California's law against dissuading a witness or victim, Penal Code 136.1 PC, makes it illegal to prevent or to attempt to prevent any witnesses or victims of a crime from reporting or testifying about the crime. Examples of dissuading a witness or victim include intimidating a witness through a direct or indirect threat and offering to pay a witness in exchange for their promise not to testify.
The Legal Definition of "Dissuading a Witness”
Under Penal Code 136.1, conviction for Dissuading a Witness requires a prosecutor to prove the following:
- that the defendant knowingly and maliciously;
- prevented or dissuaded (or attempted to prevent or dissuade);
- a victim of a crime or a witness to a crime from
- attending or testifying at any judicial proceeding,
- reporting the crime,
- aiding in the prosecution process, or
- aiding in the arrest process.
Dissuading a Witness is a "wobbler" meaning that the prosecutor may charge the crime as either a misdemeanor or a felony.
However, Dissuading a Witness is an automatic felony if it is done
- as part of a conspiracy,
- by using or threatening force against the person or property of any witness, victim, or third party,
- when the defendant has previously been convicted of dissuading or intimidating a witness or victim or
- because you have been hired to do so by someone else
THE ELEMENTS OF THE OFFENSE
Under Penal Code 136.1, California's "dissuading a witness" law, a prosecutor must prove that the defendant knowingly dissuaded or intimidated a witness or victim. The defendant must be aware that their actions were intimidating or threatening and the person was a witness or victim. For example, Jill hears about a shooting in the neighborhood. Jill chats with Jack, her neighbor, about the shooting. Unbeknownst to Jill, Jack is a witness to the shooting. Jill tells Jack that any witness who comes forward to testify about the shooting will suffer heavy repercussions. Although Jill may have intimidated Jack, she did not know that Jack was a witness to the crime. Jill therefore did not “knowingly” dissuade Jack and cannot be found guilty of PC 136.1.
To act "maliciously" means to "unlawfully" intend to annoy, harm, or injure someone else in any way or intend to interfere in any way with the orderly administration of justice. In the example above, Jill is sharing information with Jack that she believes would be helpful to him. She is not sharing said information with the intent of dissuading Jack for the purpose of interfering with the criminal proceedings. The court in this scenario will assume that Jill acted with malice.
“Prevented or dissuaded”
Attempt to prevent, dissuade, intimidate or interfere with witness is a matter of intent, not result. Even if the attempt is unsuccessful it still violates Penal Code 136.1 PC California's "dissuading a witness" law. For example, Jack tells John that he will burn down John’s house if John testifies in court against Jack. Despite this treat, John testifies against Jack. Jack is guilty of PC 136.1 even though his threat did not dissuade John from testifying.
A witness is a person who
- knows about the facts of a crime,
- whose declaration under oath may be received as evidence,
- who has reported a crime, or
- who has been served with a subpoena.
If the defendant reasonably believes the person he is trying to dissuade fits any of these criteria then that individual is considered a “witness.”
A person is considered a victim if there is reason to believe that a crime is being or has been committed against that person.
Under Penal Code 136.1, California's "dissuading a witness" law, a "conspiracy"
- an agreement by two or more people to intimidate or dissuade a witness or victim, when they
- take overt steps to carry out that agreement.
“Force / threats of force”
Even if a defendant does not cause any injury, using or threatening to use force against a witness is considered a violation of Penal Code 136.1, California's "dissuading a witness" law.
And, under Peal Code section 12022.7, California’s great bodily injury law, if the defendant causes the witness to suffer great bodily injury, the result is a three to six-year state prison sentence in addition and consecutive to the punishment for dissuading a witness.
LEGAL DEFENSES TO PENAL CODE SECTION 136.1, CALIFORNIA’S “DISSUADIGN A WITNESS” LAW
Lack of knowledge / intent
If a defendant does not know that a person is a victim or witness, or is not maliciously trying to interfere, the defendant is not guilty of violating Penal Code 136.1 PC California's "dissuading a witness" law.
False accusations / wrongful arrest
Falsely accusing someone of dissuading a witness happens particularly in domestic violence cases, when an alleged victim of domestic violence becomes vulnerable to exaggerating and distorting facts against her alleged abuser. A skilled criminal defense attorney carefully examines the motives of an alleged victim behind any and all allegations made by him or her.
Often times, an accusation of dissuading a witness amounts to a he said or she said allegation. The absence of any evidence corroborating the accused’s claim that he or she has been intentionally intimidated or threatened can mean that the case has not much substance and that therefore a favorable plea negotiation is more possible.
Penalties, Punishment, and Sentencing
A misdemeanor conviction for dissuading or intimidating a witness brings a sentence of:
- up to one year in a county jail and a maximum $1,000 fine.
- a ten-year ban on the right to own or acquire firearms.
A felony conviction for dissuading or intimidating a witness carries a sentence of:
- 16 months to four years in theCalifornia state prison
- a fine of up to $10,000
- a lifetime ban on owning or acquiring firearms.
Sentencing enhancement for personal use of a firearm:
Using or being armed with a gun while attempting to dissuade a witness or victim from reporting a crime or participating in a criminal trial will result in a one to ten-year state prison sentence in addition and consecutive to the penalty for violating Penal Code 136.1 PC.
Sentencing enhancement for dissuading a witness in association with a criminal street gang under Penal Code 186.22, California's criminal street gang enhancement
If a defendant is convicted of dissuading or intimidating a witness for the benefit of, at the direction of, or in association with any criminal street gang" California's gang enhancement imposes an additional and consecutive seven-year-to-life state prison sentence.
California's Three Strikes Law
Under the Three Strikes Law, a conviction under Penal Code 136.1 PC conviction will count as a "strike" on a defendant’s criminal record.
If a defendant is later convicted of a second strike offense, the sentence for the second strike will be twice the term otherwise required by law.
If a defendant is later convicted of a third strike, the sentence for the third strike will be a mandatory minimum sentence of 25 years-to-life in state prison.
HOW THE LOS ANGELES CRIMINAL DEFENSE ATTORNEYS CAN HELP YOU
Because penal code section 136.1 allegations rely heavily on the sheer accusations of the alleged victim, the motives of said victim need to be carefully researched and evaluated. Negin Yamini does not take at face value what an alleged victim claims or law enforcement’s representations of what he or she stated. She carefully assesses these assertions in the overall context of the case and works diligently to uncover any bias or motive to lie, distort, or exaggerate.