                         TO BE PUBLISHED IN THE OFFICIAL REPORTS


                              OFFICE OF THE ATTORNEY GENERAL

                                        State of California


                                        DANIEL E. LUNGREN

                                          Attorney General


                            ______________________________________

                   OPINION              :
                                        :          No. 95-102
                   of                   :
                                        :          May 16, 1995
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
          GREGORY L. GONOT              :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________


           THE HONORABLE DONALD N. STAHL, DISTRICT ATTORNEY, COUNTY OF
STANISLAUS, has requested an opinion on the following question:

                May a charter city adopt an ordinance making it a crime to place graffiti upon real or
personal property located within the city?

                                            CONCLUSION

                A charter city ordinance making it a crime to place graffiti upon real or personal
property located within the city would be void due to its duplication of state criminal statutes.

                                              ANALYSIS

                A charter city has enacted an ordinance which makes it unlawful for a person to place
graffiti upon any property located within the city. The ordinance provides: "It shall be unlawful for
any person to apply graffiti upon any property within the city." A violation of the ordinance constitutes
a criminal infraction, punishable by fine, community service, and restitution. "Graffiti" is defined
under the ordinance as "any inscription, word, figure, or design that is marked, etched, scratched,
drawn, sprayed, painted, pasted or otherwise affixed to, or on, any surface to the extent that same was
unauthorized by the owner thereof . . . ." The ordinance defines "property" as "real or personal
property, whether publicly or privately owned, within the City." We are asked to determine whether


                                                   1.                                            95-102

the ordinance is in conflict with state criminal statutes and void under applicable principles of
constitutional law. We conclude that it is.

                 Penal Code section 5941 provides:

                "(a) Every person who maliciously commits any of the following acts with
        respect to any real or personal property not his or her own, in cases other than those
        specified by state law, is guilty of vandalism:

                 "(1) Defaces with graffiti or other inscribed material.

                 ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                 "(b)(1) If the amount of defacement, damage, or destruction is fifty thousand
        dollars ($50,000) or more, vandalism is punishable by imprisonment in the state prison
        or in a county jail not exceeding one year, or by a fine of not more that fifty thousand
        dollars ($50,000), or by both that fine and imprisonment.

                "(2) If the amount of defacement, damage, or destruction is five thousand
        dollars ($5,000) or more but less than fifty thousand dollars ($50,000), vandalism is
        punishable by imprisonment in the state prison, or in a county jail not exceeding one
        year, or by a fine of not more than ten thousand dollars ($10,000), or by both that fine
        and imprisonment.

                "(3) If the amount of defacement, damage, or destruction is four hundred
        dollars ($400) or more but less than five thousand dollars ($5,000), vandalism is
        punishable by imprisonment in a county jail not exceeding one year, or by a fine of five
        thousand dollars ($5,000), or by both that fine and imprisonment.

                "(4) If the amount of defacement, damage, or destruction is less than four
        hundred dollars ($400), vandalism is punishable by imprisonment in a county jail for
        not more than six months, or by a fine of not more that one thousand dollars ($1,000),
        or by both that fine and imprisonment.

                 "(c) Upon conviction of any person under this section for acts of vandalism
        consisting of defacing property with graffiti or other inscribed materials, the court may,
        in addition to any punishment imposed under subdivision (b), at the victim's option,
        order the defendant to clean up, repair, or replace the damaged property himself or
        herself, or to pay for someone else to do so.

                 "(d) If a minor is personally unable to pay a fine levied for acts prohibited by
        this section, the parent of that minor shall be liable for payment of the fine. A court

   1
    All references hereafter to the Penal Code are by section number only.


                                                                         2.                                         95-102

        may waive payment of the fine or any part thereof by the parent upon a finding of good
        cause.

                "(e) As used in this section, the term `graffiti or other inscribed material'
        includes any unauthorized inscription, word, figure, mark, or design that is written,
        marked, etched, scratched, drawn, or painted on real or personal property."

