¶41 (dissenting) — When Sean Thompson O’Dell was 18 years old, he raped A.N., who was only 12 years old. At sentencing, O’Dell sought an exceptional sentence below the standard range because he committed the rape 10 days past his 18th birthday. The trial court denied O’Dell’s request and imposed a standard range sentence. We must decide whether a defendant’s age alone may form the basis for an exceptional sentence. I would adhere to our precedent in State v. Ha’mim, 132 Wn.2d 834, 846, 940 P.2d 633 (1997), that held age is not a substantial and compelling basis to grant an exceptional sentence absent evidence that age actually affected the defendant’s capacities. Because there is no such evidence here, I respectfully dissent.14
A. O’Dell is not entitled to an exceptional sentence below the standard range based on his age alone
¶42 Generally, a trial court may impose a sentence outside the standard range only if there are substantial and compelling reasons justifying the exceptional sentence. See former ROW 9.94A.535 (2011). We use a two-part test to determine whether a factor may legally support a departure from the standard sentence range. State v. Law, 154 Wn.2d 85, 95, 110 P.3d 717 (2005). “ £[F]irst, a trial court may not base an exceptional sentence on factors necessarily *700considered by the Legislature in establishing the standard sentence range.’ ” Id. (quoting Ha’mim, 132 Wn.2d at 840). Second, the “ ‘mitigating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category.’ ” Id. (quoting Ha’mim, 132 Wn.2d at 840).
¶43 Beginning with the first inquiry, I agree with the State that the legislature necessarily considered an offender’s age when it determined that the adult sentencing guidelines attach when the offender is 18 years old. See former RCW 9.94A.030(34) (2011). The majority finds fault in this conclusion because the legislature did not have the access to recent scientific literature addressing the psychological and neurological distinctions between juveniles and adults. See majority at 691-92. To the contrary, the legislature reviewed the relevant literature and had the opportunity to reevaluate the age at which the adult sentencing guidelines attach. The legislature found such research pertinent only to juveniles tried as adults. See Laws of 2005, ch. 437, § 1 (“The legislature finds that emerging research on brain development indicates that adolescent brains . . . differ significantly from those of mature adults. It is appropriate to take these differences into consideration when sentencing juveniles tried as adults.” (emphasis added)).15
¶44 Thus, the legislature has considered the offender’s age on several occasions in determining the standard range sentence.16 The establishment of penalties for criminal offenses is a legislative function, “ ‘and the power of the legislature in that respect is plenary and subject only to *701constitutional provisions.’ ” State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004) (internal quotation marks omitted) (quoting State v. Thorne, 129 Wn.2d 736, 767, 921 P.2d 514 (1996)). We should not supplant the legislature’s judgment in this matter with our own.
¶45 Turning to the second prong, a defendant’s age alone is not a sufficiently substantial or compelling factor to distinguish the crime in question from others in the same category. I agree with the majority and the United States Supreme Court that “ £[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.’ ” Majority at 695 (alteration in original) (quoting Roper v. Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). But as both recognize, “ ‘some under 18 have already attained a level of maturity some adults will never reach.’ ” Id. (quoting Roper, 543 U.S. at 574). This leads me to believe that age is not a reliable indicator of an individual’s mental and emotional faculties for purposes of sentencing and is not alone sufficient to justify an exceptional sentence.17 The majority even acknowledges that a defendant’s age does not automatically result in an exceptional sentence, only in “particular cases.” Id. at 696. This reasoning implicitly recognizes the existence of a factor that distinguishes those young adults that have the capacity to appreciate the wrongfulness of their conduct and those that do not. A defendant’s age alone cannot form the basis for an exceptional sentence.
¶46 This is not to say that age is irrelevant. Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, a sentencing court may impose an exceptional sentence below the standard range if a defendant establishes that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was *702significantly impaired. Former RCW 9.94A.535(l)(e) (2011). Indeed, Ha’mim itself recognized that age is relevant to this determination. 132 Wn.2d at 846. But a defendant may not rely on age alone. Rather, there must be evidence that his age actually diminished his capacity to appreciate the wrongfulness of his actions or impaired his ability to control his conduct. Here, as in Ha’mim, there is no such evidence.
B. The trial court did not fail to exercise its discretion
¶47 Under the SRA, a defendant generally may not appeal a standard range sentence. RCW 9.94A.585(1). However, a defendant may appeal such a sentence if the trial court refused to exercise its discretion. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). “A court refuses to exercise its discretion if it refuses categorically to impose an exceptional sentence below the standard range under any circumstances; i.e., it takes the position that it will never impose a sentence below the standard range.” Id.
