BILL ANALYSIS SENATE COMMITTEE ON JUDICIARY Bill Lockyer, Chairman 1993-94 Regular Session AB 1179 (Epple) As amended May 17, 1993 Hearing date: July 13, 1993 Penal Code LGK THE 1993 CALIFORNIA GRAFFITI OMNIBUS BILL HISTORY Source: Los Angeles District Attorney Prior Legislation: None Support: Los Angeles City Council; Independent Cities Association; š Counties of Los Angeles and San Bernardino; California Association of Supervisors of Child Welfare and Attendance; Association for Los Angeles Deputy Sheriffs, Inc. Opposition: No known Assembly Floor vote: Ayes 72 - Noes 1 (THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN COMMITTEE) KEY ISSUES SHOULD THE DEFINITION OF VANDALISM BE EXPANDED? SHOULD PENALTIES FOR VANDALISM AND FOR GRAFFITI BE INCREASED? SHOULD VANDALISM OR GRAFFITI WITH PRIOR CONVICTIONS FOR VANDALISM šOR GRAFFITI BE PUNISHABLE AS AN ALTERNATIVE FELONY/MISDEMEANOR? SHOULD COMMUNITY SERVICE INVOLVING REMOVAL OF GRAFFITI BE (More) AB 1179 (Epple) Page 2 CONSIDERED BY THE COURT FOR ALL NONVIOLENT OFFENSES? SHOULD A PERMISSIVE INFERENCE BE CREATED THAT A PERSON WHO DEFACES šGOVERNMENT PROPERTY DID SO WITHOUT PERMISSION? SHOULD GRAFFITI REMOVAL BE INCLUDED IN CORRECTIONAL PROGRAMS? SHOULD RESTRICTIONS AGAINST OBTAINING OR RETAINING DRIVERS' šLICENSES BY MINORS WHO ARE CONVICTED OF VANDALISM BE EXPANDED? SHOULD THE PENALTY FOR BRANDISHING A WEAPON AT SOMEONE WHO IS šREMOVING GRAFFITI BE INCREASED? SHOULD IT BE A CRIME TO POSSESS ANY SHARP POINTED DEVICE WITH šINTENT TO COMMIT VANDALISM OR GRAFFITI? PURPOSE Existing law defines vandalism as maliciously (1) defacing with špaint or any other liquid, (2) damaging, or (3) destroying any real šor personal property not belonging to the defendant. Existing law šprovides that the punishment for vandalism is based on the amount šof defacement, damage, or destruction to the property. When the šamount is: a) Less than $1,000, the offense is a misdemeanor, punishable by š up to six months in the county jail and/or a fine up to $1,000. b) Less than $5,000, but $1,000 or more, the offense is a š misdemeanor, punishable by up to one year in county jail and/or a fine up to $5,000. c) Less than $50,000, but $5,000 or more, the offense is an š alternate felony/misdemeanor, punishable by 16 months, two or three years in state prison or by up to one year in county jail and/or a fine up to $10,000. d) $50,000 or more, the offense is a an alternate š felony/misdemeanor, punishable by 16 months, two or three years in state prison or by up to one year in county jail and/or a fine up to $50,000. Existing law provides that a person who writes, sprays, scratches, šor otherwise affixes graffiti on any real or personal property not šhis or her own is guilty of an infraction. The graffiti statute šmay be used as an alternative to the vandalism statute in šsituations when the damage is less than $250. Graffiti is š (More) AB 1179 (Epple) Page 3 punishable by a fine not to exceed $250. Graffiti on or in the šfacilities or vehicles of a governmental entity is also punishable šby community service of of up to 48 hours over a period of 30 days šother than during hours of school attendance or employment. This bill would expand the definition of vandalism by replacing š"defaces with paint or any other liquid" with "sprays, scratches, šwrites on, or otherwise defaces." This bill would also provide a permissive inference that the person šneither owned the property nor had the permission of the owner to šdeface, damage, or destroy any real property owned by a šgovernmental entity. This bill would also provide that a conviction for vandalism with štwo prior convictions for vandalism or graffiti violations and at šleast one period of incarceration is punishable as an alternative šfelony/misdemeanor, with the sentence of 16 months, 2 or 3 years in šprison or up to one year in jail. In addition, the defendant in a švandalism case could be ordered to perform community service not to šexceed 300 hours over a period of 240 days during a time other than šduring periods of school or employment. This bill would raise the community service time for graffiti from š48 hours to 100 hours, to be performed over a period not to exceed š90 days. It would raise the penalty for an offense with a prior šconviction for vandalism or graffiti to a misdemeanor with a šminimum term of 6 months and/or a fine not to exceed $1,000 and šcommunity service of up to 200 hours over a period of 180 days. šThe sentence for two prior vandalism or graffiti offenses would be šan alternative felony/misdemeanor punishable by 16 months, 2 or 3 šyears in prison or up to one year in jail, and up to 300 hours of šcommunity service over 240 days. Existing law provides that is a misdemeanor for a minor to possess šan aerosol container of paint in any public place with the purpose šof defacing property. This bill would in addition authorize the court to order community šservice not to exceed 100 hours over a period not to exceed 90 days šother than during hours of school or employment, up to 200 hours šover 180 days for the second offense, and up to 300 hours over 240 šdays for the third or subsequent offense. This bill would create a new crime of committing graffiti or švandalism on or within 100 feet of a highway. (See Comment 6, šbelow.) Existing law requires graffiti removal as a condition of probation š (More) AB 1179 (Epple) Page 4 for persons who file fraudulent insurance claims. This bill would instead require the court