What is PC § 135, Destroying or Concealing Evidence?

It is not uncommon for people to call our office and ask about deleting evidence from their phone or throwing away other evidence.  We caution them that this can be a crime and only can only make things worse for them.  Most people do not like to hear this from a criminal defense attorney.

However, Penal Code § 135 states: “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.”  In other words, it is not mere spoliation of evidence, i.e., a document’s ink fading, or a photograph not being preserved so its image remained visible.  

The punishment for a violation of Penal Code § 135 is six months in county jail and / or a fine of up to $1,000 (plus penalties and assessments that can boost the total owed to close to $4,000), although probation is certainly possible as punishment. 

The most common context of this that we see is someone deleting text messages that were criminal threats made to a former spouse, girlfriend / boyfriend, or someone else.  It can also be deleting photographs that show someone getting drunk or high the night of when they were later stopped for DUI.  It can also be deleting images from one’s hard drive of child pornography or messages to an underage person when the person was attempting to meet that person for lewd or lascivious purposes.

Sometimes, after one destroys or deletes evidence, he or she may fabricate evidence to replace what he or she destroyed or deleted, perhaps through Photoshop software.  This type of conduct, creating fake or forged evidence, is a separate criminal offense, violation of Penal Code § 132, offering false written evidence, and / or violation of Penal Code § 134, preparing false evidence. 

The defenses to being charged with a violation of Penal Code § 135 include that defendant did not destroy, erase or conceal evidence willfully.  Instead, it was accidental or negligent, without intent to prevent its use or its content for legal purposes.  It was not deliberate.  

Second, defendant may be able to argue that the evidence really had no relevance to the case.  It was not material evidence or it was not incriminating because there was ample other evidence that the prosecution had to prove the same thing.  This is not a good defense in general.

Third, defendant may argue that there was no pending criminal proceeding at the time that the evidence was destroyed or deleted and defendant had no reason to think there would be such a proceeding.  This is also not a good defense in general.  A pending criminal proceeding, it should be noted, includes a pending criminal investigation prior to the prosecutor filing a case. People v. Hill (1997) 58 Cal. Ap. 4th 1078.

Fourth, defendant may argue that he or she did not know that the evidence destroyed or deleted was relevant or important. People v. Prysock (1982) 127 Cal. App. 3d 972.  This also is generally not a good defense, as it relies upon the credibility of a witness who is biased in favor of saying this to keep oneself out of trouble.

It should be noted that a conviction for violation of Penal Code § 135 has no adverse immigration consequences.  For example, it is not a crime involving moral turpitude or an aggravated felony.  Such a conviction does not lead to one being deported or deemed inadmissible. 

Furthermore, after one successfully completes probation, if one is granted probation, that person is eligible to have the conviction expunged.  Penal Code § 135, in other words, is not excluded or an exception to relief under Penal Code § 1203.4.  

A conviction for violation of Penal Code § 135 does not affect one’s gun rights.  After all, it is a misdemeanor.