Review of Penal Code 136.1 Dissuading a Witness or Victim Law and Defenses
California Penal Code 136.1 PC describes the crime of dissuading or intimidating a witness or victim, which can be filed as either a misdemeanor or felony crime. This statute is often called “witness tampering” and often falls under the umbrella of domestic violence.
Witness intimidation charges can be filed against someone for different types of conduct, including:
- intimidating a witness or victim into not reporting a crime,
- failure to provide testimony about the crime,
- failure to assist in the prosecution or arrest process.
Definition
Penal Code 136.1 PC defines dissuading or intimidating a witness as:
- “any person who knowingly and maliciously prevents or dissuades a witness or victim, or attempts, to prevent them from providing testimony at any proceeding, or to make a report that could lead criminal action being taken.”
As you can see, even if an attempt to dissuade or intimidate a witness or victim failed, you could face arrest, prosecution, and a conviction under this statute. In 2020, California lawmakers passed a bill (SB 273) that extends the statute of limitations for domestic violence to five years.
Many domestic violence cases are prosecuted without the victim's cooperation. This means that even in domestic violence cases where the victim refuses to testify, the prosecution can still obtain conviction without the victim's testimony.
Our Los Angeles criminal defense attorneys are reviewing the law below for more detailed information.
Example of Witness Intimidation
Let's review an example of potential witness tampering under this statute.
A defendant was charged with aggravated assault and he is well aware the prosecutor only has the victim to provide testimony.
Before trial, the defendant calls the victim and tells them they will regret giving testimony in court.
The intent of this statement is not in doubt as they are hoping to intimidate the witness to avoid a conviction at trial.
Further, the call was made to prevent the witness from appearing in court. In this example, the defendant violated Penal Code 136.1
Factors That Must Be Proven for a PC 136.1 Conviction
To convict a defendant of PC 136.1 dissuading a witness, the prosecutor has to be able to prove numerous factors that are commonly known as the elements of the crime (CALCRIM 2622), including:
- knowingly dissuade a witness or victim to a crime;
- from providing testimony at a judicial proceeding or
- report a crime to the police, or
- assist the prosecutor in preparing their case, or
- assist police in the apprehension of the suspect.
An “attempt” to dissuade or intimidate a witness is enough to support a Penal Code 136.1 conviction.
As noted above, even if a defendant is unsuccessful in actually dissuading a victim or witness, they can still be arrested, charged, and convicted under this statute.
Penalties for PC 136.1 Dissuading a Witness
Witness intimidation in violation of Penal Code 136.1 PC is a “wobbler” offense, which means the prosecutor can file the case as a misdemeanor or a felony.
The primary factors that are considered when filing the case include the defendant's criminal record, the circumstances of the case, and the impact on the victim.
It should be noted, however, that a prosecutor is more likely to file felony charges when there is proof that the defendant:
- intimidated the victim accomplished by the use of threats or violence,
- was hired by another person in a larger conspiracy or
- has prior witness intimidation conviction.
Thus, punishment will depend on the level of charges filed by the prosecution.
A PC 136.1 misdemeanor conviction is punishable by:
- up to one year in county jail,
- a fine up to $1,000 fine, or both
- summary probation.
A felony conviction is punishable by:
- two, three, four years in a California state prison,
- a fine up to $10,000 fine, or both
- formal probation
Victim restitution + terms of probation
Further, a witness intimidation conviction will require the defendant to pay victim restitution. If the judge grants probation, the court orders the defendant to complete specific terms, such as community service hours and anger management classes.
Related California Crimes for Dissuading a Witness
- Penal Code 422 PC – criminal threats,
- Penal Code 236 PC – false imprisonment,
- Penal Code 137 PC – bribery of witness over testimony,
- Penal Code 138 PC – bribery of witness about trial attendance,
- Penal Code 207 PC – kidnapping.
Best Defenses for Dissuading a Witness Charges
If you were accused of tampering with a witness, our criminal attorneys can use a variety of defenses to fight the charges, such as:
- no intent,
- lack of knowledge or malice,
- false allegation.
It might be possible to argue that you did not intend to prevent the witness or victim from providing testimony.
Further, we can produce evidence that the allegations against you are false or insufficient evidence to obtain a conviction beyond a reasonable doubt. Violating Penal Code 136.1 PC is a serious crime with harsh consequences.
If you or a family member are under investigation or already charged with witness intimidation in violation of PC 36.1, please contact our law firm to review the details.
We could negotiate with the prosecutor for reduced charges or possibly a case dismissal.
Further, we may be able to persuade the prosecutor to file charges before the court through prefiling intervention.
Cron, Israels & Stark is a top-ranked criminal defense law located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. We offer a free case evaluation at (424) 372-3112.
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