Legal Guide: The Law On Destroying or Concealing Evidence In A Crime

By: Diana Aizman

The definition of destroying or concealing evidence under penal code 135 entails that every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.

Under California Penal Code section 135 PC, the offense entails knowingly and willfully getting rid of or hiding evidence from being used in any trial, inquiry, or investigation authorized by law with intent to prevent it from being produced.

In this article, I will further explain California’s law against destroying and concealing evidence, by addressing the following aspects of the law:

How Does the Prosecutor Prove Someone Destroyed or Concealed Evidence?

To prove that evidence was destoyed or concealed under california penal code 135, the prosecutor has to prove the following facts or elements1:

  • Willfully2 and knowingly;3
  • Destroying4 or concealing evidence5
  • Any type of evidence6
  • To be produced at any trial, inquiry, or investigation whatever, authorized by law7
  • With intent to prevent it from being produced8

Example: Josh stole all the tips money from the tips jar of the restaurant where he worked.  When another waiter saw Josh, he told the owner and the owner, as part of the restaurant policy, wrote up a “crime report” stating that Josh stole the money.  Late that night, Josh broke into the filing cabinet in the restaurant office and burned his whole file.  When the police came to investigate Josh the next day, they asked for a copy of the restaurant’s crime report, but the owner could not find Josh’s file.

But, According to attorney Diana Weiss Aizman “Because Josh intentionally destroyed the file with intent that the crime report not be produced to the police, he could be charged with the offense.”

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Who Can Be Charged?

Both destroying and concealing evidence

You cannot be charged with the offense unless you destroyed or concealed the evidence willingly and knowingly.  If you have done so mistakenly you cannot be charged with the offense.  Also, the destruction or concealment has to occur during a trial, investigation, other proceeding authorized by law.  If it occurred prior to such a proceeding, you cannot be charged for the offense.

Finally, you have to destroy or conceal evidence with intent to prevent the evidence from being produced at a trial or investigation.

Legal Defenses

Mistake Of Fact:

Because one of the elements is that you knowingly destroy/conceal evidence during a trial or investigation, if it can be shown that you mistakenly believed that the evidence you were destroying or concealing was not related to any proceeding, it can be a viable defense to this charge.

For a more in depth explanation of mistake of fact as a legal defense you can read our article on this defense here.

What Are The Penalties For Destroying or Concealing Evidence?

Penalties For Penal Code 135
MisdemeanorMaximum 6 Months County jailMax $1,000 Fine

Information On The Criminal Court Process

What You Should Do Now

If you have been arrested for destroying or concealing evidence and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

For general questions, please leave them in the comments below and we will answer them promptly.

If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Footnotes

  1. California Penal Code Section 135: Elements of the offense listed []
  2. Pen. Code, § 7: Definition of “willfully.”  “Willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to.  It does not require any intent to violate law, or to injure another, or to acquire any advantage.” []
  3. The word “knowingly” imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission. []
  4. Destroying evidence necessarily means that it has to become unavailable and impossible to be produced.  Therefore, if, despite one’s efforts to destroy evidence, it is or can be restored and used, then, by definition, it has not been destroyed; rather, such efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a crime.  If evidence is not destroyed, a person could not be convicted under this theory.  People v. Hill (1997) 58 Cal.App.4th 1078, 1090.  For example, in Hill, the Defendant tried to destroy fake traveler’s checks by throwing them out the window of a moving vehicle.  However, because the police recovered the checks, although torn up, they were still capable of being restored and identified.  Therefore, the Defendant’s act did not violate this code section []
  5. The plain meaning of “concealing” something is to hide or cover something from view.  Therefore, section 135 does not require “that a defendant must render evidence permanently unseen or unavailable.  Rather successful concealment of evidence from a particular investigation is sufficient.”  Hillsupra, 58 Cal.App.4th at 1090.  For example, if a defendant concealed incriminating evidence and thereby prevented the police from finding it for a week, this delay is sufficient to constitute a violation under Penal Code Section 135. []
  6. The type of evidence included under this code section is very broad because it includes the phrase “or other matter or thing” and it is not limited in any way.  For instance, it is not specified that the evidence has to be in any form, such as written or documentary.  Therefore, written, documentary, or physical evidence is included.  See Penal Code Section 135: Type of evidence included: Any book, paper, record, instrument in writing, or other matter or thing. []
  7. The destruction and concealment has to take place during a trial or an investigation.  Otherwise, it will not fulfill this element.  This means that if you destroyed or concealed the evidence before it was requested to be produced at a trial or for an investigation, you would not be charged with the offense.  See Penal Code Section 135: Upon trial, investigation, or other proceeding authorized by law.  Here are some examples of the types of proceedings that apply under this code section: (1) criminal trial; (2) civil trial; (3) police investigation; (4) board hearing; (5) request for information pursuant to any investigation authorized by law. []
  8. “Intent” means doing so with purpose or willingness to commit the act, or make the omission referred to.  In this context, you have to have destroyed or concealed the evidence with the intent to prevent it from being produced at a trial or investigation.  If you did not have such intent, you cannot be charged under this offense. []

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