Penal Code 136.1 PC (California's law against dissuading or intimidating a witness or victim) makes it illegal to prevent (or attempt to prevent) any witnesses or victims of a crime from reporting the crime or testifying about the crime.1 This offense is sometimes referred to as "tampering with a witness."
Examples of scenarios that can lead to dissuading a witness charges in California include:
- The defendant in an upcoming criminal trial mails a newspaper article about the murder of a witness in another criminal case to a woman who is scheduled to testify against him.
- After an unwanted sexual encounter, the man offers the woman money in exchange for a promise that she not go to the police and report that he has raped her.
- A husband, who is in the middle of a divorce and ugly custody battle with his estranged wife, goes to his wife's house and warns her that "bad things will happen" if she testifies against him in an upcoming hearing."
But we're here to help. As former prosecutors and cops, we understand the most effective defenses to help you successfully fight the case.
Below, our California criminal defense attorneys2 address:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
In order for the prosecutor to convict you of tampering with a witness, he/she must prove the following facts (otherwise known as "elements" of the crime):
- that you knowingly and maliciously,
- prevented or dissuaded (or attempted to prevent or dissuade),
- a victim of a crime or a witness to a crime from
- attending or testifying at any judicial proceeding,
- reporting the crime,
- aiding in the prosecution process, or
- aiding in the arrest process.3
Engaging in any of these acts is a "wobbler" which means that the prosecutor may elect to charge you as either a misdemeanor or a felony.4 If, however, you engage in any of the above acts
- as part of a conspiracy,
- by using force (or threatening force) against the person or property of any witness, victim, or third party,
- when you have previously been convicted of dissuading or intimidating a witness or victim,
- because you have been hired to do so by someone else,
the offense is an automatic felony.5
Let's take a closer look at some of these terms to gain a better understanding of their legal definitions.
Before prosecutors can convict you of Penal Code 136.1 PC California's "dissuading a witness" law, they must be able to prove that you knowingly dissuaded or intimidated a witness or victim. This means that if you were unaware that the person was a witness / victim or didn't realize you were engaging in intimidating or threatening behavior, you aren't guilty of this offense.
Example: You are speaking with Bob who, unbeknownst to you, is a witness to a crime. During your conversation, you tell him about someone who testified against one of your friends who was killed just after the trial.
Under these circumstances, although your conversation may have intimidated Bob (and even discouraged him from testifying), you didn't knowingly do so and therefore didn't violate Penal Code 136.1 PC.
You act "maliciously" when you "unlawfully" intend to annoy, harm, or injure someone else in any way or intend to interfere in any way with the orderly administration of justice";.6 Similar to the example above, if you are just passing along information that you find helpful...and don't intend to cause any harm or obstruct justice in any way...you aren't acting maliciously and are not, therefore, violating the law.
If the victim or witness is part of your family...and you acted in an effort to protect that individual...the court will assume that you acted without malice.7
Prevented / dissuaded / intimidated
The important fact to note about these terms is that it doesn't matter whether you are successful in your attempt to prevent, dissuade, tamper with or intimidate a victim or witness.8 What does matter is the fact that you attempted to do so, as this crime focuses on your intent, not on the outcome.
Example: Joe tells Tom that if Steve testifies against him in court, Joe will kill Steve. Tom doesn't convey the threat to Steve. Even though Steve doesn't know about the threat, Joe is still guilty of violating Penal Code 136.1 PC California's "dissuading a witness" law.9
A witness is someone who
- knows about the facts of a crime,
- whose declaration under oath may be received as evidence,
- who has reported a crime, or
- who has been served with a subpoena.
For purposes of this offense, if the defendant reasonably believes that the individual he/she is attempting to dissuade meets these criteria, that individual is considered a witness.10
A person is a victim if there is reason to believe that a state or federal crime is being or has been committed against that individual.11
With respect to intimidating or dissuading a witness, a "conspiracy"; is
- an agreement by two or more people to intimidate or dissuade a witness or victim, when they
- take overt steps to carry out that agreement.
The state punishes groups (that is, two or more people) who engage in criminal activity more heavily than individuals, believing that it is more likely that if multiple people are involved in a criminal plan, the plan will be executed.12
Force / threats of force
Here, it is important to note that if you use or threaten to use force against the alleged victim...but no one actually suffers an injury...the law still holds you accountable for this offense.13
This is based on the same rationale as above. This crime is concerned with your acts, not with the result of those acts.
