People v. Agnelli

Filed 7/13/21

CERTIFIED FOR PUBLICATION APPELLATE DIVISION SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE

THE PEOPLE, 30-2020-01139174

Plaintiff and Respondent, (Super. Ct. No. 18HM01295)

v. OPINION

DUSTIN LIVINGSTON AGNELLI,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Harbor Justice Center, Joy W. Markman, Judge. Reversed. * * * Defendant Dustin Livingston Agnelli appeals his conviction for using an electronic tracking device (Pen. Code, § 637.7, subd. (a)).1 He contends section 637.7, subdivision (a) is unconstitutionally vague as applied to him. We agree and reverse.

1 All statutory references are to the Penal Code.

BACKGROUND

Agnelli was charged with using an electronic tracking device (§ 637.7, subd. (a)) (Count One), attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)) (Count Two), and violating a protective order (§ 166, subd. (c)(1)) (Count Three). The victim initiated divorce proceedings against Agnelli in October 2016. They have a son, who is five years old. On April 8, 2017 around 1:00 p.m., the victim, her son, and a friend visited Terranea Resort in Rancho Palos Verdes. The victim drove the three of them in her Nissan Altima. She and Agnelli are co-registered owners of this vehicle, but she testified that she was making payments on this vehicle. The victim did not inform Agnelli she was going to the resort, and she did not believe anyone would have communicated to Agnelli her plans to be there. At the resort, the victim saw Agnelli walking behind them at a distance of about one-and-a-half length of a courtroom. She made eye contact with Agnelli, he turned away, and he started “running back” towards the parking lot. The victim was surprised and “freaked out” by Agnelli’s presence. She saw Agnelli’s vehicle, a black Mercedes, in the parking lot. The victim searched her vehicle and found a magnetically-attached tracking device underneath. She did not give Agnelli permission to place the tracking device on her vehicle. The victim removed it and reported the incident to the police. Sergeant De La Rosa of the Orange County Sherriff’s Department investigated this incident. She conversed with Agnelli on the phone. Agnelli admitted the tracking device belonged to him, and requested the return of the device. De La Rosa confirmed that Agnelli and the victim were co-registered owners of the vehicle.