Offense
Vandalism, Malicious Mischief
(b)(1) at least $400 damage
(b)(2) less than $400 damage
Aggravated Felony (AF)
No conviction should be held a COV, but plead to (a)(1) (graffiti) if possible. See Advice.
Try to get 364 days, but if 1 yr cannot be avoided, PC 594 is a reasonable offense to take it. 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
Not a deportable crime of DV because even if it were held to be a COV (which it is not), a deportable crime of DV requires violence toward a person, not property.
Avoid a gang-based sentence enhancement if at all possible. This is critical if the client is not an LPR. See Advice.
Advice and Comments
While there is no holding directly on point, there are strong arguments that PC 594 is not a COV or a CIMT.
COV. Under PC 594(a), a person commits vandalism who “(1) defaces with graffiti… (2) damages, or (3) destroys” property they don’t own. Because courts have held and the Ninth Circuit has opined that graffiti is not a property crimes of violence,1See, e.g., U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti is not a COV). Section 594 can be committed with minimal graffiti or defacing. See, e.g., In re Nicholas Y., 85 Cal.App.4th 941 (2000) (writing on a glass window with a marker that could easily be erased constituted “defacing”). See also In re Brittany L, 99 Cal. App. 4th 1381 (Ct. App. 2022) (throwing eggs at a house is vandalism).
The Ninth Circuit considered the definition of a COV when committed against property, in a case involving Washington law. In Rodriguez-Hernandez v. Garland, 89 F.4th 742 (9th Cir. 2023) the court held that a Washington harassment statute that includes making a “true” (intimidating, credible) “threat” to physically damage property (RCW § 9A.46.020) is a COV. In a pertinent discussion, the court distinguished that harassment offense, which is a COV, from Washington “malicious mischief” (RCW §§ 9A.48.070 – 9A.48.090), which it indicated is not a COV because it can be committed “maliciously” (with intent to vex or annoy, not threaten) defacing or using graffiti on the property. The court stated that this characterization of graffiti “is not inconsistent” with United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019) and Landeros, supra.
“In Bowen, the Tenth Circuit held that the defendant’s convictions for witness retaliation in violation of 18 U.S.C. § 1513(b)(2) were not crimes of violence. See 936 F.3d at 1101. The Tenth Circuit explained that “[t]he Supreme Court has held that the term ‘physical force’ requires more than offensive touching; it means ‘violent force—that is, force capable of causing physical pain or injury to another person.’” Id. (citations and emphasis omitted). The Tenth Circuit opined that “property crimes of violence … are those that require violent force, not merely the force required to damage property.” Id. at 1103-04 (emphasis omitted). Critically, the defendant in Bowen provided precisely what is missing from the present appeal—a citation to a case in which a defendant was actually convicted under the challenged statute “for spray-painting a witness’s car.” 936 F.3d at 1104. The government did not “argue otherwise.” Id. On these facts, the Tenth Circuit “easily conclude[d] that the act of spray-painting another’s car d[id] not entail the use of violent force.” Id. (citations omitted).” Rodriguez-Hernandez v. Garland, 89 F.4th at 752.
While it may not be possible to cite Rodriguez-Hernandez as holding that Washington malicious mischief is not a COV, since that was not the offense at issue, its opinion and analysis are clear and are consistent with other courts. California PC 594 contains the same key elements as Washington malicious mischief, and also is not a COV. Both offenses prohibit acting maliciously, which includes intent to vex or annoy and are different from making a credible violent threat. Both can be committed by graffiti, defacing, etc., which does not require “violent” force.
Neither does PC § 594 require that the “damage” or “destruction” be accomplished by violence, although it would be important to obtain case examples showing this accomplished by nonviolent means. Note that another example of destroying property without violence that was cited by Rodriguez-Hernandez is altering or eliminating data or records held by computer. Id. at 751. See next endnote for more on damage, destroy.a plea specifically to 594(a)(1), with intent to vex or annoy, is best. But if (a)(1) is not possible, PC 594 still is a reasonably good plea: PC 594 appears to be indivisible between (a)(1)-(3), so that no conviction should be a COV regardless of how the person pled; or even if it were divisible, one can seek case examples of, e.g., damage without using violent force.2There are two reasons that no conviction under Pen C § 594 should be held a COV. First, defacing and graffiti is not considered a COV. See discussion in above endnote. Section 594(a) appears to be indivisible between (1) defacing, (2) damaging, and (3) destroying property. While there is no case precedent, a review of several California charging documents shows that in counts charging PC § 594(a), all three subsections are listed in the same paragraph. The Supreme Court held that where subsections are listed without distinction and “reiterating all the terms” in a charging document section, that “is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Mathis v. United States, 579 U.S. 500, 519 (2016); see also ILRC, How to Use the Categorical Approach Now (2021). Therefore, all convictions of the indivisible § 594(a) must be evaluated by the minimum conduct required for guilt, which is graffiti or defacing.
Second, if 594(a) were held to be divisible, advocates could seek to identify cases where the minimum conduct to “damage” or “destroy” property was done without the use of violent force.
CIMT. Ninth Circuit held that a Washington vandalism statute with nearly identical elements of maliciously (intent to vex or annoy) causing damage (including graffiti) was not a CIMT, when the damage was any amount over $250 (in 1995 dollars).3See, 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)). As discussed above, PC § 594 contains the same key elements as this Washington statute: malicious intent to deface, damage, or destroy. See also the discussion of PC 594 as a COV, above, and see People v. Kahanic (1987) 196 Cal App 3d 461 (conviction upheld when damage was to property jointly owned by defendant and victim). Accordingly, this conviction is not a CIMT.
Under that standard, 594(b)(2) is not CIMT, and (b)(1) also should not be; its minimum conduct is damage of $400 (in 2024 dollars). 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 (part of the definition of “malice”).
Gangs and vandalism, CIMT. Try hard to avoid any gang enhancement, including for graffiti – just because any gang connection is a terrible negative factor in discretion for any immigrant factors for immigrant.
Regarding CIMT and gangs, the BIA held that PC 594 with a gang enhancement is a CIMT. In a case involving a weapon and gang enhancement, however, the Ninth Circuit declined to follow the BIA’s holding that a California gang enhancement will turn a non-CIMT into a CIMT.4The 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 Circuit 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).
SB 54. This is one of a few wobblers that do not destroy SB 54 protections that limit jailor’s cooperation with ICE. See SB 54 Advisory at https://www.ilrc.org/sites/default/files/resources/sb54_advisory-gr-20180208.pdf.