When considering a vandalism offense, one often conjures the image of a solo individual or a group of teens going through a neighborhood with paint cans writing graffiti on walls of business. In many instances, this is usually the case, but not always. Vandalism can involve cutting down a neighbor’s tree, using a baseball bat to knock over someone’s mailbox, pouring detergent into a community fountain, etc.
Elements & Defenses
In order to show that a person committed an act of vandalism (Penal Code section 594), a prosecutor must prove the defendant:
- maliciously defaced, destroyed or damaged property
- did not own the property, or co-owned the property with another
To commit the offense “maliciously” requires that the defendant intended to commit a wrongful act or with the intent to annoy or injure another person’s property. Also, it is of no consequence if the damage is permanent or repairable. In vandalism cases, there are defenses to counter such an accusation;
- the act was unintentional or accidentally done (“the defendant cut down the wrong tree”)
- the act was committed by someone else (defendant “looked similar” to the real culprit)
- the property was owned by the defendant (during an argument, defendant “broke cell phone he leant to his wife”)
Punishment
The punishment for vandalism has two potential paths because it can be charged as a misdemeanor or as a felony, depending on the repair or replacement cost of the property. If the loss is less than $400, the charge will be a misdemeanor (Penal Code section 594(b)(2)(a)). The penalties will include imposition of summary probation (up to three years) and up to one-year custody in county jail, along with fines/fees and restitution to the victim.
If the loss to the victim is greater than $400 to the victim, the prosecutor has the discretion to charge the defendant with a misdemeanor or a felony. If filed as a felony (Penal Code section 594(b)(1)), the defendant may either receive a term of formal probation (a probation officer is assigned to the defendant) and serve up to one year of custody in county jail, along with fines/fees and restitution to the victim. If probation is denied, the defendant is facing confinement in state prison for 16 months, 2 years or 3 years.
As a further penalty, the court also has the discretion to order the Department of Motor Vehicles to suspend the defendant’s driver’s license for up to two years (or delay the issuance of a license for up to three years). This potential penalty has nothing to do with whether or not a car was involved in the commission of the offense!
What often distinguishes a felony charge from a misdemeanor charge is that a felony case usually involves:
- a longer period of time to repair or replace the property (perhaps months or years)
- the loss to the victim is substantially over $400 (in the thousands or tens of thousands of dollars).
- the defendant has a prior vandalism convictions or lengthy criminal history
In any case involving vandalism, an experienced attorney can help a client evaluate options whether it relates to a specific defense argument or to explore “damage control” options. As to the latter, it could prove to be very helpful and beneficial if the client is able to repay some or all of the money loss to the victim. If so, the attorney can pursue a civil compromise in order to have the case dismissed (see Alternative Solutions & Sentencing discussion). A civil compromise should be approached carefully with the prosecutor and with sensitivity to the victim.
Finally, the attorney may be able to negotiate terms with the prosecutor that include a reduction of the felony to a misdemeanor conviction and/or early termination of probation, after the client performs and completes certain obligations, such as payment of restitution (see again Alternative Solutions & Sentencing discussion).