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Vandalism Defense Do’s and Don’ts

What you should do now if you or someone you love has been charged with felony vandalism — and what you should definitely not do!

Follow these simple steps before contacting a vandalism defense attorney to improve your chances of beating the charges.

California law defines the crime of vandalism (vandalismo) as the malicious act of defacing, damaging, or destroying the property of another. Vandalism usually arises in cases of graffiti (defacing) or the intentional breaking of property (damaging, destroying). Vandalism is a “wobbler”, which means that it can be charged as a misdemeanor or a felony, depending on whether the damage caused is more than $400. Damage is typically calculated by demonstrating a reduction in value, or by adding up the costs of repair and cleanup needed to restore the property to its prior state.

Four important first steps if you or someone you know has been charged with vandalism

As with any crime, if you are factually innocent, try to document all of your actions at the time in question. If you were with other people at the time of the alleged crime who can testify to your innocence, write down their names and contact information. You don’t need to have hired a lawyer to start the process of building a defense. If your witnesses are people you know, then follow these simple steps:

  1. Let them know you have been charged with a crime
  2. Let them know the date and time of the crime being alleged
  3. Ask your witness to write out and date a brief statement containing important facts they remember that would show your innocence. One or two paragraphs is usually enough at this stage, though the more detail they are able to remember the better.
  4. Are there pictures, videos, phone records, purchase records, electronic communications, or other data that might establish your innocence? Make sure that it is preserved, and not deleted. If the data is not in your possession, make sure whoever has it does not delete it, and if the data is photo, audio, or video, try to get them to send you a copy of what they have.

NOTE: It’s important not to tell your witness what to write, or to try to convince them of something that they don’t remember. Everything you tell a witness can later be brought up in trial, so it’s important your conversations with witnesses don’t appear as though you are trying to coax them to cover for you. If your witness tells you they remember some fact about your innocence, then tell them it would be helpful for your case that they write it down now so the memory of it doesn’t fade over time. But if they say they don’t remember some fact that you remember, tell them just to write down what they honestly recall.

If your witnesses are people you do not know, but you know how to contact them, it’s also good to see if you can get them to write a statement, but the rule about not improperly coaxing them is even more important, and it can be tricky for accused individuals with no experience talking to witnesses to navigate this type of discussion. A safer option is to hire an attorney as soon as possible so that your attorney can make contact with the witness themselves or through a trained and certified investigator.

Avoid these Common Mistakes

  1. Do not talk to law enforcement.
  2. If you have only been contacted by law enforcement, and not arrested or charged, do not go into any meetings or have any conversations with anyone connected with law enforcement without an attorney present.
  3. An investigating officer may contact you asking to have a conversation or may try to imply that your cooperation will help your case. They may suggest that getting an attorney will hurt your case. Don’t buy it. Never say anything to any cop about your case without an attorney present.

Other types of defenses and how to assist your attorney

Even when you don’t have the defense that you are factually innocent, your attorney may still be able to get you a favorable result in your case, including a reduction of charges and sentence, or even a dismissal, and there are things you can do even before you hire an attorney that will help make their job easier.

Mental state defenses

The crime of vandalism requires malice as a mental state. This means that breaking something accidentally or without any wrongful intent is a defense to vandalism even when you are completely at fault for the damage. I have seen people charged with vandalism for acts of property damage that were clearly not the result of malice. Even in those circumstances, getting the case dismissed is not as easy as it might seem. If you damaged property accidentally or without malice, but you were still arrested and charged, the most important thing to do is to document your mental state, and the events that lead up to the property damage. Write out a statement detailing the events from your perspective, including before the event, during, and everything that happened during your arrest. Try to focus on your thought process, and as before, write down the names and contact info for any witnesses that you think can corroborate a point about your mental state.

How to get a civil compromise

Whether the property damage was caused accidentally or intentionally, if the crime is charged as a misdemeanor, sometimes the best way to get a case dismissed is by entering into a “civil compromise” with the property owner if the crime is charged as a misdemeanor and isn’t a domestic offense. Civil compromises are when the victim of a misdemeanor asks the court to “drop the charges.” Because vandalism is a property crime that can frequently be resolved by paying monetary restitution, courts are inclined to let defendants and victims settle their dispute outside of court, and if the victim is okay with seeing a case dismissed, the judge will often oblige.

Asking a victim for a civil compromise is something that is always best handled by an attorney. In California, it is a crime to dissuade or attempt to dissuade a witness from testifying by bribing them. Any contact a defendant has with a victim of a crime will be scrutinized intensely by a prosecutor, so it’s never a good idea to try to have the conversation about a civil compromise with the victim yourself or through a third person that isn’t an attorney. If it is your intention to make restitution for a civil compromise, then make saving and setting aside money your first priority.

Even if the actual property damage is small, victims sometimes request significant additional money. Because no civil compromise can happen without the agreement of the victim, they get to set the terms by which they will agree. Although your attorney can help negotiate these amounts to reasonable levels, it’s always best to start setting money aside early. Judges have a limited amount of patience for cases that are hanging around while the defendant tries to accumulate savings.

Felony Vandalism defenses

All the defenses to misdemeanor vandalism also apply to felony vandalism with the exception of civil compromises. However, just because a judge has no legal authority to dismiss a felony with a civil compromise, they may still reduce a felony charge to a misdemeanor, and as a result lessen the overall possible punishment and probation.

Vandalism infraction

In cases where the alleged act is the defacing of government property with damage under $250, Penal Code section 640.5 allows the case to be resolved with an infraction and graffiti abatement work service. This lesser known infraction is a good way to get certain cases out of misdemeanor territory when the victim is a government entity, and a civil compromise is infeasible.