The Crime of Intimidating a Witness or Victim - PC 136.1
California Penal Code Section 136.1 defines the California crime of dissuading or intimidating a witness or victim, which is often known as witness tampering and related to domestic violence cases.
PC 136.1, witness intimidation, is directed at defendants who attempt to:
- intimidate or coerce witnesses into failing to report a crime,
- failing to testify about the crime,
- failing to aid in the prosecution process, or
- failing to aid in the arrest process.
Penal Code Section 136.1 PC states that anyone who knowingly and maliciously prevents or dissuades a witness or victim, or attempts to do so, from attending or providing testimony at any proceeding, or making a report that could lead criminal action being taken, could be charged with dissuading a witness.
It should be noted that even if the attempt at intimidation failed, you could still be convicted of this offense.
To give readers a better understanding of dissuading a witness law, our Los Angeles criminal defense lawyers are providing a review below.
What Factors Must Be Proven for a PC 136.1 Conviction?
Under Penal Code 136.1 PC, the prosecutor must prove several different factors (CALCRIM 2622) that the defendant acted with specific intent:
- defendant must knowingly and maliciously prevent or dissuade a witness or victim to a crime,
- from attending or testifying at a judicial proceeding,
- reporting a crime to law enforcement,
- assisting the prosecution in preparing their case, or
- assisting law enforcement in apprehending the suspect.
It should be noted that the attempt to dissuade or intimidate a witness is by itself sufficient to sustain a conviction under Section 136.1.
This means that even if the defendant is unsuccessful in their attempt to dissuade the witness or victim, they can still be property charged with dissuading a witness under California law.
What are the Penalties for PC 136.1 Dissuading a Witness?
Penal Code Section 136.1 PC is a so-called “wobbler,” meaning that it can be prosecuted as either a misdemeanor or a felony.
Many factors affect a prosecutor's decision on whether to proceed with misdemeanor or felony charges, including:
- defendant's prior record,
- the manner and means used in the alleged intimidation of the victim or witness,
- the effect of the conduct on the victim.
Note, however, that a felony prosecution is much more likely where there is proof that the:
- defendant intimidated the victim by the use of threats or violence,
- was hired by someone else to commit the violation of PC 136.1 as part of a larger conspiracy, or
- has previously been convicted of dissuading a witness.
The penalties associated with a conviction for dissuading a witness depend on whether the prosecution proceeds as a misdemeanor or a felony.
Misdemeanor violations of Penal Code 136.1 PC are punishable by:
- up to a year in the county jail,
- a $1,000 fine, or both.
A felony violation of PC 136.1, on the other hand, is punishable by:
- two, three, or four years in the California state prison,
- a $10,000 fine, or both imprisonment and a fine.
Additionally, a defendant convicted under Section 136.1 must pay victim restitution and, if granted probation, must complete all terms of probation ordered by the court including community service, community labor, anger management, or other terms.
What are the Related California Offenses?
Penal Code 137 PC – bribery of witness regarding testimony,
Penal Code 138 PC – bribery of witness regarding trial attendance,
Penal Code 236 PC – false imprisonment,
Penal Code 207 PC – kidnapping,
Penal Code 422 PC – criminal threats.
Examples of Penal Code 136.1 Witness Tampering
Several examples of potential witness tampering scenarios illustrate the coverage of the California statute.
Imagine a defendant is already charged with an assault in state court. He knows that the prosecution will depend heavily on the testimony of the victim, because there were no other eyewitnesses to the alleged assault.
Prior to trial, the defendant discovers the victim's phone number and places a call to him stating, “if you testify at my trial, you will regret it.”
The defendant's intent is clearly malicious – he is hoping to dissuade the witness to avoid being correctly found guilty of the assault he committed.
He also made the call with the intent to cause the victim to fail to appear at court and testify. The defendant is guilty under Section 136.1 as it's a form of obstruction of justice.
Conversely, in the same scenario, imagine that the defendant, who is rightly concerned that the victim's testimony will lead to his conviction at trial, expresses to a mutual acquaintance that he hopes the victim does not show up to trial.
He makes no attempt to directly contact the victim and does not request that the mutual acquaintance do so on his behalf.
Nevertheless, the acquaintance tells the victim that the defendant is scared of him testifying at trial.
While the victim might infer some ill intent on the defendant's part, there is insufficient evidence to convict the defendant under Section 136.1 as he did not act knowingly and maliciously to attempt to dissuade the victim from appearing at court, cooperating with the prosecution, or testifying at trial.
How Can I Fight Dissuading a Witness Charges?
Our Los Angeles criminal defense lawyers can use different strategies to fight witness intimidation charges, including:
- lack of intent,
- no maliciousness,
- false allegation,
Lack of intent
We might be able to argue there was no intent to dissuade or prevent a witness or victim from testifying or otherwise aid criminal prosecution.
In some witness intimidation cases, we might be able to show with evidence you were falsely accused and wrongfully arrested.
A violation of Penal Code Section 136.1 PC is a serious crime under California law.
Prosecutors and judges take very seriously an allegation that a suspect has attempted to influence the proceedings by intimidating or tampering with a witness or victim.
If you or a family member is under investigation for, has been arrested for, or is already charged with dissuading a witness under PC 36.1, contact our experienced team of Los Angeles criminal defense attorneys for an initial consultation.
Through the process of prefiling intervention, it may be possible to drop or reduce charges before court.
Eisner Gorin LLP is a criminal law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is located next to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office to review the details of your case at (310) 328-3776.