Under California law, it is unlawful to interact directly with a witness or victim of your wrongdoing if you are a suspect in a criminal offense. The law seeks to protect those testifying to or reporting a crime. The law also aims to protect individuals assisting the district attorney or investigators from intimidation or harassment and encourage them to cooperate with the court. It is, therefore, an offense under Penal Code 136.1 to dissuade a witness or victim. A violation of this statute usually attracts severe punishment, even if you did not play a part in its commissioning. If you face dissuading a witness or victim charges, our California Criminal Lawyer Group lawyers can help you create a convincing defense to challenge your charges in Anaheim.

Overview Of Dissuading A Witness Or Victim

According to Penal Code 136.1, dissuading a witness or victim happens when you cause another person to withhold information or testimony, skip a hearing, or testify falsely after being summoned. This statute prohibits you from tampering with, dissuading, intimidating, or harassing a witness or victim of a crime. A violation of Penal Code 136.1 also involves any attempts to prevent the witness or victim from doing the following:

  • Aiding the law enforcement in arresting you.
  • Assisting the law enforcement or prosecutor in solving an offense.
  • Testifying or recording a statement about an offense.

Violation of this statute is a specific intent offense. You can only face charges if you are guilty of deliberately or knowingly intimidating or dissuading a witness or victim.

The Role of a Witness or Victim in a Case

A witness or victim is an essential player during the arrest and prosecution of a crime. A witness or victim typically assists law enforcement in arresting, testifying, and reporting offenses in court by informing the judge what happened under oath. The witness's testimony is always used as evidence in court. Any attempt, therefore, to prevent or discourage a witness or victim from testifying amounts to a serious offense that attracts severe punishment.

Elements of Tampering With The Witness

You could face charges under Penal Code 136.1 if the court establishes the following elements beyond a reasonable doubt:

You Acted Intentionally Or Knowingly

Acting intentionally or knowingly means doing something purposefully. The prosecutor must prove that you knew the person in question was a witness or victim because tampering with a witness or victim is a specific intent offense. The prosecutor must also prove that your actions towards the witness or victim amounted to intimidation. The prosecutor must also ensure you know that dissuading or intimidating a witness to an offense would prevent them from reporting or testifying in court. If the prosecutor fails to prove this element, the court could declare you innocent and dismiss your case.

For example, your employer could accuse you of fund embezzlement, and you respond to the situation by shouting at them to clear your name from the accusations. In this case, even if your employer is intimidated by your shouting and drops your embezzlement charges, you did not act so purposefully but merely reacted to the accusation. In this case, you cannot face charges for tampering with a witness or victim because you only intended to settle the matter.

Additionally, if the prosecutor accuses you of witness tampering, the prosecutor must provide evidence that portrays malicious conduct during the commission of the crime. Your behavior could qualify as malicious if you acted willfully and intended to cause annoyance or harm. For example, a friend could visit and find you with money and dangerous weapons. You then trap your friend in your house, preventing them from reporting the matter to the police by issuing threats. In this case, you could face charges for tampering with a witness or victim because you intentionally trapped your friend to dissuade them from reporting the matter. However, you cannot face charges under Penal Code 136.1 if you dissuade a family member who is a witness or a victim of a crime and do so solely for their safety.

You Dissuaded or Tried to Dissuade

If the prosecutor accuses you of dissuading a witness or victim, Penal Code 136.1 requires that the prosecutor provide evidence showing that you dissuaded the witness from doing the following:

  • Assisting in the arrest or prosecution process.
  • Informing the law enforcement the offense.
  • Testifying in court.
  • Attending the court-set hearings.

Under California law, an attempt alone is sufficient for you to face charges under PC 136.1. The prosecutor does not need evidence that you succeeded in your attempts. You could still be guilty of violating this law even if your dissuading attempts on the witness fail and the witness proceeds to testify against you in court.

You can prevent or dissuade a witness from testifying in court in various ways. For example, you could face charges under PC 136.1 if the prosecutor proves that you hid the witness's or victim's phone to prevent them from calling the law enforcement. It is also a crime for you to snatch the witness's phone when he/she tries to report the matter to the law enforcement . You could also face charges under this statute if someone else sends you to talk to a witness on their behalf, to urge the witness not to testify, to give false testimony, or to drop the case.

The court could also charge you under Penal Code 136.1 if you tell a witness that you will be upset or hire goons to injure them if he/she assists the prosecutor in prosecuting your case or the law enforcement  investigating your case.

You Were Aware that the Individual Was a Victim or Witness To The Offense

If the prosecutor accuses you of dissuading a witness, they must provide evidence showing that you had a reason to believe the person was a victim or witness. According to Penal Code 136.1, a victim is any person who believes or is persuaded that you have committed a federal or state crime against them. A victim is generally any person who is the direct victim of an offense.

