Can you graffiti on abandoned property

In this post, I will explain seven (7) things you should know about vandalism laws.

let’s begin…

In This Guide We’ll Cover:

What Is Considered Vandalism & How Does The Prosecutor Prove It

Vandalism is the act of intentionally harming someone else’s property.

To prove that the defendant is guilty of this crime, the prosecutor must prove that the defendant maliciously:

• Defaced with graffiti1 or with other inscribed material, or
• Damaged2, or
• Destroyed real or personal property

AND

• The defendant did not own the property or owned the property with someone else3.

Note

The property owner’s lack of permission is not an element of vandalism4.

Is It An Infraction, Misdemeanor or Felony?

When is vandalism an infraction?

If any of the above conduct occurs, and the damages is less than $250, then you may be charged with vandalism, as an infraction5

When is vandalism a misdemeanor?

If any of the above conduct occurs, and the damages are less than $400, and exceed $250, then you may be charged with vandalism, as a misdemeanor.

Example of misdemeanor vandalism:

Michael is going through a tough breakup with his longtime girlfriend. One evening, after leaving happy hour, Michael decides to stop by his ex-girlfriend’s house and puncture all four of her tires, and left a note on her windshield saying, “Good luck moving on now.” The next morning, Tina walks to her car to go to work and sees the four punctured tires. Seeing the note, and recognizing the handwriting, Tina immediately calls the police, who charge Michael with vandalism under Penal Code section 594. It costs Tina $300 to replace all four of her tires that morning.

Based on these circumstances, the prosecutor IS able to prove Michael is GUILTY of:

1. Vandalism under California Penal Code section 594
2. It will likely also be categorized as a misdemeanor

Vandalism Causing More than $400 in Damage

If any of the above is done, and the damages exceed $400, then you may be charged with vandalism, as a felony6.

Example:

Jacob and Alex are art students, and typically spray paint their motivational art work on blank canvases. One day, while leaving class, the two walk past an abandoned building near their school. Suddenly inspired by the landscaping and surrounding structures, Jacob and Alex decide to display their art work on the side of this building, in an effort to enhance the neighborhood. While spray painting various phrases, portraits and designs on the building, a police officer pulls up behind them and places both Jacob and Alex under arrest for vandalism under Penal Code section 594. Jacob and Alex later find out that the building they chose to display their artwork on was actually a historical site, previously designated as a landmark by the City. The cost to clean and refurbish the wall of the historical building amounts to over $1,000.

Based on these circumstances, the prosecutor IS LIKELY able to prove both Jacob and Alex are GUILTY of:

1. Vandalism under California Penal Code section 594
2. It will likely also be categorized as a felony

Legal Defenses

Below are possible legal defenses to a charges under Penal Code Code §594:

The Damage Was Not Done “Maliciously.”

Penal Code section 594 specifically requires that a defendant “maliciously” commit the damaging act7. Therefore, if the damage was done negligently, unintentionally, or even accidentally, an attorney may be able to prove that you should not be found guilty or charged with the offense.

The Property Belongs To You.

Penal Code section 594 specifically requires that the property belongs to someone else. Therefore, if the damage done was done to your own property, then an attorney may be able to prove that you should not be found guilty or charged with the offense.

insufficient Evidence

A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to prove that you actually caused the damage to the real or personal property, or to establish the actual value of the property. (For example: An item bearing only sentimental value).

Penalties & Sentencing

Penalties under penal code 594 depend on whether the conviction is an infraction, misdemeanor or felony.

If convicted of a felony, this charge will carry all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to: Lose right to possess firearm, lose right to vote, lose right to sit on a jury, lose right to hold public office, must provide law enforcement with DNA sample, immigration consequences, as a drug abuser, if you are a noncitizen.

Related Articles You May Be Interested In

• Sentencing Options In Juvenile Cases
• Understanding Juvenile Probation In California

FAQ

What does “malicious” mean with regard to vandalism?

Under the law, if you intentionally do a wrongful act or if you act with the unlawful intent to annoy or injure someone else.9

Does it have to be graffiti to qualify as vandalism?

Vandalism includes graffiti, but it also includes other inscribed material, damaging or destroying real or personal property. Inscribed material includes an unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.  

As shown in the examples above, it can additionally be simply harming someone else’s property.

Does the damage have to be permanent?

Penal Code section 594 also includes simply “defacing” real or personal property.10 Therefore, if the damage has to be cleaned off, replaced, etc., it is still vandalism.

Penal Code section 594 also includes simply “defacing” real or personal property.10 Therefore, if the damage has to be cleaned off, replaced, etc., it is still vandalism.

