Filed 10/26/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B351196
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. GA026990)
v.
AMBER MERRIE BRAY,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles
County. Roberto Longoria, Judge. Reversed with directions.
Nathan J. Hochman, District Attorney, Cassandra Thorp and
Matthew Brown, Deputy District Attorneys, for Plaintiff and Appellant.
Juvenile Innocence and Fair Sentencing Clinic, Christopher
Hawthorne and Anna Strasburger for Defendant and Respondent.
________________________________
Respondent Amber Merrie Bray was convicted in 1998 of first
degree murder (Pen. Code, 1 § 187, subd. (a)) and conspiracy to commit
murder (§ 182, subd. (a)(1)) for the killing of her mother. The jury
found true special circumstance allegations that Bray aided and
abetted the murder intentionally and for financial gain (§ 190.2, subd.
(a)(1)) and that the murder was committed while lying in wait (§ 190.2,
subd. (a)(15)). Bray was sentenced to life without the possibility of
parole (LWOP) for the murder and 25 years to life for the conspiracy,
with execution of sentence on the subordinate count stayed pursuant to
section 654.
In 2024, Bray filed a request in the superior court to be
resentenced under section 1172.1, subd. (a)(1). The trial court set a
hearing and received opposition from the People. On its own motion,
the trial court recalled Bray’s sentence and reduced her conviction on
the primary count to second degree murder, resentencing her to 15
years to life in state prison. The court also reduced the sentence for
conspiracy to 15 years to life, stayed.
The People appeal, arguing in pertinent part that the trial court
lacked statutory authority to resentence Bray because there had been
no change in “applicable sentencing laws” as required under section
1172.1, subdivision (a) for the court to resentence a defendant on its
own motion. We agree and accordingly reverse.
BACKGROUND
Facts
Evidence presented at Bray’s 1998 trial 2 showed that she made
plans with her boyfriend Jeffery Glenn Ayers to kill her mother, Dixie
Lee Hollier, and possibly her younger sister. In a letter from Bray to
1 Undesignated references are to the Penal Code.
2 We draw this factual summary from this division’s opinion
affirming the judgment in Bray’s direct appeal, People v. Ayers et al.
(Dec. 15, 1999, B122577) [nonpub. opn.].)
2
Ayers she detailed her plan for “ ‘Plotting murder,’ ” including a list of
ways in which they could use the money she believed they could recover
from the scheme.
Bray, who turned 18 on January 6, 1996, lived in the same house
with her mother and sister. On the night of January 13, 1996, she left
the back door open so that Ayers could enter and kill Hollier. Ayers
went in the house around 5:00 a.m. but got scared when he saw Bray’s
mother sleeping. When Ayers said he could not kill Hollier, Bray grew
angry and ordered him to leave.
A few days later, around 5:00 a.m. on January 16, 1996, Ayers
again entered the house through an unlocked door and shot at Hollier
as she slept, hitting her twice but not immediately killing her. He then
struck her repeatedly on the back of the head with the gun, and
repeatedly stabbed her. Bray’s younger sister witnessed Ayers
attacking Hollier and tried to call 9-1-1, but Bray pulled the telephone
cord out of the wall. Bray’s sister eventually spoke with the 9-1-1
operator from another phone; the police arrived as Ayers was stabbing
Hollier. Hollier died as a result of a stab wound Ayers inflicted to her
neck and other injuries.
Resentencing request and the trial court order
In November 2024, Bray, represented by counsel, filed an
“invitation to [the] Court to recall and resentence her in this case to a
parole eligible term” pursuant to section 1172.1, subdivision (a)(1).
Bray argued that, since the time of her conviction, there had been
changes in sentencing laws that would have resulted in a shorter
sentence if she were sentenced at the time she filed the request in 2024.
She cited a number of statutes that she asserted represented changes
to applicable sentencing laws. She also argued that her behavior while
incarcerated made her an excellent candidate for resentencing and
submitted evidence in support of this claim.
