§ 136.1 PC – Dissuading or Intimidating a Witness or Victim

Penal Code § 136.1 PC makes it a crime in California to dissuade, intimidate or tamper with a witness to (or the victim of) a crime. In simple terms, this means attempting to prevent a witness or victim from

1. reporting or testifying about a crime, or
2. otherwise cooperating with police or prosecutors.

Witness intimidation can be charged as a misdemeanor or a felony:

Misdemeanor witness intimidation	up to 1 year in county jail and/or up to $1,000
Felony witness intimidation	up to 4 years in California State Prison and/or up to $10,000

The language of 136.1 PC states that:

“(a) Any person who does any of the following is guilty of a public offense:

(1) Knowingly and maliciously prevents or dissuades [or attempts to prevent or dissuade] any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

(b) 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…

(1) Making any report of that victimization to any peace officer or state or local law enforcement officer…

(2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted…

(3) Arresting or causing or seeking the arrest of any person in connection with that victimization.”

Examples

• sending a news article to a potential witness that reports how witnesses in other cases were murdered or sustained serious physical injuries.
• calling the alleged victim of a violent crime and telling such person, “keep quiet or else your family members will suffer.”
• offering cash to a witness of a criminal offense to forget about what he saw and play dumb at any upcoming criminal proceedings, civil proceedings, or other official proceedings.

Defenses

You can fight a criminal charge under this statute with a legal defense. A few common defenses are:

• no knowledge or malice,
• no witness or victim, and/or
• falsely accused.

Our California criminal defense lawyers will explain the following in this article:

• 1. What does it mean to dissuade a witness?
• 2. Are there defenses to witness tampering?
• 3. What are the penalties under 136.1 PC?
• 4. Are there immigration consequences for intimidating a witness?
• 5. Can I get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
• Additional reading

1. What does it mean to dissuade a witness?

A prosecutor must prove the following to convict you under this code section:

1. You knowingly and maliciously,
2. prevented or dissuaded (or attempted to prevent or dissuade),
3. a witness of a crime or a victim of a crime from

• attending or testifying at any judicial proceeding,
• reporting a crime,
• aiding in the prosecution process, or
• aiding in the arrest process.¹

Intimidating a witness is a specific intent crime. This means that you must have acted with both:

• knowledge, and
• malice

to be guilty of a crime.²

The word “knowingly” means you know that facts exist which bring an action within the provisions of this code.³

The word “malice” means to act with a desire to annoy or injure another person.⁴

Example: John was talking to Paul. John told him of a recent news story in which a witness was killed after testifying at trial. John does not know that Paul was a witness to a recent crime.

Here, John is not guilty of dissuading a witness. He had no knowledge that Paul was a witness. He also did not act with any intent to injure a person.

The outcome would be different if John knew Paul was going to testify and he told him the news story with the intent to threaten or harm him.

Note that, under this statute, a victim is a person who believes:

• that a state or federal crime,
• has been committed against him.⁵

Also note that to be guilty of witness tampering, it does not matter if you successfully prevented or discouraged a witness. The attempt to do so is enough.⁶

2. Are there defenses to witness tampering?

You can raise a legal defense to beat a charge of intimidating a witness.

Three common defenses that can raise a reasonable doubt are:

1. no knowledge or malice,
2. no witness or victim, and/or
3. falsely accused.

2.1. No knowledge or malice

Recall that witness tampering is a specific intent crime. This means you have to act with both knowledge and malice to be guilty. A defense, therefore, is for you to show that you did not act with this intent.

2.2. No witness or victim

You are only guilty under this law if you intimidated or dissuaded a witness or a victim. Therefore, you can try to exonerate yourself by arguing that:

1. while you may have threatened someone,
2. that person was not a witness of a crime or a victim of a crime.

Note, though, you might still be guilty of another offense – criminal threats, per Penal Code 422 PC.

2.3 Falsely accused

The false accusations defense often arises in California domestic violence cases. The situation is when a spouse goes to a police officer and falsely says that they were:

1. abused, and
2. you threatened more abuse if they reported the crime.

Here, you can try to beat any charges of dissuading a victim by saying you were wrongfully accused.

3. What are the penalties under 136.1 PC?

A violation of Penal Code 136.1a is a wobbler. This means that it can be charged as either:

• a misdemeanor, or
• a felony.

If charged as a misdemeanor, the offense is punishable by:

• county jail time for up to one year, and/or
• a maximum fine of $1,000.⁷

If charged as a felony, witness tampering is punishable by:

• custody in the state prison for up to four years, and/or
• a maximum fine of $10,000.⁸

Note that intimidating a witness will always be charged as a felony if any of the following are true:

• the intimidation was part of a greater conspiracy,
• the intimidation involved the use or threats of violence,
• you were previously convicted of intimidating a victim or witness, or
• you were hired by someone else to commit the crime.

4. Are there immigration consequences for intimidating a witness?

A conviction for dissuading a witness may have negative immigration consequences.

United States immigration law says that certain kinds of criminal convictions can lead to:

• a non-citizen being deported, and
• a non-citizen being marked “inadmissible.”

A category of “deportable” or “inadmissible” crimes includes “aggravated felonies.”⁹

Please recall that violations of this law can sometimes be charged as a felony. This means that:

• if the facts show that you committed an aggravated felony,
• then you could be deported or get marked inadmissible.

5. Can I get a conviction expunged?

If you are convicted of this crime, you are entitled to an expungement of the criminal record provided that you:

1. successfully complete probation, or
2. complete a jail term (whichever is relevant).

If you violate a probation term, you could still possibly get the offense expunged. This, though, would be at the judge’s discretion.

Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.¹⁰

6. Does a conviction affect gun rights?

A conviction under this statute will have negative effects on your gun rights.

• If you are convicted of misdemeanor dissuading a witness, you will receive a 10-year ban on owning a firearm.
• If you are convicted of felony dissuading a witness, the law imposes a lifetime restriction on owning a gun.

7. Are there related offenses?

There are three crimes related to intimidating a witness under California law. These are:

1. criminal threats – PC 422
2. false imprisonment – PC 236, and
3. kidnapping – PC 207.

7.1. Criminal threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”

A “criminal threat” is when you threaten to kill/harm someone and

1. that person is thereby placed in a state of reasonable fear,
2. the threat is specific and unequivocal, and
3. you communicate the threat verbally, in writing, or via an electronically transmitted device.

Note that it is not necessary under this law that the threatened person be a witness or a victim.

7.2. False imprisonment – PC 236

Penal Code 236 PC is the California statute that says false imprisonment is a crime.

False imprisonment is when you:

1. restrain, detain, or confine another person, and
2. do so without that person’s consent.

Note that unlike PC 136.1, this law requires actual physical contact with another person.

7.3. Kidnapping – PC 207

Penal Code 207 PC says that it is a crime in California to:

1. move a victim a substantial distance, and
2. use force or fear to do so.

Note that, like tampering with a witness, kidnapping will typically not result in negative immigration consequences.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Witness Intimidation by Extended Family Members in Domestic Violence: Issues and Solutions – Center for the Study of Women.
• Witness Detention and Intimidation: The History and Future of Material Witness Law – St. John’s Law Review.
• #Snitches Get Stitches: Witness Intimidation in the Age of Facebook and Twitter – Pace Law Review.
• Gang-Related Witness Intimidation – National Gang Center Bulletin.
• Combating Gang-Perpetuated Witness Intimidation with Forfeiture by Wrongdoing – Seton Hall Law Review.

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