If a minor is personally unable to pay a fine levied for acts prohibited, the parent of that minor shall be liable for payment of the fine.

A court may waive payment of the fine, or any part thereof, by the parent upon a finding of good cause.

What if your child commits vandalism?

If a minor is personally unable to pay a fine levied for acts prohibited, the parent of that minor shall be liable for payment of the fine.

A court may waive payment of the fine, or any part thereof, by the parent upon a finding of good cause.

Expungement For Vandalism

Offenses Which May Be Charged In Conjunction To Vandalism

Penal Code section 602 pc  – Trespassing:  Entering upon lands or buildings owned by any other person without the license of the owner or legal occupant, injuring, damaging, gathering, or carrying away property of the owner or legal occupant, whether enclosed or unenclosed by a fence, with the intention of interfering with, obstructing, or injuring any property or property rights carried by the owner of the land, the owner’s agent, or by the person in lawful possession11.

Penal Code section 459 pc  – Burglary:  Every person who enters any house, store, or any inhabited dwelling, with intent to commit larceny is guilty of burglary12.

Penal Code section 451—Arson:  A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.13

Penal Code 647(j) – Invasion Of Privacy 

1. Graffiti or other inscribed material includes an unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched,
   drawn, or painted on real or personal property. CALCRIM 2900 (2017 [↩]
2. Damage Need Not Be Permanent To “deface” under Penal Code section 594 does not require that the defacement be
   permanent. In re Nicholas Y. (2000) 85 Cal.App.4th 941, 944 [102 Cal.Rptr.2d 511] [writing on a glass window with a marker pen was defacement under the statute]. [↩]
3. Damage to Jointly Owned Property. People v. Wallace (2004) 123 Cal.App.4th 144, 150–151 [19 Cal.Rptr.3d 790]; People v. Kahanic (1987) 196 Cal.App.3d 461, 466 [241 Cal.Rptr. 722] [↩]
4. In re Rudy L. (1994) 29 Cal.App.4th 1007, 1014 [34 Cal.Rptr.2d 864]. [↩]
5. An infraction is a minor offense. Most infractions are written on a “ticket” form but infractions can also be filed by the prosecutor on a “complaint” document. An infraction is usually punishable by a fine and if the fine is paid, there is no jail time. Not for violations of the Vehicle Code [↩]
6. This offense is a misdemeanor unless the amount of damage is $400 or more. Pen.Code, § 594(b)(1) & (2)(A).) If the defendant is charged with a felony, then the misdemeanor offense is a lesser included offense. When instructing on both the felony and misdemeanor, the court must provide the jury with a verdict form onwhich the jury will indicate if the amount of damage has or has not been proved to be $400 or more. If the jury finds that the damage has not been proved to be $400 or more, then the offense should be set at a misdemeanor (CALCRIM) 2900 (2017 [↩]
7. Malicious Defined. Pen. Code, § 7, subd. 4; People v. Lopez (1986) 176 Cal.App.3d 545, 550 [222 Cal.Rptr. 101] [↩]
8. Driving Privilege Suspension: Vandalism: 13202.6. (a) (1) For every conviction of a person for a violation of Section 594, 594.3, or 594.4 of the Penal Code, committed while the person was 13 years of age or older, the court shall suspend the person’s driving privilege for not more than two years, except when the court finds that a personal or family hardship exists that requires the person to have a driver’s license for his or her own, or a member of his or her family’s, employment, school, or medically related purposes. If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for not less than one year nor more than three years subsequent to the time the person becomes legally eligible to drive. However, if there is no further conviction for violating Section 594, 594.3, or 594.4 of the Penal Code in a 12-month period after the conviction, the court, upon petition of the person affected, may modify the order imposing the delay of the privilege. For each successive offense, the court shall suspend the person’s driving privilege for those possessing a license or delay the eligibility for those not in possession of a license at the time of their conviction for one additional year. (2) A person whose driving privilege is suspended or delayed for an act involving vandalism in violation of Section 594, 594.3, or 594.4 of the Penal Code, may elect to reduce the period of suspension or delay imposed by the court by performing community service under the supervision of the probation department. The period of suspension or delay ordered under paragraph (1) shall be reduced at the rate of one day for each hour of community service performed. If the jurisdiction has adopted a graffiti abatement program as defined in subdivision (f) of Section 594 of the Penal Code, the period of suspension or delay ordered under paragraph (1) shall be reduced at the rate of one day for each day of community service performed in the graffiti abatement program when the defendant and his or her parents or legal guardians are responsible for keeping a specified property in the community free of graffiti for a specified period of time. The suspension shall be reduced only when the specified period of participation has been completed. Participation of a parent or legal guardian is not required under this paragraph if the court deems this participation to be detrimental to the defendant, or if the parent or legal guardian is a single parent who must care for young children. For purposes of this paragraph, “community service” means cleaning up graffiti from any public property, including public transit vehicles. (3) As used in this section, the term “conviction” includes the findings in juvenile proceedings specified in Section 13105. (b) (1) Whenever the court suspends driving privileges pursuant to subdivision (a), the court in which the conviction is had shall require all drivers’ licenses held by the person to be surrendered to the court. The court shall, within 10 days following the conviction, transmit a certified abstract of the conviction, together with any drivers’ licenses surrendered, to the department. (2) Violations of restrictions imposed pursuant to this section are subject to Section 14603.