INTIMIDATING OR DISSUADING A WITNESS (PC 136.1)

To prove that you unlawfully intimidated or dissuaded a witness in violation of Penal Code Section 136.1, the DA must show one of the following:

1. You maliciously prevented or discouraged (or tried to prevent or discourage) from attending or giving testimony at an upcoming judicial proceeding (something scheduled in court); or

2. You maliciously prevented or discouraged (or tried to prevent or discourage) a person from making a report to law enforcement that he or she was a victim of a crime; or 

3. You maliciously prevented or discouraged (or tried to prevent and discourage) a person from cooperating with law enforcement and prosecutors as they seek to prepare their case against you; or

4. You maliciously prevented or discouraged (or tried to prevent or discourage) a victim or witness of a crime from arresting or seeking the arrest of another who's connected to the crime.

All four options also, critically, require the DA to show that you knew you were preventing or discouraging (or trying to prevent or discourage) from doing one of the four options above, and you intended to do so. 

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 him if he testified against you (or anyone for that matter), that's a clearcut violation of the law.

 

But, what if you only told the person that you were disappointed he or she called the police? Would that be 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.

PUNISHMENT 

This crime is a "wobbler" meaning it can be charged as a felony or misdemeanor. As a felony, this crime is a strike offense and you'll face either 16 months, 2 years, or 3 years in prison. 

As a misdemeanor, you face up to 364 days in county jail and/or $1000 fine plus assessments. Generally, if convicted, an offender would receive 2-3 years of probation (informal/summary/court probation with no probation officer) and roughly between 1 to 90 days of county jail (depends on the facts and your criminal history), which can often be satisfied with Sheriff's Work Program. Also, you'd be ordered by the judge to stay away from the person you sought to intimidate or dissuade.  

THE ENTIRE STATUTE IF YOU WANT TO READ IT

§ 136.1. Preventing or dissuading witness or victim from testifying or doing other acts

  • (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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