Filed 9/1/26 P. v. Pellegrine CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A172623
v.
(Mendocino County Super.
JAMES SCOTT PELLEGRINE, Ct. No. 22CR01529)
Defendant and Appellant.
MEMORANDUM OPINION1
After entering into a negotiated plea agreement, James Scott Pellegrine
pleaded no contest to criminal threats (Pen. Code, § 422)2 and felony assault
with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The
superior court then dismissed the criminal-threats charge and sentenced
Pellegrine to 24 months’ probation. In this appeal, Pellegrine challenges a
subsequent order revoking his probation and sentencing him to three years in
prison for the assault. To that end, he argues the superior court erred by:
1 We resolve this case by memorandum opinion. (Cal. Stds. Jud.
Admin., § 8.1.) We provide a limited factual summary because our opinion is
unpublished and the parties know, or should know, “the facts of the case and
its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
2 Undesignated statutory references are to the Penal Code.
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(1) finding, without substantial evidence, that Pellegrine violated the terms
of his probation; (2) relying on materially inaccurate information in
sentencing Pellegrine; (3) selecting the middle term of punishment based on
aggravating factors that were neither pleaded nor proven; and (4) denying
Pellegrine a Marsden hearing when he requested one after the oral
pronouncement of sentence.
As we explain below, the finding that Pellegrine had violated the terms
of his probation is supported by substantial evidence, so we will affirm the
revocation of probation. But in light of the materially inaccurate information
that appears to have influenced Pellegrine’s sentence, we cannot conclude
that the superior court exercised informed discretion in imposing that
sentence.3 Accordingly, we will remand the matter for a new sentencing
hearing—a disposition that renders Pellegrine’s third and fourth claims
moot.
Pellegrine contends the “evidence presented below was insufficient to
show that [he] violated his probation terms and conditions.” We disagree. A
probation violation is provable by a preponderance of the evidence. (People v.
Rodriguez (1990) 51 Cal.3d 437, 441.) We review factual findings in this
respect for substantial evidence. (People v. Butcher (2016) 247 Cal.App.4th
310, 318.) “Under that standard, our review is limited to the determination
of whether, upon review of the entire record, there is substantial evidence of
solid value, contradicted or uncontradicted, which will support the trial
court’s decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) In
conducting this inquiry, we give “ ‘full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to
3 Under Evidence Code section 452, subdivision (d), we grant
Pellegrine’s unopposed request for judicial notice of various court records for
their relevance to this issue.
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draw reasonable inferences from basic facts to ultimate facts.’ ” (People v.
Mumin (2023) 15 Cal.5th 176, 198.)
Here, the terms and conditions of Pellegrine’s probation included the
requirement to “obey all laws.” And substantial evidence supports the
finding that he violated that requirement in at least one way: driving with a
suspended license.4 (Veh. Code, § 14601.2.) Novato Police Officer James
testified that he was informed via dispatch that Pellegrine’s license was in
“suspended” status on the day James encountered Pellegrine at a Shell gas
station with a vehicle he identified as his own. And although James clarified
on cross-examination that Pellegrine never specifically said he drove the
vehicle, James’s direct-examination testimony on this point supports a
reasonable inference that Pellegrine was, in fact, the driver:
“Q. Did he make any statements to you about whether he had driven
that vehicle?
A. Yes.
Q. What did he tell you about that?
A. He just recently had the front headlight changed. He then went
over to the 7400-block of Redwood Boulevard in the City of
[Novato], County of Marin at the Shell Station to clean his
vehicle with a squeegee.”
James’s testimony makes no mention of any person accompanying
Pellegrine, and attributes to Pellegrine the statement that he went to the
Shell station to clean his vehicle after he had the front headlight changed. It
stands to reason that if Pellegrine had been driven to the gas station, his
4 Probation may be revoked if the court has reason to believe a
probationer has committed another offense or has otherwise violated any of
the terms of probation. (§ 1203.2, subd. (a).)
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statement to the officer would have somewhere employed a plural pronoun
and that this, in turn, would be reflected in the officer’s testimony. Moreover,
the conclusion that Pellegrine was alone is reflected by James’s affirmative
answer to the question of whether Pellegrine had made “any statements . . .
about whether he had driven the vehicle[.]” James clearly interpreted
Pellegrine’s statement about going to the Shell station as tantamount to an
admission that he had driven to the Shell station—an interpretation that
would follow naturally if Pellegrine had been alone, but not so naturally if
Pellegrine had been accompanied by someone else. It was therefore
reasonable for the trier of fact to infer from James’s testimony that Pellegrine
had driven the vehicle, and thus, the finding that Pellegrine had violated the
terms of his probation is supported by substantial evidence. (People v. Garcia
(1989) 214 Cal.App.3d Supp. 1, 4 [circumstantial evidence may establish that
the defendant drove a car to the location where defendant and the car were
found by police].)
