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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

LINDA GAYE ACHTERBERG,

Defendant and Appellant. 2d Crim. No. B 315582 (Super. Ct. No. SM109835) (Santa Barbara County)

Linda Gay e Achterberg appeal s from the trial court’s order denying h er petition for resentencing pursuant to Penal Code 1
former section 1170.95 (now § 1172.6)

. She co ntends the court erred when it summarily denied the petition without appoint ing
counsel and issuing an order to show cause

. We affirm.

FACT UAL AND PROCEDURAL HISTORY In 1998, M.M. was murdered. He r body had been burned. Achterberg and two codefendants , J ulie Padilla and Jose Estrada,

1 Further unspecified statutory references are to the Penal Code.2

w ere 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 Hearing 2 Achterberg pleaded no contest to first degree murder . The
murder special circumstance allegations and the kidnapping

count w ere 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
hav e written to the District Attorney. ” The prosecutor proceeded
to ask Achterberg about specific facts of the murder , inclu ding:
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.]”;
d iscouraged stopping at locations Padilla suggested so that she
could dri ve 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 vic t im had actually burned ” ; and drove Padilla
and Estr ada 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.

2 We grant respondent’s motion for judicial notice of the reporter’s transcript of the plea hearing.3 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 he r 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 c onvicted of f irst
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 req uested 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 th rough 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 le gis lation 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 prejudici al 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 major4

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 m alice 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 a cted 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 li fe. (§ 189, subd. (e).)
S enate B ill No. 1437 also added former section 1170.95, which p rovides 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. ( F ormer § 1170

. 95 , subd. (a).) Upon the filing of a facially sufficient petition, the trial court must appoint counsel for the petitio ner if requested , allow briefing

, and determine whether the petitioner has made a prima facie case for eligibility or entitlement to relief. ( People v. Lewis (202 1 ) 11 Cal.5th 952, 96 1

- 9 70 ( Lewis )

. In conducting the prima facie review, the court take s the petitioner’s factual allegations as

true and make s 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 of5

con viction. ( 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 advers e 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.” ( F ormer § 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, 86 6

- 86 7 [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 for6 T he record of conviction include d a transcript of the plea hearing which clearly establishe d 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 sh ows that when the prosecution questioned Achterberg regarding the fa c tual basis for the plea,
she a dmitted 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. Ey n on (2021) 68 Cal.App.5th 967, 97 1 ( Ey n on )

, in which the defendant pleaded guilty to committing first degree murder “ ‘ wil [l] fully, unlawfully, and with deliberation, premeditation, and malice afore thought. ’ ” The pleading did not specify the theory of first degree murder liability

, and a s a factual basis, the defendant admitted that he “did the things that are stated in the charges that I am admitting.” ( I

bid .) The C ourt of A ppeal held that b ecause the
defendant’s plea and admission did not preclude liability on a felony murder or natural or probable consequence s theory

, h is 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 eli gible 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 o f conviction

, unequi vocally demonstrate s her ineligibility for relief. ( See Mancilla

, supra , 67 Cal.App.5th at p. 867, fn. 4.)7 Ey n on , supra , 68 Cal.App.5th 967 is distinguishable

. Unlike the defendant in Ey n on , Achterberg ’s adm ission 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

.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.