Orange Superior Court Appellate Division:
Opinion Says Man Who Ascertained Whereabouts of Estranged Wife Cannot Be Criminally Liable in Light of Unconstitutional Vagueness of Statute
By a MetNews Staff Writer
The Appellate Division of the Orange Superior Court has reversed the conviction of a man who ascertained the whereabouts of his estranged wife at a resort in Rancho Palos Verdes through the use of a tracking device on the car she was driving, holding the statute rendering it a misdemeanor to use such apparatus does not give a clear warning that it applies to unauthorized surveillance where the vehicle is co-owned by the defendant.
Acting Presiding Judge Terri Flynn-Peister wrote the opinion which was filed July 21, was not transferred by Div. Three of the Fourth District Court of Appeal to itself, and was publicly posted on Friday. It reverses a conviction by a jury of chiropractor Dustin Livingston Agnelli of a violation of Penal Code §637.7(a) who provides:
“No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.”
Inapplicability to Owner
Creating a complication is the wording of Subd. (b):
“This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.”
“It is undisputed Agnelli and the victim are registered co-owners of the vehicle. Agnelli clearly consented to having the tracking device placed on the vehicle, but the registered co-owner did not.”
Declaring the statute to be unconstitutionally vague as applied to Agnelli, she said: “The plain language of the statute does not expressly indicate, in this situation, whether consent of all registered owners of the vehicle is required. Nor does the legislative history provide clarity….Common people of ordinary intelligence must necessarily guess, and may differ, on the application of whether consent to all registered co-owners are required to place a tracking device on a vehicle. Indeed, the lower court, counsel, and the jury were uncertain as to the application of this statute when only one co-registered owner provided consent.”
When the jury asked for guidance, Orange Superior Court Judge Joy W. Markman told counsel, outside the presence of the jury:
“Generally...in jury trials, I’m more than happy to provide legal answers to legal questions the jury has. I can’t do it on this one; I don’t have the answer.”
No Definite Guidelines
Flynn-Peister observed that §637.7 “does not provide police officers, prosecutors, and the jury with definite guidelines in order to prevent arbitrary and discriminatory enforcement” and creates “a risk that the jury will convict on a subjective basis.”
On appeal, the Office of state Attorney General conceded that there should be a reversal.
The case is People v. Agnelli, JAD21-05.
Agnelli was found not guilty by the jury of attempting to dissuade a witness from testifying and violating a protective order.
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