Section 2900 | CALCRIM (Jury Instructions)

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].
•
General Intent Crime. People v. Moore (2018) 19 Cal.App.5th 889, 895–896
[228 Cal.Rptr.3d 261].
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].)
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
CALCRIM No. 2900
VANDALISM, LOITERING, AND TRESPASS
722

Against Property, § 143.11[2], Ch. 144, Crimes Against Order, § 144.03[2] (Matthew
Bender).
VANDALISM, LOITERING, AND TRESPASS
CALCRIM No. 2900
723

2901. Vandalism: Amount of Damage (Pen. Code, § 594(b)(1))
If you find the defendant guilty of vandalism [in Count[s]
], you
must then decide whether the People have proved that the amount of
damage caused by the vandalism [(in each count/in Count[s]
)]
was $400 or more. [If you decide that the amount of damage was $400
or more, you must then decide whether the People have proved that the
damage [(in each count/in Count[s]
)] was also $10,000 or more.]
The People have the burden of proving this all