The People opposed the request for resentencing. Bray filed reply
papers and the trial court set the matter for a hearing. A number of
3
witnesses testified at the hearing regarding support they could provide
to Bray if she were resentenced and released, as well as qualities Bray
possessed relevant to her potential for success outside of prison.
At the close of the hearing, the trial court found that it had
discretion under section 1172.1 to recall Bray’s sentence and resentence
her. On its own motion, and over the People’s objection, the court
reduced Bray’s first degree murder conviction to second degree murder
and additionally ordered that the conspiracy conviction be reduced to
conspiracy to commit second degree murder. For the second degree
murder count, the trial court resentenced Bray to 15 years to life in
state prison, and, for conspiracy, the court resentenced her to 15 years
to life, stayed.
The People timely appealed.
DISCUSSION
The People may properly appeal from the trial court’s order. (See
§ 1238, subd. (a) [People may appeal from “(5) [a]n order made after
judgment, affecting the substantial rights of the people”; “(6) [a]n order
modifying the verdict or finding by reducing the degree of the offense or
the punishment imposed or modifying the offense to a lesser offense”;
“(10) [t]he imposition of an unlawful sentence”].)
The People make three primary arguments on appeal: (1) that
the trial court lacked jurisdiction to resentence Bray because there had
been no intervening change in the relevant sentencing law; (2) that
reducing the offense from first degree murder to second degree murder
violated section 1385.1; and (3) that section 1172.1, subdivision
(a)(3)(B) violates the separation of powers. Because we find the first
claim correct and dispositive, we do not reach the latter two
arguments. 3 We additionally conclude that the court imposed an
3 There are further reasons we do not address the third
argument. As the People concede, they did not raise the separation of
powers argument in the trial court, which is a well-recognized ground
for forfeiture. (People v. McCullough (2013) 56 Cal.4th 589, 593 [a
4
unlawful sentence on the conspiracy conviction when it resentenced
Bray on this subordinate count.
I. Court’s general authority under section 1172.1
Section 1172.1, subdivision (a)(1) outlines various scenarios in
which a court may “recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if they
had not previously been sentenced” for a felony conviction. The court
may resentence a defendant under the statute “at any time upon the
recommendation” of a relevant correctional or prosecuting authority.
(Ibid.)
The court may resentence a defendant “on its own motion,”
however, only under limited circumstances. (§ 1172.1, subd. (a)(1).)
Such resentencing may occur only (1) “within 120 days of the date of
commitment,” or (2) “at any time if the applicable sentencing laws at
the time of original sentencing are subsequently changed by new
statutory authority or case law.” (Ibid.) The trial court in this matter
found that it had discretion to resentence Bray under the second of
these statutory bases. 4
While the trial court has long had authority to resentence a
defendant within 120 days of commitment, the ability to resentence on
its own motion at a later point is relatively recent, coming only in 2024.
(Stats. 2023, ch. 446, § 1.) In the preamble to the statutory amendment
to section 1172.1, the Legislature explained: “It is the intent of the
Legislature that, in resentencing proceedings pursuant to Section
1172.1 of the Penal Code, all ameliorative laws and court decisions
constitutional right or right of any sort may be forfeited by failure to
timely assert the right].) Moreover, “ ‘we avoid resolving constitutional
questions if the issue may be resolved on narrower grounds.’ ” (People
v. Waldon (2023) 14 Cal.5th 288, 307.)
4 “A defendant is not entitled to file a petition seeking relief from
the court under” section 1172.1. (§ 1172.1, subd. (c).) If a defendant
requests relief, the court need not respond. (Ibid.)
5
allowing discretionary relief should be applied regardless of the date of
the offense or conviction.” (Stats. 2023, ch. 446, § 1, subd. (a).)
II. The statute’s application to this matter
The dispositive issue in this case is whether the trial court had
authority, on its own motion, to recall the sentence imposed on Bray in
1998 and resentence her. Since well more than 120 days had passed,
the trial court only had authority to do so if “the applicable sentencing
laws at the time of original sentencing [were] subsequently changed by
new statutory authority or case law.” (§ 1172.1, subd. (a)(1).) As this is
a matter of statutory interpretation, we review the trial court’s order de
novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.)
