Vandalism

Vandalism

Philippine News Tuesday, November 17 2009

Vandalism is when a person maliciously defaces with graffiti or other inscribed material, damages or destroys real or personal property of another. It is a crime that depending on the value of the damages could be filed as a misdemeanor or a felony. In California, it could be filed as a felony if the damage is valued at over $400 and the defendant has a prior criminal record.

I had a client recently who was alleged to have been involved in a recent occurrences of “cracking car windows” of cars parked on the street. He and the co-defendant were charged with 2 counts of vandalism. While the damage is over $400, I was able to convince the filing District Attorney (“DA”) that the case should be filed as a misdemeanor since neither of the defendants had a prior criminal record and are both fairly young (21 and 22).

The District Attorney did not want to dismiss the case and offered a “package” deal. Both must accept or the offer will be dismissed. The offer was to plead guilty to the charges and serve jail time, 36 months probation and fines. However, I countered with proceeding and disposing of the case through a “civil compromise.”

In California and most states, this type of disposition is governed by statute. In California, under Penal Code Sections, 1377 and 1378, this type of compromise is achieved by contacting the victim(s) of the vandalism. Since the DA’s policy is not to proceed per civil compromise, it is up to the skill of the defense attorney in persuading the victims of the crimes that they should dismiss the case upon full payment of the damages.

I contacted the victims of the broken car windows and both were not initially receptive to the idea that they “get off easily.” In fact, one stated that he wanted to see the maximum jail time imposed—in this case 1 year per count. But after discussing the case with them in more detail and explaining the “realities” of a criminal case, both agreed to take their respective vehicles to their car dealership and get an estimate.

Both provided me the documentation. I requested the DA to subpoena both witnesses to the next court date so the victims can be on record that a monetary settlement has been reached. I then proceeded to requests that the court dismiss the complaint in its entirety.

This is a simplified version of nearly 7 months of work in this case. It is not easy to have victims entrust the defense attorney. A skilled attorney cannot use coercive or manipulative tactics since a civil compromise is clearly a “gift” from the victims. Most DA’s never call the victims and many will not make a defense counsel’s work easier.

But as I noted above, obtaining a dismissal or a very good resolution requires experience and the trust of all individuals involved. Without the DA having subpoenaed the witnesses, the judge would likely have requested a written motion to be filed requesting a dismissal based on the negotiated civil compromise. This would mean an additional expense to my client. As for my co-counsel, well “he owes me.”

Additionally, if the defendant is a minor and is found guilty of vandalism, an added sentence of losing their driver’s license for 1 year pursuant to Vehicle Code, Section 13202.6 will be imposed. The key is hiring an effective defense attorney simply does not mean that the individual can negotiate with judges and prosecutors but the victims as well.

A dismissal of a criminal charge is the ultimate goal in criminal defense and as such, a civil compromise should always be pursued in vandalism cases.

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