Vehicle registered... to do what?

The holding in People v. Agnelli, 30-2020-01139174 (O.C. Super. Ct., filed July 13, 2021), is fairly simple and straight forward but should be noted by anyone representing a client charged with the unlawful use of a tracking device. The court in Agnelli held that Penal Code Section 637.7(a) is unconstitutionally vague as applied to a "co-registered" owner of a vehicle and reversed the conviction.

Section 637.7(a) provides: "No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person." The analyzed portion of the statute containing the exceptions is found in PC Section 637.7, subdivision (b) which states: "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."

Agnelli was charged under this statute as well as violating a protective order (Section 166(c)(1)) and attempting to dissuade a witness (Section 136.1(a)(2)). Agnelli and the complaining witness were going through a contested divorce. The largely uncontroverted facts were that Agnelli had placed a GPS tracking device on the car driven primarily by his wife. There was some irrelevant and conflicting testimony as to who actually paid for the vehicle and whether the accuser knew of or consented to the tracking device that was ultimately found on the vehicle. However, Agnelli admitted to using the GPS device to locate his wife and to go to that location. Also uncontroverted was the fact that both Agnelli and his ex-wife were listed as "co-registered owners" on the vehicle's paperwork.

Prior to closing arguments, Agnelli moved to dismiss the allegation under Section 667.7 as being unconstitutionally vague. Orange County Superior Court Judge Joy W. Markman denied the request but conceded the issue was ripe for an appeal. Agnelli was acquitted of the other two counts, but was convicted of violating Section 667.7, in part due to the exact problem identified by the court in reversing the conviction: Could a single "co-registered" owner validly consent to the tracking of a vehicle driven primarily by the other co-registered owner without that other owners knowledge or consent?

The jury submitted the following question to the court: "Jury is struggling with ambiguity of exception under Penal Code 637.7(a). [¶] Specifically, can you provide clarity around whether, in the case of two registered owners, if one or both of those owners need to consent to use of tracking device on car?"

With such a wonderfully worded way of saying, "we 12 reasonable peers of the accused do not know what this statute means," and the prosecution graciously conceding, the issue in front of the court was easily resolved in favor of Agnelli after analyzing the statute as it applied to him as a co-registered owner.

Unlike a "facially" vague challenge, making an "as applied" vagueness challenge requires the defendant show that the statute is impermissibly vague as it was enforced against him in light of the facts and circumstances of his particular case., People v. Nguyen, 212 Cal. App. 4th 1311, 1326 (2013). To survive such a challenge, a criminal statute must satisfy two requirements:

"First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed.[¶]. ... Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.' [Citations]." People v. Abbate, 58 Cal. App. 5th 100, 108-09 (2020).

A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language. Nguyen, 212 Cal. App. 4th at 1326. Moreover, the vagueness doctrine bars enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application."

The jury's question to the court regarding the meaning of the statute clearly evidenced the fact that twelve ostensibly reasonable people of common intelligence did not know what was prohibited and had to guess as to it's meaning. As such, the conviction was reversed.

Because the court relied on the specific language of the statute, to wit, "registered owner", it is unlikely that this holding could be expanded to include equitable owners. However, under a different set of facts, a creative argument could be made to establish a lessor-lessee relationship wherein that portion of the exception may be applicable.