Section 640.5 states:

                 "(a) Any person who defaces with graffiti or other inscribed material the
        interior or exterior of the facilities or vehicles of a governmental entity, as defined by
        Section 811.2 of the Government Code, or the interior or exterior of the facilities or
        vehicles of a public transportation system as defined by Section 99211 of the public
        Utilities Code, or the interior or exterior of the facilities of or vehicles operated by
        entities subsidized by the Department of Transportation or the interior or exterior of any
        leased or rented facilities or vehicles for which any of the above entities incur costs of
        less than two hundred fifty dollars ($250) for cleanup, repair, or replacement is guilty of
        an infraction, punishable by a fine not to exceed five hundred dollars ($500) and by a
        minimum of 24 hours of community service for a total time not to exceed 100 hours
        over a period not to exceed 90 days, during a time other than during his or her hours of
        school attendance or employment. This subdivision does not preclude application of
        Section 594.

                "(b) If the person has been convicted previously of an infraction under
        subdivision (a) or has a prior conviction of Section 594, 594.3, 594.4, 640.6, or 640.7,
        the offense is a misdemeanor, punishable by imprisonment in a county jail not to
        exceed six months, by a fine not to exceed one thousand dollars ($1,000), or by both
        that imprisonment and fine. As a condition of probation, the court shall order the
        defendant to preform a minimum of 48 hours of community service not to exceed 200
        hours over a period not to exceed 180 days during a time other than during his or her
        hours of school attendance or employment.

                "(c) Every person who, having been convicted previously under this section or
        Section 594, 594.3, 594.4, 640.6, or 640.7, or any combination of these offenses, on
        two separate occasions, and having been incarcerated pursuant to a sentence, a
        conditional sentence, or a grant of probation for at least one of the convictions, is
        subsequently convicted under this section, shall be punished by imprisonment in a
        county jail not to exceed one year. As a condition of probation, the court may order
        the defendant to perform community service not to exceed 300 hours over a period not
        to exceed 240 days during a time other than during his or her hours of school
        attendance or employment.

                "(d)(1) Upon conviction of any person under subdivision (a), the court, in
        addition to any punishment imposed pursuant to subdivision (a), (b), or (c), at the


                                                    3.                                                95-102

       victim's option, may order the defendant to perform the necessary labor to clean up,
       repair, or replace the property damaged by that person.

               "(2) If a minor is personally unable to pay any fine levied for violating
       subdivision (a), (b), or (c), the parent or legal guardian of the minor shall be liable for
       payment of the fine. A court may waive payment of the fine or any part thereof by the
       parent or legal guardian upon a finding of good cause.

               "(e) Any fine levied for a violation of subdivision (a), (b), or (c) shall be
       credited by the county treasurer pursuant to Section 1463.29 to the governmental entity
       having jurisdiction over, or responsibility for, the facility or vehicle involved, to be used
       for removal of the graffiti or other inscribed material or replacement or repair of the
       property defaced by the graffiti or other inscribed material. Before crediting these
       fines to the appropriate governmental entity, the county may determine the
       administrative costs it has incurred pursuant to this section, and retain an amount equal
       to those costs.

                "Any community service which is required pursuant to subdivision (a), (b), or
       (c) of a person under the age or 18 years may be performed in the presence and under
       the direct supervision, of the person's parent or legal guardian.

               "(f) As used in this section, the term `graffiti or other inscribed material'
       includes any unauthorized inscription, word, figure, mark, or design that is written,
       marked, etched, scratched, drawn, or painted on real or personal property."

Section 640.6 provides:

               "(a) Except as provided in Section 640.5, any person who defaces with graffiti
       or other inscribed material any real or personal property not his or her own, when the
       amount of the defacement, damage, or destruction is less than two hundred fifty dollars
       ($250), is guilty of an infraction, punishable by a fine not to exceed five hundred dollars
       ($500). This subdivision does not preclude application of Section 594.

               "In addition to the penalty set forth in this section, the court shall order the
       defendant to perform a minimum of 24 hours of community service not to exceed 100
       hours over a period not to exceed 90 days during a time other than during his or her
       hours of school attendance or employment.

               "(b) If the person has been convicted previously of an infraction under
       subdivision (a) or has a prior conviction of Section 594, 594.3, 594.4, 640.5, or 640.7,
       the offense is a misdemeanor, punishable by not to exceed six months in a county jail,
       by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and
       fine. As a condition of probation, the court shall order the defendant to perform a
       minimum of 48 hours of community service not to exceed 200 hours over a period not


                                                    4.                                                 95-102

        to exceed 180 days during a time other than during his or her hours of school
        attendance or employment.

