Graffiti Law & Defense
PC 640.6(a) Crimes
Information on the crime of graffiti is found at California penal code section 640.6(a).
In short graffiti, sometimes called tagging, is form of vandalism that is committed when the defendant writes a name or message on property (usually a wall, fence, or post) that does not belong to the defendant and without permission. The "writing" is usually done with markers or spray paint, but graffiti can be committed with just about any marking material, including stickers, stains, or any material. In fact, it is considered graffiti to scrawl a name or message into property, such as wet cement.
PC 640.6(a) Any person who defaces with graffiti, or other inscribed material, any real or personal property not his or her own, when the amount of the defacement, damage, or destruction is less than two hundred fifty dollars ($250), is guilty of a graffiti (Abbrev.).
Note: Graffiti is a form of vandalism (willful destruction of property); therefore, the crime of graffiti can be charged as vandalism as an alternative charge to graffiti. However, when the graffiti does not cause damage above $250 dollars (including the cost of repair, not just lost value) and is otherwise easy repair, the district attorney will likely charge the crime of graffiti as opposed to vandalism.
1st Offense: Graffiti is charged as an infraction for a firest offense. This means that the defendant will be orederd to pay a fine of not more than $1,000 for his or her wrongdoing (PC 640.6(a)).
2nd Offense: Graffiti is charged as a misdemeanor for second or subsequent offense (PC 640.6(b)). If found guilty of a PC 640.6(b), the defendant could face up to 180 days in jail.
Note: PC 640.6(b) (misdemeanor graffiti charges) are charged when the defendant has already been convicted of a prior graffiti or vandalism crime.
Probation: A sentence of probation (no jail but with condition to remain out of jail) is allowed in graffiti cases. Probation only applies to 2nd offense graffiti cases charged under (PC 640.6(b) [No probation needed for infraction cases].
Note: Probation is not guaranteed and will be determined on a case by cases basis. The most important factors in deciding whether or not a defendant should receive a probation sentence instead of a jail sentence in any graffiti case include the defendant's criminal history, if any, and the amount of damage caused by the defendant's graffiti.
Work Release: Work release, also called community service, is a form of manual labor that is usually ordered as a condition of any probation sentence (among other conditions). Work release in graffiti cases can include collecting trash around city jail or highways. House arrest, also called electronic monitoring, may also be available in some PC 640.6 cases.
Note: Graffiti is not a crime involving moral turpitude, which means that a conviction for PC 640.6(a) or 640.6(b) will have less impact on the defendant's professional licensing status, if any, and on his or her immigration status (for non Us citizens).
In addition to he penalties described above, if found guilty of graffiti (second offense), the defendant must perform no less 48 hours of community service (work release or work at animal shelter, morgue, etc.).
Defenses to PC 640.1
Defenses to a charge of graffiti include: statute of limitations (1 year), mistake of fact (belief that the defendant had consent to write on property or that the property that was defaced was the defendant's), duress, insanity, coerced confessions, illegal search and seizure (especially as to the tolls used to deface property), and more.
In some graffiti cases, the defendant may have the option for a civil compromise, whereby the defendant repairs the damage and the victim agrees to drop the charges. This must be done through the defendant' criminal defense attorney as the defendant could be charged with harassing a witness if he or she tries to resolve his graffiti case in this manner.
If you have been arrested or charged with the crime of graffiti, or penal code section 640.6(a) or 640.6(b), contact out criminal defense lawyers today for a free consultation. Our criminal defense lawyers are available seven days a week to answer all of your criminal law questions. Call today!
Quick Legal Reference
Crime: Graffiti with Prior Graffiti Conviction
Code: PC 640.6(b) (CalCrim No. 2900)
Wobbler: No. PC 640.6(b) is not a wobbler. This means that PC 640.6(b) is only charged as a misdemeanor.
Incarceration: PC 640.6(b) jail sentence up to 180 days.
Probation: Probation may be available in PC 640.6(b) cases (assuming that other crimes or enhancements that might bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
Strike: PC 640.6(b) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
Bail: $5,000 (San Bernardino County)
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