California Penal Code 136.1 penalizes dissuading a witness or victim. A PC 136.1 violation is a serious felony with life-changing consequences. The violation involves a verbal suggestion to skip court or a perceived threat of violence. The Los Angeles District Attorney’s office takes these cases seriously to ensure the integrity of the judicial system. Since PC 136.1 is a wobbler, the offense can be prosecuted as a misdemeanor or a felony. If it is a felony, it is considered a strike under the California Three Strikes Law.
In the case of non-citizens, the danger is even greater because a felony conviction is considered an aggravated felony, which results in deportation. To address these consequences, a robust defense strategy is necessary, for example, by questioning the prosecution’s claim of a particular intent. At CCLG: Los Angeles Criminal Attorney, we aggressively defend your rights if you are facing charges for dissuading a witness or victim. Speak to our defense attorneys for a case review and to build your defense strategy.
What Is Dissuading a Witness or Victim?
When the state charges you with dissuading a witness or a victim, it means you have tampered with the very basis of the justice system. The legal structure provided by Penal Code 136.1 is broad and intended to encompass various actions that could discourage another person from cooperating with the authorities. Dissuading a witness or a victim is a grave violation that could escalate to a felony strike, resulting in several years in prison and depriving you of your civil liberties forever.
Under California law, the prosecution does not have to demonstrate that you were successful in silencing another individual. All they have to do is prove that you attempted it with the necessary intent. The legal standards are skewed in favor of the state because the court system places great value on protecting its witnesses.
What the Prosecution Has to Demonstrate
The DA must prove several elements for the court to convict you. The prosecution has the responsibility of demonstrating every aspect of the crime beyond a reasonable doubt. These include:
- Proving that the individual you supposedly communicated with was a witness or a victim, according to the law.
- Demonstrating that you acted to ensure that the individual did not carry out a protected act, that is, testifying or reporting a crime.
Any person who feels that a federal or state crime was committed against them is a victim, whether or not a formal charge was ever brought. A witness is one who personally knows facts connected to a crime, has received a subpoena, or has reported the crime to a peace officer. The prosecution will consider the totality of the circumstances to ascertain whether your conduct fits within these definitions.
The Specific Intent Requirement
The most critical aspect of the prosecution’s case is to demonstrate what was going on in your mind during the alleged incident. Dissuading a witness or victim is a specific intent crime. This implies that you cannot be found guilty of an error or an accidental encounter. You must have done it with knowledge and malice. Acting ‘knowingly’ simply means that you were completely aware that the person you were dealing with was either a victim or a witness.
Knowledge
If you were not aware that the person had information about a crime or was scheduled to testify, then you lacked the requisite knowledge for a conviction to hold. For example, if you were talking about generalized frustration about a situation and the person listening was a potential witness, your defense attorney can claim you did not have the necessary knowledge. You have the right to a defense that highlights your lack of knowledge about the role of the person in the legal proceedings.
Malice
The second half of the intent requirement is malice. The act of being malicious requires that you have the intention to:
- Annoy someone else
- Harm or injure another person
- Disrupt the proper administration of justice
You may have a hot-tempered fight with a witness, but if your intent was simply to resolve a personal dispute rather than to prevent them from testifying, you have not acted with the malice required under Penal Code 136.1.
The prosecution will attempt to suggest that you were malicious based on the tone of your voice or the nature of your relationship with the witness. However, you can refute these inferences by giving a different account. This allows you to show that your motives were unrelated to any desire to obstruct justice. Your lawyer will strive to demonstrate that your actions did not mean malicious intimidation.
Why Success Is Not a Requirement for Conviction
California law does not demand that your efforts be successful. The law prohibits stopping or attempting to stop a witness or victim from participating in the legal process. You might think you won’t be prosecuted if the witness goes to court or reports the crime to the police.
Even when the witness ignored your threats and gave all the evidence against you, you can be accused of a violation of Penal Code 136.1. The attempt to dissuade is the crime and not the outcome of such an attempt. This makes the law dangerous since it allows the prosecution to build a case on a single conversation or text message they perceive as a threat. Therefore, a statement that resulted in no actual influence on a witness could still lead to felony charges. The law focuses on your behavior and intention rather than the results of your actions. This aspect is the reason for invoking the right to remain silent. When you tell the police you did not intend to scare the witness with what you said, you inadvertently admit that you said it and that you had a motive to do so. The government will prosecute based on a confession of an attempt, regardless of whether that attempt resulted in any actual consequences.