The People argue that no sentencing laws applicable to Bray’s
offenses have changed since the time of her original sentencing, either
by statute or case law. Bray, on the other hand, contends that several
applicable sentencing laws have changed, giving the trial court the
authority to resentence her on its own motion.
We conclude that the People are correct. Since there has been no
change in sentencing laws applicable to Bray, the trial court lacked
authority to recall her original sentence and resentence her. As we
explain, each of the bases that Bray claims represent relevant changes
in sentencing laws do not apply to her sentence.
A. Bray’s sentence would currently be the same
There is at least one basic reason that the trial court lacked
authority to resentence Bray on its own motion: If Bray were convicted
today of the same primary offense that she was convicted of in 1998,
and if the special circumstance allegations were again found true, she
would be sentenced to LWOP. Although there have been many
ameliorative amendments to sentencing laws over the years, none
specifically apply to Bray’s sentence, and Bray does not identify any
independent basis on which she is eligible for resentencing.
Bray was convicted of first degree murder and the jury found true
two special circumstance allegations, one because the murder was
6
intentional and carried out for financial gain (§ 190.2, subd. (a)(1)), and
the other because the murder was committed while lying in wait
(§ 190.2, subd. (a)(15)). The current sentence for first degree murder
with such special circumstance findings is either death or LWOP.
(§ 190.2, subd. (a).) It was the same at the time of Bray’s 1998
sentencing. (See People v. Hardin (2024) 15 Cal.5th 834, 840 (Hardin)
[special circumstance murder committed in 1989 “carried a mandatory
sentence of either death or life in prison without the possibility of
parole”]; People v. Rodriguez (1998) 66 Cal.App.4th 157, 164
[referencing same mandatory sentence]; People v. George (1984) 157
Cal.App.3d 1053, 1056 [rejecting challenge that 190.2, subdivision (a)
was unconstitutional because it made sentence of death or life without
possibility of parole mandatory]; People v. Noble (1981) 126 Cal.App.3d
1011, 1017 [“the electorate never contemplated that a sentence of
‘straight life’ be imposed for first degree murder where one or more
special circumstances have been specifically found to be true”].)
Because “the applicable sentencing laws at the time of original
sentencing” have not been “subsequently changed by new statutory
authority or case law,” the trial court lacked authority to resentence
Bray on its own motion. (§ 1172.1, subd. (a)(1).)
Bray notes that, since the time of her sentencing, a wide range of
ameliorative sentencing laws have been enacted in California. (See,
e.g., Senate Bill No. 620, Stats. 2017, ch. 682, § 2 [allowing for the
striking of a firearm enhancement]; Senate Bill No. 1393, Stats. 2019,
ch. 1013, § 2 [allowing for the striking of five-year prior serious felony
enhancement]; § 1172.75 [making legally invalid most previously
imposed one-year prior prison term enhancements].) Section 1172.1,
subdivision (a)(1), however, does not allow a trial court to resentence a
defendant at any time if there has been a change in any sentencing
laws. There must have been a change in “applicable sentencing laws.”
(Ibid.) In accordance with basic rules of statutory interpretation, this
limiting condition must be given meaning. “As we have stressed in the
7
past, interpretations that render statutory terms meaningless as
surplusage are to be avoided.” (People v. Hudson (2006) 38 Cal.4th
1002, 1010 (Hudson).) Because there have been no changes to
applicable sentencing laws since the time of Bray’s original sentencing,
the trial court lacked authority to recall her sentence and resentence
her. (§ 1172.1, subd. (a)(1).)
B. Claimed sentencing law changes
Bray argues that a number of changes to sentencing laws
provided the trial court with authority to resentence her on its own
motion. We address each of these contentions in turn.
