THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JOHN GJERSVOLD, Defendant and Appellant.
No. E059392
Fourth Dist., Div. Two.
Oct. 15, 2014
230 Cal. App. 4th 746
OPINION
RICHLI, J.—
I
INTRODUCTION
On February 2, 2013, a first amended information charged defendant and appellant Matthew John Gjersvold with unauthorized entry onto prison grounds by an ex-convict1 under
On May 23, 2013, the jury found defendant guilty as charged. Thereafter, defendant admitted the truth of the prior prison term allegation.
On June 21, 2013, the trial court granted defendant five years’ probation on the condition that he serve 365 days in custody.
On August 12, 2013, defendant filed his notice of appeal. Defendant‘s sole contention on appeal is that the trial court improperly instructed the jury that a jail officer must give informed consent for an ex-convict‘s entry upon jail grounds to be authorized. For the reasons set forth below, we shall affirm the conviction.
II
STATEMENT OF FACTS
On January 25, 2013, the Department of Consumer Affairs revoked defendant‘s private investigator license.
Defendant was taken to the visiting area and interviewed Merrill for approximately 30 minutes. Defendant did not ask for permission to go onto the grounds of LSCF before he entered. Defendant also failed to disclose that he was an ex-convict. Deputy Collins was not aware of defendant‘s ex-convict status before checking defendant in. Deputy Collins testified that, had he known defendant was an ex-convict, he would have notified one of his superiors at the jail.
At the LSCF visiting center entrance, a notice is posted that states that persons convicted of a felony are not authorized to visit without approval.
III
ANALYSIS
The Trial Court Properly Instructed the Jury
Defendant contends that the trial court erred in instructing the jury that a jail officer must give informed consent for an ex-convict‘s entry upon jail grounds to be authorized. He argues that the instruction denied him the affirmative defense of actual or apparent consent. We disagree. Because an officer must have actual knowledge of the prior conviction in order to consent to an entry by an ex-convict, the trial court properly instructed the jury that informed consent is required.
1. Standard of review
“The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law. (People v. Berryman (1993) 6 Cal.4th 1048, 1089 [25 Cal.Rptr.2d 867, 864 P.2d 40], overruled on another point [in] People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [72 Cal.Rptr.2d 656, 952 P.2d 673]) and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury‘s consideration (see People v. Figueroa (1986) 41 Cal.3d 714, 723–741 [224 Cal.Rptr. 719, 715 P.2d 680]; People v. Leonard (2000) 78 Cal.App.4th 776, 794 [93 Cal.Rptr.2d 180]).” (People v. Posey (2004) 32 Cal.4th 193, 218 [8 Cal.Rptr.3d 551, 82 P.3d 755].)
2. Discussion
In this case, during trial, defendant objected to including the term “informed consent” in the jury instruction at issue. The court overruled defendant‘s objection. It stated, “the jail can‘t give consent unless it‘s informed based upon the public policy that this law is talking about, otherwise the consent is futile.”
The trial court instructed the jury that, in order to convict defendant of unauthorized entry onto jail grounds by an ex-convict, it had to find that defendant “did not have the informed consent of the Warden or other officer in charge of the jail facility” when he entered the grounds. The court further instructed the jury that
Therefore, the issue in this case is whether the statute requires informed consent, as the trial court instructed.
The court‘s role in construing a statute is to ascertain the Legislature‘s intent and the purpose of the law. (People v. Canty (2004) 32 Cal.4th 1266, 1276 [14 Cal.Rptr.3d 1, 90 P.3d 1168]; Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 [103 Cal.Rptr.2d 751, 16 P.3d 166].) First, the court looks to the plain meaning of the statutory language. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal.Rptr.3d 676, 101 P.3d 563].) If the meaning is not clear, the court may then look to the legislative history and public policy of the statute. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1163 [72 Cal.Rptr.3d 624, 177 P.3d 232].) The court should apply the rule of lenity, adopting the construction more favorable to the defendant, only if the statute‘s meaning remains unclear. (People v. Boyd (1979) 24 Cal.3d 285, 295 [155 Cal.Rptr. 367, 594 P.2d 484].)
Although Attorney General opinions are not binding, they are afforded great weight by the courts as persuasive authority. (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17 [270 Cal.Rptr. 796, 793 P.2d 2].) Moreover, the Legislature is presumed to be aware of the Attorney General opinion‘s construction of the statute. (Id.) Because there have been no corrective measures adopted to change the opinion published by the Attorney General‘s Office, it is safe to presume that the Legislature intended for
In this case, defendant contends that the term “consent” in
Defendant next contends that the official at the visitor‘s window has a duty to run a computer check and access the criminal history of each individual seeking admission “due to the advent of the internet and modern computer systems.” However, there is nothing in the statute mandating or imposing this duty. Moreover, there are generally about 300 visitors to LSCF on a typical day. It would be unreasonable to put the burden on the state to require the
Accordingly, we find that the trial court properly instructed the jury.
IV
DISPOSITION
The judgment is affirmed.
McKinster, Acting P. J., and Miller, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied January 14, 2015, S222033.