Filed 7/21/22 P. v. Achterberg CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B315582
(Super. Ct. No. SM109835)
Plaintiff and Respondent, (Santa Barbara County)
v.
LINDA GAYE ACHTERBERG,
Defendant and Appellant.
Linda Gaye Achterberg appeals from the trial court’s order
denying her petition for resentencing pursuant to Penal Code1
former section 1170.95 (now § 1172.6). She contends the court
erred when it summarily denied the petition without appointing
counsel and issuing an order to show cause. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 1998, M.M. was murdered. Her body had been burned.
Achterberg and two codefendants, Julie Padilla and Jose Estrada,
1Further unspecified statutory references are to the Penal
Code.
were charged with one count of first degree murder of M.M.
(§ 187, subd. (a)) with special circumstance allegations of torture
(§ 190.2, subd. (a)(18)) and kidnapping-murder (§ 190.2, subd.
(a)(17)), and one count of kidnapping (§ 207, subd. (a)).
Plea Hearing2
Achterberg pleaded no contest to first degree murder. The
murder special circumstance allegations and the kidnapping
count were dismissed.
At the plea hearing, the defense stipulated to a factual
basis for the plea. The prosecutor responded, “With regard to
that, Miss Achterberg, there is an item I’d like to establish for the
factual basis. I think [Defense Counsel] has gone over several
short-numbered paragraphs that I have written in a memo that I
have written to the District Attorney.” The prosecutor proceeded
to ask Achterberg about specific facts of the murder, including:
whether she drove M.M., Padilla, and Estrada to a gas station;
saw Padilla put fuel in a can and then place the can in
Achterberg’s car; was aware that M.M. was tied up; heard Padilla
say “I have got to do [M.M.]; I’ve got to take care of [M.M.]”;
discouraged stopping at locations Padilla suggested so that she
could drive them to a more secluded location; saw Estrada grab
M.M. out of the truck; saw Padilla douse M.M. with fuel and
Estrada light M.M.; saw Estrada re-douse M.M. with fuel to
“make sure the victim had actually burned”; and drove Padilla
and Estrada from the scene of the crime. Achterberg replied
“yes” to each of these questions.
The trial court sentenced Achterberg to 25 years to life with
the possibility of parole.
2We grant respondent’s motion for judicial notice of the
reporter’s transcript of the plea hearing.
2
Petition for Resentencing
In 2019, Achterberg petitioned for resentencing pursuant to
former section 1170.95. She declared that a complaint,
information, or indictment was filed against her that allowed her
to be prosecuted under a theory of felony murder or murder
under the natural and probable consequences doctrine; she
pleaded guilty or no contest to first degree murder in lieu of going
to trial because she believed she could have been convicted of first
or second degree murder at trial pursuant to the felony murder
rule or the natural and probable consequences doctrine; and she
could not now be convicted of first degree murder because of the
changes made to sections 188 and 189. She requested
appointment of counsel for the resentencing process.
The court summarily denied the petition without
appointing counsel for Achterberg. The court explained that it
“read the probation report, which indicates the facts of the case,
and I won’t go through them all at this point, but there’s no doubt
in this Court’s mind that the intent to kill is not an issue and
that she was directly involved with the murder. [¶] The Court
finds there’s not a threshold finding that this case falls within the
new legislation and denies the relief . . . .”
DISCUSSION
Achterberg contends that the trial court erred when it
summarily denied her petition for resentencing without
appointing counsel and that she was prejudiced by the error. We
conclude there was no prejudicial error.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted to
amend the felony-murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
3
participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 1, subd. (f).)
It amended section 188, to require that a principal must act with
malice aforethought, and malice can no longer “be imputed to a
person based solely on [their] participation in a crime.” (§ 188,
subd. (a)(3).) It also amended section 189 to require that for a
felony murder conviction, the defendant must be: (1) the actual
killer, (2) one who acted with the intent to aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder in the first degree, or (3) a major
participant in the underlying felony who acted with reckless
indifference to human life. (§ 189, subd. (e).)
Senate Bill No. 1437 also added former section 1170.95,
which provides that a person may file a petition for resentencing
if: (1) the complaint, information, or indictment filed against
them allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) the person was convicted of murder following a trial
or accepted a plea offer in lieu of a trial at which they could be
convicted of murder; and (3) the person could not now be
convicted of murder because of changes to section 188 or 189.