1. Amendments to section 1172.1 itself
Bray contends that section 1172.1, as amended by Assembly Bill
No. 600 (Stats. 2023, ch. 446, § 2) (AB 600), provided independent
authority for the trial court to resentence her on its own motion. It was
AB 600 that amended section 1172.1, subdivision (a)(1), by allowing the
court to resentence a defendant on its own motion at any time following
changes in applicable sentencing law. AB 600 also eliminated the
requirement that a “resentencing court” obtain the relevant
prosecuting authority’s concurrence when “[v]acat[ing] the defendant’s
conviction and impos[ing] judgment on any necessarily included lesser
offense or lesser related offense, . . . and then resentenc[ing] the
defendant to a reduced term of imprisonment.” (§ 1172.1, subd.
(a)(3)(B); Stats. 2023, ch. 446, § 2.)
Bray argues that section 1172.1, subdivision (a)(3)(B) represents
a change in sentencing laws because it gives courts discretion to impose
judgment on lesser included offenses. Resentencing authority under
subdivision (a)(3)(B) does not arise independently, however. The
subdivision describes the scope of actions that a “resentencing court”
may decide upon. (§ 1172.1, subd. (a)(3).) A court does not become a
“resentencing court” pursuant to section 1172.1, subdivision (a)(1) until
a condition in subdivision (a)(1) is met. This conclusion is compelled by
the language of the statute. Section 1172.1, subdivision (a)(1) sets out
8
the circumstances under which “the court” may resentence a defendant.
Subdivision (a)(3) then describes what “[t]he resentencing court” may
do. (§ 1172.1, subd. (a)(3), italics added.) The statute does not allow a
court to simply deem itself a resentencing court, skipping the
requirement of needing statutory authority to resentence a defendant.
Otherwise, the terms set out in section 1172.1, subdivision (a)(1) would
be meaningless. (See Hudson, supra, 38 Cal.4th at p. 1010 [avoiding
surplusage].)
The court in this matter lacked authority to resentence Bray
under section 1172.1, subdivision (a)(1), and so it could not become a
“resentencing court” under section 1172.1, subdivision (a)(3). Because
the options provided to the court for resentencing under subdivision
(a)(3) did not apply to Bray, they did not represent a change in
“applicable sentencing laws” relevant to her.
Nor could AB 600’s amendments to section 1172.1, subdivision
(a)(1) be considered a change in “applicable sentencing laws.” While
the court may resentence a defendant at any time upon the
recommendation of a relevant correctional or prosecuting authority
irrespective of whether there has been a change to applicable
sentencing laws, it can only do so on its own motion at any time when
there has been such a change. (Ibid.) If section 1172.1, subdivision
(a)(1) itself was a change in sentencing laws, there would be no reason
for the statutory language requiring a change in law. Again, reading
this requirement out of the statute would violate the rule of avoiding
surplusage. (See Hudson, supra, 38 Cal.4th at p. 1010.) If the
Legislature had intended that section 1172.1, subdivision (a)(1) be self-
effectuating, the requirement that there be a change in applicable
sentencing laws would be pointless.
Bray points out that section 1171, subdivision (a), in defining a
“ ‘postconviction proceeding,’ ” lists section 1172.1 among other
examples of “Ameliorative statutes.” This definition does not assist
her. That section 1172.1 is ameliorative is beyond dispute. As noted, it
9
provides authority for the trial court to resentence a defendant in a
number of situations, including upon the recommendation of a relevant
authority, or on its own motion in certain circumstances. (Ibid.) The
statute provides potential benefit to a presumably large number of
defendants. But, by its terms, it does not apply to Bray.
In sum, section 1172.1 conferred no statutory authority, in itself,
for the trial court to resentence Bray.
2. Section 3051
Bray next argues that the age at which she committed the special
circumstance murder provides an avenue for relief under section
1172.1. Bray—who was just over the age of 18 when she aided and
abetted her mother’s murder—contends that the 2014 enactment of
section 3051, which generally allows for youth offender parole hearings,
represents a change in applicable sentencing laws, thus giving the trial
court authority to resentence her under section 1172.1, subdivision
(a)(1). Under the current version of section 3051, “most persons
incarcerated for a crime committed between ages 18 and 25 are entitled
to a parole hearing during the 15th, 20th, or 25th year of their
incarceration. (Pen. Code, § 3051, subd. (b).)” (Hardin, supra, 15
Cal.5th at p. 838.)