Next, Pellegrine ascribes reversible error to the sentencing court’s
apparent reliance on erroneous information from a credit memorandum filed
by the probation department. We agree. 5 “There may be situations in which
a prisoner is entitled to a new sentencing hearing, but only where he shows
that: (1) material false information was (2) relied upon by the sentencing
judge, and (3) the defendant had no opportunity at the time of sentencing to
correct such false information.” (In re Beal (1975) 46 Cal.App.3d 94, 99–100.)
5 At the same time, we reject Pellegrine’s contention that the superior
court misunderstood the conduct underlying the assault conviction. Although
the court initially expressed the belief that Pellegrine had “us[ed] force on
somebody,” the prosecutor directly clarified that Pellegrine’s conduct was
only verbal, the court immediately thanked the prosecutor for that
clarification and never again mentioned “force.” (Capitalization omitted.)
4
First, the credit memorandum here alleged that Pellegrine “was found in
violation of probation as alleged in the Amended Fifth Petition,” even though
he was only found to have committed some of the many violations that
petition alleged. (Italics added.) Among them, Pellegrine was not found at
the probation revocation hearing to have used drugs as alleged in the fifth
petition, but according to the credit memorandum, “he submitted a chemical
test positive for methamphetamine/amphetamine[,] and marijuana.” Second,
the court did rely on that materially false information, averring that it “did
read and consider the credit memo provided by probation,” and, in explaining
why probation would not be reinstated, saying: “When you get back out
there, you find yourself with the people that have drugs that you associate
with and continue to use drugs.” (Capitalization omitted.) Third, Pellegrine
had no meaningful opportunity to correct this apparent error, because when
his counsel attempted to do so, the court made no acknowledgment of the
correction.6 “Defendants are entitled to sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court.” (People v.
Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) On this record, which appears to
show that the sentencing court believed that the fifth petition’s drug-use
allegations had been proven, we cannot be confident that the court exercised
informed discretion.
6 When prompted for a rebuttal, Pellegrine’s counsel replied: “Just that
information on the credit memo, I believe they included the allegation of a
positive chemical test. I don’t believe he was held on that portion. Other
than that, I don’t think that got added in.” (Capitalization omitted.)
However, in contrast to the court’s response of “[t]hank you” when the
prosecutor corrected the court’s misunderstanding of the conduct underlying
the assault charge, the court made no reply to the correction offered by
Pellegrine’s counsel, turning instead to address Pellegrine directly on the
subject of his lengthy criminal history. (Capitalization omitted.)
5
For similar reasons, we disagree with the Attorney General’s
suggestion that the error was harmless. As a preliminary matter, he applies
the wrong standard of prejudice: As Pellegrine notes in his reply brief, the
Attorney General relies on People v. Dobbins (2005) 127 Cal.App.4th 176,
183, which concerned a sentencing court’s failure to order and consider a
statutorily required probation report. But Dobbins is inapposite because this
appeal concerns a court’s alleged reliance on inaccurate information which
appears to have contributed to Pellegrine’s sentence, implicating the federal
constitutional guarantee of due process. (See People v. Eckley (2004)
123 Cal.App.4th 1072, 1080.) We evaluate such claims “ ‘ “under the
standard set forth in Chapman [v. California (1967) 386 U.S. 18, 24].” ’ ”
(People v. Schuller (2023) 15 Cal.5th 237, 251.) “ ‘This “stricter” standard of
review requires reversal unless the error is “harmless beyond a reasonable
doubt.” ’ ” (Ibid.) Guided by this standard, and notwithstanding the other
significant factors that rightly informed the court’s sentencing decision, this
record does not allow us to conclude beyond a reasonable doubt that
Pellegrine would have received an identical sentence if the error had not
occurred.
Consequently, we must remand the matter for a new sentencing
hearing, at which the superior court may exercise its informed discretion. In
deciding whether to reinstate probation or sentence Pellegrine to prison, the
trial court may consider the probation violation we have upheld, as well as
Pellegrine’s previous admissions of probation violations, which were reported
in the credit memorandum and have gone unchallenged in this appeal.
(People v. Black (2009) 176 Cal.App.4th 145, 151 [in revoking and
terminating probation, trial court was entitled to consider defendant's
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performance on probation from the time it was originally granted until it was
reinstated for the final time].)
DISPOSITION
The order revoking probation is affirmed. The sentence is vacated, and
the matter is remanded to the superior court for a new sentencing hearing.
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_________________________
SMILEY, J.
WE CONCUR:
_________________________
HUMES, P. J.
_________________________
BANKE, J.
People v. Pellegrine / A172623
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