Dissuading a Witness or Victim

California Penal Code Section 136.1
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Definition of Dissuading a Witness or Victim

Under California Penal Code 136.1 PC, dissuading a witness entails knowingly and maliciously preventing or dissuading a victim or witness to a crime from any of the following acts:

  • Attending or testifying at a proceeding authorized by law;
  • Making a report;
  • Cooperating or providing information so that a complaint/ indictment/ information/ probation violation/parole violation could be sought and prosecuted, and from helping to prosecute that action; or
  • Arresting/causing/seeking the arrest of someone in connection with a crime.

Misdemeanor vs. Felony

Under Penal Code section 136.1, you can be charged either with a misdemeanor or a felony. The following list will increase the charge to a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances:

  • Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.
  • Where the act is in furtherance of a conspiracy.
  • Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section.
  • Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony.

Professional Affiliations

How Does the Prosecutor Prove Someone Dissuaded A Witness or Victim?

To prove that you are guilty of this offense, the prosecutor has to prove the following facts or elements1:

  • Knowingly2 and maliciously3;

Example:  Mary told her neighbor Jason that the last person who testified against her co-worker who robbed a bank has disappeared and has not been heard from for days. Unbeknownst to Mary, Jason also witnessed the robbery under penal code 211 pc and was called to testify. Because of what Mary told him, he now fears for his safety and plans on refusing to testify. Mary cannot be charged with the offense in this instance because she did not know that Jason is a witness.

  • Preventing or attempting to prevent4

Example:  David sent a threatening message to a witness in a case that if he testifies against him that he will “be dealt with.” Unbeknownst to David, the witness never received the note and therefore did not feel threatened or intimidated. Nonetheless, David can be charged with the offense because he attempted to threaten the witness in order to prevent him from testifying.

  • A victim5 or witness;6
  • From any of the following acts:

(1) Attending or testifying at a proceeding authorized by law;

(2) Making a report;

(3) Cooperating or providing information so that a complaint/ indictment/ information/ probation violation/parole violation could be sought and prosecuted, and from helping to prosecute that action; or

(4) Arresting/causing/seeking the arrest of someone in connection with a crime.

Example:  Julie is being prosecuted for the theft of a gold necklace from a jewelry store. The day before the store cashier was to testify that she saw Julie do the whole thing, Julie offers the store clerk money to instead testify that the woman who took the necklace looked nothing like Julie and that it must have been someone else who stole the necklace. Julie could be charged with the offense because she tried to dissuade the store cashier from testifying against her.

Example:  Robert, a primary suspect in a bank robbery sent James, a bank teller who got a glimpse of Robert’s face under the mask, a note that read “Testify and you’re dead.” Robert could be charged with the offense because he threatened James to prevent him from testifying about Robert’s participation in the robbery.

Who Can be Charged with Dissuading a Witness or Victim?

You can be charged with the offense even if you did not succeed in dissuading or intimidating a witness. An attempt to do so is sufficient to be charged with the offense (see example for “attempt” above). Also in order to be charged with the offense, you have to have acted with knowledge. In other words, if you did not know that the person you were dissuading was a witness or victim or did not think or realize you were engaged in the type of behavior that would cause the witness to be intimidated and thereby dissuaded, you cannot be charged with this offense.

Legal Defenses

Lack of intent or lack of knowledge: It is a defense to this charge if you did not intend or know that the person you were dissuading was a witness or victim or did not think or realize you were engaged in the type of behavior that would cause the witness to be intimidated and thereby dissuaded.

False accusations: If you were falsely accused, you cannot be charged with this offense. False accusations often times occur in a situation involving domestic violence or in other situations wherein the accusing witness has a motive to lie. In such a situation, the facts will need to be investigated further to determine the real cause behind the accusation. However, without real facts to back up the accusation, the prosecutor will not be able to charge you with the offense.

Insufficient evidence: When the prosecutor lacks the corroborating evidence to convict you of this charge, he/she will not be able to meet the burden of proof to charge you with this crime.

The person is not a witness: One of the elements of this charge is that the person you tried or dissuade is a witness. As defined earlier, a witness is someone who knows facts relating to the crime. In a situation where the person you intimidated is not a witness, you cannot be charged with the offense.

What Are the Penalties and Sentencing Guidelines For Dissuading A Witness Or Victim?

(a) Misdemeanor:

  • If charged with this offense as a misdemeanor, you can be facing imprisonment of up to 1 year in the county jail and a fine of up to $1,000;
  • You will also be prevented from owning or possessing a firearm under California gun laws for ten (10) years.

(b) Felony:

  • If charged with this offense as a felony, you can be facing imprisonment of 16 months to 4 years in the California state prison and a maximum $10,000 fine;
  • A lifetime restriction on owning or acquiring firearms.

(c) The Use of Force:

  • The use of force during the commission of any of the following offenses shall be considered a circumstance in aggravation of the crime in imposing a term of imprisonment under subdivision (b) of Section 1170:

(1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.

(2) Where the act is in furtherance of a conspiracy.

(3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section.

(4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person.  All parties to such a transaction are guilty of a felony.

(d) California’s Three Strikes Law: This offense is also considered as a “serious felony” and can result in a “strike” on your criminal record pursuant to California’s Three Strike’s Law.

Related Offenses

How We Can Help

The Aizman Law Firm has significant experience defending clients charged with dissuading a witness or victim and in consultation with our clients we come up with the most effective defense strategy for your case. The specialists at the Aizman Law Firm will aggressively defend your case.  Contact us for a free consultation at 818-351-9555.  

Request A Free Consultation 818-351-9555 

Footnotes

  1. Penal Code 136.1: Elements of the offense listed. []
  2. The word “knowingly” imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. This means that if you did not know that the person you were dissuading was a witness or victim or did not think or realize you were engaged in the type of behavior that would cause the witness to be intimidated and thereby dissuaded, you cannot be charged with this offense. []
  3. A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice. Malice Defined. Penal Code 136(1). []
  4. You do not have to succeed at preventing or dissuading the victim/witness from performing the acts listed under this section; an attempt to do so will be sufficient for a conviction. See CALCRIM §2622: Intimidating a Witness Penal Code Section 136.1(a) & (b). []
  5. “Victim” means any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated. Penal Code 136.1; CALCRIM §2622: Intimidating a Witness Penal Code Section 136.1(a) & (b). []
  6. A witness is someone who: (1) knows about the facts relating to the crime; or (2) whose declaration under oath has been or may be received as evidence; or (3) who has reported a crime to a peace officer/prosecutor/probation or parole officer/correctional officer/judicial officer; or (4) who has been served with a subpoena issued under the authority of any state or federal court. []

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