The justice system considers the attempt an attack on the integrity of the courts. That is why you should have an experienced lawyer who can argue that your actions did not involve a legal attempt. Your defense lawyer can establish a reasonable doubt to avoid your conviction by demonstrating the ambiguity of your actions.
Punishments, Enhancements, and the Three Strikes Law
The implications of a conviction are grave and far-reaching. California takes PC 136.1 violations seriously, since witness intimidation is a direct threat to the authority of the government. It is a wobbler crime, and the district attorney (DA) has significant discretion over how to proceed. This decision is usually determined by the facts of your case, for example, the use of violence and your criminal history.
Felony vs. Misdemeanor
If the prosecutor chooses to prosecute your case as a misdemeanor, you will serve in the county jail for one year or pay a fine of up to $1,000. Although this remains a serious issue, it is not as severe as a felony.
The law requires the prosecution to file the charge as a felony in certain circumstances. If your act of dissuading was through the use of force or an express or implied threat of violence, you face felony charges. This involves even simple physical contact or phrases that imply future injuries.
Moreover, if you were part of a conspiracy with at least one other individual, you would face a felony charge. The fact that another person employed you to intimidate the witness or that you have a prior conviction of witness tampering also makes you guilty of a felony.
A conviction of a felony has a much more severe sentence. You might serve two, three, or four years in state prison. Also, you can be fined up to $10,000. The judge can also grant you felony probation, which would allow you to avoid prison but put you under tight supervision and other restrictions.
This could mean you will have to perform community service, undergo counseling, and pay restitution to the victim. The judge might also revoke your probation and take you to prison for the maximum term provided by law if you breach any of these conditions.
Collateral Consequences and Serious Felony Strikes
A felony conviction for dissuading a witness or victim is classified as a serious felony under California’s Three Strikes Law. Should you get a strike on your record, you will receive twice the normal sentence if you get a second felony conviction. A third strike will result in a sentence of 25 years to life in state prison, particularly if the new offense is also a serious or violent felony.
This implies that a felony conviction today may follow you to the end of your life, even if, many years later, you obey the law. The state uses the system of strikes to ensure that people considered dangerous remain behind bars as much as possible. A person in this situation is not only fighting the current charges but is also struggling to protect their long-term security from the escalating punishments of the California court system.
In addition to prison and strikes, you have to deal with devastating collateral consequences. If you are a non-citizen, a PC 136.1 felony is usually classified as an aggravated felony for immigration purposes. This exposes you to forced deportation, and you cannot become a citizen of the US or have a legal permanent residence in the country. You might be separated from your family and removed from your home, no matter how long you have spent in the US.
Moreover, you could lose your gun rights. A misdemeanor offense results in a 10-year restriction on gun ownership or possession, whereas a felony conviction results in a lifetime ban. Also, having a conviction for a violent crime renders you ineligible for a lot of professional licenses and sensitive jobs. You risk losing your livelihood and your future.
Legal Defenses to PC 136.1 Violation Charges
Under California law, you have a right to a defense. Although the prosecution might appear to have a solid case, there are numerous legal defenses to contest their accusations. According to the law, you are innocent until proven guilty. The work of your attorney is to identify the loopholes in the evidence provided by the prosecution and offer a narrative that explains your version of events.
There are numerous instances of so-called witness intimidation that are founded on misconceptions, incomplete information, or even blatant lies. By concentrating on the details of your case, you could challenge the central element of the crime. You are fighting for your rights, so you should have a committed, relentless defense lawyer.
Below are common defenses you can use to fight your PC 136.1 violation charges.
Lack of Malice and Family Exception
The only way to counter these charges is by proving that you did not act out of malice. As mentioned above, the law states that you should have meant to annoy, harm, or hinder justice. Provided that you can demonstrate that you acted with a different intent, then you should not be found guilty. For example, if you were showing sincere care for someone because you feared being retaliated against by a third party, then you did not do it maliciously. You were acting as a concerned friend or family member, not as an intimidator.
