Criminal Law

2630. Evidence Tampering by Peace Officer or Other Person

The defendant is charged [in Count ______] with tampering with evidence.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully and intentionally (changed[,]/ [or] planted[,]/ [or] placed[,]/ [or] made[,]/ [or] hid[,]/ [or] moved) <insert name/description of physical matter at issue>;

2. The defendant knew (he/she) was (changing[,]/ [or] planting[,]/ [or] placing[,]/ [or] making[,]/ [or] hiding[,]/ [or] moving) the <insert name/ description of physical matter at issue>;

[AND]

3. When the defendant (changed[,]/ [or] planted[,]/ [or] placed[,]/ [or] made[,]/ [or] hid[,]/ [or] moved) the <insert name/description of physical matter at issue>, (he/ she) intended that (his/her) action would result in (someone being charged with a crime/ [or] the <insert name/description of physical matter at issue> being wrongfully produced as genuine or true in (a/an) <insert type of court proceeding specified in Pen. Code, § 141>)(;/.)

<Give element 4 if the defendant is charged under Pen. Code, § 141(b).>

[AND

4. When the defendant acted, (he/she) was a peace officer.]

Someone commits an act willfully when he or she does it willingly or on purpose.

[A sworn member of <insert name of agency that employs peace officer>, authorized by <insert appropriate section from Pen. Code, § 830 et seq.> to <describe statutory authority>, is a peace officer.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Give element 4 if the defendant is a peace officer charged with a felony violation of Penal Code section 141(b).

The jury must determine whether the defendant was a peace officer. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].) The court must instruct the jury on the appropriate definition of "peace officer" from the statute. (Ibid.) It is error for the court to instruct that a person is a peace officer as a matter of law. (Ibid. [instruction that "Officer Bridgeman and Officer Gurney are peace officers" was error].)

Authority

Elements. Pen. Code, § 141.

Peace Officer Defined. Pen. Code, § 830 et seq.

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 4.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 70, Discovery and Inspection, § 70.21[3] (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.10[2] (Matthew Bender).

Lesser Included Offenses

If the defendant is charged with a felony based on being a peace officer

(Pen. Code, § 141(b)), then the misdemeanor of evidence tampering by a non-peace officer is a lesser included offense. (Pen. Code, § 141(a).)

(New January 2006)