our Legislature's enactment of Senate Bill No. 260 in response to Miller, Graham, and Caballero. When Franklin's attorney did not receive a probation report until the morning of sentencing, the trial court acknowledged that this delay would ordinarily merit a continuance. But the court, recognizing that it lacked discretion in sentencing Franklin, proceeded with sentencing and allowed the defense to submit mitigation information at a later date. At the post-sentencing hearing where these materials were submitted, Franklin's attorney raised concerns about the record at his eventual
It is not clear whether Franklin had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing. Thus, although Franklin need not be resentenced — as explained (ante, at pp. 277-281), Franklin's two consecutive 25-year-to-life sentences remain valid, even though section 3051, subdivision (b)(3) has altered his parole eligibility date by operation of law — we remand the matter to the trial court for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.
Finally, amicus curiae PCJP contends that despite the announced purpose of Senate Bill No. 260, youth offender parole hearings will not, in practice, "afford the juvenile offender a `meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation'" (Caballero, supra, 55 Cal.4th at p. 266, quoting Graham, supra, 560 U.S. at p. 73) and therefore cannot render moot a Miller challenge to a lengthy mandatory sentence that is
First, although the Governor, like the Board, is required to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law" (§ 4801, subd. (c); see Cal. Const., art. V, § 8; Pen. Code, § 3041.2; In re Rosenkrantz (2002) 29 Cal.4th 616, 664 [128 Cal.Rptr.2d 104, 59 P.3d 174]), PCJP notes that the Governor, in reviewing Board decisions that find persons serving an indeterminate term for murder suitable for parole, has historically reversed such decisions at a very high rate. Second, PCJP observes that judicial review of parole denials is "highly deferential" and limited to determining "whether a modicum of evidence supports the parole suitability decision." (In re Shaputis (2011) 53 Cal.4th 192, 221 [134 Cal.Rptr.3d 86, 265 P.3d 253].) Third, PCJP contends that some of the suitability criteria used by the Board run counter to the high court's observations concerning the mitigating attributes of youth. For example, a finding that "[t]he motive for the crime is inexplicable or very trivial in relation to the offense" is a factor tending to show unsuitability (Cal. Code Regs., tit. 15, § 2281, subd. (c)(1)(E)), even though "such a motive correlates with hallmark features of youth like `impetuosity, and failure to appreciate risks and consequences.'" An unstable social history also counts against suitability (id., subd. (c)(3)), even though youth "`are more vulnerable... to negative influences and outside pressures ... [,] have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings' (Miller, supra, at p. ___ [132 S.Ct. at p. 2464])." Fourth, PCJP argues that developing a record of mitigation focused on youth-related attributes for the purpose of a youth offender parole hearing is "unachievable in practice" given resource constraints. And fifth, PCJP contends that juvenile offenders serving lengthy sentences have little access to education and rehabilitative programs that may serve to forestall "the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term." (Graham, supra, 560 U.S. at p. 79.)
We have no occasion in this case to express any view on the concerns raised by PCJP. As noted, the Legislature enacted Senate Bill No. 260 with "the intent ... to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established." (Stats. 2013, ch. 312, § 1.) Section 4801, subdivision (c) directs that the Board, in conducting a youth offender parole hearing, "shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." And section 3051, subdivision (e) says: "The youth offender parole hearing to consider release
As of this writing, the Board has yet to revise existing regulations or adopt new regulations applicable to youth offender parole hearings. In advance of regulatory action by the Board, and in the absence of any concrete controversy in this case concerning suitability criteria or their application by the Board or the Governor, it would be premature for this court to opine on whether and, if so, how existing suitability criteria, parole hearing procedures, or other practices must be revised to conform to the dictates of applicable statutory and constitutional law. So long as juvenile offenders have an adequate opportunity to make a record of factors, including youth-related factors, relevant to the eventual parole determination, we cannot say at this point that the broad directives set forth by Senate Bill No. 260 are inadequate to ensure that juvenile offenders have a realistic and meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.
The high court has made clear that "imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2466].) "It is for the State, in the first instance, to explore the means and mechanisms for compliance" with this directive. (Graham, supra, 560 U.S. at p. 75.) The Legislature has devised such a means by enacting section 3051 and related statutes in Senate Bill No. 260. Those statutes have effectively reformed Franklin's statutorily mandated sentence so that he will become eligible for parole, at a hearing that must give great weight to youth-related mitigating factors, during his 25th year of incarceration. By operation of law, Franklin's sentence is not functionally equivalent to LWOP, and the record here does not include evidence that the Legislature's mandate that youth offender parole hearings must provide for a meaningful opportunity to obtain release is unachievable in practice. We thus conclude that Franklin's Eighth Amendment challenge to his original sentence has been rendered moot.
