For crime victims, fear and confusion may not end with the crime itself.
Unfortunately, a crime victim may experience witness intimidation from his or her attacker. Sometimes criminals use physical assaults, threats and other tactics to intimidate victims and deter them from cooperating with law enforcement and testifying in court.
Such victims may be in need of witness protection services.
Even when intimidation is not an issue, a crime victim may need other kinds of assistance...to help the victim recover and get back on his or her feet. The victim may need medical or emotional support. The victim may need financial assistance and/or help calculating the amount of loss for restitution.
Luckily, there are a number of services available for crime victims in California. These range from witness protection services to counseling services. In this article, our California Crime Victim Advocate Attorneys provide an overview of these services.1
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
You might also be interested in reading our related articles on victim rights and victim advocacy: Victim Rights and Victim Advocacy in California Criminal Cases; Preparing a California Crime Victim for the Witness Stand; Advocating in Court for California Crime Victims; Victim Restitution & Compensation in California Criminal Cases; Calculating Restitution Orders in California; and Making a Restitution Claim to the California Crime Victim Compensation Fund (CalVCP).
In California, a crime victim may be able to access the following kinds of services:
- Services to help keep the victim safe so the victim can cooperate with law enforcement and put away the criminal
- Services to help address any lingering physical or emotional trauma caused by the crime
- Services to help the victim get access to emergency food, shelter and housing
- Services to help the victim secure financial restitution to compensate the victim for losses caused by the crime
The state of California has its own witness protection program. Like a mini-version of the more renowned federal Witness Security Program (in which federal officials provide witnesses in organized crime and other sensitive cases with new identities in exchange for their testimony in court), the state program enables local law enforcement to help victim-witnesses establish new and safer lives after cooperating with law enforcement.
Witness intimidation is a major problem in California and throughout the country.2
It can come into play in any kind of crime, but is especially prevalent in gang-related cases (where entire communities are held hostage to the fear of gang retaliation) and in domestic violence cases.3
As of 2005, the Los Angeles Police Department was reporting an average of nearly 800 gang-related witness intimidation incidents each year.4
Witness intimidation can take several forms. In gang-related cases, it can involve:
- Physical assaults
- Threats of physical harm
- Menacing gestures or driving by a witness's house
- Destroying witness property
- Having fellow gang members "crowd" the courtroom5
The phenomenon of witness intimidation is especially damaging because it has the effect of perpetuating a cycle of violence. If crime victims and other witnesses refuse to testify against their attackers in court, prosecutors will be less effective at holding criminals accountable.
Instead of going to prison, the criminal goes right back out on the street...ready to victimize other innocent people and menace whole neighborhoods.
California's witness protection program is called the California Witness Relocation and Assistance Program (CalWRAP).
CalWRAP is a state-level program that reimburses local law enforcement agencies for costs associated with witness relocation and protection where "credible evidence exists of a substantial danger that a witness may suffer intimidation or retaliatory violence."6
Reimbursable costs include: temporary lodging, storage of personal belongings, rent, meals, utilities, psychological counseling, medical care, new identities, vocational or occupational training, and costs of law enforcement security in conducting transportation and protection.7
From July 1, 2009, to June 30, 2010, CalWRAP provided funds for the relocation of 418 witnesses and 689 family members. The relocations related to 375 new cases involving 670 violent offenders.
About 80% of cases were gang-related.8 The rest involved murder, attempted murder, rape, kidnapping, assault and other crimes.9
It's important to remember that witness protection is not a "miracle cure" for a victim-witness. Witness protection comes with caveats. Witnesses must agree to comply with all laws and must give up their lives as they know them.10
And victims can remain vulnerable even after entering witness protection programs, especially if they jeopardize their cover by returning to their old neighborhoods.11
California has several criminal laws designed to combat the scourge of witness intimidation and related crimes. Vigorous prosecution of these crimes is an essential part of any witness protection scheme.
California Penal Code 136.1pc dissuading a witness
California Penal Code 136.1 pc dissuading a witness criminalizes acts of intimidating or attempting to intimidate witnesses from attending or testifying at court proceedings, reporting the crime, or aiding in the prosecution process.12
California Penal Code 136.1 pc dissuading a witness is a wobbler in California, which means it can be punished as either a misdemeanor or a felony.