¶48 Contrary to the majority’s view, when read in context, the record reveals that the trial court did not categorically refuse to consider an exceptional sentence. In deciding whether O’Dell deserved an exceptional sentence under former RCW 9.94A.535(l)(e), the trial court heard testimony from various acquaintances, family members, and O’Dell himself regarding his youthfulness.18 The trial court considered this testimony and rejected it as conclusory, stating that “[j]ust calling somebody a hoy’ doesn’t make *703them a ‘boy.’ ” Verbatim Report of Proceedings (VRP) (Mar. 6, 2013) at 74.19
¶49 Other than these statements, O’Dell presented no evidence that his age actually diminished his capacity to appreciate the wrongfulness of his conduct or impaired his ability to conform his conduct to the requirements of the law. The majority cites to testimony that O’Dell kept childish memorabilia in his room, such as a Lego collection, and that he enjoyed playing video games. Majority at 697; see also VRP (Mar. 6, 2013) at 56, 59-60, 63. But whether an individual constructs Legos or enjoys video games tells us little about whether he has the capacity to appreciate the wrongfulness of his conduct. Indeed, these are activities enjoyed by many adults. See Thane Grauel, Lego builds adult fan base, USA Today (Nov. 28, 2014), http://www.usatoday .com/story/news/nation/2014/11/28/lego-builds-adult-fan -base/19637025/; Susanna Kim, Seattle Guy’s Lego Man Cave Contains About 250,000 Pieces and a Bar, ABC News (May 5, 2015), http://abcnews.go.com/US/seattle-mans-lego-man-cave -250000-pieces-bar/story?id=30818092 see also Entm’t Software Ass’n, Essential Facts about the Computer and Video Game Industry 3 (2015), http://www.theesa.com/wp-content/uploads *704/2015/04/ESAEssential-Facts-2015.pdf (finding that the average video game player is 35 years old and only 26 percent of video game players are under the age of 18 years old). These activities in and of themselves are not particularly reflective of O’Dell’s general culpability. In short, they are neither substantial nor compelling to justify an exceptional sentence.
¶50 Contrary to establishing diminished culpability, the evidence from trial revealed that O’Dell actually possessed the capacity to appreciate the wrongfulness of his actions. For example, during direct examination, O’Dell testified that he was worried when he learned A.N. was 12 years old because he knew that his conduct “couldn’t be legal.” VRP (Jan. 18, 2013) at 550. Moreover, it cannot be said that O’Dell succumbed to peer pressure because of his youth. The record does not reveal any negative influences from peer pressure. In fact, O’Dell was the most sophisticated and mature person involved during the weekend that the rape occurred. A.N. was 12 years old and in the sixth grade, and their mutual friend was 13. By contrast, O’Dell was 18 and a senior in high school. In this context, O’Dell’s claim that he was “just a boy” is suspect, VRP (Mar. 6,2013) at 67, and the trial court was in the best place to make such a determination.20
*705¶51 Because O’Dell presented no other evidence regarding his intellectual and emotional capabilities, the trial court recognized that all that was left was O’Dell’s chronological age. Id. at 74 (“So we’re talking about his age. He’s just a week past 18.”). Properly relying on Ha’mim, the trial court held that youth alone was not sufficient to warrant an exceptional sentence and concluded that there were “no mitigating factors here.” Id. at 74, 76. The trial court considered the facts and concluded there was no basis for an exceptional sentence. This was a proper exercise of discretion that O’Dell may not appeal. See former ROW 9.94A.585(1).
¶52 As we held in Ha’mim, age alone may not form the basis for an exceptional sentence below the standard range absent evidence that age affected the defendant’s capacities. Because there is no such evidence here, I would affirm the Court of Appeals.
Johnson, Owens, and Stephens, JJ., concur with Fairhurst, J.vI agree with the majority on the jury instruction issue.
For this reason, I also reject the majority’s reliance on State v. Fisher, 108 Wn.2d 419, 423-24, 739 P.2d 683 (1987). See majority at 691. In Fisher, we reasoned that the legislature could not have possibly considered the particular vulnerabilities of specific victims. Here, the legislature has reviewed the relevant scientific literature and understands the attendant properties that accompany youth. However, the legislature has expressly limited the effect of such research to juveniles tried as adults.
