NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 82546)
THE COURT
Before Greenwood, P. J., Lie, J. and Wilson, J.
Defendant Anthony Broussard appeals from an order denying his petition to recall his sentence. For the reasons set forth below, we dismiss the appeal.
I. Procedural Background
The facts of the offense are not relevant to the analysis and disposition of the appeal and therefore we have omitted them.
In 1982, Broussard pleaded guilty to one count of murder in the first degree (Pen. Code, § 187). He was sentenced to a term of 25 years to life. Broussard was under the age of 18 when he committed the offense.
In 2021, Broussard filed a petition for recall of his sentence and resentencing pursuant to Senate Bill No. 260. Broussard contended in his motion that the youth offender parole hearing scheme put in place by Senate Bill No. 260 constituted a miscarriage of justice because it would cause him to serve a longer term than a youth offender who was sentenced to life without the possibility of parole (LWOP).
The trial court denied the petition. The court rejected Broussard's contention that he would serve a longer term under this scheme than a youth offender sentenced to LWOP because Senate Bill No. 260's youth offender parole scheme does not alter any inmate's sentence, but instead allows certain offenders to receive parole hearings earlier than they might otherwise have. The court also noted that under the provisions of Senate Bill No. 260, Broussard was entitled to the same opportunity for a youth offender parole hearing as a minor sentenced to LWOP.
On appeal, this court appointed counsel to represent Broussard. On May 5, 2022, appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), stating the case and facts, but raising no issues. We notified Broussard of his right to submit written argument on his own behalf. On July 14, 2022, he filed a supplemental brief.
II. Discussion
On appeal, Broussard contends that the trial court erred in denying his petition pursuant to Senate Bill No. 260. Specifically, Broussard contends for the first time on appeal that the court should have addressed Penal Code section 1170.195 in its order denying his petition. (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670.) Even if Broussard had raised that issue in his motion below, his contention on appeal that Senate Bill No. 260 created Penal Code section 1170.195 fails to raise an arguable issue.
Senate Bill No. 260 (2013-2014 Reg. Sess.) added section 3051 to the Penal Code. Section 3051 provides for youth offender parole hearings, depending upon the defendant's age at the time of the crime and the sentence imposed. Under section 3051, subdivision (b)(3), a defendant who was convicted of a crime committed at age 25 or younger and sentenced to a term of 25 years to life is eligible for a youth offender parole hearing in his 25th year of incarceration. Under section 3051, subdivision (b)(4), a defendant sentenced to LWOP is eligible for a youth offender parole hearing in his 25th year of incarceration if he committed the crime before he turned 18 years old.
As enacted, Senate Bill No. 260 did not add Penal Code section 1170.195, and that section does not exist. A March 18, 2013 amendment to Senate Bill No. 260 contained language related to the creation of section 1170.195, but that language was removed before the bill was passed into law. (Compare Sen. Amend. to Sen. Bill No. 260 (20132014 Reg. Sess.) Mar. 18, 2013, with Stats. 2014, ch. 312.) Broussard cannot argue the trial court erred by failing to apply a non-existent statute.
Because Broussard raises no arguable issues in his supplemental brief, we must dismiss his appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. Disposition
The appeal is dismissed.