If someone is convicted of felony Penal Code Section 136.1, that person faces up to four years in California state prison.
California Three Strikes Law
Additionally, a felony conviction for Penal Code Section 136.1 counts as a "strike" under California's Three Strikes Law.
Because felony California Penal Code 136.1 pc dissuading a witness is a "serious felony" under the California Three Strikes Law, someone convicted of it, and who is subsequently convicted of any other felony, will be considered a "second striker" and receive double the sentence (for the subsequent felony) otherwise required by law.
If a "second striker" is convicted of a third felony, that person gets an automatic "third strike" sentence of 25 years-to-life in California state prison.
For more information, please see our related articles on the California Three Strikes Law and Serious Felony Offenses under the California Three Strikes Law.
California Penal Code 186.22 criminal street gang enhancement
Further, gang-related witness intimidation can be punished by a sentence of seven-years-to- life in prison under California Penal Code 186.22 pc criminal street gang enhancement.13
California Penal Code 186.22pc criminal street gang enhancement provides for additional prison time to be added to the sentences of people who commit crimes for the benefit of a criminal street gang.
Besides criminal prosecution of witness intimidation offenses, the law provides other mechanisms that enhance witness protection. These include:
- protective orders directing the defendant to "stay away" from the victim 14
- measures designed to prevent the disclosure of victim information to the defendant 15
- high bail amounts for intimidation-related crimes set at a California bail hearing16
Under California law, state funding is available for victim assistance programs for:
- Crisis intervention
- Emergency food, housing or clothing assistance
- Counseling and counseling referrals
- Assistance filing claims
- Assistance obtaining the return of evidence held by law enforcement
- Education about the criminal justice system
- Escorts to court
- Case monitoring
- Notification to friends, relatives and employers
- Help with childcare
- Creditor intervention
- Help with funeral arrangements
- Help obtaining restraining orders
- Help with transportation 17
The Los Angeles County District Attorney's Office has one of the most established victim-witness assistance programs in California.
The Los Angeles County District Attorney's Office Victim-Witness Assistance Program (VWAP) provides free assistance services for victims of violent crime in a number of different languages including Spanish, Korean and Armenian.
The VWAP program has a specialized unit that deals with gang-related crimes, as well as staff members that focus on sex crimes and domestic violence crimes.
Our California Crime Victim Advocate Attorneys
If you are a crime victim and have questions about the role of victim advocacy, we invite you to call us at Shouse Law Group for a consultation. We also invite you to review our related articles on various aspects of victim advocacy: Victim Rights and Victim Advocacy in California Criminal Cases; Preparing a California Crime Victim for the Witness Stand; Advocating in Court for California Crime Victims; Victim Restitution & Compensation in California Criminal Cases; Calculating Restitution Orders in California; and Making a Restitution Claim to the California Crime Victim Compensation Fund (CalVCP).
You might also be interested in reading our articles on: California Penal Code 136.1 pc dissuading a witness; Wobblers in California; California Penal Code 186.22 pc criminal street gang enhancement; California's Three Strikes Law; Serious Felony Offenses under the California Three Strikes Law; and California Bail Hearings.
1 Our California Crime Victim Advocate Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 Tara Kowalski discusses the phenomenon of witness intimidation and argues for more legal protections for witnesses in her law review article Alvarado v. Superior Court: A death Sentence for Government Witnesses, 35 U.C. Davis L. Rev. 207, 2001-02.
3 Center for Problem-Oriented Policing, Witness Intimidation, by Kelly Dedel, Guide No, 42 (2006) ("Historically, witness intimidation is most closely associated with organized crime and domestic violence, but has recently thwarted efforts to investigate and prosecute drug, gang, violent, and other types of crime."); SEE ALSO National Institute of Justice, Victim-Witness Intimidation: New Developments and Emerging Responses, by Kerry M. Healey, October 1995 ("Most interview respondents estimated that more victims were murdered and otherwise intimidated in domestic violence cases in their jurisdictions each year than in gang or drug crime-related intimidation attempts. Respondents and working group members agreed that intimidation in domestic violence cases is different in nature from gang-related intimidation because of the close relationship between domestic partners and the near universality of intimidation in domestic violence cases. However, respondents agreed that intimidation associated with gang- and drug-related violent crime was escalating, while intimidation linked to domestic violence was continuing at a steady rate.")