and prosecuting attorney što consider community service for any defendant placed on probation šfor a nonviolent or nonserious offense. Offenses relating to šweapons, violence, and annoying or molesting children would be šspecifically excluded. Community service would not have to be šconsidered for any crime listed as a "violent felony" or "serious šfelony" or when the judge believes that the public safety may be šendangered if the person was ordered to do community service or the šjudge believes that the facts or circumstances call for imposition šof a more substantial penalty. Existing law provides for voluntary participation in specified work šrelease programs. This bill would authorize work release for graffiti cleanup for šlocal governmental entities, as approved by the sheriff or other šofficial in charge of the correctional facilities. Existing law authorizes the court to suspend a person's driving šprivilege for one year or to delay issuance of a driver's license šfor anyone 13 years or older, for acts of vandalism involving šdefacing property with paint or any other liquid. This bill would extend that provision to also apply to vandalism šinvolving defacing property by spraying, scratching, or writing on ša surface. Existing law provides that drawing or exhibiting an deadly weapon šin a rude, angry, or threatening manner or using the weapon in a šfight or quarrel is a misdemeanor, punishable by jail for not less šthan 30 days or more than six months. In the case of a firearm, šthe penalty is not less than three nor more than six months. This bill would raise the maximum imprisonment for both offenses to šone year when the victim is in the process of cleaning up graffiti šor vandalism. As proposed to be amended by the author, this bill would also šprohibit possession of any sharp pointed device with intent to šcommit vandalism or graffiti. (See Comment 8, below.) This bill would be known as "The 1993 California Graffiti Omnibus šBill". The purpose of this bill is to enact a comprehensive deterrent for šthose who would commit vandalism and graffiti violations. (More) AB 1179 (Epple) Page 5 COMMENT 1. Expressed purpose of the bill According to the author: It is necessary to elevate the sentences for vandalism for persons who have a prior conviction where a term of imprisonment was served. If an individual knows he or she can get away with vandalism, they are going to continue to do it. Graffiti and vandalism generate public outrage. The cost of graffiti removal is tremendous. The blight it causes is affects all communities. Turf wars spring from staked-out areas resulting in death and despair. In 1992, over 801 persons died as a result of street gang violence. Some of those have been killed as a direct result of graffiti-based violence. Several murders have occurred between rival tagger crews or tagger crews and gangs. There are over 1,000 street gangs in Los Angeles County with an estimated membership of 120,000. Not included in those figures are over 600 identified tagger crews with a membership estimated at 30,000. When it comes to vandalism with a prior conviction, we need to look beyond the dollar value the tag caused and wake up and recognize its link to gang violence, drug trafficking and all the associated social ills that affect neglected communities. 2. History This bill is the product of an informational hearing held by the Assembly Committee on Public Safety on May 4, 1993. The bill represents a number of the ideas set forth in numerous pieces of legislation proposed this year and addresses concerns raised at the hearing. 3. Definition of vandalism Defacing property by writing, spraying, scratching, or defacing is graffiti, an infraction under existing law, punishable by a fine not to exceed $250. This bill would expand the definition of vandalism to include maliciously spraying, scratching, writing on, or otherwise defacing any real or personal property not belonging to the defendant, elevating such an act to misdemeanor status. (More) AB 1179 (Epple) Page 6 A malicious action may be either intentional or performed with willful and wanton disregard for the injury caused. Thus, writing a phone number on the wall of a telephone booth when note paper is lacking would be an infraction (graffiti) pursuant to existing law but would be punishable as a misdemeanor (vandalism) under this bill. It might be questioned whether such behavior should be elevated to the level of a misdemeanor. 4. Possible felony conviction This bill provides for an alternative felony/misdemeanor sentence for vandalism or graffiti with two prior vandalism or graffiti convictions and at least one period of incarceration pursuant to a sentence, conditional sentence, or grant of probation. Generally, enhanced sentences based on prior offenses must be pleaded and proved by the people. SHOULD THIS NOT BE DONE? The state prison population is increasing beyond the ability of the state to budget for the higher correctional costs without jeopardizing other programs. SHOULD NOT SOME ALTERNATIVE HOUSING PLAN FOR FELONS CONVICTED OF VANDALISM BE ESTABLISHED? 5. Community service Existing law provides for community service for a graffiti infraction. Existing law generally provides a penalty of only time in custody and/or a fine when a person is sentenced for a felony or misdemeanor. An exception is made when the sentence is not imposed or executed and the person is placed on probation. This bill would expand the community service provisions to the new misdemeanor and felony graffiti and vandalism provisions, thereby creating a unique sentencing scheme. It would seem anomalous to incarcerate a person in prison while requiring community service. SHOULD NOT COMMUNITY SERVICE BE AVAILABLE IN MISDEMEANOR AND FELONY SENTENCES ONLY AS A CONDITION OF PROBATION? 