People v. Achterberg CA2/6

Filed 7/21/22 P. v. Achterberg CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.