For the reasons above, we affirm Franklin's sentence but remand the matter to the Court of Appeal with instructions to remand to the trial court for the limited purpose of determining whether Franklin was afforded an adequate
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., Cuéllar, J., and Kruger, J., concurred.
WERDEGAR, J., Concurring and Dissenting. —
Defendant Tyris Lamar Franklin was sentenced to prison for a term of 50 years to life for his conviction of first degree murder using a firearm (Pen. Code, §§ 187, 12022.53),
I part company with the majority over its further conclusion that we must remand the case "for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Maj. opn., ante, at p. 284.) Notably, the majority does not claim a remand for what might be termed a "baseline hearing" is constitutionally mandated by Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455]. Rather, the premise of the majority's remand for a baseline hearing is statutory. No statute, of course, specifically authorizes such hearings. The majority, however, reasons that because the statutory scheme directs the Board of Parole Hearings (Board) to give "great weight to ... any subsequent growth and increased maturity of the prisoner" (§ 4801, subd. (c)), the statutes "contemplate ... information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available" (maj. opn., ante, at p. 283).
The Legislature's charge to the Board at future youth offender parole hearings is to give the individual "a meaningful opportunity to obtain release." (§ 3051, subd. (e).) To this end, the Board "shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c), italics added.) Family members and others "with knowledge about the individual before the crime or his or her growth and maturity since the time of the crime may submit statements for review by the board." (§ 3051, subd. (f)(2).) But to "contemplate" that such information may be taken into consideration is not to
In sum, I am unpersuaded a youthful offender will be deprived of a "meaningful opportunity to obtain release" (§ 3051, subd. (e)), or that the Board will be unable to fairly consider a youthful offender's diminished culpability, later growth, or increased maturity (§ 4801, subd. (c)), unless we impose on the trial courts a new, judicially created, extra statutory procedure entitling such offenders to a type of penalty phase trial, replete with opposing experts and family members and friends, subject to cross-examination, testifying to the offender's youthful immaturity. The statutory scheme, in my view, does not bear the weight of the majority's conclusion that such a hearing is required to effectuate its purpose of affording a youthful offender a meaningful opportunity to obtain release. Rather, in borrowing the "diminished culpability" of juveniles and the "hallmark features" of youth language from Miller, supra, 567 U.S. at pages ___ and ___ [183 L.Ed.2d at pp. 418 & 423, 132 S.Ct. at pp. 2464 & 2468], and inserting it in section 4801, subdivision (c), the Legislature signaled its agreement with the United States Supreme Court that those factors are inherent in juveniles and are generally deemed to mitigate the culpability of a juvenile who has committed a severe crime. The focus of the statutory scheme is the psychological growth and "increased maturity" of the youthful offender (§ 4801, subd. (c)), now an adult, as manifested by his or her behavior and efforts to rehabilitate himself or herself during his incarceration, as against his or her presumed immaturity at the time of the offense.
Unless we find the Legislature's statutory response to Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455] failed to cure the potential Eighth Amendment problem associated with imposing an LWOP term (or its equivalent) on a juvenile offender, or that the current scheme would be absurd without providing youthful offenders with a baseline hearing (Ennabe v. Manosa (2014) 58 Cal.4th 697, 721 [168 Cal.Rptr.3d 440, 319 P.3d 201] [courts will not give statutes a literal meaning if doing so leads to absurd consequences]), we should not rewrite the statute to provide for such hearings. "`[A]s this court has often recognized, the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government....' [Citation.] It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature. `This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.'" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [59 Cal.Rptr.2d 671, 927 P.2d 1175].)
In short, judicial restraint counsels that we hesitate to create on our own initiative new procedural rules neither constitutionally nor legislatively required in the guise of implementing an unexpressed legislative intent. The Legislature is in the best position, as the Board begins to discharge its responsibilities under the new youth offender parole hearing statutes, to consider and implement any new evidentiary procedures that experience may suggest would be necessary or desirable.
Because I believe a failure to remand and give defendant the opportunity to present evidence in a baseline hearing would not render his sentence unconstitutional under Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455] or the Eighth Amendment, and because I see no evidence in the statutory scheme the Legislature intended to create such procedures, I respectfully dissent from that part of the majority's decision remanding the case for a baseline hearing. The Legislature, of course, remains free to amend the pertinent statutes to specifically authorize such hearings.