An attempt to prevent or interfere with witness testimony is known as dissuading a witness or victim. It is also known as witness tampering or intimidating a witness. It is a crime that obstructs justice and carries severe penalties. The prosecution team will monitor the witnesses and victims to make sure there isn't the undue influence of testimony and will thoroughly investigate suspected tampering. If you think you are under investigation or have been put into custody for witness tampering, don't tell the authorities anything. It is in your best interest to contact skilled counsel like The Los Angeles Criminal Defense Attorney. Our attorneys can review your case and answer your questions.
What is Penal Code Section 136.1 PC?
You know that a person might have seen you commit an offense, so you go to them and help them understand it was a mistake. You could tell them not to say anything or try to convince them that what they saw is not what they think they saw. Well, you have just violated dissuading a witness law and could be charged with either a felony or a misdemeanor.
To be convicted of Penal Code Section 136.1 PC, the prosecution must prove that:
- You knowingly and maliciously,
- Dissuaded or prevented (or tried to discourage or stop),
- An alleged victim of an offense or a witness of a crime from:
- Testifying at or attending a court proceeding
- Reporting the offense you committed
- Aiding in your arrest
- Aiding in the prosecution process.
Intimidating a witness is a specific intent offense where the accused should have acted with malice and knowledge to be guilty.
The term "knowingly" means you knew of the status of the alleged victim as a witness, and you knew your conduct was intimidating or threatening. You also knew that your behavior might dissuade a witness or victim from reporting the crime or testifying.
Maliciously means acting with an intent to injure or annoy somebody else.
A witness is a person who heard or saw the occurrence relevant to your case. It can be a person under subpoena or oath to give evidence to a court of law. It can also be the individual who reported the crime.
The term "victim" refers to the person who thinks that a federal or state crime was committed against them. It could be a victim of a property crime like fraud or robbery. It also includes a person who has suffered a physical injury due to driving under the influence accident, sexual assault, or assault.
Please note, to be sentenced for intimidating a witness, it doesn't matter whether you successfully discouraged or prevented the witness. An attempt to stop or inhibit the witness is enough.
Penalties Attracted by Penal Code Section 136.1 PC
Violation of Penal Code Section 136.1 PC is a California wobbler. It could be charged either as a felony or a misdemeanor. It depends on your criminal history and the circumstances surrounding the case.
A misdemeanor carries a fine of one thousand dollars and a maximum of a year in county jail. A felony, on the other hand, attracts the following penalties:
- A maximum of four years in California state prison
- Ten thousand dollars in fines
Penal Code Section 136.1 PC is a felony if one of the statements below is correct:
- The intimidation was part of a conspiracy.
- You have a previous witness tampering conviction.
- Another person hired you to commit the offense.
- The intimidation involved threats or the application of violence.
To prove there was a conspiracy, the prosecutor must prove that:
- There existed an agreement between two (2) or more persons to dissuade a witness, and
- There was a step taken to actualize the agreement.
It doesn't matter whether the victim or witness was injured or harmed. It isn't a legal defense that no one was injured.
Threats of force do not have to be express. Implied threats of force are a felony. A perfect example of implied threat could be telling a victim about a person who was murdered and saying that it could be terrible if a similar thing occurred to the crime witness.
Immigration Penalties
A PC 136.1 conviction has immigration penalties. Under U.S. immigration law, a conviction can result in an alien or immigrant being marked inadmissible or deported.
Inadmissible or deportable offenses include aggravated felonies. Remember, violation of PC 136.1 is a felony. That means if the case facts prove that you committed an aggravated felony, you could be marked inadmissible or deported.
Firearm Rights Impact
Moreover, a conviction affects your right to own or possess a gun.
If sentenced for a misdemeanor, you will be banned from owning a gun for ten years. A felony conviction carries a lifetime restriction.
Firearm Enhancement
If you used a gun while dissuading the witness, you would face a minimum of one year and a maximum of ten years sentence enhancement. This sentence is additional and consecutive to Penal Code Section 136.1 PC penalties.
Gang Enhancement
Should you violate witness tampering law on behalf of the interest of a criminal gang, you might face seven years to life imprisonment alongside the penalties you receive for the underlying offense.
Three Strikes Law
According to the Three Strikes Law, witness tampering is a serious felony, and a conviction can lead to a strike on the defendant's criminal record.
You are a second striker if you're later convicted of a California felony and have a previous strike. Your time will be double the term.
You are a third striker if found guilty of a third felony and have two previous convictions. And you will serve a sentence of twenty-five years to life imprisonment.
Various Legal Defenses that Your Defense Attorney Can Use
The crime in question carries severe penalties and a conviction that could affect your reputation, life, and ability to secure employment opportunities. Fortunately, your skilled defense lawyer knows what legal defense to use. Common defenses include:
There Was No Intent
You can't be convicted of witness tampering if you did not have the intent to prevent a witness or alleged victim from aid prosecution or testifying. For instance, if you were speaking of how snitches get stitches to somebody else and were unaware that the person was a victim or witness of an offense, you cannot be found guilty.
