What is Penal Code 136.1 PC (Dissuading a Witness or Victim)?
California law (Penal Code 136.1 PC) prohibits dissuading a witness or victim from testifying or reporting a crime. Penal Code 136.1 is considered a “wobbler”, which means that it can be charged as either a misdemeanor or felony – depending on the seriousness of the allegations. The courts narrowly apply the law so it does not apply to all attempts to impact a witness’ testimony. For instance, if you are accused of coercing false testimony from a witness, then Penal Code 137 PC applies. The best way to understand Penal Code 136.1 PC is through examples:
- An ex-boyfriend, charged with violating a restraining order, drives by his ex-girlfriend brandishing a gun and yells at her “better keep your mouth shut.”
- Members of a local gang suspected of a recent high school shooting post links to news articles on a witness’ Facebook page about “snitches” getting killed.
- An employer charged with sexual harassment offers to promote the victim to a position with a higher salary in exchange for relenting her statements to the police.
In order to be convicted for dissuading a witness or victim, a prosecutor must prove all the facets/elements of Penal Code 136.1 PC::
- Knowingly or Maliciously
- Preventing or Dissuading (or attempting to do so)
- A Witness or Victim regarding a crime
- Attending or giving testimony at any trial, proceeding, or inquiry authorized by law
- Reporting a crime to law enforcement officials
- Assisting with the prosecution of a crime
- Assisting in the arrest of an individual
Since Penal Code 136.1 PC is a wobbler, prosecutors have the discretion to charge you with either a misdemeanor or a felony for any of the above acts. However, the prosecutor is required to charge you with a felony if you dissuade a witness or victim:
- Through the use of force or threats, or
- In furtherance of a conspiracy, or
- If you have been convicted of a Penal Code 136.1 PC violation in the past, or
- Because you were employed by another person to do so.
In Penal Code 136.1 PC convictions, it is not relevant whether the attempt to dissuade a witness or victim was a success or failure. Thus, you can be convicted even if the victim or witness was not physically injured or not actually intimidated. It only matters that an attempt was made and if the prosecutor can prove the above elements. For that reason, it is important to have a legal understanding of Penal Code 136.1 PC’s specific terms:
- Knowingly: You cannot be convicted of Penal Code 136.1 PC if the prosecutor cannot prove that you knowingly dissuaded a victim or witness from testifying or reporting a crime. To do so, they would need to show that you were aware of the victim’s status as a witness, that you were aware that your actions were threatening or intimidating, and that you were aware that your actions could dissuade a victim or witness from testifying or reporting a crime. If they cannot do so, then you cannot be found guilty of Penal Code 136.1 PC.
- Example: Rocky is accused of embezzling money from his employer, Adrian. In an effort to smooth over any confusion about stolen money, Rocky visits Adrian’s home at night and pounds loudly on the door yelling “Adrian!”. Even though Rocky’s actions may have intimidated Adrian into dropping her accusations, Rocky did not knowingly act to do so. Thus, he cannot be convicted of a Penal Code 136.1 PC violation.
- Maliciously: An act is malicious if it is performed intentionally or willfully. Hence, in regards to Penal Code 136.1 PC, a prosecutor needs to prove that you acted with the intention (or knowingly as described above) of dissuading a witness or victim from testifying or reporting a crime.
- Example: Sheldon wants to report Leonard to the police for stealing supplies from the university science laboratory. Leonard traps Sheldon in his room until Sheldon agrees to not call the police. In this case, Leonard is guilty of Penal Code 136.1 PC because he trapped Sheldon with the intention of dissuading Sheldon from calling the authorities.
- Note: If the victim or witness is a family member and your attempt to dissuade them was done for their own protection, then Penal Code 136.1 PC stipulates that the courts should presume that you did not act maliciously.
- Preventing or Dissuading (or attempting to do so): Penal Code 136.1 PC does not require that a witness be actually deterred, threatened, or intimidated. The courts will only look at whether or not you made an attempt to dissuade a witness from testifying or reporting a crime. Thus, in Penal Code 136.1 PC violations, the important factor that needs to be proven or disproven is your intent, i.e. whether you knowingly or maliciously acted.
- Example: Steve is accused of stalking Carl’s daughter. Steve sends Carl a threatening note with the intention of scaring Carl from testifying against him. Unfortunately for Steve, Carl is a policeman and does not scare easily. Carl shows up to court and testifies in open court. In this example, Steve is still guilty of Penal Code 136.1 PC because even though his attempt was not successful, he acted intentionally to dissuade a witness or victim for testifying.
- Witness: Penal Code 136.1 PC broadly interprets the definition of witness. A witness may be someone who has seen, heard, or otherwise observed an event relevant to the case. It may include someone who is under subpoena or under oath to provide evidence to the court at a legal proceeding. Or it may even refer to the person who reports a crime. Ultimately, the court will look to see whether or not you reasonably believed that the person was a witness.
- Victim: A victim is a person who is directly or proximately harmed as a result of the commission of a criminal offense.
- Force/Threat of Force: Remember that a witness does not need to be physically injured or actually intimidated to violate Penal Code 136.1 PC. In other words, a victim’s response to your alleged acts is not relevant to the issue of guilt or innocence. However, the type of force alleged is important in two ways. First, the court will factor in the type of force used in determining punishment. For example, threatening a witness with a gun or knife will probably receive a more severe sentence. Secondly, if a witness suffers great bodily injury as a result of your actions, then the court will add on 3-6 years of prison time on top of the sentence you receive for violating Penal Code 136.1 PC.
