New Law 2017: Prosecutors Who Plant False Evidence Or Hide Evidence Will Face Felony Charges: AB1909, California Penal Code Section 141 (C)
Until now, it may be surprising to know that if a prosecutor deliberately and maliciously concealed or altered exculpatory evidence, (evidence that could result in an innocent person being convicted of a crime he or she did not commit!) such a prosecutor would only be facing a misdemeanor charge with a maximum of 365 days in county jail! In other words, as an example, in a murder case where an accused is facing life in prison with no possibility for parole, a prosecutor could manufacture false evidence or hide evidence that would help the defense, and only face a misdemeanor charge. This prosecutor would never be exposed to prison time or a felony record.
Finally, Governor Brown signed Assembly Bill 1909, which amends California Penal Code section 141, subsection (c), making it a FELONY for a prosecutor or District Attorney to “to intentionally and in bad faith alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that [it]…will be concealed or destroyed, or fraudulently represented as the original evidence upon trial….” If convicted, a prosecutor can receive 16 months, two years, or three years in custody.
The author of the bill, Patty Lopez, an assemblywoman Democrat from San Francisco stated:
“Those individuals [prosecutors] who are willing to win a case at all costs, who abuse their power as officers of the court, must answer for their actions.” (OC Register, Oct 2016.)
While this new law has a lot of room for improvement, it is at least a start. Many critics suggest that no prosecutor will, in practicality, ever be charged with a felony under PC 141 because this crime is nearly impossible to prove! Not only must it be proven (beyond a reasonable doubt) that the prosecutor intentionally AND in bad faith altered or concealed evidence from the defense, but that evidence must be “material and relevant” to the defense’s case, AND the prosecutor must have known such evidence was “relevant and material to the outcome of the case”.
So while it is a step in the right direction, it will remain to be seen whether ANY prosecutor is ever charged under the newly amended Penal Code section 141, subsection (C), a statute specifically aimed at unethical prosecutors. source
Penal Code 141 PC – Planting or Tampering with Evidence in California
Under Penal Code § 141 PC, it is illegal to plant or tamper with evidence in order to get someone to be charged with a crime, or to cause deception at a legal proceeding. This offense is a misdemeanor punishable by
- up to 6 months in jail and
- fines of up to $1000.00.
The language of the code section states that:
141. (a) Except as provided in subdivisions (b) and (c), a person who knowingly, willfully, intentionally, and wrongfully alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon a trial, proceeding, or inquiry, is guilty of a misdemeanor.
Planting evidence or tampering with evidence is an obstruction of justice crime and can be prosecuted as a misdemeanor.1 Police officers who plant or tamper with evidence will be charged with a felony.2
1. How does California law define planting or tampering with evidence?
1.1. Actions that violate Penal Code 141 PC
You violate Penal Code 141 PC when you tamper with evidence (or potential evidence) by doing any of the following:
- Changing the evidence,
- Planting or placing the evidence in a particular place,
- Hiding the evidence,
- Moving the evidence, or
- Making or manufacturing evidence.4
1.2. What counts as evidence?
California law on planting evidence covers every kind of physical object that might be produced in any kind of legal
- trial,
- proceeding, or
- investigation.
It also includes digital images and video recordings.5
Note that this is not just limited to criminal trials. You can be charged with planting evidence in connection with a civil trial, a criminal investigation that has not led to charges yet, or pretty much any other kind of legal process.6
Example: Donna is in the process of getting a divorce from her husband, Mike. Donna knows Mike has a violent temper and doesn’t want to share custody of their children with him. So she uses a hammer to punch a hole in the wall of her house. Her intention is to present a picture of the hole in the divorce proceedings, and to claim that Mike made the hole with his fist while they were still living together.
Donna may be guilty of the crime of evidence tampering even though she didn’t intend to have Mike charged with a crime.
1.3. Required state of mind for planting evidence
The most important “element” of the crime of planting evidence / evidence tampering is your state of mind when you tampered with the evidence.
So you cannot be convicted of this crime under Penal Code 141 PC unless it can be proven that ALL of these things are true:
- You planted or tampered with evidence willfully and intentionally;7
- You knew you were planting or tampering with evidence;8 and
- When you planted or tampered with evidence, you intended EITHER:
- a. that it would lead to someone being charged with a crime, OR
- b. that the evidence would wrongfully be produced as genuine or true in a legal proceeding.9
Example: Kent and Jill are married and have a young son. Kelli, a volunteer at their son’s school, disciplines their son harshly and engages in a pattern of harassing their family. So, in the hopes of getting Kelli arrested and out of their lives, Kent and Jill plant drugs and drug paraphernalia in her car.
