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Destroying or Concealing Evidence - Penal Code 135 PC

Posted by Dmitry Gorin | Dec 20, 2023

In the State of California, it is a criminal offense to willfully destroy or conceal evidence that you know to be relevant to a legal proceeding, such as a trial, inquiry, or investigation. This statute is embodied in California Penal Code 135 PC. 

Simply put, it's a crime to deliberately destroy or conceal relevant evidence that you know is related to a legal proceeding. To convict you, a prosecutor must prove that you acted willfully and knowingly when you destroyed or concealed any evidence. 

Destroying or Concealing Evidence - Penal Code 135 PC
It's a crime to willfully destroy or conceal evidence you know is relevant to a legal proceeding.

They must also prove you did so during legal proceedings. In context, “willfully” means the criminal act was on purpose, and there was an intent to destroy evidence. 

Knowingly” means that you knew the item you destroyed or concealed would be used as evidence. A “legal proceeding” includes a trial, an inquiry, and a criminal investigation by a law enforcement agency. This law is designed to prevent the obstruction of justice.

Perhaps you are a business owner, and you find out there is a criminal investigation for some fraud. Thus, you destroy documentation that could incriminate you. Perhaps you intentionally concealed financial documentation that could be used to determine spousal support in your divorce. In either scenario, you could be charged with violating Penal Code 135 PC.

PC 135 says, “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.

If convicted of destroying evidence in California, you could face up to six months in jail and be ordered to pay a $1,000 fine.

PC 135 Explained

PC 135 specifically criminalizes any willful act of destroying, concealing, or erasing evidence that a person knows is "about to be produced in evidence upon a trial, inquiry, or investigation" with the "intent to prevent it or its content from being produced." 

The law applies whether you are the defendant or direct subject of the investigation or trial. If it's evidence relevant to any government investigation, inquiry, or trial, it's a crime to destroy or hide it.

Penal Code 135 could also apply to police officers who intentionally conceal or destroy evidence favorable to a criminal defendant. Examples of what may be considered relevant "evidence" under this law include, but are not limited to:

  • Books,
  • Papers,
  • Business records,
  • Text messages,
  • Cell phones,
  • Hard drives (or their contents),
  • Instruments in writing (i.e., legal documents),
  • Photographs or digital images,
  • Video recordings,
  • Articles of clothing,
  • Weapons,
  • Drug paraphernalia,
  • Any other physical evidence

As noted, to convict you of the destruction of evidence, prosecutors must prove the following elements of the crime beyond a reasonable doubt:

  • You concealed or destroyed evidence,
  • You were aware that the evidence in question was relevant to an ongoing legal proceeding and
  • You did so willingly.

What Are Some Examples?

EXAMPLE 1:  John is a corporate executive at a company under investigation for alleged financial fraud. John knows that certain documents are within the company's files that, if discovered by investigators, would incriminate the company and potentially lead to severe penalties. To prevent these documents from surfacing in the investigation, John shreds them. John can be charged under PC 135.

EXAMPLE 2: Lisa is a software engineer accused of stealing proprietary code from her previous employer. She knows that her computer contains copies of the stolen code, which could serve as evidence in a potential trial against her. To prevent this, Lisa deliberately deleted all copies of the code from her computer. In addition to any other pending charges, Lisa can now be charged under PC 135 for destroying data she knows is relevant to the investigation.

What Are Related Offenses?

Destruction of evidence often occurs in tandem with other related offenses, which may be charged alongside PC 135, depending on the facts of the case. These include, but are not limited to:

  • Perjury (Penal Code 118 PC): Deliberately giving false information while under oath in a legal proceeding, such as a court trial or deposition, called perjury.
  • Resisting or Obstructing an Officer (Penal Code 148(a)(1) PC): Resisting, delaying, or obstructing police officers or EMTs in the performance of their duties.
  • Offering False Evidence (Penal Code 132 PC): This involves knowingly presenting false physical evidence in a legal proceeding.
  • Falsifying Evidence (Penal Code 133 PC): This involves falsifying evidence, bribing, influencing, intimidating, or threatening witnesses.
  • Preparing False Evidence (Penal Code 134 PC): This involves preparing any false or forged material to use as genuine evidence in any trial, proceeding, or inquiry.
  • Planting Evidence (Penal Code 141 PC): Intentionally placing or depositing false evidence intending to incriminate another person.

What Are the Penalties for PC 135? 

In California, the destruction of evidence is categorized as a misdemeanor. If you're found guilty of this offense, you could face up to six months in county jail. Additionally, you might be required to pay a fine of up to $1,000. 

What are Legal Defenses? 

If you're accused of destruction of evidence, a skilled California criminal defense attorney can help you navigate the legal process and work towards the best possible outcome. There are several defenses that an attorney may raise on your behalf, most of which involve refuting one or more of the elements of the crime as described above. These include:

  • You did not act willfully: You did not destroy evidence willfully—for example, it was accidental, or you were unaware that the materials in question were relevant to a legal proceeding.
  • The materials were irrelevant evidence: Either the item in question was unrelated to a current investigation or trial, or you reasonably believed as much.
  • There was no legal proceeding: You can only be convicted under PC 135 if there was an ongoing investigation, inquiry, or trial for which the evidence was relevant. (In other words, you can't be charged after the fact for destroying something that might have been considered evidence.) Your attorney can argue that the destruction occurred before any legal proceeding.

Contact our law firm to review the case details and legal options. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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