California Criminal Jury Instructions (CALCRIM) (2017)

2900. Vandalism

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A. VANDALISM
2900.Vandalism (Pen. Code, § 594)
The defendant is charged [in Count ] with vandalism [in
violation of Penal Code section 594].
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;
[AND]
2. The defendant (did not own the property/owned the property
with someone else)(;/.)
<See Bench Notes regarding when to give element 3.>
[AND
3. The amount of damage caused by the vandalism was $400 or
more.]
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.
New January 2006; Revised June 2007, February 2013, August 2013
BENCH NOTES
Instructional Duty
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. If the court
is instructing on both the felony and the misdemeanor offenses, 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).
699
0003
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].)
AUTHORITY
• 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].
• Wrongful Act Need Not Be Directed at Victim. People v. Kurtenbach (2012)
204 Cal.App.4th 1264, 1282 [139 Cal.Rptr.3d 637].
• This Instruction Upheld. People v. Carrasco (2012) 209 Cal.App.4th 715,
722–723 [147 Cal.Rptr.3d 383].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 277–285.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.11[2], Ch. 144, Crimes Against Order, § 144.03[2]
(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.
RELATED ISSUES
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].)
CALCRIM No. 2900 VANDALISM, LOITERING, AND TRESPASS
700
0004