The legislature also could have amended the age where the adult sentencing guidelines attach after our decision in Ha’mim but did not.
I find this particularly true toward the “margins between adolescence and adulthood” because “the relevant differences between ‘adults’ and ‘juveniles’ appear to be a matter of degree, rather than of kind.” Roper, 543 U.S. at 600 (O’Connor, J., dissenting).
See Verbatim Report of Proceedings (Mar. 6, 2013) at 42 (“He’s still a kid.”), 45 (“He’s a kid. He don’t know any better.”), 48 (“When I met with him at that time just a couple weeks ago, I saw the same immature kid who wanted to be with good people and do good things.”), 50 (“I know that Sean is a good boy.”), 51 (“He was a young boy who made an honest mistake, like many boys his age have done. Even though his birth date says he was 18, mentally, he was not.”), 53 (“He’s just a boy.... He is a kind boy and he wouldn’t hurt anyone.”), 56 (“He’s just a kid. He’s a young, young kid. He’s a boy. He made a stupid mistake, yes.”). During allocution, O’Dell stated, “I’m here because I’m a boy who made a mistake.” Id. at 67.
The majority interprets this statement to mean that the trial court considered only O’Dell’s statement and not comments from other witnesses. Majority at 696 n.12. But the court referenced O’Dell’s statement that he was “just a boy” because it reflected the entirety of the comments made by O’Dell’s relatives and friends. See supra note 18. This becomes clear when the court’s statement is read in context. The court began by explaining that it had reviewed the mitigating circumstance, and then it noted that the entirety of the assertions made by defense witnesses could be summarized by O’Dell’s statement. VRP (Mar. 6,2013) at 74 (“So I - I’ve looked over, of course, this - this mitigating circumstance as well. And, really, I guess it comes down to the statement that Mr. O’Dell made, and that is, Tm just a boy who made a mistake.’ ” (emphasis added)). Any doubt as to whether the trial court was addressing only O’Dell’s statement or the sentencing statements as a whole is resolved when the court then referenced a comment made by O’Dell’s mother that no one would ever refer to O’Dell as “ ‘Mister.’ ” Compare id. at 63 (O’Dell’s mother noting that “[njobody would have called [O’Dell] ‘Mister* ”), with id. at 74 (Trial court advising that “[j]ust calling somebody a ‘boy’ doesn’t make them a ‘boy.’ And - and the fact that I use ‘Mr. O’Dell’ in here is a form of respect. It’s a form of respect for whatever person that comes before me, whatever their age. I have called 7-year-olds ‘mister’ ”). The trial court therefore not only considered all of the sentencing testimony, but went as far as to respond to specific comments made by O’Dell’s family.
I also note that rape “ ‘is not a common teenage vice’ ” that can be blamed on a lack of judgment. Ha’mim, 132 Wn.2d at 847 (quoting State v. Scott, 72 Wn. App. 207, 219, 866 P.2d 1258 (1993)). For this reason, the trial court likely rejected testimony from O’Dell’s friends and family that characterized his conduct as an “honest mistake.” VRP (Mar. 6,2013) at 51; see also id. at 57 (“Like I said, he made a stupid mistake.”), 67 (“I’m here because I’m a boy who made a mistake”). Such assertions appear flippant in the face of testimony from A.N. that O’Dell held her down, pulled off her pants and undergarments, and forcibly raped her while she told him to stop. See VRP (Jan. 16, 2013) at 281-84. And while force is not an element of child rape, the trial court stated at sentencing that “[A.N.] was traumatized. And that trauma showed up on Monday morning. ... So I believe [A.N.], and I trust in the jury’s decision.” VRP (Mar. 6, 2013) at 75. A.N.’s family also testified as to the trauma inflicted on her. See id. at 23 (“[O’Dell] has made my granddaughter go through hell since that night. Sometimes she’s okay, and then at other times she will revert to the age of 5 or 6.”), 25 (“The nightmares. She wakes up at night crying. Her mother finds her in the closet hiding under covers, *705under her bed.”), 26 (“And, eventually, [A.N.] had to be pulled out of school and [her mother] is now homeschooling her.”), 31 (“To watch her start to become an independent young girl to a child that needs to be comforted and laid with each night, holding my hand in the car when we leave home, or needing to leave where we have gone because it’s just too crowded and overwhelming for her to be there”).