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 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B315582

(Super. Ct. No. SM109835)

(Santa Barbara County)

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. 
2

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.

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 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 
4

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 
5

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 
6

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.)
7

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.
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.