Being charged with dissuading a witness or victim (California Penal Code 136.1) is a very stressful situation. Trying to stop someone from reporting a crime or testifying about it is not only a slight against the other person, but also a direct blow to the integrity of the justice system in the eyes of the law. These charges can be treated as felonies with harsh prison sentences. A single misinterpretation of a message or conversation can completely change your future.
You should not attempt to handle these allegations without experienced legal representation. When you or someone you know has been charged with these serious charges in Los Angeles, contact Leah Legal Criminal Defense Attorney today to make sure your side of the story is told. Your rights are protected throughout the criminal process.
What Prosecutors Must Prove in a Witness Intimidation Case
The prosecution must meet a high legal burden to secure a conviction against you for witness intimidation. They cannot simply refer to an awkward discussion or a heated disagreement. They must instead demonstrate a legal formula beyond a reasonable doubt.
Penal Code Section 136.1 sets out the elements for this offense. The prosecutor has to prove three key elements to establish your guilt under this statute.
- Qualified Victim or Witness
Prosecutors have to prove that the person you allegedly targeted is, in fact, a witness or a victim as defined by the law.
A witness is generally someone who has knowledge of facts relating to a crime and may provide testimony or information to law enforcement. On the other hand, a victim is any person who has allegedly suffered harm from a crime or violation of their legal rights, either under local or federal law.
- Knowingly and Maliciously Dissuading
The heart of the offense is to establish that you actually stopped (or tried to stop) the victim or witness from doing one of the following:
- To attend or give evidence in any of the proceedings or trials authorized by law
- Reporting a crime or victimization to a law enforcement officer, prosecutor, judge, or parole officer
- Arresting or causing the arrest of a person in connection with a crime
You must have done this knowingly and maliciously. The definition of “knowingly” is that you were fully aware of the facts that made that person a witness or victim. “Maliciously” means acting with the intent to annoy, harm, injure, or interfere with the administration of justice.
- Specific Intent to Obstruct Justice
Witness intimidation is a specific intent crime. It is an important distinction in the law against crime. It is the prosecution’s responsibility to show that you acted with the clear intention to hinder or prevent witness cooperation.
Because the offense requires specific intent, statements made in frustration or without the intent to interfere with a legal process are insufficient to secure your conviction. The context surrounding statements, like “You better not say anything,” is extremely important. The prosecution may have difficulty proving a violation of PC 136.1 if there was no intent to interfere with a legal proceeding.
Note: Witness intimidation allegations often involve threats, coercion, bribery, or attempts to conceal evidence, all of which constitute witness tampering. However, even if you have no intention of committing any violence at all towards a victim (non-violent attempts to dissuade a victim from calling the police constitute an attempt and can lead to a felony under PC 136.1).
Common Scenarios of Dissuading a Witness or Victim
Intimidation of witnesses or victims typically does not occur as depicted in films. In fact, in most cases, Penal Code 136.1 charges result from highly emotional confrontations or attempts to control another person. To help you understand how easily everyday interactions can be interpreted as criminal behavior, it is useful to look at the most common scenarios prosecutors bring to court.
Some of the examples of witness intimidation:
- Physical threats — This is the most direct form of intimidation. Threats of physical violence are made in statements, like “If you testify, I will hurt you,” or even the nonverbal threat, like a finger to a witness’s throat while making eye contact.
- Bribery and financial incentives — Threatening someone is not enough for you to be charged with intimidating a victim or witness. Offering a reward is also illegal. For instance, offering financial incentives in exchange for refusing to cooperate with prosecutors or law enforcement, or promising to pay the victim $5,000 to drop the charges, is illegal witness tampering.
- The “Do not call the police” command — This is often in response to a small confrontation or property argument. Taking a phone from someone or attempting to prevent the person from calling 911 may be used as evidence of attempted dissuasion.
In domestic violence cases, prosecutors often allege that emotional coercion was used to discourage reporting or cooperation. Often, at these moments of high stress, statements intended to guilt or frighten a partner into submission or silence get labeled as intimidation charges.
An example of a statement issued to dissuade another person is “If you call 911, the police will arrest both of us, and the kids will go to foster care.” Genuinely, or possibly in misguided efforts to protect the family dynamic, defendants often say this. However, prosecutors see this as an extremely powerful tool of psychological manipulation that is aimed at exploiting the victim’s affection for their kids to keep law enforcement from intervening.
One of the most misunderstood aspects under PC 136.1 is “completion” of a crime. You may think, ‘Well, they did call the police, so nothing happened.”
The law treats attempts as crimes. For the prosecution, they do not have to prove that you actually managed to silence the witness. If the victim entirely avoids you, hangs up the phone, and gives a full statement to the police, the offense may be considered complete once an attempt to dissuade is made with the required criminal intent.
