During a court session for a criminal case, a witness or victim may explain what transpired when the crime occurred. For example, in a burglary trial where you are the suspect, your next-door neighbor could appear in court as a prosecution witness. The witness would then tell the court what they witnessed, which may be proof against you. If the case doesn’t have much physical evidence, the witness’s testimony might be the only reliable evidence the prosecution has. Without the testimony, the judge could dismiss the case.
However, barring the witness from appearing in court or a victim from reporting an offense could subject you to criminal charges of dissuading a witness under California law. You don’t need to use any threats or force for you to be guilty. Even asking someone politely not to say anything against you in court or report you to the cops is enough to send you to jail. Due to this crime’s complicated nature, you need a lawyer’s help if facing charges. If you are in Orange County, CA, contact the Orange County Criminal Lawyer for expert legal representation.
The Legal Definition of Dissuading a Victim or Witness
Penal Code (PC) 136.1 is the law that describes the crime of dissuading a victim or witness. This offense is also called witness/victim tampering or intimidating a victim/witness. Dissuading a victim/witness involves any effort to stop a victim of a violation or witness from testifying about it or reporting it. PC 136.1 provides that:
a. Anyone that does any of these can be convicted of a crime:
1. Knowingly & maliciously dissuades or prevents (or tries to dissuade or prevent) any victim or witness from testifying at or attending any inquiry, proceeding, or trial authorized by the law.
b. Anyone who tries to dissuade or prevent a victim or witness to a violation from performing any following is convicted:
1. Making a report of the victimization to a local or state law enforcement or peace officer
2. Making an indictment, information, complaint, parole or probation violation to be sought and prosecuted
3. Arresting or seeking or causing the arrest of a party in connection with the victimization
Examples of situations that are considered dissuading a victim/witness include:
- Offering money to the witness of an offense to ‘forget what they saw.’
- Contacting a victim of an offense and telling them to ‘keep their mouth shut or else.’
- Sending to a possible witness a news article that outlines how witnesses of another case were murdered.
Elements of a Violation of PC 136.1
For you to be found guilty of violating Penal Code 136.1, the prosecution must prove various factors beyond a reasonable doubt. These are the factors we call the elements of dissuading a witness. They are:
- You knowingly & maliciously
- Dissuaded or prevented (or tried to dissuade or prevent)
- A victim/witness of an offense from
- Testifying at or attending any judicial trial or proceeding
- Reporting a criminal offense
- Helping in the arrest process
- Assisting in the process of prosecution
Violation of PC 136.1 is a specific intent offense. By this, it means that you need to have performed your act with malice and knowledge for you to be convicted.
The following are the various terms and phrases used in these elements. Read to understand better the legal meaning of dissuading a witness:
Knowingly. The term knowingly means you are aware that there exist facts that bring an action within the various provisions of the law. This means if you weren’t aware that the party you were intimidating was a victim or witness, or didn’t realize or think you were doing an act that would make the witness/victim to be dissuaded, you are not guilty of PC 136.1 violation.
Maliciously. Malice, on the other hand, means acting with the determination to harm, annoy, or injure another person in any given way or intending to interfere with the orderly administration of justice.
For example, Tim is talking to Jane and tells her of a news article he read recently in which three witnesses were murdered after giving their testimony at trial. Tim doesn’t know that Jane will be testifying in another crime. Here, Tim isn’t guilty of witness tampering since he didn’t know that Jane was also a witness. Additionally, he didn’t act with a malicious intent to hurt Jane or any other person. The situation would have been different if Tim was aware that Jane was a witness in a court case, and he told her the story with the specific intent to injure or threaten her.
Victim. Under this code, a victim refers to anyone who believes another person has committed a federal or state crime against them. It may also mean an indirectly or directly hurt individual due to the commission of a crime. Also, keep in mind that to be sentenced for dissuading a witness, it doesn’t matter if you successfully discouraged or prevented a witness. Attempting to dissuade is enough to have you found guilty.
Witness. PC 136.1 broadly provides the meaning of witness. That is, a witness can be a part that has heard, seen, or observed an occurrence relevant to a case. It could include an individual under oath or one that has been subpoenaed to provide proof in the court during a legal trial or proceeding. In other cases, it may mean a party that reports an offense. Eventually, the judge will look into your case’s facts to find out whether you reasonably believed or not that the party you intimidated was a witness.
Witness/victim Intimidation. Intimidation is attempting to scare a person. Usually, victim/witness intimidation involves making threats or causing a person to be worried about his/her safety. An individual who intimidates a victim or witness could also threaten their family. The defendant could have tried to have a witness/victim to lie or make particular statements when they are under oath.