The parties dispute whether section 3051 represents a change in
sentencing laws. The People argue that it does not, asserting that
section 3051 simply provides accelerated parole eligibility for many
youthful offenders. In support, they cite People v. Franklin (2016) 63
Cal.4th 261, which explained, in part, that “[t]he Legislature did not
envision that the original sentences of eligible youth offenders would be
vacated and that new sentences would be imposed to reflect parole
eligibility” under section 3051. (Franklin, at p. 278.) Bray, on the
other hand, argues that when section 3051 applies it results in a
shorter parole eligibility date, effectively producing a different sentence
from the one originally imposed.
10
We need not resolve this dispute, however, because—regardless
of whether section 3051 could affect the sentences of some youthful
offenders—section 3051 does not apply to Bray. Subdivision (h) of
section 3051 states, in pertinent part, that section 3051’s provisions for
youth offender parole hearings “shall not apply . . . to cases in which an
individual is sentenced to life in prison without the possibility of parole
for a controlling offense that was committed after the person had
attained 18 years of age.” Bray was sentenced to LWOP for an offense
committed after she turned 18, and so she is not eligible for a youth
offender parole hearing. (Ibid.)
Bray cites to a long line of cases, including Graham v. Florida
(2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] and Miller v.
Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407, 132 S.Ct. 2445], that
have recognized the diminished culpability of young offenders due to
differences in cognitive development. She notes that Hardin, supra,
observed, “In expanding section 3051 beyond the constitutional
minimum age of 18 set out in Graham and Miller, the Legislature
considered scientific evidence that neurological development,
particularly in areas of the brain relevant to judgment and
decisionmaking, continues beyond adolescence and into the mid-20’s.”
(Hardin, supra, 15 Cal.5th at p. 846.)
Again, while these legal developments may be relevant to some
defendants’ sentences, they do not affect Bray’s. Our Supreme Court in
Hardin specifically rejected a claim that section 3051, subdivision (h)’s
exclusion of those sentenced to LWOP for special circumstance murder
violated equal protection. (Hardin, supra, 15 Cal.5th at pp. 839–840.)
As the court held, “It was not irrational for the Legislature to exclude
from youth offender parole eligibility those young adults who have
committed special circumstance murder, an offense deemed sufficiently
culpable that it merits society’s most stringent sanctions.” (Id. at p.
864.)
11
There is nothing particular to Bray’s age at the time she
committed the offense that would render her subject to resentencing
under section 1172.1, and section 3051 does not alter this result.
3. Section 1170
Bray next contends that amendments to section 1170, relating to
determinate sentencing and Legislative intent, compel a conclusion
that the trial court could properly resentence her. Bray notes that, at
around the time of her sentencing, former section 1170, subdivision
(a)(1) declared that the “purpose of imprisonment for crime is
punishment.” (Former § 1170, subd. (a)(1); Stats. 1998, ch. 926, § 1.5.)
Today, the statute declares that “the purpose of sentencing is public
safety and to reduce recidivism achieved through punishment,
rehabilitation, and restorative justice.” (§ 1170, subd. (a)(1).)
These amendments do not assist Bray. First, she is not subject to
a determinate sentence since she was sentenced to LWOP. (People v.
Smithson (2000) 79 Cal.App.4th 480, 503 [LWOP is not a determinate
term].) Second, and regardless, amendments to section 1170 do not
represent changes to sentencing laws applicable to Bray’s sentence, as
required by section 1172.1, subdivision (a)(1). As explained previously,
if Bray were sentenced today, she would still face a minimum sentence
of LWOP.
4. Section 1016.7 and related policies
Finally, Bray argues that the enactment of section 1016.7
supports the conclusion that, if she were sentenced today, she would
not have received an LWOP sentence. Section 1016.7, effective as of
January 1, 2022, requires prosecutors to consider various factors
during plea negotiations, including whether the defendant was under
26 years of age on the date the offense was committed. (§ 1016.7,
subds. (a), (b).)
