Filed 8/17/26 P. v. Perry CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFO
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FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090494
Plaintiff and Respondent,
(Super. Ct. No. F25905483)
v.
PERNELL JOSEPH PERRY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and
Rosanne Rust, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and Snauffer, J.
INTRODUCTION
Defendant Pernell Joseph Perry pleaded no contest to corporal injury on a spouse
(Pen. Code, § 273.5, subd. (a)),1 after strangling his wife and causing damage to her
trachea. He was sentenced to three years of probation. As a condition of his probation,
defendant was required to submit to warrantless searches of his person, vehicles and
home. On appeal, defendant challenges this search condition as invalid under People v.
Lent (1975) 15 Cal.3d 481 (Lent).
We hold the warrantless search condition was not unreasonable, and ineffective
assistance of counsel (IAC) is not established by defense counsel’s failure to object to the
condition. The warrantless search condition here was reasonably related to future
criminality, and there was an appropriate proportionality between the burden imposed by
the search condition and the legitimate interests served by the condition. (See In re
Ricardo P. (2019) 7 Cal.5th 1113, 1123–1126 (Ricardo P.).) As such, we affirm the trial
court’s judgment.
BACKGROUND
On August 6, 2025, defendant stuck his foot out in front of his wife of 32 years as
she walked by him in their home and tripped her. Wife fell forward and landed on her
hands and knees; defendant rolled her onto her back and straddled her around her waist.
He used his forearm to apply pressure on her throat and told her “‘You’re gonna
remember this.’” Wife had difficulty breathing. Defendant released her, and she left
their residence; the next day, Wife contacted law enforcement. Responding deputies
observed she had bruises on her knees, redness around her throat, and small red dots
around the bottom corners of her eyes. Defendant admitted drinking on the date of the
incident, and that he had smoked marijuana earlier in the day before the deputies
questioned him.
1 All undesignated statutory references are to the Penal Code.
2.
Defendant was arrested, charged with one count of corporal injury to a spouse
(§ 273.5, subd. (a)), and one count of assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4)). Defendant ultimately pleaded no contest to corporal injury
on a spouse (§ 273.5, subd. (a)), the assault charge was dismissed, and defendant was
sentenced to probation.
DISCUSSION
At the sentencing hearing, the trial court imposed the following probation
condition without any objection by defense counsel: “You must submit your person,
property, vehicle and home to search and seizure any time day or night at the request of
any law enforcement or probation officer with or without a search warrant and with or
without probable cause or reasonable suspicion.”
Defendant argues the condition is unreasonable and invalid under Lent, and that
his counsel’s failure to object constituted IAC. The People dispute the condition was
unreasonable and, because of this, maintain no prejudice can be shown to establish IAC
on the part of defense counsel in failing to object to the condition.
I. IAC
To establish IAC on direct appeal, defendant “‘must satisfy a two-pronged
showing: that counsel’s performance was deficient, and that [he] was prejudiced, that is,
there is a reasonable probability the outcome would have been different were it not for
the deficient performance.’” (People v. Woodruff (2018) 5 Cal.5th 697, 736, quoting
People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984)
466 U.S. 668, 687 (Strickland).)
“‘[T]he standard for judging counsel’s representation is a most deferential one.’
(Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).) We ‘must indulge a “strong
presumption” that counsel’s conduct falls within the wide range of reasonable
professional assistance because it is all too easy to conclude that a particular act or
omission of counsel was unreasonable in the harsh light of hindsight.’ (Bell v. Cone
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(2002) 535 U.S. 685, 702.) ‘Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record, and interacted with the client,
with opposing counsel, and with the judge.’ (Richter, at p. 105.)” (In re Long (2020) 10
Cal.5th 764, 773.)
Due to this, a “defendant’s burden [is] ‘difficult to carry on direct appeal,’ as a
reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is
affirmative evidence that counsel had ‘“‘no rational tactical purpose’”’ for an act or
omission.” (People v. Mickel (2016) 2 Cal.5th 181, 198, quoting People v. Lucas (1995)
12 Cal.4th 415, 437.) “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” (Strickland, supra, 466 U.S. at p. 690.) “‘[D]eciding whether to object is
inherently tactical, and the failure to object will rarely establish ineffective assistance.’”
(People v. Carrasco (2014) 59 Cal.4th 924, 985.)
II. Probation Condition was Reasonable: Counsel’s Failure to Object was not
Prejudicial
“‘The primary goal of probation is to ensure “[t]he safety of the public … through
the enforcement of court-ordered conditions of probation.” (Pen. Code, § 1202.7.)’
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) Accordingly, the
Legislature has empowered the court, in making a probation determination, to impose any
‘reasonable conditions, as it may determine are fitting and proper to the end that justice
may be done, that amends may be made to society for the breach of the law, for any
injury done to any person resulting from that breach, and generally and specifically for
the reformation and rehabilitation of the probationer ….’ (Pen. Code, § 1203.1,
subd. (j).)” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
“Generally, ‘[a] condition of probation will not be held invalid unless it “(1) has
no relationship to the crime of which the offender was convicted, (2) relates to conduct
which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably
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related to future criminality ….” [Citation.]’ (Lent, supra, 15 Cal.3d at p. 486.) This test
is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate
a probation term. (Id. at p. 486, fn. 1; see also People v. Balestra (1999) 76 Cal.App.4th
57, 68–69 (Balestra).) As such, even if a condition of probation has no relationship to
the crime of which a defendant was convicted and involves conduct that is not itself
criminal, the condition is valid as long as the condition is reasonably related to preventing
future criminality. (See [People v.] Carbajal [(1995)] 10 Cal.4th [1114,] 1121.)”