                "(c) Every person who, having been convicted previously under this section or
        Section 594, 594.3, 594.4, 640.5, or 640.7, or any combination of these offenses, on
        two separate occasions, and having been incarcerated pursuant to a sentence, a
        conditional sentence, or a grant of probation for at least one of the convictions, is
        subsequently convicted under this section, shall be punished by imprisonment in a
        county jail not to exceed one year. As a condition or probation, the court may order
        the defendant to perform community service not to exceed 300 hours over a period not
        to exceed 240 days during a time other than during his or her hours of school
        attendance or employment.

                 "(d) Upon conviction of any person under subdivision (a), the court, in
        addition to any punishment imposed pursuant to subdivision (a), (b), or (c), at the
        victims's option, may order the defendant to perform the necessary labor to clean up,
        repair, or replace the property damaged by that person.

                "(e) If a minor is personally unable to pay any fine levied for violating
        subdivision (a), (b), or (c), the parent or legal guardian of the minor shall be liable for
        payment of the fine. A court may waive payment of the fine or any part thereof by the
        parent or legal guardian upon a finding of good cause.

                 "Any community service which is required pursuant to subdivision (a),. (b), or
        (c) of a person under the age of 18 years may be performed in the presence, and under
        the direct supervision, of the person's parent or legal guardian.

                "(f) As used in this section, the terms `graffiti or other inscribed material'
        includes any unauthorized inscription, word, figure, mark, or design that is written,
        marked, etched, scratched, drawn, or painted on real or personal property."

               Before analyzing what effect, if any, sections 594, 640.5, and 640.6 have upon the city
ordinance in question, we must first examine the rights and powers of charter cities under the
Constitution. Article XI, section 5, subdivision (a) provides:

                "It shall be competent in any city charter to provide that the city governed
        thereunder may make and enforce all ordinances and regulations in respect to
        municipal affairs, subject only to restrictions and limitations provided in their several
        charters and in respect to other matters they shall be subject to general laws. City
        charters adopted pursuant to this Constitution shall supersede any existing charter, and
        with respect to municipal affairs shall supersede all laws inconsistent therewith."

Under these constitutional provisions, a charter city may adopt and enforce ordinances that conflict
with general state laws, provided the subject of the regulation is a "municipal affair" rather than one of


                                                    5.                                                95-102

"statewide concern." (Johnson v. Bradley (1992) 4 Cal.4th 389, 399; Doe v. City and County of San
Francisco (1982) 136 Cal.App.3d 509, 512.)

                 Of course, if no state law is "inconsistent" with the ordinance in question, we need not
consider whether the matter is a "municipal affair." Our first task, then, is to determine whether this
particular ordinance concerning graffiti is in conflict with sections 594, 640.5, and 640.6. (See
Johnson v. Bradley, supra, 4 Cal.4th at 398-399; California Fed. Savings & Loan Assn. v. City of Los
Angeles (1991) 54 Cal.3d 1, 16-17; Fisher v. County of Alameda (1993) 20 Cal.App.4th 120, 126;
Fielder v. City of Los Angeles (1993) 14 Cal.App.4th 137, 143.)

                It is well settled that a local ordinance is "in conflict" with a state statute if it duplicates
            2
the statute. In In re Portnoy (1942) 21 Cal.2d 237, 240, the court determined that certain provisions
of a local gambling ordinance constituted a duplication of existing provisions of the Penal Code:

                  "Insofar as the provisions of Ordinance No. 248 purport to prohibit acts which
         already are made criminal by the Penal Code, it is clear that they exceed the proper
         limits of supplementary regulation and must be held invalid because in conflict with the
         statutes which they duplicate."

In In re Sic (1887) 73 Cal. 142, 146, the court stated:

                 "The section plainly covers the same ground as the Penal Code. It was
         probably intended to cover some supposed defects in the Penal Code, still it denounces
         as criminal precisely the same acts which are attempted to be proscribed by the code . .
         . ."

In Pipoly v. Benson (1942) 20 Cal.3d 366, 371, the court held that a pedestrian road crossing ordinance
duplicated provisions of the Vehicle Code, stating that the "invalidity arises . . . from the inevitable
conflict of jurisdiction which would result from dual regulations covering the same ground." (See also
In re Mingo (1923) 190 Cal. 769, 771 [liquor possession ordinance duplicated Wright Act]; 66
Ops.Cal.Atty.Gen. 266, 268 (1983) [harmful matter ordinance duplicated Penal Code provisions].)