4 National Gang Center Bulletin, Gang-Related Witness Intimidation, February 2007.
6 California Penal Code Sections 14020 through 14022 provide: "There is hereby established the Witness Relocation and Assistance Program. 14021. As used in this title: (a) "Witness" means any person who has been summoned, or is reasonably expected to be summoned, to testify in a criminal matter, including grand jury proceedings, for the people whether or not formal legal proceedings have been filed. Active or passive participation in the criminal matter does not disqualify an individual from being a witness. "Witness" may also apply to family, friends, or associates of the witness who are deemed by local or state prosecutors to be endangered. (b) "Credible evidence" means evidence leading a reasonable person to believe that substantial reliability should be attached to the evidence. (c) "Protection" means formal admission into a witness protection program established by this title memorialized by a written agreement between local or state prosecutors and the witness. 14022. The program shall be administered by the Attorney General. In any criminal proceeding within this state, when the action is brought by local or state prosecutors, where credible evidence exists of a substantial danger that a witness may suffer intimidation or retaliatory violence, the Attorney General may reimburse state and local agencies for the costs of providing witness protection services."
8 Id at p. 2.
9 Id at p. 4.
10 California Penal Code Section 14025 provides: "The witness protection agreement shall be in writing, and shall specify the responsibilities of the protected person that establish the conditions for local or state prosecutors providing protection. The protected person shall agree to all of the following: (a) If a witness or potential witness, to testify in and provide information to all appropriate law enforcement officials concerning all appropriate proceedings. (b) To refrain from committing any crime. (c) To take all necessary steps to avoid detection by others of the facts concerning the protection provided to that person under this title. (d) To comply with legal obligations and civil judgments against that person. (e) To cooperate with all reasonable requests of officers and employees of this state who are providing protection under this title. (f) To designate another person to act as agent for the service of process. (g) To make a sworn statement of all outstanding legal obligations, including obligations concerning child custody and visitation. (h) To disclose any probation or parole responsibilities, and if the person is on probation or parole. (i) To regularly inform the appropriate program official of his or her activities and current address."
11 National Public Radio, Do Witness Protection Programs Really Protect? By Scott Shafer, August 29, 2007.
12 California Penal Code Section 136.1 provides: "(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 in an effort 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 or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. (2) Causing a complaint, indictment, information, probation or parole violation to be sought and 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 byimprisonment 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 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) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact 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 or substantial. (f) The use of force during the commission of any offense described in subdivision (c) shall be considered a circumstance in aggravation of the crime in imposing a term of imprisonment under subdivision (b) of Section 1170."
13 California Penal Code Section 186.22(b)(4) provides: "(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:...(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in [Penal Code] Section 136.1 [California's dissuading a witness law]."
14 California Penal Code Section 136.2, which provides in part that: "(a) Except as provided in subdivision (c), upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue orders including, but not limited to, the following: (1) Any order issued pursuant to Section 6320 of the Family Code. (2) An order that a defendant shall not violate any provision of Section 136.1. (3) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness orother person entering the courtroom of the court, shall not violate any provisions of Section 136.1. (4) An order that any person described in this section shall have no communication whatsoever with any specified witness or any victim, except through an attorney under any reasonable restrictions that the court may impose. (5) An order calling for a hearing to determine if an order as described in paragraphs (1) to (4), inclusive, should be issued..."
15 California Penal Code Section 1054.2 provides: 1054.2. (a) (1) Except as provided in paragraph (2), no attorney may disclose or permit to be disclosed to a defendant, members of the defendant's family, or anyone else, the address or telephone number of a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1, unless specifically permitted to do so by the court after a hearing and a showing of good cause. (2) Notwithstanding paragraph (1), an attorney may disclose or permit to be disclosed the address or telephone number of a victim or witness to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant's case if that disclosure is required for that preparation. Persons provided this information by an attorney shall be informed by the attorney that further dissemination of the information, except as provided by this section, is prohibited. (3) Willful violation of this subdivision by an attorney, persons employed by the attorney, or persons appointed by the court is a misdemeanor. (b) If the defendant is acting as his or her own attorney, the court shall endeavor to protect the address and telephone number of a victim or witness by providing for contact only through a private investigator licensed by the Department of Consumer Affairs and appointed by the court or by imposing other reasonable restrictions, absent a showing of good cause as determined by the court."