(c) The suspension, restriction, or delay of driving privileges pursuant to this section shall be in addition to any penalty imposed upon conviction of a violation of Section 594, 594.3, or 594.4 of the Penal Code. California Law [↩]
9. People v. Lopez (1986) 176 Cal.App.3d 545, 550 [222 Cal.Rptr. 101]. [↩]
10. Id [↩] [↩]
11.  Except as provided in subdivision (u), subdivision (v), subdivision (x), and Section 602.8, every person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor: (a) Cutting down, destroying, or injuring any kind of wood or timber standing or growing upon the lands of another. (b) Carrying away any kind of wood or timber lying on those lands. (c) Maliciously injuring or severing from the freehold of another anything attached to it, or its produce. (d) Digging, taking, or carrying away from any lot situated within the limits of any incorporated city, without the license of the owner or legal occupant, any earth, soil, or stone.  (e) Digging, taking, or carrying away from land in any city or town laid down on the map or plan of the city, or otherwise recognized or established as a street, alley, avenue, or park, without the license of the proper authorities, any earth, soil, or stone. (f) Maliciously tearing down, damaging, mutilating, or destroying any sign, signboard, or notice placed upon, or affixed to, any property belonging to the state, or to any city, county, city and county, town or village, or upon any property of any person, by the state or by an automobile association, which sign, signboard, or notice is intended to indicate or designate a road or a highway, or is intended to direct travelers from one point to another, or relates to fires, fire control, or any other matter involving the protection of the property, or putting up, affixing, fastening, printing, or painting upon any property belonging to the state, or to any city, county, town, or village, or dedicated to the public, or upon any property of any person, without license from the owner, any notice, advertisement, or designation of, or any name for any commodity, whether for sale or otherwise, or any picture, sign, or device intended to call attention to it.  (g) Entering upon any lands owned by any other person whereon oysters or other shellfish are planted or growing; or injuring, gathering, or carrying away any oysters or other shellfish planted, growing, or on any of those lands, whether covered by water or not, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands.  (h) (1) Entering upon lands or buildings owned by any other person without the license of the owner or legal occupant, where signs forbidding trespass are displayed, and whereon cattle, goats, pigs, sheep, fowl, or any other animal is being raised, bred, fed, or held for the purpose of food for human consumption; or injuring, gathering, or carrying away any animal being housed on any of those lands, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands.(2) In order for there to be a violation of this subdivision, the trespass signs under paragraph (1) must be displayed at intervals not less than three per mile along all exterior boundaries and at all roads and trails entering the land. (3) This subdivision shall not be construed to preclude prosecution or punishment under any other provision of law, including, but not limited to, grand theft or any provision that provides for a greater penalty or longer term of imprisonment. (i) Willfully opening, tearing down, or otherwise destroying any fence on the enclosed land of another, or opening any gate, bar, or fence of another and willfully leaving it open without the written permission of the owner, or maliciously tearing down, mutilating, or destroying any sign, signboard, or other notice forbidding shooting on private property.(j) Building fires upon any lands owned by another where signs forbidding trespass are displayed at intervals not greater than one mile along the exterior boundaries and at all roads and trails entering the lands, without first having obtained written permission from the owner of the lands or the owner’s agent, or the person in lawful possession.(k) Entering any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owner’s agent, or by the person in lawful possession. (l) Entering any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or entering upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands., California Law [↩]
12. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises. http://www.leginfo.ca.gov/cgi-bin/displaycode?file=458-464&group=00001-01000&section=pen [↩]
13. A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years. (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years. (c) Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years. (d) Arson of property is a felony punishable by imprisonment in the state prison for 16 months, two, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person’s structure, forest land, or property. (e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined,. California Law [↩]