Being charged with intimidation of or dissuading a witness and/or victim carries serious consequences. Finding a knowledgeable and effective criminal defense attorney is highly recommended when facing such an offense.
The repercussions include a stain on your criminal background history. This can follow you for the rest of your life, regardless of whether you face misdemeanor or felony penalties. In order to gain a deeper understanding of this crime, we must first look at how California defines it.
Defining intimidation of or dissuading a witness
California defines intimidating and/or dissuading a witness or a victim under Penal Code 136.1. Essentially, this statute outlines how it’s illegal to attempt to prevent or actually prevent a witness or victim from reporting or testifying about a crime.
There are some instances where you would not expect to be jeopardized by what you say. However, if all the criteria for committing this offense are present, you could be convicted nonetheless.
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Example:
Alice and Barb were driving around and accidentally side-swipe a parked car. Instead of stopping, Alice continues driving. Now having committed a hit and run, which is a crime, she asks Barb not to tell anyone as a favor for a friend. Simply asking something like this places you on rocky ground and could result in charges for dissuading a witness.
Closely Related Offenses
The following offenses are closely related to Penal Code 136.1, however, they carry specific differences. That said, it is possible for these offenses to be charged in association with dissuading or intimidating a witness.
California Penal Code 137, influencing testimony;
This law makes it illegal to bribe any witnesses out of testifying in a trial. Although this sounds like the witness was dissuaded from testimonial obligations, it specifically focuses on the bribery behind it. A conviction for violating this law almost always results in felonious penalties.
California Penal Code 422, criminal threats;
It’s illegal to make threats that you will commit a crime which could possibly result in great bodily injury, harm, or death of another person. Even if you did not intend to carry out any threats, you could still be charged. If any threats of violence were made when violating Penal Code 136.1, dissuading a witness, the prosecution may also charge you with making criminal threats.
California Penal Code 166, contempt of court;
This law means any action or behavior that disrespects court proceedings is illegal. This most often includes, but is not limited to excessive distraction, being unnecessarily loud, and/or belligerent, refusal to comply with a judge’s request during the court process, refusal to being sworn in as a witness, or purposely ignoring and violating a court order.
Associated/Similar Offenses
California’s Penal Code 236, false imprisonment;
It’s unlawful to restrict another individual’s freedom of movement for any reason. This means you cannot detain, restrain, or confine anyone against their will.
California’s Penal Code 207, kidnapping;
It’s illegal to use force or fear to move someone without their consent.
California Penal Code 646.9, stalking;
This law prohibits the harassment or threatening of another individual to the point that he/she might fear for their lives or that of their family and friends.
California’s Domestic Violence Laws;
These laws involve and make it illegal to physically abuse someone who is a current or former spouse, fiancée, boyfriend/girlfriend, cohabitant, child, parent, or another family member.
California’s Penal Code 273.6, violating a restraining order;
It’s illegal to violate the terms and parameters set in a restraining order, also referred to as a protective order. Depending on the conditions that were outlined, if you ignore this order, you could also face charges for being in contempt of court.
The Prosecution
To get a conviction for breaking California’s dissuading a witness law, Penal Code 136.1, the prosecution must first prove beyond a reasonable doubt that you committed all the elements of the crime. These elements or facts are as follows:
- With malice you knowingly,
- Using malice or malicious behavior means you engaged in intimidating and threatening behavior.
- Knowingly means you purposely acted in such a manner.
- Prevented or made the attempt to dissuade,
- It’s important to note, even if you failed in your attempt to intimidate or dissuade a witness or victim, you can still be convicted for the crime. This law focuses on the intention behind it all. If they intended to unlawfully annoy, harm, or threaten injury on another individual in order to interfere with the court or administrative proceedings, they would be guilty of this offense.
- A witness to a crime or a victim of a crime from:
- Reporting a crime,
- Attending or testifying in court,
- Aiding the prosecution, or
- Aiding in an arrest.
Who Can Be Charged
The following situations illustrate who can be charged with Penal Code 136.1, intimidating or dissuading a witness or victim.