16 Pursuant to the Felony Bail Schedule for Los Angeles County, the presumptive bail for violation of California Penal Code 136.1 pc dissuading a witness is $100,000. Judges can consider threats to witnesses in setting bail amounts. See California Penal Code Section California Penal Code 1275(a), which provides that: "In setting, reducing, or denying bail [pursuant to a California bail hearing], the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration. In considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant."
17 California Penal Code Section 13835 provides: "The Legislature finds and declares as follows: (a) That there is a need to develop methods to reduce the trauma and insensitive treatment that victims and witnesses may experience in the wake of a crime, since all too often citizens who become involved with the criminal justice system, either as victims or witnesses to crime, are further victimized by that system. (b) That when a crime is committed, the chief concern of criminal justice agencies has been apprehending and dealing with the criminal, and that after police leave the scene of the crime, the victim is frequently forgotten. (c) That victims often become isolated and receive little practical advice or necessary care. (d) That witnesses must make arrangements to appear in court regardless of their own schedules, child care responsibilities, or transportation problems, and that they often find long waits, crowded courthouse hallways, confusing circumstances and, after testifying, receive no information as to the disposition of the case. (e) That a large number of victims and witnesses are unaware of both their rights and obligations. (f) That although the State of California has a fund for needy victims of violent crimes, and compensation is available for medical expenses, lost income or wages, and rehabilitation costs, the application process may be difficult, complex, and time-consuming, and victims may not be aware that the compensation provisions exist. It is, therefore, the intent of the Legislature to provide services to meet the needs of both victims and witnesses of crime through the funding of local comprehensive centers for victim and witness assistance." FURTHER, California Penal Code Section 13835.5 provides: "(a) Comprehensive services shall include all of the following primary services: (1) Crisis intervention, providing timely and comprehensive responses to the individual needs of victims. (2) Emergency assistance, directly or indirectly providing food, housing, clothing, and, when necessary, cash. (3) Resource and referral counseling to agencies within the community which are appropriate to meet the victim's needs. (4) Direct counseling of the victim on problems resulting from the crime. (5) Assistance in the processing, filing, and verifying of claims filed by victims of crime pursuant to Article 1 (commencing with Section 13959) of Part 4 of Division 3 of Title 2 of the Government Code. (6) Assistance in obtaining the return of a victim's property held as evidence by law enforcement agencies, if requested. (7) Orientation to the criminal justice system. (8) Court escort. (9) Presentations to and training of criminal justice system agencies. (10) Public presentations and publicity. (11) Monitoring appropriate court cases to keep victims and witnesses apprised of the progress and outcome of their case. (12) Notification to friends, relatives, and employers of the occurrence of the crime and the victim's condition, upon request of the victim. (13) Notification to the employer of the victim or witness, if requested by the victim or witness, informing the employer that the employee was a victim of or witness to a crime and asking the employer to minimize any loss of pay or other benefits which may result because of the crime or the employee's participation in the criminal justice system. (14) Upon request of the victim, assisting in obtaining restitution for the victim, in ascertaining the victim's economic loss, and in providing the probation department, district attorney, and court with information relevant to his or her losses prior to the imposition of sentence. (b) Comprehensive services may include the following optional services, if their provision does not preclude the efficient provision of primary services: (1) Employer intervention. (2) Creditor intervention. (3) Child care. (4) Notification to witnesses of any change in the court calendar. (5) Funeral arrangements. (6) Crime prevention information. (7) Witness protection, including arranging for law enforcement protection or relocating witnesses in new residences. (8) Assistance in obtaining temporary restraining orders. (9) Transportation. (10) Provision of a waiting area during court proceedings separate from defendants and families and friends of defendants."