The defendant is charged [in Count ______] with vandalism.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant maliciously (defaced with graffiti or with other inscribed material[,]/ [or] damaged[,]/ [or] destroyed) (real/ [or] personal) property;
2. The defendant (did not own the property/owned the property with someone else)(;/.)
<See Bench Notes regarding when to give element 3.>
3. The amount of damage caused by the vandalism was ($400 or more/less than $400).]
Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.
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.
The court has a sua sponte duty to give this instruction defining the elements of the crime.
If the defendant is charged with a felony for causing $400 or more in damage and the court is not instructing on the misdemeanor offense, give element 3 selecting the "$400 or more" language. If the court is instructing on both the felony and the misdemeanor offenses, do not give element 3 but do give CALCRIM No. 2901, Vandalism: Amount of Damage, with this instruction. (Pen. Code, § 594(b)(1).) The court should also give CALCRIM No. 2901 if the defendant is charged with causing more than $10,000 in damage under Penal Code section 594(b)(1).
If the defendant is charged with only a misdemeanor, give element 3 with the "less than $400" language.
In element 2, give the alternative language "owned the property with someone else" if there is evidence that the property was owned by the defendant jointly with someone else. (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] [Pen. Code, § 594 includes damage by spouse to spousal community property].)
Elements. Pen. Code, § 594.
Malicious Defined. Pen. Code, § 7, subd. 4; People v. Lopez (1986) 176 Cal.App.3d 545, 550 [222 Cal.Rptr. 101].
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 243-245.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.11, Ch. 144, Crimes Against Order, § 144.03 (Matthew Bender).
Lesser Included Offenses
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 on which 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.
Lack of Permission Not an Element
The property owner's lack of permission is not an element of vandalism. (In re Rudy L. (1994) 29 Cal.App.4th 1007, 1014 [34 Cal.Rptr.2d 864].)
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].)
(New January 2006)