(Olguin, supra, 45 Cal.4th at pp. 379–380.)
A warrantless search condition was upheld in Balestra even though the condition
was not related to the underlying offense of elder abuse. (People v. Balestra (1999) 76
Cal.App.4th 57, 67, 68 (Balestra).) The court reasoned that “a warrantless search
condition is intended to ensure that the subject thereof is obeying the fundamental
condition of all grants of probation, that is, the usual requirement (as here) that a
probationer ‘obey all laws,’” and that such a condition is “necessarily justified by its
rehabilitative purpose .…” (Ibid.) Echoing Balestra, the California Supreme Court cited
Balestra approvingly for the proposition that “probation conditions authorizing searches
‘aid in deterring further offenses … and in monitoring compliance with the terms of
probation.’” (Olguin, supra, 45 Cal.4th at p. 380.)
Here, defendant’s terms of probation require, among other things, that defendant
“obey all laws” and prohibit defendant from “knowingly possess[ing] or control[ling] any
dangerous or deadly weapon[, including] firearms, ammunition, and body armor,” from
“possess[ing] any alcohol or visit[ing] a place where alcohol is the main item for sale,”
and from “possess[ing] any controlled substances, illegal narcotics, marijuana or drug
paraphernalia ….” As in Balestra, the warrantless search condition here will help
defendant’s probation officer ensure that defendant is complying with those terms of his
probation, and it is reasonably related to future criminality.
5.
Defendant argues that pursuant to Ricardo P. regarding the third future criminality
prong, the legitimate interests served by the warrantless search condition here lacks
proportionality to the burden it imposes and thus is an unreasonable condition. In
Ricardo P., the appellate court had upheld a probation condition that allowed warrantless
searches of a minor’s electronic devices because it was “‘reasonably related to enabling
the effective supervision of [the minor’s] compliance with his other probation
conditions.’” (Ricardo P., supra, 7 Cal.5th at p. 1119.) The Supreme Court reversed,
holding the condition to be invalid under Lent’s third prong because, “on the record
before [the court], the burden it impose[d] on [the minor’s] privacy [was] substantially
disproportionate to the countervailing interests of furthering his rehabilitation and
protecting society.” (Ricardo P., supra, at p. 1119.) Our high court emphasized the
broad and “sweeping” nature of the condition, which required the minor to “submit all of
his electronic devices and passwords to search at any time” (id. at pp. 1122–1123), and
observed that such a condition “significantly burdens privacy interests” (id. at p. 1123),
and was “burdensome and instrusive” (id. at p. 1126). Although the court declined to
require “‘a nexus between the probation condition and the defendant’s underlying offense
or prior offenses,’” it held there must be “a degree of proportionality between the burden
imposed by a probation condition and the legitimate interests served by the condition.”
(Id. at p. 1122.) As such, the condition extending to electronic devices and passwords
required a “correspondingly substantial and particularized justification,” which was
lacking in Ricardo P. (Id. at p. 1126.)
Different from Ricardo P., the traditional warrantless search condition at issue
here does not extend to electronic devices and passwords and is far less “burdensome and
intrusive” as a result; as such, it requires a less “substantial and particularized
justification.” (Ricardo P., supra, 7 Cal.5th at p. 1126.) The warrantless search
condition of defendant’s person, vehicles and home is “proportional to achieving some
legitimate end of probation” (id. at p. 1127), specifically, determining whether defendant
6.
is complying with his terms of probation that forbid him from possessing weapons,
controlled substances, illegal narcotics, or marijuana. As the People point out, defendant
had been drinking on the day he strangled his wife, and he admitted smoking marijuana
the next day; Wife also detailed defendant’s substance abuse involving marijuana and
cocaine, and possession of drug paraphernalia. By permitting warrantless searches, the
probation condition deters future alcohol and drug use generally as well as the possibility
such drug or alcohol use might lead or contribute to additional assaultive or violent
conduct by defendant. Moreover, the burdens of the search condition are proportional to
the safety interests served by the condition, including that it may curb or deter further
violent or illegal behavior by defendant. (Balestra, supra, 76 Cal.App.4th at p. 67.)
As the condition was reasonably related to future criminality and proportional to
achieving a legitimate end of probation, it is not unreasonable under Lent. Due to this,
defense counsel’s failure to object to the search condition was not prejudicial—as the
search condition was reasonable, there is no reasonable probability that an objection
would have resulted in the omission of the challenged condition. (Strickland, supra, 466
U.S. at p. 687 [prejudice requires a showing there is a reasonable probability the outcome
would have been different were it not for the deficient performance]; see In re Tellez
(2024) 17 Cal.5th 77, 88 [reviewing court need not address both elements of IAC claim if
one is not satisfied].)
DISPOSITION
The judgment is affirmed.
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