Penal Code 136.1 PC - Dissuading or Intimidating a Witness or Victim
California Penal Code 136.1 PC makes it a crime to dissuade, intimidate, or tamper with a witness or the victim to prevent them from reporting or testifying about a crime or cooperating with police or the district attorney.
Witness intimidation, a wobbler that can be filed as a misdemeanor or a felony, carries significant consequences. Notably, any attempts to intimidate are illegal, whether or not they are successful, and can lead to severe penalties.
To convict you, a prosecutor must prove that you knowingly and maliciously prevented or dissuaded (or attempted to prevent) a witness of a crime or a victim from attending or testifying at a judicial proceeding to report a crime or aid in the prosecution or arrest process.
To be found guilty, you must have acted with both knowledge and malice. 'Knowingly' means you were aware of the facts, and 'malice' means you acted with a desire to annoy or injure someone. For instance, making a threatening phone call to a witness could be considered an act of malice.
Under this law, a "victim" believes that a state or federal crime has been committed against them. As noted, to be guilty of witness tampering, it does not matter if you successfully prevented or discouraged a witness; the attempt to do so is sufficient.
The crime of PC 136.1 dissuading or intimidating a witness is sometimes known as witness tampering and is often related to domestic violence.
Suppose a defendant has been charged with an aggravated assault. He knows the district attorney will depend on the victim's testimony because there are no eyewitnesses.
Before trial, the defendant obtains the victim's phone number, calls them, and says they will regret testifying against him in an attempt to dissuade the witness.
Since the call was made to cause the victim to fail to appear in court and testify, he could be charged and convicted under Penal Code 136.1 PC.
What Does the Law Say?
The full text of California Penal Code 136.1. PC witness or victim intimidation says, "(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(3) For purposes of this section, evidence that the defendant was a family member who interceded to protect the witness or victim shall create a presumption that the act was without malice.
(b) Except as provided in subdivision (c), every person who attempts 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 and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Making any report of that victimization to any peace officer, state or local law enforcement officer, probation or parole or correctional officer, prosecuting agency, or any judge.
(2) Causing a complaint, indictment, information, probation, or parole violation to be sought, prosecuted, and assisting in the prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in connection with that victimization.
(c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances:
(1) Where the act is accompanied by force or 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 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 were committed in this state, would be a violation of this section.
(4) Where the act is committed by any person for pecuniary gain or any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony.
(d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to the success or failure of the attempt. The fact that no person was injured physically or intimidated shall be no defense against any prosecution under this section.
(e) Nothing in this section precludes the imposition of an enhancement for great bodily injury where the injury inflicted is significant.
(f) The use of force during the commission of any offense described in subdivision (c) shall be considered a circumstance aggravating the crime in imposing a term of imprisonment under subdivision (b) of Section 1170."
Witness Intimidation - Quick Facts
- PC 136.1 witness intimidation is directed at people who attempt to coerce witnesses or victims into failing to report or testify about a crime.
- Even if the attempt at intimidation failed, you could still be convicted.
- The prosecutor must prove different factors that the defendant acted with specific intent, such as their acts were knowing and malicious.
- A common form of intimidation is attempting to stop law enforcement from apprehending the suspect.
What are Related Crimes?
Several California laws are related to Penal Code 136.1 dissuading or intimidating a witness or victim, including the following:
- Penal Code 137 PC - Bribery of Witness. This law makes it a crime to give or offer a bribe to a witness to influence their testimony or statements to law enforcement. It is a felony punishable by up to four years in jail.
- Penal Code 138 PC - Witness Taking a Bribe. This law makes it a crime for witnesses to take or ask for a bribe when it influences their testimony or their availability to testify at a court proceeding. It is also a felony, punishable by up to four years in jail.
- Penal Code 236 PC - False Imprisonment. This crime involves unlawfully restraining, detaining, or confining someone against their will. The wobbler can be charged as either a misdemeanor or felony and is punishable by up to three years in jail.
- Penal Code 207 PC - Kidnapping. This law says moving a victim a substantial distance by force or fear is a crime.
- Penal Code 422 PC - Criminal threats. This law defines the crime of criminal threats as when you threaten to kill or harm someone. That person must be placed in a state of reasonable fear, the threat must be specific, and you must communicate the threat verbally, in writing, or through an electronic device.
What are the PC 136.1 Penalties?
Penal Code 136.1 PC witness or victim intimidation is a "wobbler" that can be prosecuted as either a misdemeanor or a felony based on the following factors:
- Your criminal history.
- The means used to intimidate the victim or witness.
- The effect of the conduct on the witness or victim.
Notably, a felony prosecution is more likely where there is proof of the following:
- You intimidated the victim by the use of threats or violence.
- You were hired by someone else to violate PC 36.1 as part of a larger conspiracy.
- You have a prior conviction of dissuading a witness.
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 is punishable by the following:
- Two, three, or four years in state prison,
- A $10,000 fine, or both imprisonment and a fine.
- Pay victim restitution.
If you are granted probation, you must complete all terms of probation ordered by the court, including community service, anger management, or other terms.
What Are the PC 136.1 Defenses?
As discussed below, our California criminal defense lawyers can use different strategies to fight witness intimidation charges.
We can argue there was a lack of intent. We might be able to claim there was no intent to dissuade or prevent a witness or victim from testifying or otherwise aid criminal prosecution.
We can argue that the allegations are false. We might be able to show with evidence you were falsely accused and wrongfully arrested.
We can argue there was no knowledge or malice. Witness tampering is a specific intent crime, meaning you must have acted with both knowledge and malice to be guilty.
A violation of Penal Code 136.1 PC is a serious crime under California law. Prosecutors and judges take seriously an allegation that a defendant has attempted to influence the proceedings by intimidating or tampering with a witness or victim.
It may be possible to drop or reduce charges through prefiling intervention before the court process begins. Contact us for more information. The Hedding Law Firm is based in Los Angeles, CA.
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