Kent and Jill may be guilty of planting evidence…they put the drugs in Kelli’s car willfully and knowingly, and their intention was for Kelli to be charged with a drug crime .10
Example: Jeff is a police officer who badly wants to receive workers’ compensation payments. So he shoots himself and claims that a car burglary suspect did it. This leads to a major manhunt before the rest of the department figures out that he was lying.
In addition to probably being guilty of workers’ compensation
fraud, Jeff can be charged with planting evidence…since his intention was for his shooting to be used as evidence in the legal proceeding to help him get workers’ compensation payments.11
2. What are the consequences of planting evidence?
If you are not a police officer, the California crime of planting evidence (evidence tampering) is a misdemeanor.12 This means that the maximum penalty is
- up to six (6) months in county jail, and/or
- a fine of up to one thousand dollars ($1,000).13
If you are a law enforcement officer convicted of planting evidence, the penalty is much steeper. In these cases, planting evidence is a felony. A police officer convicted of evidence tampering will be sentenced to either
- probation with up to a year in county jail, OR
- two (2), three (3) or five (5) years in state prison.14
The California crime of planting evidence (evidence tampering) is usually a misdemeanor.
According to Long Beach criminal defense attorney John Murray:15
“When you think about it, it makes sense that the crime of planting evidence is punished much more harshly when a law enforcement officer does it. Police officers’ jobs give them countless opportunities to frame people they dislike personally, or to plant evidence just in order to get an arrest. Because the danger of them abusing this power is so great, it’s important that there be steep penalties when they do so.”
3. How can I defend against Penal Code 141 charges?
Obstruction of justice crimes are serious business. Though there are legal defenses that can help if you are charged with evidence tampering.
3.1. Mistake of fact
State of mind is an important element of the crime of planting evidence or tampering with evidence. You need to have acted willfully, knowingly, and with intent to:
- have someone charged with a crime or
- have the evidence presented in a legal proceeding.16
Because of this, the common legal defense of mistake of fact can help you defend yourself against evidence planting charges.
If you made a reasonable mistake that meant you could not have known you were planting or tampering with evidence – or if you mistakenly believed that the evidence would not be presented in court – you may be able to get an acquittal on this basis.
3.2. False accusations
If you are accused of planting false evidence on someone, there is a good chance there’s some bad blood between you and that person. The person who accuses you may very well be lying as a way
- to gain traction in a lawsuit or legal dispute with you, or
- to avoid a criminal conviction themselves.
False accusations are a common feature of criminal cases involving evidence planting. If you are falsely accused of tampering with evidence, a skilled California criminal defense attorney can help you straighten out the facts and use this defense.
4. Related Offenses
4.1. Conspiracy to plant or tamper with evidence
Planting evidence can present some real logistical hassles. For this reason, it is common for two or more people to work together to plant or tamper with evidence.
If this happens, everyone involved can be charged not just with planting evidence, but with criminal conspiracy to plant evidence or tamper with evidence. A criminal conspiracy takes place when both of the following occur:
- Two (2) or more people agree to commit a crime, and/or to falsely indict someone else for a crime they did not commit, and
- One (1) of those people commits some overt act to further the agreement.17
As we discussed above, the crime of planting evidence is a misdemeanor in California (for everyone who is not a law enforcement officer).18 The crime of conspiracy is a wobbler, which means that it may be charged as either
- a misdemeanor OR
- a felony.19
This means that the maximum jail sentence for conspiracy to plant evidence goes up to sixteen (16) months or even two (2) or three (3) years!20 In other words, you can be punished much more harshly if you plant evidence with other people than if you work alone.
4.2. Offering false evidence (Penal Code 132 PC)
Penal Code 132 PC covers another obstruction of justice crime: The crime of offering false evidence. This law makes it a crime to present any kind of fake, forged, or incorrectly dated written evidence in any kind of legal trial or proceeding.21
Offering false evidence is a felony. A conviction for this crime can result in a maximum sentence of sixteen (16) months, two (2) years, or three (3) years in prison.22
4.3. Preparing false evidence (Penal Code 134 PC)
It is also an obstruction of justice crime to prepare any false evidence with the intention of presenting it in a legal proceeding even if it never actually gets used for that purpose.23 The crime of preparing false evidence extends to all kinds of evidence, including things like
- photographs and
- urine samples.24
The crime of preparing false evidence (Penal Code 134) is a felony and, in the worst case, can result in a maximum prison sentence of sixteen (16) months, two (2) years, or three (3) years.25
It is an obstruction of justice crime to destroy or hide evidence that you know may be presented in court or another kind of legal proceeding.