- Conspiracy: In order to prove that there was a conspiracy to dissuade a witness or victim from testifying or reporting a crime, the prosecutor needs to show two things: 1) there was an agreement by two or more people to do so and 2) there was an overt step taken to further that agreement.
- Example: Burns and Mr. Smithers run a business together. They are afraid that one of their employees, Homer Simpson, will testify against them in a court proceeding involving systematic labor infractions. They come up with a plan to deter Homer from helping prosecutors by harassing him at work and at his home. In this example, Mr. Burns and Mr. Smithers are not yet guilty of conspiracy to dissuade a witness or victim from testifying. Their mutual plan to harass Homer would most certainly constitute an agreement. However, neither Mr. Burns nor Mr. Smithers have taken any overt steps to carry out the plan.
How can an attorney help you fight a Penal Code 136.1 PC charge?
An experienced Los Angeles criminal defense attorney can review the specific circumstances of your case, conduct a thorough investigation to counteract a biased police investigation, and help you build a comprehensive legal strategy. By utilizing a number of legal defenses, a knowledgeable and trustworthy attorney can put forth the strongest possible case against accusations of dissuading a witness or victim. Examples of legal defenses include:
- False Accusations/Wrongful Arrest: It is not uncommon for someone to falsely accuse another for crimes they did not commit. This is especially true when it comes to domestic violence allegations, where one partner is trying to exaggerate abuse claims to build a stronger case in court. However, false accusations can even come from an angry business partner or a corrupt police officer. Whatever the reason, a diligent and experienced attorney can investigate the false claims and expose them for their lack of veracity.
- Absence of Knowledge or Maliciousness: As explained above, the prosecutor bears the burden of proving the elements of Penal Code 136.1 PC. For example, they need to show you acted with the intent to dissuade a witness or victim and that you even knew the person at issue was a victim or witness. By presenting facts and evidence to the contrary, a savvy criminal defense attorney can punch holes in the prosecutor’s case and put pressure on them to drop the charges.
- Lack of Evidence: Sometimes law enforcement and prosecutors rely only on the statements of the alleged victim. They have very little hard evidence to push their case but they continue to do so anyway. In these “he said, she said” type of situations, an assertive attorney can fight to get your case dismissed by exposing the prosecutor’s lack of evidence.
Penal Code 136.1 PC’s Punishment Structure
Your sentence will depend on whether the conviction is labeled a misdemeanor or a felony. If you receive a misdemeanor, then you face a maximum of one year in county jail and a maximum fine of $1,000. In California, a misdemeanor conviction also prohibits you from firearm ownership for 10 years. As for a felony, you will be sentenced to a minimum of 16 months in a California state prison and a maximum sentence of 4 years. Additionally, you may face up to a $10,000 fine and a lifetime ban from owning firearms. Keep in mind that these are the baseline sentences you might receive for a Penal Code 136.1 PC conviction. California’s sentence enhancement laws can supplement your sentence:
- Firearm Enhancement: California’s sentencing structure utilizes an enhancement for firearm use during the commission of a Penal Code 136.1 PC violation. Thus, if you use a firearm while trying to dissuade a witness or victim from testifying or reporting a crime, then you will receive anywhere from 1 year to 10 years in state prison in addition to the base sentence you receive for the Penal Code 136.1 PC violation.
- Gang Enhancement: If the court finds that you dissuaded a witness or a victim on behalf of the interests of a criminal street gang, then California law requires an additional 7 year to life state prison sentence in addition to the sentence you received for the Penal Code 136.1 PC violation.
- Three Strikes Law: Penal Code 136.1 PC is classified as a serious felony under California’s three strikes law and so a conviction for dissuading a witness may result in a strike on your criminal record. Thus, any previous strikes on your record will affect the sentence you receive. If you have only one prior strike, then a Penal Code 136.1 PC felony conviction will result in double the sentence required by law. If you have two prior strikes, then a Penal Code 136.1 PC felony conviction will result in a mandatory sentence of 25 years to life.
The following offenses are often charged in conjunction with Penal Code 136.1 PC. The exception is California’s law against solicitation (Penal Coe 653f), which is often charged in lieu of Penal Code 136.1 PC.
- Kidnapping (Penal Code 207 PC): If during the commission of a Penal Code 136.1 violation, you move a witness against their will through the use of force or threats, then you might also be charged with kidnapping.
- False Imprisonment (Penal Code 236 PC): If during the commission of a Penal Code 136.1 violation, you restrict the movement of another, then you might be also charged with false imprisonment.
- Criminal Threats (Penal Code 422 PC): If during the commission of a Penal Code 136.1 violation, you threaten to use force that might result in death or great bodily injury, then you might also be charged with criminal threats. Even if you don’t intend to actually carry out the threat, prosecutors can still charge you with criminal threats.
- Solicitation (Penal Code 653F): Prosecutors will charge you with solicitation, not Penal Code 136.1 PC, when you try to convince another to dissuade a witness or victim. This is most commonly seen when a defendant is in prison and they try to recruit someone on the outside to dissuade a witness or victim.