According to California Penal Code § 135 PC, it is a criminal offense to willfully destroy or conceal evidence that you are aware is relevant to a legal proceeding such as a trial, inquiry or investigation. Doing so is a misdemeanor punishable by a term of up to 6 months in county jail.
The language of the code section states that:
135. 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 your phone that show you drunk with friends hours before your arrest.
You can raise a legal defense to challenge destroying or concealing evidence charges. Some common defenses to this criminal charge include:
- no willful act,
- no incriminating 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 these criminal cases.
In this article, our California criminal defense attorneys will discuss:
- 1. When is destroying evidence a crime?
- 2. Are there defenses to a destruction of evidence charge?
- 3. What are the 135 PC penalties?
- 4. Are there immigration consequences?
- 5. Can I get my conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. When is destroying evidence a crime?
The penal code section for destroying evidence is 135 PC. This criminal law section makes it a crime for you to destroy or hide evidence. This is more than simply allowing the spoilage of evidence. It involves deliberately destroying what you know to be relevant evidence.
A prosecutor must prove three things to convict you of this offense. These are that:
- you acted willfully and knowingly,
- you destroyed or concealed any evidence, and
- you 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 you knew that the object you 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
- a criminal investigation by law enforcement.4
Note that the purpose of this statute is to prevent the obstruction of justice.5
2. Are there defenses to a destruction of evidence charge?
There are several defenses that could be asserted to rebut a destruction of evidence charge. Three common defenses are:
- no willful act
- no evidence, and/or
- no legal proceeding
2.1. No willful act
You are only guilty under this code section if you willfully destroyed or concealed evidence. This means it is a legal defense for you to show that you did not act willfully. It might be the case that you damaged evidence by accident.
2.2. No evidence
You are only guilty of violating this law if you destroyed or concealed evidence. It is a defense then to show that the object you destroyed was not a type of 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 you to be guilty under PC 135. A defense, therefore, is for you to show that there was no active legal proceeding at the time you 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
Most cases resolve through negotiation. Otherwise, they will proceed to a criminal trial.
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 I get my conviction expunged?
If you are convicted of 135 PC, you are entitled to an expungement provided that you:
- successfully complete probation, or
- complete a jail term (whichever is relevant).
If you violate a probation term, you could still possibly get an offense expunged. This, though, is in the judge’s discretion.
Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.8
6. Does a conviction affect gun rights?
A conviction does not affect your gun rights.
Some California criminal convictions will result in you losing your 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 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 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 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. We are available in person, by phone, by text message, or through the contact form on our law firm’s website. Our criminal defense lawyers create attorney-client relationships throughout the state, including Los Angeles, Santa Monica, Orange County, Newport Beach, Glendale, Long Beach, and more.
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).”