Barry stole a car and crashed it into a fruit vendor’s stand. He got out of the car and told the vendor, “if you tell anyone you saw me, you’ll regret it.” With that, he ran away from the scene. In addition to Barry’s charges for grand theft auto and hit and run(leaving the crime scene on foot), he could be charged with Penal Code 136.1, intimidating a witness in order to prevent them from reporting his crime.
Jules was facing multiple assault charges in an upcoming trial. He asked his friend to deliver messages to several of the alleged victims who were planning on testifying against him. The friend delivers the envelopes which had contained pictures of tombstones in a graveyard.
Jules will face multiple charges for intimidating his victims under Penal Code 136.1. Furthermore, if his friend knew these messages were meant to scare the alleged victims out of testifying, this friend could face charges under the same offense.
Monica was sexually assaulted by her college classmate, Lars. In exchange for her silence and not going to the police, he says he can get her into any sorority she wanted. This kind of unlawful negotiation is considered a form of dissuading a victim under Penal Code 136.1. On top of being charged with rape, Lars will face charges for attempting to dissuade a victim from reporting what happened to her.
Legal Defense
The right California criminal defense attorney would be familiar with several of the most common legal defenses. Below are just some of the questions to be asked when faced with these allegations. They provide insight into some of the legal defenses that can be used to fight the charges.
Did you actually say something threatening or intimidating?
Simply expressing one’s disappointment to a witness or victim does not mean you are guilty of penal code 136.1. For instance, the captain of the football team is being charged with multiple sexual harassment and rape charges. Amanda is helping the criminal prosecution with the case. Other members of the football team told her how upset they were that she was helping to build a case against him.
The other team members cannot be charged with Penal Code 136.1, intimidating a witness. However, if any of their comments were followed by threats, such as “we’ll make your life a living hell”… “back out or else”…“the guys and I are gonna get you,” it would then be considered intimidating a witness.
In this kind of situation, one of the best things a defendant can do is find a good criminal defense lawyer to fight on their behalf. Charges like this don’t simply go away, in fact, depending on the circumstances of the case, felony punishments could be a possibility.
Was their actual intent or did you even know?
If the defendant lacked the knowledge and/or intent to knowingly and maliciously intimidate a witness, they are not guilty of violating that law under penal code 136.1. For example, Mike asked his neighbor George to deliver a manila envelope to a girl down the street. George did so. Little did he know, Mike was facing charges for stalking that girl and the manila envelope contained photos of her with a skull and crossbones drawn on them.
There was a lack of knowledge on Mike’s part. Not only was he unaware of George’s stalking, but he also didn’t know he’d be contributing to intimidating a witness. Mike would not be guilty of California’s “intimidating a victim” laws under Penal Code 136.1.
Is there sufficient evidence?
There are many cases where the prosecution may lack any kind of corroborating evidence. This means there is no hard proof, such as letters, text messages, emails, voicemails, or cellphone video/audio recordings. Essentially, the case largely becomes a “he said, she said” situation.
Combing through the details for the most effective ways to fight charges for Penal Code 136.1 is exactly what an effective criminal defense attorney can do for you. They know how to present an insufficient evidence defense in order to convince the prosecution and the rest of the court of your innocence.
Was it a case of protecting a family member?
The defendant must have acted maliciously to be successfully charged with intimidating a witness. On the other hand, if the defendant was a family member/relative of the alleged victim and their actions were in an effort to aid, defend, or protect that individual, it would not be considered acting with maliciousness.
For instance, when a witness decides to back out of a domestic violence case, Bob, father of the victim, meets the witness in the parking lot and yells, “YOU BETTER TESTIFY!!!” Even though Bob may have scared them, he did so in order to protect his daughter. As a family member of the victim, the last thing he would want is to hinder any orderly administration of justice. His behavior would not be considered acting out of malice and therefore is not a violation of Penal Code 136.1, attempting to interfere with court proceedings.
Penalties for intimidating or dissuading a witness or victim
If convicted of violating Penal Code 136.1, you face
Misdemeanor;
Up to one thousand dollars in fines, and
Up to one year in the county jail.
A ten-year ban on the right to own or acquire firearms.
