When you are a suspect in a crime, the law prohibits you from direct contact with the witness or victim of your wrongdoing. These regulations are in place to protect those testing, reporting an offense, or aiding the investigators or DA from harassment or intimidation and encourage them to cooperate with the court.
Dissuading a witness or victim under PEN 136.1 occurs when you cause someone else to withhold their testimony or information, testify falsely, or skip a hearing after being summoned. A violation of PEN 136.1 is a criminal offense that is severely punished even if you were not engaged in its commissioning. The Los Angeles Criminal Attorney can mount a solid defense for a positive outcome if faced with these charges.
General View of Dissuading a Witness or Victim
California PEN 136.1 discourages you from dissuading, harassing, intimidating, or tampering with a victim or witness to a crime. Simply put, a PEN 136.1 violation consists of any attempts to stop a victim or witness from doing the following:
- Recording a statement or testifying to an offense
- Aiding the prosecutor or police in solving a crime
- Helping the police to make an arrest
The offense of witness tampering can be filed as a misdemeanor or felony based on your case’s circumstances. You risk forty-eight months in jail or state prison incarceration when found guilty of the offense.
A PEN 136.1 contravention is a specific intent crime, meaning that you must be found guilty if you knowingly or deliberately dissuaded or intimidated a witness to injure or annoy.
Witness Tampering Elements
The court will find you guilty of a PEN 136.1 violation if they can establish the following aspects beyond reasonable certainty:
1. You Acted Spitefully and Knowingly
Acting knowingly means doing something on purpose. And because tampering with a witness is a specific intent crime, the prosecutor should show the court that you were aware the person was a witness and that your actions towards the individual amounted to intimidation. Further, the DA must show that you knew that intimidating or dissuading a witness or a victim of a crime would prevent them from reporting or testifying before a judge. If the DA cannot prove this element, you are innocent of the charges against you.
For instance, your employer accuses you of embezzlement of funds. To clear the confusion and straighten issues, you visit your employer’s home in the middle of the night and start shouting his name. Even if you intimidated them into dropping the embezzlement charges against you by yelling, you did not do so on purpose. You intended to straighten matters and, therefore, cannot be charged with witness tampering.
Similarly, they must prove your conduct during the crime was malicious. A malicious act is performed willfully and intended to cause harm or annoyance.
For example, your college roommate walks in the room and finds you with an unlicensed firearm and colossal cash. To prevent them from reporting the matter to the authorities, you trap the roommate in the room and threaten them until they agree not to notify the police. Under these circumstances, you are guilty of witness tampering because you deliberately trapped them to dissuade them from reporting the case.
Nonetheless, when you dissuade a family member who is a witness to or a victim of an offense for their safety, you cannot be guilty under PEN 136.1.
2. You Dissuaded or Attempted to Dissuade
The prosecutor must prove that you dissuaded a victim from:
- Showing up for appointed court proceedings
- Testifying in court
- Reporting a crime
- Aiding an arrest or prosecution process
It is worth noting that an attempt alone is enough to earn a conviction. The prosecutor does not need to prove your attempts were successful.
Dissuading or preventing a witness from testifying can occur in many ways. The court will find you guilty if the DA shows you hide the witness or victim's phone to stop them from calling the police. It is a criminal offense to snatch a witness's phone when they intend to call the police and report the crime.
Also, even if someone sends you to talk to a witness/victim on their behalf, to drop charges, give false testimony or not testify, you will be guilty in PEN 136.1.
Again, telling a witness that you will be upset or find people to hurt them if they aid the police in their investigations or the prosecutor in prosecuting the case, you are guilty of PEN 136.1 violation.
Even if your dissuasion attempts on a victim fail and they proceed to testify against you in court, you will still face charges for witness tampering.
3. You Had Reason to Believe the Person Was a Victim of or Witness to a Crime
Another case fact the prosecutor must prove is that you knew the individual in question was a witness. For PEN 136.1, a victim is any individual convinced or believes you have committed a state or federal offense against them. In short, a victim is any individual that is a nearby direct target of a crime.
Typically, victims are claimants or third parties in court cases. You must understand that to be a victim of a crime, you do not have to have suffered harm. Sometimes the attempts to dissuade you are not always successful. Therefore, if the dissuasion beset you from taking lawful action, the court deems you a victim.
The scope of a witness under this statute is broad. A witness is any person:
- With knowledge about the facts of a crime
- Whose testimony under oath can be admitted in the case as evidence
- Who has reported the criminal activity to the relevant authorities
- Who has to be subpoenaed
The Role of a Witness/Victim in a Case
Victims and witnesses are crucial in the arrest processes and prosecution of criminal cases. These individuals help police make arrests, report crimes, and testify in court by sharing with the judge the events that occurred under oath. The witness's testimony is then admitted in court as evidence against you, the defendant. Therefore, any actions that discourage or prevent a victim from testifying are considered serious criminal offenses and are subject to harsh punishment.
