If you’re doing graffiti and the tags are placed on your property, you’re committing criminal activity. A person can be prosecuted under Penal Code 288 for graffiti tags if the defendant commits graffiti or vandalism in an area that is open to the public, a place where people are likely to find something offensive. The defendant must have “a malicious or wanton indifference to the normal use of the land or facilities [or] the damage which can reasonably be expected to result from the use of the property or facilities.” Penal Code 288.5 defines vandalism as follows: “Vandalism is the use of graffiti to deface property, or the infliction of injury on a person, or to deface a building, a motor vehicle, or similar type of property, or to otherwise cause harm to another person.”
There’s no legal right to spray paint but there’s a common law right to graffiti. (Penal Code 287)
“Graffiti is an act committed or attempted on a property which contains the written or printed name, signature or distinctive design, or a photograph, by any person with the intent to deface property or to injure or intimidate another person, and it is a civil violation.
“Graffiti on property that has been designated as public property, such as a hospital, park or other building within the City of Oakland, is also an illegal act unless it is done with the intended purpose of defacing in such manner that the defacement would be offensive to the owner and/or occupants of that property, or the owner or occupants of the building.” (P.C. 215, Subd. 1 (1-6(6) (3-1))).
The first graffiti is always legal.
“Graffiti does not constitute a misdemeanor crime when the graffiti is not done with the intent, or purpose of committing a criminal offense.” (Penal Code 285) However, it’s hard to know, even if it’s just a question of looking. So, before we start tagging every one for the world to see, it’s a good idea to take some steps to know what this is and does, and how to avoid getting charged for a crime you might not actually commit.
How to protect yourself in case you get charged with a crime for tagging graffiti
There’s no law against tagging an outside wall, or sidewalk, with a spray can. In fact, the graffiti is usually OK to do on your lawn and garden. It’s considered an art form, and
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