Section 1016.7, however, is not a sentencing law, and so does not
trigger section 1172.1, subdivision (a)(1)’s requirement of a change in
applicable sentencing laws. At most, if section 1016.7 had been
12
effective at the time of Bray’s trial, it could have altered the
circumstances the prosecution considered in plea negotiations, to the
extent any were had. The statute would not have given the sentencing
court any new or additional discretion.
Likewise, and contrary to Bray’s assertions, recent directives by
the Los Angeles County District Attorney relating to charging special
circumstance murder are not changes to applicable sentencing laws. As
the People argue, a statement of how the prosecution will exercise its
charging discretion in future cases does not alter the court’s sentencing
choices. A possibility that the prosecutor might (or might not) charge
Bray’s case differently today does not provide the trial court with
authority to initiate resentencing under section 1172.1, subdivision
(a)(1).
In summary, the trial court could only resentence Bray on its own
motion under section 1172.1, subdivision (a)(1) if there had been a
change in applicable sentencing laws. Bray has not identified any such
pertinent changes, and no changes to sentencing law applicable to Bray
are apparent. Accordingly, the trial court lacked authority to
resentence Bray on its own motion, and its order must be reversed.
III. Resentencing on the conspiracy conviction was improper
As previously noted, in addition to reducing Bray’s first degree
murder conviction to second degree murder, the trial court also ordered
that the conspiracy conviction be reduced to conspiracy to commit
second degree murder, and it reduced the corresponding sentence to 15
years to life, stayed.
The People contend, and Bray concedes, that the trial court could
not reduce her conviction to conspiracy to commit murder in the second
degree. Bray acknowledges that our Supreme Court has held that “all
conspiracy to commit murder is necessarily conspiracy to commit
premeditated and deliberated first degree murder, and that all murder
conspiracies are punishable in the same manner as murder in the first
degree pursuant to the punishment provisions of Penal Code section
13
182.” (People v. Cortez (1998) 18 Cal.4th 1223, 1237–1238 (Cortez).)
Because there is no crime of conspiracy to commit second degree
murder, the trial court’s order must be reversed for this reason as well.
Bray argues, however, that Cortez’s holding—that conspiracy to
commit murder is necessarily conspiracy to commit first degree murder
(id., 18 Cal.4th at pp. 1237–1238)—was itself a change in applicable
sentencing laws, with the Cortez opinion coming approximately two
months after her original sentencing. Bray contends that the issue of
whether a defendant could be convicted of conspiracy to commit second
degree murder was unclear prior to Cortez. She asserts that the Cortez
holding affected her sentence, which thereby provides the trial court
with current authority to resentence her under section 1172.1,
subdivision (a)(1).
This argument fails. Bray was sentenced to 25 years to life for
conspiracy to commit murder. Cortez may have clarified that
conspiracy to commit murder was necessarily conspiracy to commit
first degree murder (id., 18 Cal.4th at pp. 1237–1238), but this was not
a change in sentencing laws applicable to Bray. The proper sentence
for conspiracy to commit murder remained 25 years to life (ibid.), which
was exactly the stayed sentence that Bray received. Cortez had no
effect on Bray’s sentence.
Given that the trial court could not properly resentence Bray to
conspiracy to commit murder in the second degree, and that the trial
court lacked resentencing authority to begin with, its order on the
subordinate count must be reversed as well.
14
DISPOSITION
The trial court’s October 20, 2025 order is reversed. On remand,
the trial court is directed to enter an order confirming that Bray’s
original judgment and sentence remain in effect. To the extent, if any,
that the trial court prepared an amended abstract of judgment relating
to its October 20, 2025 order, the trial court is directed to forward a
copy of a corrected abstract of judgment to the Secretary of the
California Department of Corrections and Rehabilitation.
The stay issued on August 17, 2026, is dissolved upon issuance of
remittitur.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
RICHARDSON, J.
GOORVITCH, J.
15