Vandalism, Malicious Mischief
(b)(1) at least $400 damage
(b)(2) less than $400 damage
Aggravated Felony (AF)
None should be COV, but (a)(1) is safest.1See U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti not COV); In re Nicholas Y. (2000) 85 Cal.App.4th 941 (writing on a glass window with a marker that could easily be erased constituted “defacing” under the statute).
Best practice is to avoid violence on ROC. Try to get 364 days, but if 1 yr cannot be avoided, this is a reasonable offense to take it on. See Advice.
See § N.4 Sentence.
Crime Involving Moral Turpitude (CIMT)
Not a CIMT, or conceivably divisible, but see Advice.
Other Removal Grounds
No other removal ground
Even if it were held a COV (which it is not), a deportable crime of DV requires violence toward a person, not property.
Advice and Comments
CIMT. Ninth Cir held similar statute punishing damage over $250 (in 1995 dollars) is not CIMT.2See, e.g., Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995) (malicious mischief, where malice involves wish or design to vex, annoy, or injure another person, was not a CIMT under Wash. Rev. Stat. 9A.48.080, which at the time required damage of at least $250 (now requires damage of $750)) and U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti not COV). See also People v. Kahanic (1987) 196 Cal App 3d 461 (conviction upheld when damage was to property jointly owned by defendant and victim). Under that standard, 594(b)(2) is not CIMT, and (b)(1) also should not be b/c minimum conduct is $400 worth of damage. Still, best practice where possible is to plead to (b)(2), even if greater amount in restitution is paid before plea or in separate civil agreement. Plead to intent to annoy.
Gangs and vandalism. The BIA held that 594 with a gang enhancement is a CIMT. The Ninth Cir reversed.3The BIA held that Pen C §§ 594 with 186.22(d) enhancement is a CIMT. Matter of E.E. Hernandez, 26 I&N Dec. 397 (BIA 2015). But the Ninth Cir disapproved and declined to apply that case, holding that the gang enhancement does not transform a non-CIMT into a CIMT. Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015) (possession of billy club with Pen C § 186.22(b) is not a CIMT). Still, try hard to avoid any gang enhancement, including for graffiti, because any gang connection is a terrible negative discretionary factor for immigrants—one that can be worse than a single CIMT.
Burglary: PC 459 does not need to have a non-CIMT as the intended offense in order to avoid being a CIMT, but that is recommended just to provide extra protection. Felony vandalism is good intended offense because it is not a CIMT.4Felony vandalism can be the intended burglary offense. People v. Farley (2009, Cal) 46 Cal 4th 1053.
SB 54. This is one of a few wobblers that do not destroy SB 54 protections that limiting jailor’s cooperation with ICE. See SB 54 Advisory at www.ilrc.org/crimes.