Intimidating or dissuading a witness –Penal Code 136.1 PC

Penal Code 136.1 PC is the California law that outlines the crime of dissuading or intimidating a witness. It simply describes the attempt to prevent a victim or a witness from reporting or testifying about a crime, or rather from cooperating with authorities. The charge can be filed as a misdemeanor or a felony with a maximum sentence of 4 years in jail or prison.

Note: This offense is also commonly referred to as witness tampering.

According to Penal Code 136.1 PC:

Anyone who does any of the following is considered guilty of a public offense:

(1) Knowingly and maliciously dissuades or intimidates any witness or victim from attending or giving testimony at any trial, proceeding, or an inquiry authorized by law.

(b) Everyone who tries to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense…

(1) Making any report of that victimization to any peace officer or state or local law enforcement officer…

(2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted…

 (3) Arresting or causing or seeking the arrest of any person in connection with that victimization.”

Some Examples:

• Sending a news article to a potential witness that reports how a witness in another case was murdered.
• Contacting the alleged victim of a crime and telling them “stay quiet or else.”
• Offering money to a witness of a crime for them to withhold information from respective authorities.

The Best Legal Defenses

Defendants can fight a charge under this law with a solid legal defense. Some common defenses are:

• Lack of knowledge or malice,
• False accusation, and/or
• No witness/victim.

Penalties

A violation of this code section is considered a wobbler offense. Therefore, the district attorney can either charge it as a misdemeanor or a felony.

As a misdemeanor, the crime is punishable by custody in county jail for up to one year, whereas, as a felony, the offense is punishable by imprisonment in the state prison for a maximum of four years. 

The following questions are outlined in the article below by the California criminal defense attorneys at Spodek Law Group:

1. When is dissuading a witness considered a crime?
2. Any defenses to witness tampering?
3. Are there penalties under Penal Code 136.1 PC?
4. Are there immigration consequences for witness intimidation?
5. Can a defendant’s conviction get expunged?
6. Are gun rights affected by a conviction?
7. Any related offenses? 

1. When is dissuading a witness considered a crime?

In order to convict a person under this code, it’s mandatory for a prosecutor to prove the following: 

1. That the defendant knowingly and maliciously,
2. Intimidated or dissuaded or made an attempt to intimidate or dissuade,
3. A witness to or a victim of a crime from

• Testifying at or attending any judicial proceeding,
• Reporting the crime,
• Helping in the prosecution or the arrest process.

Intimidating a witness is a specific crime of intent, meaning that a defendant must have acted with both:

• Knowledge, and 
• Malice, to be guilty of a crime.

The word “knowingly” simply tells that an accused has knowledge of the existence of facts, which invites an action within the provisions of this code.

The word “malice” means to act with the desire to annoy/injure another person.

Note: Under this law, a victim is a person who believes that a state or federal crime has been committed against him.

 The sole attempt to prevent or discourage a victim/a witness deems the defendant guilty.

2. Any defenses to witness tampering?

A defendant can raise a legal defense to beat a charge of intimidating or discouraging a witness. The three common defenses are:

1. Lack of knowledge or malice,
2. No witness or victim, and/or
3. Falsely accused.

The “No knowledge or malice” defense

The defendant has to act with both knowledge and malice to be guilty. A defense, therefore, aids the accused party to show that he did not act with intent.

The “No witness or victim” defense

A defendant is only considered guilty under this law if he/she intimidated or discouraged a witness/victim. Therefore, an accused can try to get exonerated by arguing that:

1. While he may have threatened someone,
2. That person was not a witness of or a victim to a crime.

Note: The accused might still be guilty of another offense – criminal threats, per Penal Code 422 PC.

The “Falsely accused” defense

This defense often arises in California domestic violence cases. The situation is when a spouse goes to a police officer and falsely says that he/she was:

1. Abused, and 
2. Threatened to endure continuous abuse if he/she reported the crime.

In this case, the other spouse can try to beat any charges of discouraging a victim by saying she was wrongfully accused.

3. Are there penalties under Penal Code 136.1 PC?

A violation of Penal Code 136.1a is a wobbler crime, meaning it can be charged as either:

• A misdemeanor, or
• A felony.

If charged as a misdemeanor, the offense is punishable by:

• Imprisonment in county jail for a maximum of one year, and/or
• A maximum fine of $1,000.

If charged as a felony, witness tampering is punishable by:

• Custody in the state prison for a maximum of four years, and/or
• A maximum fine of $10,000.

Note that if any of the following are true, then intimidating a witness is charged as a felony:

• The intimidation was part of a major conspiracy,
• The intimidation involved the use or threats of violence,
• The defendant faced prior conviction for intimidating a victim or witness, or
• The defendant was hired by a different person to commit the crime.

4. Are there immigration consequences for witness intimidation?

A conviction for dissuading a witness may bring about negative immigration consequences.

United States immigration law state that certain kinds of criminal convictions can lead to:

• Deportation of a non-citizen, and
• Marking a non-citizen as “inadmissible”.

Aggravated felony is included in the category of “deportable” or “inadmissible” crimes.

Note that violations of this law can sometimes be charged as a felony. This means that:

• Once the facts show that the accused committed an aggravated felony,
• He/she could be deported or get marked inadmissible.

5. Can a defendant’s conviction get expunged?

A person convicted of this crime is entitled to get the conviction expunged provided that he/she:

1. Completes probation successfully, or

2. Completes a jail term successfully (whichever is relevant).

If a party violates the terms of probation, he/she could still possibly get the offense expunged, with the judge’s discretion.

According to Penal Code 1203.4, an expungement practically frees an individual from all penalties and disabilities” arising from the conviction.

6. Are gun rights affected by a conviction?

A conviction under this law will bear negative effects on the defendant’s gun rights.

A defendant’s conviction of misdemeanor dissuading a witness, serves him/her a 10-year ban on owning a firearm.

A defendant’s conviction of felony dissuading a witness, serves him/her a lifetime restriction on owning a gun.

7. Any related offenses?

There are three crimes linked to intimidating a witness. These are:

1. Criminal threats – CALIFORNIA PC 422
2. False imprisonment – CALIFORNIA PC 236, and
3. Kidnapping – CALIFORNIA PC 207.

Call Spodek Law Group for a free, confidential consultation in office or by phone. We serve many clients in the, the San Fernando Valley, Pasadena, Long Beach, Riverside, San Diego, Oakland, the San Francisco Bay area, Sonoma County, Ventura, Sacramento, San Jose, the greater Los Angeles area and throughout the Golden State.