People v. Perry CA5

Opinion

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFO

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.RNIA

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.

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

(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 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.

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 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.