Usually, a victim could be a third party or a claimant in a lawsuit. An individual does not have to have suffered harm to be a victim of an offense. At times, your attempts to dissuade a victim or witness could fail. However, if your dissuasion prevents an individual from taking legal action against you, the court deems that individual a victim.

Under Penal Code 136.1, however, the scope of a witness is broad. According to this statute, a witness is any individual:

  • Who has to be subpoenaed.
  • Who has informed the law enforcer about criminal activities.
  • Whose testimony under oath can be used as evidence in a lawsuit.
  • Who understands the facts about an offense.

Penalties For Violating Penal Code 136.1

The courts often charge a violation of PC 136.1 as a wobbler crime. You could therefore face misdemeanor or felony charges, depending on your criminal record and the circumstances surrounding your charges.

If the judge charges you with a misdemeanor, you could face a jail term that does not exceed one year in a county jail. You could also face a fine that does not exceed $1,000. If the judge charges you with a felony, you could face a jail term that does not exceed 48 months in state prison. You could also face a fine that does not exceed $10,000.

The court could charge you with intimidation or dissuasion as a felony if:

  • You conspire with someone else to tamper with the witness, and he/she promises you financial gains or other benefits.
  • You have at least one previous conviction on your criminal record.
  • Your threats involved the use of power or force against the witness.
  • Your conspiracy involved coercing the witness or victim.

Sentence Enhancement For Witness Dissuasion

You could face additional penalties on your sentence besides the general PC 136.1 penalties. Victim restitution is one of the additional penalties you could face. The victim could file a lawsuit in a civil court for damages even after you face witness-tampering charges. If the court awards the victim the damages, you must pay the amount determined by the court. At times, the victim could deliberately seek punitive damages. The court can award punitive damages to punish you and prevent future witness tampering. It is crucial to note that with civil and criminal lawsuits possible, the court could charge you with two separate crimes.

You could face an additional sentence of 120 months if you use a firearm to prevent a witness or victim from testifying. You could also face an additional sentence of seven years in state prison if you stop a witness or victim from testifying to benefit a criminal gang.

A felony charge for violating Penal Code 136.1 could also cost you a three-strike rule enhancement. You will face a second strike if your criminal record already has one. A third strike will increase your sentence to 25 years or life imprisonment in state prison.

You should fight your charges with all available resources because the sentence enhancements and repercussions could ruin your life completely. You should seek the services of a skilled and experienced criminal attorney to protect your freedom and rights during the court hearing.

Immigration consequences of Violation Penal Code 136.1

If you are a non-citizen, facing felony charges could negatively influence your immigration status. Under immigration law, any non-citizen charged with an aggravated felony can be deemed inadmissible or deported from the United States. Your crime will fall under the category of aggravated felony if your violation is a felony. In this case, you could be marked as inadmissible or even deported.

You need to hire a competent attorney since violating PC 136.1 could mean the end of your dream of living or working in the United States. An attorney could improve the likelihood of your charges being reduced to misdemeanors or even dismissed. Having your felony charges reduced to a misdemeanor will cushion you from immigration consequences even if you are guilty, dissuading a witness or victim.

Expungement of Witness Tampering Charges

You can file an expungement of your charges if you have served a sentence for witness dissuasion. However, this can only be possible if you meet the required criteria. You could apply for expungement of your charges if you complete probation and all court-imposed requirements. If the judge recommends a jail term instead of probation, you will be required to complete your jail term before filing for an expungement with the court.

If you fail to comply with probation conditions, the judge could revoke it and send you back to custody to complete the remaining jail term. However, even if you break probation conditions, you could still be eligible for an expungement at the judge's discretion.

The advantage of having your witness tampering charges expunged is that it relieves you of all the restrictions related to your charges. Expunging your PC 136.1 charges could help you access certain essential services without worrying that your criminal record will hurt your chances, including:

  • College admission.
  • Promotions.
  • Applying for jobs.
  • Applying for state licensing.
  • Applying for or leasing an apartment.

Unfortunately, only the public will not access your record after expungement, but the record will not be erased from the police database. Therefore, the expunged record could be prior if you commit another PC 136.1 violation. This could cost you a jail term enhancement.

Defenses To Penal Code 136.1 Charges

If the prosecutor accuses you of dissuading a witness or victim, the prosecutor must prove that you intentionally and maliciously dissuaded a victim because this is a specific intent crime. Some of the defenses you could present to challenge your charges include the following:

Police Misconduct

When law enforcement arrest you or conduct an investigation, they work under strict rules and regulations. Law enforcement  violates your rights by failing to adhere to the set legal procedures. Some of the typical police misconduct includes the following:

  • Preventing you from accessing legal counsel.
  • Illegal questioning.
  • Illegal arrest.
  • Wrongful detention.

The evidence gathered could be removed from your case if the law enforcement violated your rights during investigations. This could leave the prosecutor with weak evidence against your charges, which could lead to the dismissal or reduction of your charges. Alternatively, the prosecutor could offer a plea agreement where you plead guilty to lesser charges, leading to a favorable sentence.