PEN 136.1 Violation Penalties
Due to the wobbler nature of witness dissuasion, the prosecutor can charge it as either a misdemeanor or a felony, depending on the specifics of your counts and criminal history. The court will instruct you to part with no more than $1,000 as court fines or complete a twelve-month jail sentence when found guilty of a misdemeanor.
When the preferred charge is a felony, a conviction attracts no more than $10,000 in monetary court fines or a jail or prison sentence not exceeding forty-eight months.
Witness dissuasion or intimidation is filed as a felony if:
- The coercion was involved in the conspiracy against the victim
- The threats involved extreme use of force or power against the witness
- You have at least one prior sentence in your criminal record
- The person you conspire with promised you financial gains or other benefits for tampering with the victim.
Witness Dissuasion Sentence Enhancement
On top of the penalties provided under PEN 136.1, the judge can include additional penalties in your sentence. One of these enhancements is victim restitution.
Even after the court finds you guilty of witness tampering, the victim can still file a lawsuit in civil court for damages. You will be required to pay the amount if they are awarded damages. In some cases, the victim could even seek punitive damages in an effort to punish you and deter future witness tampering. With criminal and civil suits possible, you could face two separate proceedings.
When you use a firearm to prevent a witness from testifying, you will face a sentence enhancement of at most 120 months.
In addition, if you discourage a victim or witness to benefit a criminal gang, you risk receiving an additional seven years in prison.
Also, a felony sentence for a PEN 136.1 violation will attract a three-strike enhancement. If your criminal record already has a strike, you will add another, making it two. In light of the preceding two strikes, adding a third one will increase your sentence to 25 years or life in prison.
The consequences and enhancements can ruin your life completely, so you need to fight the charges with all your resources. You can start by hiring an experienced criminal attorney to protect your rights and freedom during the criminal trial. Having an attorney is crucial because even if you are falsely accused, and the prosecutor successfully proves all the case’s elements, you will be convicted and face these penalties. However, when you have an attorney in your corner, they understand the penalties you will face when convicted and will fight tirelessly to reduce them or have the case dismissed.
If you are a foreign national residing in Los Angeles, receiving a felony sentence for witness dissuasion will have a negative effect on your immigration status. Per immigration statutes, any immigrant sentenced to an aggravated felony can be removed from the country and deemed inadmissible. So, when your PEN 136.1 violation is filed as a felony, you will fail under the aggravated felony category, where a conviction can make you deportable or inadmissible.
Because they will fight PEN 136.1 violation charges knowing that a conviction will end your dream of working and living in California, hiring a defense attorney with experience in immigration law will be beneficial to your case. A lawyer will improve the likelihood that the case will be dismissed or that felony charges will be dropped in favor of misdemeanors. Even if you are found guilty, having a felony reduced to a misdemeanor will spare you from immigration repercussions.
Expunging a Witness Tampering Conviction
If you have served a sentence for witness dissuasion, you can request your attorney to expunge the record if you meet the necessary criteria. Once probation is complete and all court-imposed requirements have been met, you could request an expunction. If the judge preferred a jail sentence instead of probation, you must finish the sentence first before applying for an expunction.
When you break the terms of your probation, the court suspends it and puts you back in jail to serve the remainder of your original sentence. However, even if you have disregarded probation terms, you could still qualify for an expunction at the judge’s discretion.
The benefit of expunging your witness tampering conviction is that it frees you from all the restrictions associated with a sentence. With an expunged record, you can apply for jobs, promotions, or college admission without worrying that your criminal history will hurt your chances. Also, you can lease an apartment or apply for state licensing without fear of discrimination. However, just because the public cannot see your record does not mean it will be deleted from the law enforcement database.
Therefore, if you commit another PEN 136.1 violation, the expunged record will count as a prior, resulting in enhanced sentencing.
Fighting Witness Dissuasion Charges
With the aid of an attorney, there are several defenses you can mount to prevent a conviction. And even when a conviction is imminent, your Los Angeles criminal attorney can negotiate with the prosecutor for a charge reduction and lenient sentencing. Discussed below are the legal defenses you can mount to defeat the charges:
You Lacked Specific Intent
Tampering with a witness or victim is a specific intent offense that requires the prosecutor to demonstrate that you knowingly or maliciously dissuaded a victim. Therefore, in your defense, you can apply this strategy by claiming that you never acted on purpose, nor did you intend to harm or annoy the victim.
The Person in Question is Not a Witness or Victim
The prosecutor must prove that the individual harmed by your criminal acts is a victim or witness for you to be found guilty of violating PEN 136.1. Therefore, you can assert that the target is not a victim even if you intimidated or harassed them. Even though you will escape PC 136.1 charges for tampering with a witness, you will be guilty of criminal threats under PC 422. Therefore, you can only apply this defense in plea negotiations.
