Penal Code 138 PC – Witness Taking a Bribe in California

Penal Code 138 PC is the California statute that 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. A violation of this law is a felony offense punishable by up to 4 years in jail or prison.

While this statute penalizes witnesses for receiving bribes, Penal Code 137 PC is the California law that makes it a crime for a person to bribe a witness.

The language of PC 137 states that, “every person who is a witness, or is about to be called as such, who receives, or offers to receive, any bribe, upon any understanding that his or her testimony shall be influenced thereby, or that he or she will absent…from the trial or proceeding upon which his or her testimony is required, is guilty of a felony.”

Examples of illegal acts

• a witness accepting $5,000 to do a “no show” at a criminal trial.
• an expert witness changing his/her opinion as to damages in a personal injury matter, in exchange for a few free weeks in the plaintiff’s vacation home.
• a criminal defendant’s family member accepting a blank check in return for the person not showing up at the defendant’s sentencing hearing.

Legal Defenses

An accused has the right to challenge a bribery charge with a legal defense. Some common defenses used by our attorneys include:

• the accused was not a witness,
• the defendant did not have corrupt intent, and
• the defendant was falsely accused.

Penalties

A violation of this code section is charged as a felony (as opposed to a misdemeanor or an infraction).

The possible penalties for the offense include:

• custody in state prison for up to four years, and/or
• felony (or formal) probation.

Our California criminal defense attorneys will address the following in this article:

• 1. What is a crime under Penal Code 137?
• 2. Can a defendant use a legal defense?
  • 2.1 No witness
  • 2.2 No corrupt intent
  • 2.3 Falsely accused
• 3. What are the penalties for a Penal Code 138 PC violation?
• 4. Can a witness get a bribery conviction expunged?
• 5. Are there related offenses?
  • 5.1 Bribery by or of executive officers – PC 67 and 68
  • 5.2 Bribery by or of legislators – PC 85 and 86
  • 5.3 Bribery by or of judges and jurors – PC 92 and 93

1. When is it a crime for a witness to receive a bribe?

A prosecutor must prove the following to successfully convict a person under this statute:

1. the defendant was a witness or about to be called as a witness,
2. the defendant received or offered to receive a bribe,
3. when the defendant received or offered to receive the bribe, he/she represented that the bribe would unlawfully influence his/her testimony or availability to attend the trial, and
4. the defendant acted with the corrupt intent that the bribe would unlawfully influence his/her testimony or cause him/her not to attend the trial.¹

A person acts with “corrupt intent” when he or she acts to wrongfully gain a financial or other advantage for:

• himself,
• herself, or
• someone else.²

This statute applies to witnesses in both:

• criminal proceedings, and
• civil proceedings.³

2. Can a defendant use a legal defense?

Witnesses accused under this statute can challenge the accusation with a legal defense. Some effective defenses include the defendant showing that he/she:

1. was not a witness.
2. did not act with a corrupt intent.
3. was falsely accused.

2.1 No witness

This statute only applies to a witness taking a bribe. Therefore, a defendant can show that he was not acting as a “witness.” Note, though, that if the person did take a bribe, he/she could still be charged under another California bribery law.

2.2 No corrupt intent

Recall that a person is only guilty under these laws if he/she acted with corrupt intent. A defense, then, is for the defendant to say that he/she did not act with this specific aim.

2.3 Falsely accused

An accused can defend against a charge by showing that he/she was falsely accused by another person. Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. Some reasons for someone to falsely blame another are:

• jealousy,
• revenge, and
•  anger.

3. What are the penalties for a Penal Code 138 PC violation?

A witness that violates California Penal Code 138 is guilty of a felony offense.⁴

The crime is punishable by:

• custody in state prison (as opposed to county jail) for up to four years, and/or
• substantial fines.

A judge may award a defendant with felony probation in lieu of prison time.

4. Can a witness get a bribery conviction expunged?

A witness can get an expungement provided that he/she was awarded probation (and successfully completed it) in lieu of prison time.

Under California criminal laws, offenders cannot get a crime expunged if a judge imposes a prison sentence.

5. Are there related offenses?

There are three crimes related to a witness taking a bribe. These are:

1. bribery by or of executive officers – PC 67 and 68,
2. bribery by or of legislators – PC 85 and 86, and
3. bribery by or of judges and jurors – PC 92 and 93.

5.1 Bribery by or of executive officers – PC 67 and 68

Penal Code 67 and Penal Code 68 are the California statutes that make the bribery by or of an executive officer a crime.

Like with PC 138, a defendant is only guilty under these laws if he/she acts with corrupt intent.

5.2 Bribery by or of legislators – PC 85 and 86

Penal Code 85 PC and Penal Code 86 PC are the California laws that make the bribery by or of legislators a criminal offense.

Notice the focus with these statutes. While PC 138 applies to witnesses, these laws specifically apply to legislators.

5.3 Bribery by or of judges and jurors – PC 92 and 93

Penal Code 92 PC and Penal Code 93 PC are the California bribery laws that make the bribery by or of judges and jurors a crime.

As with a violation of PC 138, a violation of either of these laws is a felony offense.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group.

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Legal References:

1. CALCRIM No. 2612 – Witness Receiving a Bribe. Judicial Council of California Criminal Jury Instructions (2017 edition).
2. See same. See also People v. Gliksman (1978) 78 Cal.App.3d 343.
3. See, e.g., Burrill v. Nair (2013) 217 Cal.App.4th 357.
4. California Penal Code 138b PC.