6. Highway graffiti (More) AB 1179 (Epple) Page 7 This bill would create the new crime of highway graffiti. It specifies that a person who commits a graffiti or vandalism violation on or within 100 feet of a highway or its appurtenances is guilty of a misdemeanor, punishable by imprisonment in county jail not exceeding 6 months and/or a fine of up to $1,000. The second conviction would be punishable by up to one year in jail and/or the fine. A conviction with two prior convictions for any vandalism or graffiti, with at least one period of incarceration pursuant to a sentence, a conditional sentence, or a grant of probation, would be an alternative felony/misdemeanor with punishment of 16 months, 2 or 3 years in prison or up to one year in jail. For a first offense, the court may also order community service not to exceed 100 hours over a period not to exceed 90 days during a time other than during hours of school attendance or employment. For the second offense, up to 200 hours over 180 days may be required. For the third or subsequent offense, the court may order up to 300 hours over a period of up to 240 days. 7. Brandishing a weapon Existing law provides that drawing or exhibiting an deadly weapon in a rude, angry, or threatening manner or using the weapon in a fight or quarrel is a misdemeanor, punishable in jail for not less than 30 days or more than six months. In the case of a firearm, the penalty is not less than three nor more than six months. This bill would raise the maximum imprisonment for both offenses to one year when the victim is in the process of cleaning up graffiti or vandalism. It is arguable that brandishing a weapon is equally dangerous whether the victim is cleaning up graffiti, walking along a street, or performing some other task. SHOULD THE PENALTY FOR BRANDISHING A WEAPON BE HIGHER WHEN GRAFFITI OR VANDALISM CLEAN-UP IS INVOLVED THAN AT OTHER TIMES? 8. Prohibition of etching tools The author proposes to add a section to this bill which would criminalize possession of sharp pointed devices with intent to commit vandalism. Suggested language is: Every person having upon him or her in his or her (More) AB 1179 (Epple) Page 8 possession a sharp pointed device such as an etching tool, a ceramic from a spark plug, a spark plug, a pry tool, a glass cutter, carbide drill bits, or a spring loaded punch or any similar device, with the intent to commit vandalism or graffiti is guilty of a misdemeanor punishable by up to six months in the county jail and/or a fine up to $1,000. The court may order the defendant to perform community service not to exceed 90 days during a time other than his or hours of school attendance or employment. This language would criminalize possession of articles commonly used for legitimate purposes when there is intent to commit vandalism or graffiti. Items such as class rings, keys, can openers, and ball point pens would be criminalized. While the proposed language criminalizes such possession only with intent to commit a specified infraction or misdemeanor, the provision would give law enforcement officers probable cause to make an arrest based merely on the possession of the object. Additionally, although the act of graffiti is an infraction, the proposed language would make the intent to commit graffiti a misdemeanor, creating a higher penalty for the intent than for the act. The proposed language is similar to Penal Code Section 466, which criminalizes possession of specified objects (including picklocks, crowbars, screwdrivers, master keys and other implements) with felonious intent to commit burglary. However, the proposed language is substantially broader as to the class of objects prohibited. The proposed language also criminalizes possession with the intent to commit a misdemeanor or infraction rather than a felony. Finally, existing law restricts possession of aerosol paint containers by minors in order to reduce the problem of graffiti. However, a large area may be damaged in a short time by use of an aerosol paint can. Considerably more time must be spent to perform an equivalent amount of damage by an etching tool. Thus, it does not appear that the relative danger to the public safety is equivalent between use of spray paint and etching tools when balanced against the danger of arrest for possession of a pointed object. SHOULD NOT THE ACT OF VANDALISM, RATHER THAN THE INTENT TO ACT, BE CRIMINALIZED? (More) AB 1179 (Epple) Page 9 9. Concerns raised The California Probation, Parole and Correctional Association has raised two concerns with this bill. CPPCA believes that the provision expanding loss the driving privilege of a minor of 13 has no nexus to his loss of a license when he is 16 and would therefore be an ineffective deterrent. CPPCA also requests a change of authorization for work release programs from "the sheriff or other official in charge of county correctional facilities" to " the sheriff or other correctional administrator", since work programs are often operated by the probation department as well as, or in lieu of, the sheriff. 10. Technical amendment On page 19, line 14, after "twice" insert "previously". ********* (More)