People v. Pellegrine CA1/1

Opinion

Filed 9/1/26 P. v. Pellegrine CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 We provide a limited factual summary because our opinion is unpublished and the parties know, or should know, “the facts of the case and its procedural history.”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.)

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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.)

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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