Penal Code section 135 makes it a misdemeanor to willfully destroy, erase, or conceal specified material when the person knows it is about to be produced as evidence in a legally authorized trial, inquiry, or investigation and intends to prevent the material or its content from being produced. An item going missing, a file being deleted, or a person acting nervously does not alone establish every part of that charge. The actual allegation, timing, and evidence of knowledge and purpose matter.
What must the charge connect?
| Question | Why it matters |
|---|---|
| What material and act are alleged? | The statute covers books, papers, records, written instruments, digital images, video recordings owned by another, and other matters or things. It names destruction, erasure, and concealment; identify which act the charge alleges. |
| Was it about to be produced? | Mere possible relevance to a future case is different from material about to be produced in a law-authorized trial, inquiry, or investigation. A filed criminal charge is not required, but the timing and scope of the inquiry matter. |
| What did the person know and intend? | The person must know the material is about to be produced and act willfully with the purpose of preventing the material or its content from being produced. An accident or unexplained loss does not establish that state of mind by itself. |
These are cumulative requirements under section 135. The prosecution must prove the charged offense; a lawyer should compare the complaint with the actual records and sequence of events.
Does an investigation have to be underway?
Courts distinguish a real, imminent evidentiary connection from a general fear that an item might someday be sought. In People v. Prysock, the court found the proof insufficient where no investigation had begun and the prosecution had not shown officers were, or would be, looking for the particular items. That holding does not make disposal before a formal charge lawful or automatically outside section 135.
A police investigation can qualify without a pending trial. People v. Fields applied section 135 during an active jail investigation. In People v. Moniz, an inquiry that began over a different offense could still satisfy the statute because the evidence supported likely discovery of the charged item and the accused’s knowledge of that prospect. The question is what was happening and known at the time of the alleged act, not just what investigators found later.
Is an unsuccessful attempt the completed offense?
No. People v. Hill drew a line between attempted and completed destruction or concealment. Destroying means making the item unusable or unavailable; concealment need not be permanent, but it must appreciably impede the investigation. On that case’s record, officers saw the accused discard torn checks and immediately collected usable pieces. The court reversed the completed section 135 conviction. Moniz later explained that even brief successful concealment can suffice. Whether an alleged act was completed or attempted therefore turns on its actual effect, not a blanket rule that later recovery defeats the charge.
What is the potential punishment and a useful next step?
Section 135 is a misdemeanor. Unless another law sets a different punishment, Penal Code section 19 sets a ceiling of six months in county jail, a $1,000 fine, or both. That ceiling does not predict a sentence in any case.
If you are accused, keep the charging papers and preserve existing originals, backups, messages, notices, and records showing when the inquiry and alleged act occurred. Do not change or discard material or contact witnesses to reconstruct a story. The separate guide to preserving defense evidence explains safe collection without witness contact. For a review of a section 135 allegation, call the Law Offices of David S. Chesley at (800) 755-5174.