               Here, it is apparent that the city's ordinance duplicates the provisions of sections 594,
640.5, and 640.6 by prohibiting the same type of conduct.3 A violation of the ordinance is a violation
of one of the statutes. Moreover, the ordinance specifies different punishment for the proscribed
criminal conduct, thus contradicting the terms of the statutes regarding punishment. (See Ex parte
Daniels (1920) 183 Cal. 636, 641-648 [finding "contradiction" where local legislation purported to fix a
    2
     Other grounds for finding a conflict are when the local legislation "contradicts, or enters an area fully occupied by
general law . . . ." (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897-898.)

    3
      We are not concerned in this opinion with other types of unlawful conduct, such as maintaining a nuisance. (See Gov.
Code, '' 38771, 53069.3; Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376,
388; City of Costa Mesa v. Soffer (1982) 11 Cal.App.4th 378, 384-385; Gluck v. County of Los Angeles (1979) 93 Cal.App.3d
121, 132-133.)


                                                           6.                                                    95-102

lower maximum speed limit for motor vehicles than that which general law fixed].)         Plainly the city's
ordinance is in conflict with general law.

                The next step, then, is to determine whether the subject matter of the state legislation is
of "statewide concern." (See Johnson v. Bradley, supra, 4 Cal.4th at 399; California Fed. Savings &
Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at 17; Fisher v. County of Alameda, supra, 20
Cal.App.4th at 126; Fielder v. City of Los Angeles, supra, 14 Cal.App.4th at 143.)

                We entertain no doubt that the identification, prosecution, and punishment of criminal
conduct, including the placement of graffiti upon public and private property, is a matter of statewide
concern. Defacing property with graffiti is not unique to a particular city or cities generally; it is a
recognized statewide problem. (See, e.g., ' 13825; Welf. & Inst. Code, ' 742.10.) In Farmer v.
Behmer (1909) 9 Cal.App. 773, 781, the court reasoned:

                "It is a novel doctrine that the legislature may empower a city, by its charter, to
        suspend the operation of general laws punishing crime. No one would for a moment
        contend that murder, manslaughter, larceny, burglary, or any other of the long list of
        crimes punishable by statute could be condoned or palliated by an ordinance regulating
        or licensing such offenses. The heinousness or degree of the crime can make no
        difference. The statute punishing the keeping of a house of prostitution as a crime can
        no more be suspended in its operation than any other criminal statute. Nor can it be
        held that the charter provision works a repeal of the general law, for the charter powers
        may not be exercised so as to conflict with general laws save only in regard to what
        may properly be called "municipal affairs," and surely the licensing of forms of vice
        and crime which are both mala in se and mala prohibita cannot be so classed."

In In re Shaw (1939) 32 Cal.App.2d 84, the City of Los Angeles argued that its ordinance superseded a
state penal statute due to the "municipal affairs" doctrine. The court responded:

                 "This contention is not well founded for the reason that the acts here charged
        for many years have been denounced by the laws of the State of California and
        designated as a felony, and it cannot now be said that the commission of such acts is
        strictly and solely a municipal affair of the City of Los Angeles.

                 "The people of the state are primarily interested in the prevention of such
        crimes as are here charged, and the fact that the freeholders' charter of the city of
        Los Angeles designates some parts of the acts charged in the indictments as a
        misdemeanor only, cannot save the petitioners from a prosecution for the commission
        of the felony charged under the state law." (Id. at p. 86.)

               Here, we have a statewide criminal problem of seemingly epidemic proportions, often
involving juvenile gang members who would normally be subject to the state's juvenile justice system.
We find sections 594, 640.5, and 640.6 to be reasonably related to the resolution of this statewide
concern, without unduly interfering with legitimate municipal interests. (See California Fed. Savings
& Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at 17, 24-25.)

                                                    7.                                                95-102

               We conclude that a charter city ordinance making it a crime to place graffiti upon real
or personal property located within the city would be void due to its duplication of state criminal
statutes.

                                              *****




                                                  8.                                          95-102