You are Falsely Accused
Wrongful arrests or false accusations commonly arise in domestic violence (DV) cases. You find that after you have disagreed with your spouse, they can go to the police and wrongfully report that you have abused them, and when they tried to call the police, you threatened them with more harm. Under these circumstances, you will be falsely charged with victim dissuasion.
A profound attorney will evaluate your case and conduct an independent investigation to find enough evidence to point out the accusation’s inveracity at trial.
In criminal cases, the prosecutor is required to establish all necessary facts and satisfy the evidentiary standard with reasonable certainty or doubt. Every component of the count must be supported by adequate evidence. The elements of interfering with a witness cannot be proven by the DA to the required standard if there is insufficient evidence. The prosecutor will then be forced to accept a plea deal after your attorney challenges the evidence they have presented. The deal involves agreeing to plead guilty or no contest to a lesser charge in exchange for dismissing the PEN 136.1 violation charges.
Police work under strict rules and regulations when making an arrest or conducting an investigation. Unfortunately, these officers violate your rights by failing to follow the legal procedures. Common police misconduct includes wrongful detention, unlawful arrest, questioning, and denial of your right to legal counsel. When police violate your rights during investigations, all the evidence obtained illegally should be removed from the case, leaving the prosecutor with weak charges. If this happens, you force them to agree to drop the charges or offer a plea agreement where you plead guilty to a lesser crime for a favorable sentence.
Therefore, when consulting with your attorney, do not forget to mention that you think or are convinced that the arresting officer violated your human rights. If you do this, your attorney will file a motion to suppress so that the proof obtained illegally can be excluded from the case.
Crimes Relating to Witness/Victim Dissuasion
Several offenses are closely related or can be charged alongside witness or victim tampering. These offenses are:
1. Criminal Threats
Per PEN 422, it is illegal to threaten someone else with immediate harm or death. To gain a conviction in these cases, the prosecutor must demonstrate that:
- You willfully threatened to harm or kill someone else
- Your desire at the time was to communicate the written, oral or electronic threats
- The threats were unequivocal, specific, and unconditional
- The supposed victim sensibly feared for their safety and the security of their immediate family
Even if you communicate these threats through someone else, you will still be guilty of a PEN 422 violation.
Like witness dissuasion, the criminal threat offense is a wobbler. A misdemeanor PEN 422 violation is punishable by at least twelve months in jail in Los Angeles County or monetary court fines not exceeding $1,000. A felony sentence, on the other hand, attracts at most thirty-six months of prison incarceration or a court-imposed fine of at most $10,000.
2. False Imprisonment
Per PEN 236, violating another person’s right to liberty is a crime by restraining, confining, or detaining them without your consent. The crime must be carried out through force or intimidation. When you hold or sequester the victim in a room to keep them from reporting a crime, you are engaging in false imprisonment, which is connected to witness tampering. When this is the case, the prosecutor will charge you with both witness dissuasion and false imprisonment. They do this so that if one of the charges has weak evidence to gain a conviction, they can drop it and be left with a more substantial charge.
When charged with PEN 236 alongside or in place of a PEN 136.1 violation, the prosecutor must illustrate that:
- You restrained or confined another party without their permission
- The confinement caused the victim to remain or be moved to a different location for some time, no matter short
- You did so against the victim’s will
- The victim obtained injuries, regardless of the extent
- Your behavior contributed significantly to the victim’s injuries
A PEN 235 contravention is a wobbler whose misdemeanor sentence attracts no more than twelve months in jail or fines of $1,000. A felony sentence is punishable by incarceration of at most three years.
3. Kidnapping Under PEN 207
Kidnapping is the forceful moving of a person over a particular distance, no matter how short it is, without consent. Furthermore, you must accomplish these actions through restraint, violence, or threats. The prosecutor would charge you with kidnapping instead of witness tampering if you attempted to dissuade a witness by kidnapping. Under these circumstances, the charges against you will be raised to aggravated kidnapping. Other aggravating aspects are:
- Kidnapping someone 14 or younger
- Holding someone at ransom
- When the kidnapped individual obtains severe injuries
- When you kidnap someone during the commission of a carjacking
Whether or not your PEN 207 violation aggravates circumstances will determine the appropriate punishment. Without aggravating factors, the maximum sentence for kidnapping is eight years in state prison and $10,000 in fines.
You can defend yourself against the accusations by asserting that the alleged victim authorized your behavior. If they did not act out of coercion or fear, your actions do not amount to coercion.
Find an Experienced Violent Crimes Attorney Near Me
Because facing criminal charges for intimidating a witness can be very stressful, you should only entrust a criminal defense attorney to represent you in court. Protect your freedom and interests by speaking to the Los Angeles Criminal Attorney today at 424-333-0943. Our legal team will develop effective defense strategies based on your case.