Destroying or Concealing Evidence – Penal Code Section 135

Penal Code Section 135 provides misdemeanor-level punishment for anyone who willfully destroys evidence to prevent its use in a legal proceeding or investigation.

Elements of the Offense:

The prosecution must prove the following elements beyond a reasonable doubt:

1. A person willfully1 destroyed, erased or concealed evidence;

2. The person knew that the evidence was about to be used in a legal proceeding or investigation;

3. The person had the intent to prevent the evidence from being produced in a legal proceeding or investigation.

Defenses to Concealing or Destroying Evidence Charges:

Defense to the charge may include:

A. The evidence was accidentally destroyed.

B. The defendant had no knowledge of the item’s importance to a legal proceeding or investigation.


The offense is punishable by a grant of misdemeanor probation and a jail sentence of 0 to 180 days.


The crime of concealing and destroying evidence is used frequently in Ventura County. In many cases, police officers attempting to effectuate an arrest or conduct a legally authorized search will observe individuals hiding or destroying evidence. In such cases, the officer may charge the person with a crime under Section 135.

In serious cases, the District Attorney may charge a defendant with feloniously conspiring to destroy or conceal evidence if two or more people acted together to prevent the evidence from surfacing.2 The District Attorney may also consider filing a felony Penal Code Section 32 charge if prosecutors believe that the defendant tried to aid a felony offender by destroying evidence so that the felony offender might avoid prosecution. Every case will turn on its unique set of facts.

Section 135 is often used in narcotics cases.  Often times, police officers will happen upon a suspected drug offender.  If the person attempts to toss, flush or otherwise conceal the narcotics – a section 135 charge may apply.3

About the Author:

Bill Haney, Ventura County Criminal Defense Attorney

Bill Haney is a former supervising prosecutor in the Ventura County District Attorney’s Office. Mr. Haney is also a law professor at a major Southern California law school. He has prosecuted and defended Penal Code Section 135 allegations. At your initial consultation, Mr. Haney will outline a strategy that is designed to give you the best possible chance for a successful outcome in court.

Sources Cited:

(1) The term “willfully” is defined by Penal Code Section 7. The word implies a purpose or willingness to commit the act. It does not require an intent to break the law.
(2) Conspiracy charges under Penal Code Section 182 may be used to elevate a misdemeanor to a felony.
(3) People v. Fields (1980) 105 Cal.App.3d 341.

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