LEGAL: Group of graffitists can be called gang

Bob Egelko, SF Chronicle

Three or more people who get together to deface a community with graffiti can be prosecuted and punished as gang members, even if they never damage anything but a building, a state appeals court has ruled.

California's anti-gang law, which provides additional punishment and registration requirements for perpetrators of gang-related crimes, applies to felony vandalism as well as violent crimes, the Court of Appeal in San Francisco ruled Wednesday

The law covers "an array of crimes, both violent and nonviolent, that could terrorize a community when committed as part of a pattern by an organized group,'' Justice Patricia Sepulveda said in the 3-0 ruling.

"Vandalism is not a victimless crime,'' she said, citing the millions of dollars spent by San Francisco annually to remove graffiti.

The court reinstated gang charges against eight people indicted by a San Francisco grand jury for allegedly conspiring to paint graffiti on property in San Francisco and Alameda counties. Defense lawyer Arthur Wachtel said Friday he would appeal the ruling to the state Supreme Court.

"We continue to believe that the Legislature never intended to apply gang statutes to people engaging in acts of graffiti vandalism,'' he said.

The court said the defendants were alleged to have tagged their group name, KUK, at a "staggering'' number of locations. They included a children's mural at a school, another mural commemorating union employees, three Municipal Railway vehicles and a bus shelter, a city power box, a police call box, railroad and freeway support structures and several buildings.

Three defendants were detained near graffiti sites with spray paint and marker pens, the court said.

All eight defendants were charged with multiple counts of felony vandalism -- defacement causing damage of $400 or more -- and with committing the crimes as part of a street gang.

Convictions on the gang charges would increase the length of any prison sentence imposed for vandalism, would require the defendants to register with police as gang members while on probation or parole and would prohibit them from associating with any other gang member during that period.

Judge Kay Tsenin of San Francisco Superior Court dismissed the gang charges, saying the law was meant to apply only to violent gangs. The appeals court disagreed.

Sepulveda noted that the 1988 law defined a gang as a group of three or more people, with a common name or symbol, whose primary activities include the commission of specified crimes. Felony vandalism was added to the list in 1994.

Although legislators were chiefly concerned with violent crime in the original law, Sepulveda said, they later expanded the law to address "the detrimental effect of organized, nonviolent criminal activity on a community.''

She said lawmakers reasonably concluded that an organized group of vandals can cause more damage than individuals acting alone.