(Former § 1170.95, subd. (a).)
Upon the filing of a facially sufficient petition, the trial
court must appoint counsel for the petitioner if requested, allow
briefing, and determine whether the petitioner has made a prima
facie case for eligibility or entitlement to relief. (People v. Lewis
(2021) 11 Cal.5th 952, 961-970 (Lewis). In conducting the prima
facie review, the court takes the petitioner’s factual allegations as
true and makes preliminary assessments on whether the
petitioner is entitled to relief if their factual allegations were
proved. (Id. at p. 971.) The court may consider the record of
4
conviction. (Id. at pp. 970-971.) If “‘the record, including the
court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.”’ [Citations.]”
(Id. at p. 971.) In reviewing the record of conviction, the court
“should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.]” (Id. at p. 972.)
“If the petitioner makes a prima facie showing that [they are]
entitled to relief, the court shall issue an order to show cause.”
(Former § 1170.95, subd. (c).)
If a trial court erroneously denies a resentencing petition
pursuant to former section 1170.95 without appointing counsel,
the error is reviewed under the harmless error standard of People
v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at
p. 973.) Reversal is required if the petitioner shows a reasonable
probability that if they had been afforded assistance of counsel,
their petition would not have been summarily denied without an
evidentiary hearing. (Id. at p. 974.)
Here, we conclude that any error was harmless because the
record of conviction demonstrates that Achterberg is ineligible for
relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 974; see
People v. Mancilla (2021) 67 Cal.App.5th 854, 866-867 [record of
conviction, including a prior appellate opinion, showed that the
defendant was convicted of a “provocative act murder,” which
rendered him ineligible for relief].)3
3 Achterberg contends the trial court erred in relying on the
probation report. She argues that Senate Bill No. 775 (2020-2021
Reg. Sess.) retroactively applies to this case. We do not decide
this issue because we agree with the Attorney General that the
issue is “inconsequential” here where the standards for
5
The record of conviction included a transcript of the plea
hearing which clearly established that Achterberg was convicted
of murder under the theory that she was a direct aider and
abettor. (See People v. Abarca (1991) 233 Cal.App.3d 1347, 1350
[a reporter’s transcript of a plea is considered part of the record of
conviction].) The transcript shows that when the prosecution
questioned Achterberg regarding the factual basis for the plea,
she admitted several specific facts, including those establishing
her knowledge of her codefendants’ intent to murder M.M. and
her willing participation to aid them in accomplishing the
murder.
Achterberg relies on People v. Eynon (2021) 68 Cal.App.5th
967, 971 (Eynon), in which the defendant pleaded guilty to
committing first degree murder “‘wil[l]fully, unlawfully, and with
deliberation, premeditation, and malice aforethought.’” The
pleading did not specify the theory of first degree murder
liability, and as a factual basis, the defendant admitted that he
“did the things that are stated in the charges that I am
admitting.” (Ibid.) The Court of Appeal held that because the
defendant’s plea and admission did not preclude liability on a
felony murder or natural or probable consequences theory, his
resentencing petition pursuant to former section 1170.95 stated a
prima facie case for relief and the record of conviction did not
refute his allegation that he was eligible for relief. (Eynon, at p.
979.)
considering a petitioner’s prima facie eligibility is consistent with
Lewis, supra, 11 Cal.5th at p. 971. Any error here was harmless
because the transcript of the plea hearing, which was a part of
the record of conviction, unequivocally demonstrates her
ineligibility for relief. (See Mancilla, supra, 67 Cal.App.5th at p.
867, fn. 4.)
6
Eynon, supra, 68 Cal.App.5th 967 is distinguishable.
Unlike the defendant in Eynon, Achterberg’s admission to specific
facts of the murder established she was a direct aider and
abettor. Thus, there is no reasonable probability that if
Achterberg was afforded counsel, her petition would not have
been summarily denied. (Lewis, supra, 11 Cal.5th at p. 974.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
James K. Voysey, Judge
Superior Court County of Santa Barbara
______________________________
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Eric J. Kohm, Deputy Attorneys
General, for Plaintiff and Respondent.