When contacting your attorney, you must inform them if the police officers violated your human rights. If your attorney establishes that you are a victim of police misconduct, your attorney will file a motion with the court to have illegally acquired evidence excluded from your charges.

Lack of Sufficient Evidence

In any criminal lawsuit, the law requires the prosecutor to provide sufficient evidence for the defendant to face charges. The prosecutor must support each component of the count with adequate evidence. If the prosecutor fails to gather enough evidence, he/she cannot prove the element of dissuading a witness to the required standard. If your attorney successfully challenges the prosecutor's evidence, the prosecutor could be forced to agree to a plea deal. The deal could involve accepting ''no contest'' or pleading guilty to a lesser charge instead of dismissal of the PC 136.1 charges.

You are a Victim Of False Accusations

False allegations or wrongful arrests commonly occur in domestic violence cases. For example, if you disagree with your spouse, he/she could go to the police and report to the law enforcement  that you abused them. He/she could also allege that you threatened to cause them additional harm if they tried to contact law enforcement. In this case, you could face false accusations of dissuading a witness or victim. However, having a skilled and experienced attorney who will evaluate your situation and conduct an independent investigation to gather substantial evidence to challenge the false accusations at trial will enhance a positive outcome for your case.

The Alleged Person Is Not A Witness Or Victim

You can only face charges under PC 136.1 if the prosecutor proves beyond a reasonable doubt that the person to whom you directed your criminal acts is a witness or victim. You could claim the alleged person is not a witness, even if you harassed or intimidated them. However, you could be guilty of criminal threats under Penal Code 422 even if you escape Penal Code 136.1 charges for dissuading a witness or victim. Therefore, you should only apply this defense in plea negotiations.

No Specific Intent

For you to face charges under PC 136.1, the law requires that the prosecutor demonstrate that you maliciously or intentionally dissuade a witness or victim. The prosecutor must be able to prove the element of dissuading a witness or victim because this crime is a specific intent crime. You can therefore use this defense by alleging that you did not intend to harm the witness and that you never acted on purpose.

Related Offenses

Several crimes can be charged alongside dissuading a witness or victim, including:

Kidnapping — Penal Code 207

The offense of kidnapping is defined under Penal Code 207 as moving someone else from a significant distance without their permission using fear or force. If the prosecutor accuses you of kidnapping, he/she must prove the following elements for you to face the charges:

  • You move someone else a substantial distance.
  • You moved the person without their permission.
  • You accomplished your act through fear, force, or fraud.

You could face a lengthy jail term and, at times, life in prison if the judge convicts you of kidnapping. Under California law, kidnapping is regarded as a continuing crime. This means the crime continues if you keep holding the person. The court could only charge and punish you for one kidnapping case, even if you moved the person from one place to another.

You will face penalties depending on the facts of your case. The judges often charge simple kidnapping as a felony. In this case, you could face a fine of up to $10,000. You could also face a jail term of three, five, or eight years in state prison.

If the judge charges you with aggravated kidnapping, you could face the following penalties:

  • A jail term in a state prison for life without the possibility of parole if you kidnap someone else to commit extortion for reward or ransom and he/she suffers bodily harm or dies.
  • A jail term in state prison for life with the possibility of parole if you kidnap someone else for a reward, ransom, or to commit extortion.
  • A jail term of five, eight, or eleven years in state prison if the person was below 14 years old at the time of the crime.

Some of the defenses you could present against kidnapping charges include the following:

  • Parents’ rights to travel with their children.
  • Statutory exceptions.
  • Insufficient evidence.
  • You were merely present, not a kidnapper.
  • Not enough movement to qualify as kidnapping.
  • The victim consented to be moved.

False Imprisonment — Penal Code 236

The offense of false imprisonment is defined under PC 236 as illegally detaining, confining, or restraining someone against their will. False imprisonment, however, is categorized into two categories:

  • Misdemeanor false imprisonment, and
  • Felony false imprisonment

If the prosecutor accuses you of a misdemeanor or felony false imprisonment, the prosecutor must prove the following elements:

  • You deliberately and illegally confined, detained, or restrained someone else.
  • You made the victim go or stay somewhere against their will.

False imprisonment is typically charged as a wobbler crime. You could therefore face misdemeanor or felony charges. You could face the following penalties if the judge charges you with misdemeanor false imprisonment without menace or violence:

  • One-year jail term in a county jail.
  • A fine of $1,000.

Felony false imprisonment attracts the following penalties:

  • A fine of $10,000.
  • A jail term of three years.

Find a Anaheim Criminal Defense Attorney Near Me

It can be stressful if the prosecutor accuses you of dissuading a witness, especially if it is your first time facing a criminal charge. You need a reputable criminal defense attorney to assist you in this situation. We can protect your interests and freedom at the California Criminal Lawyer Group Anaheim. We will evaluate your case and develop effective defense strategies to help you win your charges. Call us at 714-766-0965 to speak to our attorneys.