However, if you do use force, that fact will act as an aggravating factor when the judge determines your punishment.14 And similarly, if you actually cause anyone to suffer great bodily injury, you face a three to six-year state prison sentence in addition and consecutive to your penalty for dissuading a witness under Penal Code 12022.7 PC California's great bodily injury law.15
Penal Code 136.1 PC does not apply to actual testimony
Penal Code 136.1 PC isn't a "catchall" for punishing all efforts to tamper with a victim or witness. It is limited to preventing or attempting to prevent an individual from reporting a crime or from testifying about a crime.
Efforts to influence actual testimony or to induce false statements are governed by Penal Code 137 PC California's law against influencing testimony.16
There are a variety of legal defenses that your California criminal defense lawyer can present on your behalf. The following are examples of some of the most common.
Lack of knowledge / intent
It bears repeating that if you either don't know the person is a victim or witness or aren't maliciously trying to interfere, you aren't guilty of violating Penal Code 136.1 PC California's "dissuading a witness" law.
False accusations / wrongful arrest
People falsely accuse others of criminal activity for a number of reasons. With respect to this particular offense, we most frequently see this in connection with domestic violence cases.
Many times California domestic violence law cases involve partners who abuse each other. So while one partner may in fact physically abuse the other, the abused partner may file false charges against the abuser in order to gain an "upper hand";. And since an individual can claim to be a victim of this offense without any corroborating physical evidence, it's an easy way for an individual to have the abuser spend more time in jail or prison.
But rest assured, we're here to help challenge false accusations. As Palm Springs criminal defense attorney Michael Scafiddi explains, "It's my job to ensure that false allegations are shown for what they really are -- unjust attempts to punish an innocent victim."
When the prosecutor doesn't have some type of corroborating evidence...for example, a letter, a voice recording, or a video...Penal Code 136.1 PC charges are largely based on "he said, she said"; allegations.
As former law enforcement officers and prosecutors, we understand how to investigate a case from all angles. We know the most effective ways to convince prosecutors, judges, and jurors that there simply isn't enough evidence to convict you of the charge(s).
If convicted of intimidating a witness as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.17 In addition, a misdemeanor conviction will result in a ten-year ban on your right to own or acquire firearms pursuant to California gun laws.18
If convicted of this offense as a felony, you face 16 months to four years in the California state prison and a maximum $10,000 fine.19 Additionally, Penal Code 29800 PC California's "felon with a firearm" law imposes a lifetime restriction on owning or acquiring firearms.20
To find out how to restore your firearm rights, please review our article on Restoring Your California Gun Rights.21
California's sentencing enhancement for personal use of a firearm
If you actually use or are armed with a gun while you are attempting to dissuade a witness or victim from reporting a crime or participating in a criminal trial, California's sentencing enhancement for the personal use of a firearm imposes a one to ten-year state prison sentence in addition and consecutive to the penalty you receive for violating Penal Code 136.1 PC.
Dissuading a witness and its relationship to Penal Code 186.22 PC California's criminal street gang enhancement
If the prosecutor proves that you are guilty of violating Penal Code 136.1 PC California's "tampering with a witness" law "for the benefit of, at the direction of, or in association with any criminal street gang", California's gang enhancement kicks in.
A conviction under Penal Code 186.22 PC California's criminal street gang enhancement automatically imposes a seven-year-to-life state prison sentence if you are found guilty of violating Penal Code 136.1 PC.22
California's Three Strikes Law
California's "dissuading a witness" law is what's known as a "serious felony".23 This means that in addition to the above penalties, a Penal Code 136.1 PC conviction will result in a "strike" on your criminal record pursuant to California's Three Strike's Law.24
If you are subsequently charged with any felony and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.25
If charged with a third felony, and you have two prior strikes, you will be referred to as a "third striker"; and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.26
There are a few offenses that are frequently charged in connection with dissuading a witness. These include Penal Code 422 PC California's "criminal threats" law, Penal Code 236 PC false imprisonment, and Penal Code 207 PC California's kidnapping law. Penal Code 653f solicitation of a crime law may be charged instead of dissuading a witness.
Penal Code 422 PC
You violate Penal Code 422 PC California's "criminal threats" law (formerly known as California's terrorist threats law) when you threaten to commit a crime that will result in death or great bodily harm to another person even if you don't intend to carry out the threat.27
If your attempt to dissuade a witness or victim from taking part in a criminal investigation / prosecution involves threats of violence, prosecutors will likely charge you with both offenses.
Penal Code 236 PC
Penal Code 236 PC California's false imprisonment law prohibits restricting another person's movement or liberty.28 If you confine, restrain, or detain an individual so as to prevent him/her from reporting a crime or testifying in a trial, prosecutors could charge you with false imprisonment and dissuading a witness.
