People v. Fallon CA2/3

Filed 2/26/24 P. v. Fallon CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B327318

Plaintiff and Respondent, Los Angeles County Super. Ct. No. MA056500 v.

JAMES STEVEN FALLON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lisa M. Strassner, Judge. Reversed and remanded with directions. James Koester, 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, Wyatt E. Bloomfield and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________________

INTRODUCTION A jury convicted defendant James Steven Fallon of, among other crimes, premeditated, deliberate, and willful attempted murder. The jury also found true allegations that Fallon personally used a firearm and personally inflicted great bodily injury during the attempted murder. A different panel of this division reversed Fallon’s convictions because the trial court did not properly instruct the jury on reasonable doubt and the jury was exposed to a prejudicial email between the prosecutor and a detective that was not admitted as evidence at trial. (People v. Fallon (Dec. 30, 2014, B251619) [nonpub. opn.] (Fallon).) After the matter was remanded to the trial court, Fallon pled no contest to one count of attempted murder, and he admitted that he personally used a firearm during the commission of that offense and that he suffered a prior strike conviction. The remaining charges and allegations, including the premeditation special circumstance allegation, were dismissed. Fallon later filed a petition to vacate his attempted murder conviction under Penal Code1 section 1172.6. After appointing counsel for Fallon, the court denied the petition without issuing an order to show cause, finding he was ineligible for resentencing relief because the jury at his original trial was never instructed on a now-invalid theory of attempted murder and the facts from that trial showed he was a “principal” who acted with actual malice during the commission of the attempted murder. On appeal, Fallon argues, and the People agree, that the court erred when it denied Fallon’s resentencing petition without issuing an order to show cause because nothing in the record establishes Fallon is ineligible for relief as a matter of law under section 1172.6. We agree with the parties and reverse the order