There Was No Victim or Witness
You are only guilty of witness tampering if you dissuaded or intimidated a victim or witness. Therefore, you can argue that although you threatened a person, that individual was not a victim or witness of an offense.
However, you can be charged with criminal threats under California Penal Code Section 422 PC.
False Accusation
Often false accusation defense arises in domestic violence crimes. It happens when one spouse goes to the law enforcement agency and falsely claims that they were abused and their partner threatened more abuse should they report the offense.
In this case, the other partner can beat the dissuading the alleged victim charges by claiming they were wrongly accused.
Your defense attorney should investigate the case further and ensure the truth is revealed.
Insufficient Evidence
If the prosecution team does not have the corroborating proof to convict the defendant, it will not satisfy the burden of proof to find the defendant guilty. This is particularly true in "they-said" scenarios. Examples of hard proof include text messages, letters, phone audio/video recordings, voicemails, or emails.
What Happens If a Loved Ones Attempts to Dissuade the Witness?
Being a witness to an offense could be dangerous for the witness. Although the victim or witness could be willing to provide testimony about the incident, the witness' family members could be more concerned about their life and safety.
If, as a family member, you intercede as a way to protect the victim or witness, that could be proof that you acted without malice and cannot be found guilty under this code.
Are There Offenses that are Prosecuted Alongside or In Place of Penal Code 136.1 PC?
Discussed below offenses related to witness tampering:
Criminal Threats (PC 422)
You violate criminal threats law when you threaten to injure or kill an individual and
- That individual is put in reasonable fear,
- Your threat is unequivocal or specific, and
- You conveyed your threat in writing, electronically, or verbally.
Unlike PC 136.1, under criminal threats law, it is not a must that the threatened individual be a victim or witness.
The violation of PC 422 is a wobbler. If convicted of a misdemeanor, you will spend a year in jail while a felony is punishable by four years in California state prison.
PC 207 (Kidnapping)
Violation of kidnapping laws happens when you move somebody else without their consent using fear or force.
The offense is punishable by a maximum of eight years in California state prison. You can also serve a five-year to a life sentence if aggravating factors are present. Since kidnapping is a strike per three strikes law, you should serve more than eighty-five percent of your sentence before you qualify for a release.
False Imprisonment
Under Penal Code Section 236 PC, it is a crime to violate another person's liberty illegally. In other words, you break the law when you restrain, detain, or confine somebody else without their consent. The offense could be committed with or without violence or force.
PC 236 is different from witness tampering because it requires physical contact with the victim.
It is a wobbler. If charged with a misdemeanor, you will face a one-year jail sentence and a fine of one thousand dollars. If a felony, you could serve sixteen months, two (2) or three (3) years in county jail.
Influencing Testimony
Under PC 137, it is a crime to bribe a witness out of testifying in a criminal trial. While it looks like the witness was dissuaded from testifying, the crime pays attention to the bribe paid. A conviction is a felony that is punishable by a maximum of four years in jail.
PC 136.1 Expungement
An expungement is one of the post-conviction relief forms. It releases a defendant from all disabilities and consequences stemming from a conviction. In other words, it gives the defendant a clean start from their criminal record. Hence making it easy for them to secure or maintain employment, professional licenses, housing, and join educational institutions.
To qualify for expungement under PC 1203.4, you should complete your jail sentence or complete probation (whichever is relevant).
If you broke probation terms and conditions, you might have the crime expunged. However, this is within the court's discretion.
How Violation of PC 136.1 Get Charged
The process of filing criminal charges in California involves numerous steps. Understanding the various criminal process phases will help you prepare as legal matters arise.
Investigation
Unless the police saw you intimidate a witness/victim, the police will conduct investigations before putting you into custody. The investigation process involves interviewing witnesses and gathering proof. The motive is determining who committed the crime and how. At the end of the investigation process, the law enforcers will arrest the suspect(s).
The police will then conduct a search on you or question you. Even before your arrest, you should benefit from legal representation. The attorney will make sure your constitutional rights are protected.
Moreover, the attorney will advise you on how to answer questions and conduct yourself.
Arrest and Criminal Charges
If law enforcers find proof that makes them believe you dissuade a witness or victim, you might be arrested. The police can also search the defendant when he/she is in custody. It is called an incident to an arrest, and the police aren't supposed to have a search warrant.
For you to be arrested, the police require probable cause (adequate reason to think you violated the law). If the arrest originated from the investigation, the law enforcers could come to your workplace or home with your arrest warrant.
After your arrest, it is the prosecutor's discretion to determine whether to bring a criminal charge against you or not. If a charge is not filed, you will be released from detention. If the prosecution thinks there is adequate proof, you might remain in police custody for arraignment or be released on bail.
