Penal Code § 136.1

Dissuading or Intimidating a Witness

To prove that you guilty of Penal Code section 136.1, the DA must prove you maliciously prevented or discouraged (or at least tried to prevent or discourage) someone from doing any one of the following:

 

1. Attending or giving testimony at an upcoming judicial proceeding (something scheduled in court); or

2. Making a report to law enforcement that he or she was a victim of a crime; or 

3. Cooperating with law enforcement and prosecutors; or

4. Seeking the arrest of another who's connected to the crime.

 

Additionally, the DA must also prove that you intended to prevent or discourage a victim or witness from doing one of the four options above. In other words, just because you may have said something that ended up preventing someone from testifying or calling the police (or one of the other options), it's NOT a crime unless the DA can definitively prove you knew exactly what you were doing and acted intentionally. That's not always easy to do. Sure, if you told the victim of a crime that you'd physically harm him if he testified against you (or anyone for that matter), that's a clearer-cut violation of the law.

 

But, what if, for example, you only told the person that you were disappointed he or she called the police? Would that be considered dissuading a victim or witness from testifying or cooperating with law enforcement? It depends. Are there other circumstances to show you knew that by saying your comment, it could prevent that person from cooperating later on? Was that your intention all along? If the answer is not obvious, the DA will struggle to prove, beyond a reasonable doubt, that you should be found guilty of the offense.

 

The DA can file this crime as a felony or misdemeanor, meaning it's known as a "wobbler." As a felony, this crime is also considered serious and thus a "strike." You could face up to 3 years in prison. As a misdemeanor, the maximum jail term is up to 364 days in county jail.

 

Very commonly, the court would also impose a no contact criminal protective order (a restraining order) to prevent you from contacting the alleged victim.

 

To discuss your PC 136.1 case, call me for a free consultation at 1-800-613-2949.

 

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Penal Code § 136.1 for reference:

(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.

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