4.4. Destroying evidence (Penal Code 135 PC)
It is also an obstruction of justice crime to intentionally destroy or hide evidence that you know may be presented in court or another kind of legal proceeding.26
Penal Code 135 PC, California’s law against destroying or concealing evidence, makes destroying or concealing evidence a misdemeanor in California.27 The maximum penalty is:
- up to six (6) months in county jail, and/or
- a fine of up to one thousand dollars ($1,000).28
4.5. Perjury
If you are charged with planting evidence, there’s a good chance you could also be charged with perjury. The crime of perjury consists of willfully saying something false when testifying under oath.29
If you plant evidence, you may end up testifying falsely in court or a sworn written statement that the evidence is genuine and/or was not planted or moved. In that case, you could be charged both with
- evidence tampering and
- perjury.
Perjury is a felony and can lead to a sentence of two (2), three (3) or four (4) years in jail.30
5. What if someone plants evidence on me?
Occasionally police plant evidence in order to “score” an arrest. In one case, a Texas man who pled guilty to a cocaine possession charge was able to produce a video that he claimed showed cops planting a bag of cocaine in his car during a routine traffic stop.31
If you have been charged with a crime because someone else planted evidence on you, you should fight back. The first order of business should be to get the planted evidence thrown out so the charges can be dropped.
Because California law makes evidence tampering a crime, you may also be able to enjoy the satisfaction of seeing the person responsible for planting the evidence prosecuted for what they did. source
Legal References:
- Penal Code 141 PC – Peace officers; intentional alteration of physical matter with intent to charge person with a crime; felony [Planting evidence]. (“(a) Except as provided in subdivision (b), any person who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding, or inquiry whatever, is guilty of a misdemeanor.”). People v. Flood (1998) 18 Cal.4th 470.
- Same. (“(b) Any peace officer who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter, digital image, or video recording will be concealed or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by two, three, or five years in the state prison.”)
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
- The Judicial Council of California Advisory Committee on Criminal Jury Instruction (“CALCRIM”) § 2630 – Evidence Tampering by Peace Officer or Other Person.
- Penal Code 141 PC – Planting evidence. (“(a) Except as provided in subdivision (b), any person who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding, or inquiry whatever, is guilty of a misdemeanor.”)
- Same.
- CALCRIM 2630 – Evidence Tampering by Peace Officer or Other Person.
- Same.
- Same.
- Loosely based on the facts of an incident that occurred in Irvine, California. See “Irvine pair charged in framing case aren’t the usual suspects,” Los Angeles Times, June 20, 2012.
- Loosely based on the facts of an incident that occurred in Woodland Hills, California. See “L.A. police officer pleads not guilty to shooting hoax charges,” CNN, May 13, 2001.
- Penal Code 141 PC – Planting evidence. (“(a) Except as provided in subdivision (b), any person who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding, or inquiry whatever, is guilty of a misdemeanor.”)
- Penal Code 19 PC – Punishment for misdemeanor; punishment not otherwise prescribed. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
- Penal Code 141 PC – Planting evidence. (“(b) Any peace officer who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding, or inquiry whatever, is guilty of a felony punishable by two, three, or five years in the state prison.”)
- Long Beach criminal defense attorney John Murray has conducted over 70 criminal jury trials involving issues ranging from constitutional violations to prosecutorial misconduct. He represents clients in matters ranging from DUI to homicide.
- CALCRIM 2630 – Evidence Tampering by Peace Officer or Other Person.
- Penal Code 182 PC. (“(a) If two or more persons conspire: (1) To commit any crime [including planting evidence]. (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime. (3) Falsely to move or maintain any suit, action, or proceeding. (4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises. (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. (6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States. . . . “)See also Penal Code 184 PC. (“No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.”)
- Penal Code 141 PC – Planting evidence. (“(a) Except as provided in subdivision (b), any person who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding, or inquiry whatever, is guilty of a misdemeanor.”)
- Penal Code 182 PC. (“When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine.”)See also Penal Code 1170(h) PC. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
- Same.
- Penal Code 132 PC – Offering forged, altered, or ante-dated book, document, or record. (“Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.”)
- Same. See also Penal Code 18 PC – Punishment for felony not otherwise prescribed; alternate sentence to county jail. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)
- Penal Code 134 PC – Preparing false evidence. (“Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”)
- People v. Bamberg, (2009) 175 Cal.App.4th 618, 628; People v. Morrison, (2011) 191 Cal.App.4th 1551, 1555.
- Penal Code 134 PC – Preparing false evidence. See also Penal Code 18 PC – Punishment for felony not otherwise prescribed; alternate sentence to county jail.
- Penal Code 135 PC – Destroying or concealing documentary evidence. (“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.”)
- Same.
- Penal Code 19 PC
- Penal Code 118 PC – Perjury defined; evidence necessary to support conviction. (“(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.”)
- Penal Code 126 PC – Punishment. (“Perjury is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years.”)
- See “FBI to review video alleged to show police planting drugs,” El Paso Times, July 31, 2012.