Penal Code 207 PC
Similarly, if you use force or fear to move a witness or victim in order to prevent him/her from participating in a criminal prosecution, prosecutors could charge you with Penal Code 207 PC California's kidnapping law in addition to Penal Code 136.1 PC.
Penal Code 653f
What if you try to persuade someone else to dissuade a witness on your behalf (maybe because you are incarcerated and need to rely on a friend or family member to do the dissuading for you)? In that case, you could be charged under Penal Code 653f PC, California's solicitation of a crime law.
Solicitation of someone else to commit the crime of dissuading a witness is a California wobbler. This means that it can be charged as either a misdemeanor or a felony, depending on the circumstances.
Call us for help...
If you or loved one is charged with Penal Code 136.1 PC dissuading a witness and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's laws regarding intimidating witnesses or victims. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.29 For information about Nevada dissuading witness laws, go to our article on Nevada dissuading witness laws.
1Penal Code 136.1 PC -- California's dissuading a witness law. ("(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 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 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.")
2Our California criminal defense 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.
3California Jury Instructions – Criminal -- CALJIC 7.14
4See Penal Code 136.1 PC -- California's dissuading a witness law, endnote 1, above.
5See same, subdivision (c).
6Judicial Council Of California Criminal Jury Instruction (CALCRIM 2622) -- Intimidating a witness.
7Endnote 1, subdivision (a)(3).
8CALJIC 7.14 – Dissuading a Witness.
9Loosely based on People v. Foster (2007) 155 Cal.App.4th 331. At 335, ("Here the evidence shows that Foster intended to prevent Genevieve from testifying against him under [Penal Code] section 136.1 [California's intimidating a witness law], subdivision (a)(2). He told Buchanan to tell Genevieve about the consequences she would suffer if she testified. But Foster argues he talked to an intermediary; did not directly communicate with Genevieve, who did not receive his threatening message; and therefore there is no evidence he committed a crime... And at 337, "The goal of the legislation was to discourage all who attempted to dissuade witnesses, regardless of the means selected or the success of the attempt. To exclude Foster's conduct from the scope of the statute would undermine the legislative intent and open a loophole which the Legislature intended to close.")
10CALCRIM 2622 -- Intimidating a witness. ("[As used here, witness means someone [or a person the defendant reasonably believed to be someone]: <Give the appropriate bracketed paragraph[s].> [Who knows about the existence or nonexistence of facts relating to a crime(;/.)] [OR] [Whose declaration under oath has been or may be received as evidence(;/.)] [OR] [Who has reported a crime to a (peace officer[,]/[or] prosecutor[,]/[or] probation or parole officer[,]/[or] correctional officer[,]/[or] judicial officer)(;/.)] [OR] Who has been served with a subpoena issued under the authority of any state or federal court.]]")
11See same. ("[A person is a victim if there is reason to believe that a federal or state crime is being or has been committed or attempted against him or her.]")
12 People v. Zielesch (2009) 179 Cal.App.4th 731, 739. ("Recognizing that criminal agency poses a greater threat to society than that posed by an independent criminal actor, the law "seeks to deter criminal combination by recognizing the act of one as the act of all."")
13See Penal Code 136.1 PC -- California's dissuading a witness law, endnote 1, above. ("(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.")
16California Penal Code 137 PC -- Influencing testimony or information given to a law enforcement official. (">(a) Every person who gives or offers, or promises to give, to any witness, person about to be called as a witness, or person about to give material information pertaining to a crime to a law enforcement official, any bribe, upon any understanding or agreement that the testimony of such witness or information given by such person shall be thereby influenced is guilty of a felony. (b) Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official is guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years. As used in this subdivision, "threat of force" means a credible threat of unlawful injury to any person or damage to the property of another which is communicated to a person for the purpose of inducing him to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official. (c) Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor.")
17See Penal Code 136.1 PC -- California's dissuading a witness law, endnote 1, above.
See also California Penal Code 672
18Penal Code 29800 PC California's gun law regarding firearm restrictions.
19 See endnote 17, above.
20Penal Code 29800 PC California's felon with a firearm law.
21Restoring your California gun rights does not necessarily restore your federal firearms rights. If you have lost your right to own or acquire firearms, it is advisable that you ensure both your California and federal criminal records are clear of any restrictions.
22 California Penal Code 186.22
23California Penal Code 1192.7(c)
24California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law).
25California Penal Code 667
27California Penal Code 422 28California Penal Code 236
29Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions about Nevada's laws regarding intimidating witnesses or victims. Their Nevada law offices are located in Reno and Las Vegas.