Penal Code 136.1 PC is the California statute that defines the crime commonly known as "dissuading a witness." This offense is also referred to as "intimidating a witness" or "witness tampering." Specifically, this sectoin makes it a crime to
- prevent any witness of a crime, or a victim of one,
- from reporting it or testifying about it.
136.1 PC states:
“(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.
- sending a news article to a potential witness that reports how a witness in another case was murdered.
- calling the victim of a crime and saying, “keep quiet or else.”
- offering a witness of a crime cash to “forget about what he saw.”
A defendant can fight a 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.
As a misdemeanor, the crime is punishable by custody in county jail for up to one year.
As a felony, the offense is punishable by imprisonment in the state prison for up to four years.
Our California criminal defense attorneys will highlight the following in this article:
- 1. When is dissuading a witness a crime?
- 2. Are there legal defenses?
- 3. What are the penalties under PC 136.1?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. When is dissuading a witness a crime?
A prosecutor must prove the following to convict a person under this code section:
- the defendant knowingly and maliciously,
- prevented or dissuaded (or attempted to prevent or dissuade),
- a witness of a crime or a victim to a crime from
- a. attending or testifying at any judicial proceeding,
- b. reporting a crime,
- c. aiding in the prosecution process, or
- d. aiding in the arrest process.1
Intimidating a witness is a specific intent crime. This means that a defendant must have acted with both:
- knowledge, and
to be guilty of a crime.2
The word “knowingly” means an accused knows 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 an accused successfully prevented or discouraged a witness. The attempt to do so is enough.6
2. Are there legal defenses?
A defendant can raise a legal defense to beat a charge of intimidating a witness.
Three common defenses are:
- no knowledge or malice,
- no witness or victim, and/or
- falsely accused.
2.1. No knowledge or malice
Recall that witness tampering is a specific intent crime. This means a defendant has to act with both knowledge and malice to be guilty. A defense, therefore, is for an accused to show that he did not act with this intent.
2.2. No witness or victim
A defendant is only guilty under this law if he intimidated a witness or a victim. Therefore, an accused can try to exonerate himself by arguing that:
- while he may have threatened someone,
- that person was not a witness of a crime or a victim to a crime.
Note, though, that the accused might still be guilty of another offense – criminal threats, per Penal Code 422 PC.
2.3 Falsely accused
This defense often arises in California domestic violence cases. The situation is when a spouse goes to the police and falsely says that he was:
- abused, and
- the other spouse threatened more abuse if he reported the crime.
Here, the other spouse can try to beat any charges of dissuading a victim by saying she was wrongfully accused.
3. What are the penalties under PC 136.1?
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:
- imprisonment in county jail for up to one years, 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,
- the defendant was previously convicted of intimidating a victim or witness, or
- the defendant was hired by someone else to commit the crime.
4. Are there immigration consequences?
A conviction for this offense may have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
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 the accused committed an aggravated felony,
- then he could be deported or get marked inadmissible.
5. Can a person get a conviction expunged?
A person convicted of this crime is entitled to an expungement provided that he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he could still possibly get the offense expunged. This, though, would be in the judge's discretion.
Under Penal Code 1203.4, an expungement releases an individual 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 the defendant's gun rights.
If a defendant is convicted of misdemeanor dissuading a witness, he will receive a 10-year ban on owning a firearm.
If 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. These are:
- criminal threats – PC 422
- false imprisonment – PC 236, and
- 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 a person threatens to kill/harm someone and
- that person is thereby placed in a state of reasonable fear,
- the threat is specific and unequivocal, and
- the accused communicates the threat verbally, in writing, or via an electronically transmitted device.
Note that it is not necessary under this law that the person threatened be a witness or a victim.
7.2. False imprisonment – PC 236
Penal Code 236 PC is the California statue that says false imprisonment is a crime.
False imprisonment is when a person:
- restrains, detains, or confines another person, and
- does 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 if a person:
- moves a victim a substantial distance, and
- uses force or fear to do so.
Note that, like tampering with a witness, kidnapping will typically not result in negative immigration consequences.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For charges of intimidating a witness in Nevada or Colorado, please see:
- “Nevada Laws for ‘Preventing or dissuading someone from testifying or producing evidence' (NRS 199.230),” and
- “Intimidating a Witness in Colorado - CRS 18-8-704.”
CALCRIM No. 2622 - Intimidating a Witness. Judicial Council of California Criminal Jury Instructions (2017 edition).
California Penal Code Section 7.
CALCRIM No. 2622 – Intimidating a Witness.
CALJIC No. 7.14 – Dissuading a Witness.
California Penal Code 136.1 PC.
See INA 237 (a) (2) (A).
California Penal Code 1203.4 PC.