Felony;
Up to ten thousand dollars in fines, and
16 months to four years in the California state prison, and
A lifetime restriction from owning or acquiring a firearm.
Sentencing Enhancements
Additional consequences for getting convicted of penal code 136.1, dissuading a witness, may result in restitution and further payments to the alleged victim(s). It’s important to note, the victim is still within their rights to sue you for punitive damages. Which might include, but is not limited to paying for any medical bills and legal costs the alleged victim might have accrued as a result of the defendants’ actions.
If the defendant had actually used a gun or was armed with one at the time they intimidated or dissuade a witness or victim from testifying or cooperating in criminal proceedings, they face an additional sentencing enhancement of one to ten years in a California state penitentiary, to be served consecutively. Under California’s felon with a firearm law, Penal Code 29800 and sentencing enhancements for the personal use of a firearm, if convicted of violating Penal Code 136.1, your gun rights will automatically get restricted and restoring them would be extremely difficult.
When criminal street gangs are involved, specifically in the act of intimidating a witness or victim, the defendant could face further punishments under California’s criminal street gang enhancement laws, Penal Code 186.22. If the actions were done in association with, directed by, or would benefit the gang, it could automatically result in seven years to life in state prison.
Penalties for Closely Related Offenses
California Penal Code 137, influencing testimony;
Felony;
Possible fines and court fees, and
Up to four years in the county jail.
California Penal Code 422, criminal threats;
Misdemeanor;
Up to one thousand dollars in fines, and
Up to one year in county jail.
Felony;
Up to ten thousand dollars in fines, and
Up to three years in a California state prison.
California Penal Code 166, contempt of court;
Misdemeanor;
Fines of up to one thousand dollars, and
Up to one year in the county jail.
Felony;
Up to ten thousand dollars in fines, and
16 months, 2, or 3 years in a California state prison.
Penalties for Associated/Similar Offenses
California’s Penal Code 236, false imprisonment;
Misdemeanor;
Up to one thousand dollars in fines, and/or
Up to one year in the county jail.
Felony;
16 months, 2, or 3-years in county jail.
California’s Penal Code 207, kidnapping;
Felony;
Up to ten thousand dollars in fines, and
3, 5, or 8-year sentence in a California state prison.
California Penal Code 646.9, stalking;
Misdemeanor;
Informal (summary) probation,
Fines of up to one thousand dollars,
Up to one year in the county jail,
Counseling and/or being sent to a state-run hospital for mental illness, and
A restraining order placed against you to protect the alleged victim.
Felony;
Formal probation,
16 months to 5 years in a California State Prison,
Fines of up to one thousand dollars,
Counseling and/or being sent to a state-run hospital for mental illness,
A restraining order placed against you to protect the alleged victim, and
Registering as a sex offender under Penal Code 290.
California’s Domestic Violence Laws;
Depending on the details of the case being convicted of a domestic violence offense could result in a variety of punishments. The penalties could include some or all of the following;
Summary or formal probation,
Mandatory jail time,
Hefty fines and/or restitution for the victim,
A restraining order placed against you to protect the alleged victim(s),
Losing custody of any children,
Restrictions placed on your gun rights, and
Enrollment and attendance into a batterer’s intervention program.
California’s Penal Code 273.6, violating a restraining order;
Misdemeanor;
Up to one thousand dollars in fines, and
Up to one year in a county jail.
California’s Three Strikes Law;
If convicted of multiple serious felonies, the defendant could face one or more strikes on their record. A second felony conviction could result in the defendant being labeled a second striker, which means sentencing for the crime committed will double. If a third felony is added and the defendant is considered a third striker, the sentencing automatically changes to a possible 25 years to life in a California state prison.
We Can Help
Are you or is someone you know is facing charges for Penal Code 136.1, intimidating or dissuading a witness or victim? If so, finding help should be a priority. Acting as quickly as possible could make all the difference.
If you need legal advice and are located in the southern or central districts of California or in the state of Illinois, contact the Law Offices of Anna R. Yum. As a former prosecutor and an award-winning lawyer, you can expect an assertive fight for your rights.
Ask us for more information or get a free consultation by giving us a call at 619-233-4433.
