A vague section in the California Penal Code led to the reversal of a man’s conviction for using an electronic device to track the movements of his estranged wife. The Code did not specify whether this kind of sleuthing activity is permissible when both the man and the woman he is following are registered owners of the vehicle.

Writing for the Superior Court of California, Orange County Appellate Division, Acting Presiding Judge Terri Flynn-Peister reversed the conviction of defendant Dustin Livingston Agnelli on July 13 because the section of the Penal Code under which he was convicted was unconstitutionally vague about what is permissible tracking if a car is co-owned by the tracker. Two other judges concurred with her opinion.

The wife had filed for divorce in October 2016 and the electronic tracking, at issue here, took place on April 8, 2017.

The judge’s opinion began with the facts of the case. It involved a husband who placed a GPS tracking device on the Nissan Altima his estranged wife drove to take herself, their five-year-old son and a friend to the Terranea Resort in Rancho Palos Verdes. After they arrived, the wife saw Agnelli walking behind her. They made eye contact and he ran.

She testified that no one knew she was going to the resort and there was no way that her husband could have known where she was unless he was illegally tracking her. When he ran away, she followed him to the parking lot and saw his black Mercedes. She then searched her Nissan and found a magnetically attached tracking device under the car. She had never given permission for it to be there. She removed it and called the police.

The case was investigated by the Orange County Sheriff’s Department who began its investigation with a phone interview of Agnelli. During their conversation, Agnelli admitted that he owned the electronic tracker and used it to follow his wife on her trip to Terranea. He also said he wanted the tracker back. At trial, Agnelli said he had paid for the car even though his estranged wife was co-owner and primary driver.

Agnelli was charged with violating Sec. 637.7 of the California Penal code, which states “No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.” The law does provide an exception, however, when the registered owner of a vehicle has consented to the use of an electronic tracking device with respect to that vehicle. Violating this law is a misdemeanor. He was also charged with attempting to dissuade a witness from testifying and violating a protective order.

Agnelli’s attorneys moved to dismiss the count about the tracker because the Penal Code section does not say anything about what is permissible if a vehicle is owned by more than one person. They argued that “a registered owner did consent to it.” During her closing argument, the defense attorney agreed that the law did not explain what should happen if there are two registered owners, but she also said “the law does not prevent or make an exception to the exception.”

Judge Flynn-Peister explained that the trial jury was confused about the law. During deliberation, they sent the trial judge a question asking for clarity about what happens if there are two registered owners of a tracked car. She said the judge told all the trial attorneys that this was a question of law and not fact. “Generally…in jury trials,” the judge said, “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.”

The trial judge then discussed the key issue in the case –the definition and scope of vagueness. “There is appellate law saying, when a statute is vague…it almost deprives a defendant of due process because: How will someone know if they’re violating the statute if the courts can’t even figure it out because the text left out essential language? And what is the remedy?...” she said. She then merely told the jury to review the Penal Code, even though she realized it was vague and would not be helpful.

The jury, however, found Agnelli guilty of using an electronic device but not guilty on the other two counts. His sentence was suspended and he was placed on three years of probation.

Flynn-Peister then began a discussion of the key legal issue in the case – vagueness. She cited precedent that called for the defendant to show the relevant statute was “impermissibly vague as it was enforced against him in light of the fact and circumstances of his particular case.” She immediately cited the due process amendments in both the U.S. and California constitutions, and explained that a criminal statute must do two things to satisfy due process requirements: be definite enough to provide a standard of conduct for proscribed activities and provide definite guidelines for the police “in order to prevent arbitrary and discriminatory enforcement.”

While there is a strong presumption to uphold legislative enactments, she explained, a statute must also be “sufficiently certain so a person may know what is prohibited.” She gave three examples of the “fair warning requirement:” people of “common intelligence” would not have to guess at its meaning; ambiguity must be resolved by applying the statute only to “conduct clearly covered;” and no “novel construction” would be allowed.

After reviewing the language of the relevant Penal Code section, she said, “We are persuaded that the statute, as applied to Agnelli, is impermissibly vague under both Constitutions.” Agnelli is a co-owner who “clearly consented to having the GPS device on the vehicle,” since he put it there himself. Neither the statute’s language nor its legislative history addressed the multiple owner question and the trial court jury was uncertain about how to rule. Police officers and prosecutors lacked guidelines. All of this led to her conclusion that “It is undisputed there is prejudice to Agnelli as a result of this error. Judgment is reversed.”