Witness/victim tampering. Most people are usually confused if witness tampering is the same as witness intimidation. Witness tampering might involve intimidation, but it doesn’t always include force or threats. Tampering refers to interfering with something. Like an individual who tampers with a smartphone can void the warranty, a witness who has been dissuaded can change their statement during a trial.
In particular cases, witness tampering could only involve bribing. For instance, a rich defendant who murdered someone may promise to give a witness $100,000 if they say that they couldn’t see the defendant clearly or describe an individual that looks completely different. In case the remaining proof is weak, this may cause the judge to doubt the defendant’s guilt.
Most people perform the acts prohibited under Penal Code 136.1 without noticing it. For example, you may realize that a person saw you or your family member commit an offense. You resort to speaking to the individual and convince them not to mention whatever they saw. By so doing, you could place yourself at risk of facing a misdemeanor or felony charge of dissuading a victim/witness.
Also, note that even if you are merely passing a message from another person and have nothing to do with the case, you and the person who sent you could still be charged with dissuading a victim/witness. Additionally, even if you were standing close to the person who was threatening another to prevent them from testifying, but you didn’t utter a word, you could face charges based on the circumstances.
That is, if you made a physical or verbal confirmation after the other person’s threats or comments towards the victim/witness against cooperating with the prosecutor, it might be considered an attempt to prevent or dissuade. This may include nodding, posturing, staring, or saying ‘uh-huh’ when the comment or threat is made.
Legal Defenses to Dissuading a Victim/Witness
When facing charges under PC 136.1, you should seek the help of a criminal defense lawyer. A skilled defense lawyer can assess the specific facts surrounding your case, do an in-depth investigation to thwart the police officer’s report, and then help you develop a comprehensive defense strategy. By using multiple defenses, an expert and reliable lawyer can present the strongest case against the accusations made against you of intimidating a victim/witness. Examples of defenses your attorney can argue are:
False Accusations
This defense usually arises in domestic violence cases when, for instance, a spouse falsely reports to the law enforcement officer that they were abused, and their partner threatened to do it even more if they reported the offense. In a case like this, the other partner may try beating any Penal Code 136.1 charges by arguing that they were wrongfully accused.
The Person Wasn’t a Victim or Witness
You are only guilty of PC 136.1 violation if you indeed dissuaded or intimated a victim or witness. Thus, you can try exonerating yourself by claiming that while you might have threatened a person, the individual wasn’t a witness or victim of any crime. However, note that you could still be convicted of another crime known as criminal threats as per PC 422.
Lack of Malicious Intent or No Knowledge
Remember that witness tampering is a specific intent offense. This means you need to have acted with both malice and knowledge for you to be convicted. A defense is, therefore, for you to prove that you didn’t act with malicious intent.
Insufficient Proof
When the prosecution lacks enough corroborating proof to find you guilty of dissuading a witness/victim, they won’t be capable of meeting the burden of proof to have you convicted of this offense.
The Accident Defense
If you unintentionally put a witness/victim in fear by your actions or statements, you wouldn’t be guilty of violating Penal Code C 136.1. In this case, you would have a valid accident defense since you didn’t realize the impact your statements/actions would have.
The penalties for Dissuading a Witness/Victim
Intimidating a victim or witness is what’s known as a wobbler. This means the prosecutor could charge you with either a felony or a misdemeanor. The charges depend on the facts surrounding your case and your criminal history. If you are charged with a misdemeanor, you face up to $1,000 in fines and a jail sentence of up to one year. If convicted of a felony, your punishment will include a maximum of four years in prison and up to $10,000 in fines.
Note that witness tampering is always a felony offense if one or all of these is true:
- The dissuading involved the application of force or threats of violence
- The dissuading was part of a significant conspiracy
- You have previously been found guilty of dissuading a witness or victim
- Someone else hired you to execute the crime
Threats of violence/force. Note that a victim or witness doesn’t need to have been intimidated or physically intimidated for you to violate PC 136.1. Put otherwise, a victim or witness’s response or reaction to your supposed actions isn’t relevant in establishing your innocence or guilt. However, the kind of force you allegedly applied is critical in two ways.
Firstly, the judge will consider the degree of force you applied when determining what punishment you will face. For instance, if you threatened a victim/witness using a knife or gun, you would possibly face more severe punishment. Secondly, if a victim/witness suffers significant bodily injury, the judge will add three to six years of a prison term on the prison time you face for violating PC 136.1.
Conspiracy. For the prosecutor to establish that there existed a conspiracy to prevent a victim from reporting an offense or a witness from testifying, they need to prove two things:
- There was an agreement between two or more parties to do so
- There was an evident step taken in the furtherance of that agreement
Immigration Consequences for Violating Penal Code 136.1
Being convicted of intimidating a victim or witness can have adverse effects on your immigration status. The U.S immigration laws say that certain forms of convictions may result in an alien being labeled as inadmissible and deported. In the category of inadmissible or deportable crimes are aggravated felonies. Remember that a violation of PC 136.1 is, at times, a felony. Therefore, it implies that if the elements surrounding your crime indicate that you are guilty of an aggravated felony, you could be marked inadmissible or deported.
