Penal Code 135 PC is the California statute that makes it a crime willfully to destroy or hide evidence that may be relevant to a trial, investigation or other legal proceedings. This offense is a misdemeanor punishable by a term of up to 6 months in county jail.
Specifically, 135 PC provides that “a person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.”
- Shoplifting a sweater, but then throwing it in a dumpster two days later after learning of an investigation.
- Deleting incriminating files from a computer’s hard drive during a criminal fraud trial.
- While on trial for DUI, deleting several photos from one’s phone that show the person drunk with friends hours before his arrest.
A defendant can raise a legal defense to challenge accusations of destroying evidence. Some common defenses include:
- no willful act,
- no evidence, and
- no legal proceeding.
The offense is punishable by:
- custody in the county jail for up to six months, and
- a maximum fine of $1,000.
A judge may grant misdemeanor (or summary) probation instead of jail time.
In this article, our California criminal defense attorneys will discuss:
- 1. When is destroying evidence a crime?
- 2. Are there legal defenses?
- 3. What are the 135 PC penalties?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. When is destroying evidence a crime?
The destruction of evidence penal code section is 135 PC. This section makes it a crime for a person to destroy or hide evidence.
A prosecutor must prove three things to convict a person of this offense. These are that:
- the defendant acted willfully and knowingly,
- the accused destroyed or concealed any evidence, and
- the defendant did so during a legal proceeding.1
“Willfully” means with a purpose or intention to commit a criminal act – in this case, destroying evidence.2
“Knowingly” means that a defendant knew that the object he destroyed or concealed was going to be used as evidence.3
Example: If Lisa destroys pictures of a dented car, she is only guilty of a crime if she knew that they were going to be introduced during a trial.
A “legal proceeding” includes:
- a trial,
- an inquiry, and
- an investigation.4
Note that the purpose of this statute is to prevent the obstruction of justice.5
2. Are there legal defenses?
There are several defenses to accusations of destroying evidence.
Three common defenses are:
- no willful act
- no evidence, and/or
- no legal proceeding
2.1. No willful act
An accused is only guilty under this code section if he willfully destroyed or concealed evidence. This means it is a legal defense for an accused to show that he did not act willfully. It might be the case that the person damaged evidence on accident.
2.2. No evidence
A defendant is only guilty of violating this law if he destroyed or concealed evidence. It is a defense then to show that the object the accused destroyed was not “evidence.”
Example: If Marcus threw out a receipt, he is not guilty of a crime if the receipt was not going to be used as proof of anything in a legal proceeding.
2.3. No legal proceeding
There must be a legal proceeding for a person to be guilty under PC 135. A defense, therefore, is for the accused to show that there was no active legal proceeding at the time he destroyed or concealed evidence.
3. What are the penalties?
A violation of 135 PC section is a misdemeanor.6
The offense is punishable by:
- imprisonment in the county jail for up to six months, and
- a maximum fine of $1,000.7
4. Are there immigration consequences?
A conviction will generally have no negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
However, a violation of this statute is not one of these types of convictions.
5. Can a person get a conviction expunged?
A person convicted of this 135 PC is entitled to an expungement provided that he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he could still possibly get an offense expunged. This, though, is in the judge’s discretion.
Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.8
6. Does a conviction affect gun rights?
A conviction does not affect the convicted party’s gun rights.
Some California criminal convictions will result in the defendant losing his right to own a gun.
Some misdemeanors may even carry a 10-year firearm ban.
But a conviction for destroying evidence will not produce these results.
7. Are there related offenses?
There are three laws related to destroying evidence. These are:
- offering false written evidence – PC 132
- preparing false evidence – PC 134, and
- planting evidence – PC 141.
7.1. Offering false written evidence – PC 132
Penal Code 132 PC makes it a crime for a person to present:
- forged, or
- incorrectly dated
written evidence in any kind of legal proceeding.
Note that this law covers the illegal presentation of evidence.
7.2. Preparing false evidence – PC 134
Penal Code 134 PC makes it a crime for a person to:
- prepare any false evidence, and
- do so with the intent of presenting it in some sort of legal proceeding.
While PC 132 pertains to written evidence, this law extends to all kinds of evidence.
7.3. Planting evidence – PC 141
Under Penal Code 141 PC, it is a crime for someone to:
- move or alter evidence, and
- the result is that someone else gets wrongfully charged with a crime.
Unlike PC 135, this code section does not involve hiding evidence. Rather, it addresses the moving or altering of evidence.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
In Colorado? See our article on tampering with physical evidence (18-8-610 CRS).
For similar accusations in Nevada, please see our article on “Nevada ‘Destroying Evidence’ Laws (NRS 199.220).”