Who is a Victim or Witness?
To appreciate the ambit of California Penal Code Section 136.1, it is important to understand the breadth of the class of people the law protects. These protections are only afforded to a person on the witness stand in a formal trial. However, California law extends its reach.
The statutory definition of a victim and a witness comes with a specific meaning in the law and can be substantial in your case.
California law broadly defines a victim as someone who reasonably believes they were harmed by criminal conduct. A victim is any person who, in good faith, believes that a federal or state crime was committed against him. This is the case even if, ultimately, the police decide not to charge you with the underlying crime, or even if a jury acquits you of the underlying crime. The person would still be considered a victim for purposes of a dissuasion charge. You can be convicted of intimidation if you try to prevent them from reporting what they really believe was a crime.
The term ‘witness’ means more than a person with first-hand knowledge of an event. Witnesses in criminal law are all those who:
- Has observed, heard, or otherwise noticed circumstances of a crime
- Has already given a statement to law enforcement or a prosecutor
- Has been subpoenaed to appear in court
- Is someone you reasonably believed would be called to testify or report a crime, regardless of whether they actually had useful information
The statute may apply even if the defendant merely believed the person could become a witness.
The most critical takeaway is that broad protection begins long before a courtroom is ever involved.
The law protects individuals the very moment an incident occurs. For example, if you have targeted a protected person, if you try to stop someone from calling 911, or if you try to stop someone from driving to a police station to file an initial report, for example.
The prosecution is not required to prove that a formal case had been filed, that an investigation was being conducted, or that a lawsuit was pending. Even if you simply try to interfere with the person’s intent to call the police, that is enough to meet the legal definition, and early intervention by a skilled defense attorney is critical to your case.
Penalties for Witness Intimidation
A witness intimidation charge carries an extremely harsh penalty, which depends on the classification of the charge. This crime is a “wobbler” under Penal Code Section 136.1. This means the prosecution will have discretion to charge the offense as a misdemeanor or a felony, depending on the particular circumstances of your case and your criminal record.
A misdemeanor conviction may result in:
- Up to one year in a county jail
- A fine not to exceed $1,000
If the crime is charged as a felony, however, the penalties are much higher.
In some instances, the law takes away prosecutorial discretion. If you fall into any of the following categories, your charge will automatically be a straight felony (not a misdemeanor), and you will not be able to reduce your charge to misdemeanor status:
- Violence or threats of violence — The act was accompanied by an express or implied threat or force to a witness, victim, or property
- Conspiracy — With two or more persons, you conspired to silence the individual
- Prior conviction — A criminal conviction for tampering with or intimidation of witnesses
- Acting on behalf of another person — You were asked to intimidate someone else, or you were paid to intimidate someone else by a third party
Under PC 136.1, a standard felony can result in the following:
- A term in state prison of up to 4 years
- Fines of as much as $10,000
In addition to the time you are spending in jail, there are long-term structural impacts a felony conviction will have on your life:
If your crime involved a threat or use of force or violence, it is deemed a serious felony. This will result in a strike that will remain on your record permanently in accordance with the state’s three-strikes law. If you are convicted of a future felony, a prior strike conviction can substantially increase future felony sentences under California’s Three Strikes law. You will have to serve a much higher percentage of your sentence before being eligible for parole.
Further, a felony conviction will also result in:
- A lifetime ban on possessing or owning weapons
- Automatic deportation for non-citizens
- The immediate loss of professional licenses and permits
Federal Penalties
It is also important to realize that if the underlying case involves a federal investigation, federal authorities may prosecute it instead. However, federal witness tampering charges, under 18 U.S.C. Section 1512, carry even more severe penalties, as much as 20 years in federal prison if physical force was used or intimidation was attempted.
How Criminal Protective Orders Can Lead to Additional Criminal Charges
In the event of a violent crime or domestic violence charge, the court seldom releases you from jail without imposing boundary guidelines. A criminal protective order (CPO) is a common type of protective order that a judge grants at your initial appearance.
This creates a serious legal situation, with every effort to reach the victim or witness immediately met with additional criminal exposure.
If you are released on your own recognizance or get out of jail with a bail bond, there is almost always a strict no-contact or stay-away order in place. It does not allow any written, verbal, telephonic, or electronic contact with the protected person. This also means you cannot pass messages along through a third party, for example, a mutual friend or family member.
The trap springs because many defendants mistakenly believe that if the victim is willing to talk or initiates contact to “work things out,” it is perfectly fine to communicate. California courts do not consider it to be that. The order affects your behavior, and the victim has no legal power to waive a judge’s direct order.