Expunging a PC 136.1 Conviction Record
If you’re sentenced for this crime, you qualify to have your conviction record expunged as long as you complete your probation or jail sentence, whichever applies in your situation. If you violate probationary terms and conditions, you could still have your record expunged, though this would be at the court’s discretion. Under PC 1203.4, a record expungement releases you from nearly all disabilities and penalties stemming from the conviction.
A Conviction Under PC 136.1 and Gun Rights
Being convicted under this law will have adverse effects on your gun rights. If you’re found guilty of a misdemeanor, you will be banned from owning a gun for ten years. And if you are convicted of a felony, the law will impose a lifetime ban on owning or possessing a firearm.
Related Offenses to Dissuading a Victim/Witness
Several crimes relate to the offense of intimidating a witness or victim in one way or another because they share various elements. For this reason, crimes like these can be charged along with or instead of a PC 136.1 violation. Most common examples of these offenses include:
PC 422, Criminal Threats
Penal Code 422 is the law that prohibits making criminal threats against another person. Making criminal threats is when someone threatens to harm/kill another and:
- The threatened individual is thus placed into a reasonable state of fear
- The threats are unequivocal and specific
- The defendant communicates the threats in writing, verbally, or through any electronically tr
Note that it isn’t a must that the person being threatened be a victim or witness under this statute.
PC 422 is a wobbler offense. If you are convicted of a misdemeanor, you will be subject to a maximum of a year in jail and up to $1,000 in fines. And if you are found guilty of a felony, you will face a maximum of three years in prison and a fine of up to $10,000. If you used a dangerous or deadly weapon to make your threats, you would be subject to an additional & consecutive one-year sentence in prison. And if you made your threats on two or more occasions against several parties or pursuant of different objectives, you would face these punishments for every threat you made.
PC 236, False Imprisonment
Penal Code 236 prohibits the act of false imprisonment, which occurs when one person detains, confines, or restrains another and does this without consent from that person. Note that the difference between false imprisonment and dissuading a witness is that false imprisonment requires one to have real physical contact with the victim in question.
False imprisonment is a wobbler crime. A misdemeanor charge is preferred if the crime committed wasn’t effected through menace, fraud, deceit, or violence. Consequences include a fine of up to $1,000 and a county jail sentence of not more than a year. On the other hand, false imprisonment is a felony when the offense is accomplished through fraud, deceit, violence, or menace. If convicted, the penalties will include sixteen months, two or three years in prison. Also, note that any of the above penalties can be enhanced if the victim of false imprisonment is either a dependent adult or an elder.
PC 207, Kidnapping
PC 207 says that it’s an offense if you move a victim a significant distance and use fear or force while at it. Unlike witness tampering, kidnapping will generally not lead to adverse immigration consequences. Kidnapping penalties differ based on the facts of the crime. The punishment for simple kidnapping is up to eight years in prison and up to $10,000 in fines. The punishment can be enhanced to life imprisonment if there are aggravating factors in your case.
PC 653(f), Solicitation
The prosecution will prosecute you under PC 653(f), and not PC 136.1 when you attempt to persuade someone else to dissuade a victim or witness on your behalf. This situation happens when a convict tries to recruit an outsider to intimidate a victim or witness.
PC 137(a), Bribery of a Witness Regarding Testimony
California PC 137(a) deals with bribing a witness regarding his/her testimony in court cases. It also applies to witnesses giving critical information about an offense to a police officer or prosecutor. This law makes it a crime for a person to offer, give, or promise to offer the witness something valuable with the corrupt intent to influence their testimony. It also makes it an offense to use fraud, threats of force, or force to have a witness withhold information or provide false testimony. Bribery of a witness regarding testimony is usually a felony, whose punishment is a maximum of four years in prison.
PC 138(a), Bribery of a Witness Regarding Trial Attendance
This law prohibits a person from giving, offering, or promising to give a witness a valuable item with the corrupt intent to influence their attendance at trial. A conviction under PC 138(a) is also a felony with a prison sentence of up to four years.
Find a Dissuading a Victim/Witness Criminal Defense Attorney Near Me
Attorneys at the Orange County Criminal Lawyer have more than thirty years of criminal defense experience. We have successfully defended clients subject to criminal charges, including dissuading a victim or witness and other violent crimes. We know how to approach the specific facts of any case and build efficient defenses for a positive outcome. If you or the person you love is facing criminal charges in Orange County, contact us at 714-262-4833 to discuss your case details.
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