Arraignment
It is the initial court appearance following your arrest. During the arraignment, the judge will explain your constitutional rights and read the charge filed against you.
Moreover, the defendant can enter a plea to the PC 136.1 charges. There are three types of plea options, namely:
- Guilty - The defendant is admitting that they violated the law
- No contest - The accused does not admit committing the offense but acknowledges there is adequate evidence against them.
- Not guilty - The accused tells the court that they did not commit the offense
A plea of no contest is similar to a guilty plea. When a defendant pleads "no contest," the judge will find them guilty and proceed to the sentencing phase.
Generally speaking, it is not wise to enter a plea without understanding the various plea options and speaking with your defense attorney.
Bail
Bail is addressed either at the bail hearing or arraignment. Depending primarily on the case circumstances, the judge can set the defendant's bail amount, release them on their own recognizance (OR), or deny bail.
In case the bail is set, the defendant remains in custody until they post the total bail amount. The bail amount is determined using several factors, including criminal history, whether the court thinks the accused is a flight risk, and the charge seriousness.
If the judge denies bail, you will remain in custody throughout the criminal process.
Pretrial Process
The pretrial process demands a lot. The criminal defense lawyer and the prosecution will share evidence in the discovery process. Both sides will build their case.
Additionally, this is the stage when every side files motions that address various legal issues affecting how your PC 136.1 case proceeds to trial. Common motions filed include Pitchess motion, motion to set aside the information (PC 995), and motion to suppress evidence.
The admissibility of evidence is one of the issues addressed in this process. If the prosecutor uses proof acquired through surveillance or a search, your attorney can contest whether the surveillance or search was conducted lawfully.
In case your constitutional rights were broken during the police surveillance or search, the evidence acquired will not be used in court. It will also weaken the prosecution case, and your witness tampering charges could be reduced or dismissed.
Trial
During the trial, every side presents evidence and testimony to the court. You are entitled to both court trial and a jury trial. Your competent defense attorney should be able to explain the difference and which suits you best.
The prosecution should establish guilt beyond any reasonable doubt. If found innocent, the case will be dismissed. If found guilty, the case proceeds to the sentencing stage.
Sentencing
More often than not, sentencing occurs separately from the verdict. The guilty verdict is returned, and then a judge sets a sentencing hearing date. At the hearing, the court will hear recommendations from both your lawyer and the prosecutor about the suitable sentencing founded on case circumstances. Then the judge decides the sentence.
Appeal
If convicted of witness tampering, you are entitled to appeal the verdict. However, you can only file an appeal if:
- There was no adequate proof to support your ruling, or
- A mistake of law made in the criminal process affected the case outcome
A perfect example of a mistake of law could be a case while the judge allows proof acquired through an unlawful search to be used in court. In this case, an appellate court could send the case back to another trial or override the verdict. It is worth noting that the appellate court does not redecide case facts.
Frequently Asked Questions Concerning Penal Code 136.1
At The Los Angeles Criminal Defense Attorney, we receive a lot of questions from those charged with dissuading a witness or victim. The questions include:
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Can You be Convicted of Expressing Your Disappointment to the Victim/Witness When They Cooperated with Prosecution or Provided a Testimony?
Provided it is accompanied by a threat like, "I will get guys and locate you for what you did" or "I will kill you," it will be regarded as attempting to stop future cooperation with prosecution or providing testimony.
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What Happens if Your Intimidation Did Not Work and the Witness or Victim Testified Without Fear?
You could still be found guilty of the crime if you tried to dissuade the witness. The attempt does not have to succeed.
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Can You be Convicted if You Hid or Held a Phone from the Victim or Witness So That They Could Not Report the Crime to a Law Enforcement Agency?
Conduct that could delay or prevent an individual from being in a position to reach the police can be considered a violation of witness tampering laws. It includes refusing to give a witness/victim a phone after claiming they will call the police or striking a phone from their hand.
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Could You be Charged with the Crime if You were Just Passing a Message from Another Person and Had Nothing to Do with PC 136.1?
Both you and the defendant could be prosecuted for trying to prevent the alleged victim or witness from cooperating with the prosecution or testifying.
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What Happens If You Were Just Standing Close to a Person Who Dissuades a Witness or Victim, But You Did Not Say or Do Anything?
It depends on the circumstances surrounding the case. If you made a physical or verbal affirmation following the making of the threat or commented, you violate PC 136.1. It might be nodding, posturing, staring, or saying "uh-huh" when the comment or threat was made.
Find Legal Representation Near Me
Violating PC 136.1 means you threatened or intimidated a witness or victim. Regardless of whether the threat was executed does not affect the charges. The offense is punishable by severe penalties. If you have been arrested for allegedly witness tampering, it is your best interest to contact The Los Angeles Criminal Defense Attorney. We take pride in representing thousands of clients in Los Angeles. Call us today at 310-564-2605 to discuss your legal options during the free initial consultation.