Cross this line and speak to the victim or witness to change their story, drop the charges, or avoid court, and you face a double blow. A prosecutor will not choose between charges. They will go with both:
- Charge 1 — Violation of a court order (Penal Code 273.6 or 166 PC). Willfully failing to obey a CPO is a separate misdemeanor offense with a possible sentence of up to one year in county jail.
- Charge 2 — Attempt to induce or persuade a witness or victim to refuse to testify. (Penal Code 136.1 PC). This is the more serious charge and may be prosecuted as a felony, punishable by up to 4 years in state prison.
With just a phone call or text message, you will have provided the prosecution a new, easily proven case against you, one that is entirely separate from whether or not they can prove the crime that ultimately got you arrested.
The most obvious result of violating a protective order during an attempt to coerce a witness is the revocation of bail or pretrial release. If the judge concludes that you have acted in violation of the stay-away order or you have tampered with a witness, he/she will cancel your bond of release, issue a bench warrant, and revoke the right to bail. You will be re-arrested and forced to remain in a county jail cell until your case is completed, which will prevent you from working, supporting yourself and your family, or even easily meeting with your defense team to prepare for trial.
Defenses You Can Use to Fight Dissuasion Charges
Being accused of witness intimidation is serious, but an arrest is not the same as a conviction. There are several effective legal strategies a knowledgeable criminal defense lawyer can use to fight the charges. Because California Penal Code Section 136.1 relies heavily on your internal motivations and the specific context of your words, there are several powerful legal strategies a skilled criminal defense attorney can use to fight these charges.
- Lack of Specific Intent or Malice
Witness dissuasion is a specific intent crime. The prosecution must prove beyond a reasonable doubt that you acted with the malicious purpose of obstructing justice. The statutory requirements for conviction do not exist if your words or actions were not brought about with this particular intention.
If you just called the person to ask them to tell the truth, you did not commit a crime. For example, telling the witness, “Just go to court and tell the absolute truth about what happened,” is perfectly legal.
During emotional outbursts, insurance claims, or breakups, individuals may make statements that they do not mean. If you shouted out something during an argument, which was spontaneous and caused by frustration or panic, but did not actually intend to stop a court case or report, your defense attorney can argue that your words were an unintentional emotional outburst.
- False Accusations and Fabricated Claims
In situations like domestic violence disputes, messy divorces, or child custody issues, false allegations are very common in emotional situations.
People sometimes misuse the legal system to gain leverage in emotionally charged disputes and to create a strategic advantage, often when they are angry or scared. Exaggeration of a common argument, taking messages completely out of context, or creating baseless threats are among the fabrications used to make a case appear as a real occurrence that the courts may initially treat seriously during early proceedings.
In these cases, an estranged spouse or family member might be making an intimidation claim to secure an immediate advantage or a particular result. They understand that a witness-intimidation claim could result in your arrest, a protective order being issued against you, and being removed from your family home. The rush to strip away your custody rights and destroy your reputation can be just as effective as the courts’ response.
Your defense team can cross-examine the accuser, expose any motives behind the case, track down inconsistent statements, and present digital footprints to prove that the threat was totally fabricated.
- Lack of Evidence
Numerous witness-tampering charges are based solely on oral communications. When no messages, emails, recorded voicemails, or witnesses outside of the relationship back up the accuser’s version of events, it becomes a classic “he said, she said” situation.
A lack of a digital footprint or physical evidence leaves prosecutors with very few facts to go on and many emotional stories. Without hard evidence, it is easy to see how the memory of what happened could be faulty, how the testimony may have been distorted by personal bias or even by using a different selection of items, and how the police, in their rush to make an arrest, did not bother to investigate the motive or hidden agenda that may have been behind it.
In the justice system, the burden rests entirely on the prosecution. The prosecution’s case may rely heavily on uncorroborated testimony from a single person who may be discredited. If so, it is incredibly difficult for a prosecutor to meet the high standard of proving guilt beyond a reasonable doubt.
If there is no physical evidence, jurors may hesitate to convict when corroborating evidence is limited. An experienced criminal defense attorney will ensure the jury understands that doubt is your greatest legal protection.
Your defense lawyer can find character witnesses, review the events of the case, and establish any significant holes in the prosecution’s line of inquiry to convince the jury that there is insufficient trustworthy evidence to prove your guilt.
Find a Criminal Defense Attorney Near Me
A charge of dissuading a witness or victim can seriously threaten your future and carry serious consequences, including state prison time and permanent strike offenses. Every text message, phone call, and emotional outburst will be used against you by the prosecution. When your freedom and reputation are at stake, immediate legal action is critical.
Call Leah Legal Criminal Defense Attorney today for an aggressive and strategic defense. We will challenge the prosecution’s evidence, uncover false accusations, and fight tirelessly to protect your rights and prevent you from being sent to jail. Contact our Los Angeles attorneys at 213-444-7818.