You are free to communicate with people about the dangers of the legal process, provided you do not aim to disrupt it. Your defense lawyer can argue that your real motives were to demonstrate to the jury that you lack the wrongful intent required for a conviction.
California law also has an exception for family members. Your defense lawyer can argue that your actions were motivated by a genuine, albeit misguided, desire to protect your family rather than by malice.
For example, in many domestic situations, family members may try to resolve issues internally to keep the family together. While not a formal legal exception, demonstrating that your intent was to help, not to obstruct justice, can create reasonable doubt about whether your actions were malicious.
There are numerous domestic cases where the family members attempt to talk each other out of calling the police in an intense situation, usually due to a wish to keep the family intact or to avoid an apparent overreaction of the law enforcement personnel.
Provided that you can demonstrate that your action was founded on these family ties and a willingness to assist and not a willingness to inflict harm, the prosecution will have a considerably harder time proving their case. You have a right to invoke this family exception to counter the claims brought by the state regarding malicious intent.
Challenging the Status (Not a Victim or a Witness)
The fact that the individual whom you allegedly intimidated is not legally defined as a victim or a witness should not be used to convict you under Penal Code 136.1. These definitions are not absolute, although they are broad. If the individual did not have any objective evidence of the crime and was not part of the reporting procedure, they are not a witness. You could have fought with someone, and they could have lied, claiming to be a witness, to avoid getting in trouble.
Your attorney will investigate the connection of the individual to the underlying crime. If they were not a victim of the act and were not placed in a position to testify, the case against you cannot stand. You have the right to question the characterization of the alleged victim by the prosecution in all the proceedings of the case.
The defense is especially successful in cases where the crime underlying it is dubious or nonexistent. If no crime was committed, it becomes tough for the prosecution to claim that a person was a victim or witness. For example, if you had a civil dispute with someone and they attempted to make it a criminal case, you can claim that you were not tampering with witnesses when trying to solve the dispute.
You should hold the prosecution to the letter of the law. They have not demonstrated a necessary element of the crime, as they cannot prove that the individual falls within the particular categories specified in the statute. Your attorney will use the law’s technical requirements to demonstrate that your actions, however distasteful, did not contravene this particular criminal law.
Lack of Evidence in the Case of “He-Said/She-Said” Situations
In many instances, especially when dissuading a witness, the testimony of a single individual is sufficient. It might not have any recordings, no text messages, and no third-party witnesses to verify what was really said. Where such cases arise, you will defend yourself on the fact that there is insufficient evidence. The fact that the prosecution must prove its case beyond a reasonable doubt shields you.
When an accuser is the sole witness whose motivation is to lie or whose account has been erratic, then there is doubt. Your attorney will cross-examine the accuser to expose prejudices, other agendas, and inconsistencies in his testimony. You can undermine the credibility of the main witness of the state to demonstrate to the jury that the evidence provided is too flimsy to prove a conviction.
You should also seek evidence that will refute the story of the accuser. If you can demonstrate with phone logs or GPS positioning that you were not even in the place where the so-called intimidation occurred, you can prove that you are innocent. Your defense team shall collect all available digital evidence to reconstruct the events.
A threat is sometimes taken out of proportion. For example, a text message that appears threatening when read in a court of law may have a much different connotation when viewed as a continuation of a long-term, friendly dialogue. This can be done by providing the complete account of your interaction, and you can demonstrate that the prosecution is misrepresenting what you said. You are fighting hard to ensure that you are acquitted based on weak, unverified, or misconstrued evidence.
False Accusation in Family Matters
False charges are not uncommon in cases of domestic violence. In the process of ending a relationship or a child custody case, an individual might accuse the other of intimidating witnesses to gain a strategic edge in court. They can even state that you threatened them so that they do not report an incident of domestic battery, even though there was no incident of domestic battery. You have to be proactive and comprehensive in situations like this.
Your lawyer will investigate the background of the accuser and their record of making similar claims. If the accuser is motivated to make up the charges, such as wanting to win a custody trial or to have you out of the house, this motive will be shown to the jury.
It is also possible to use the fact that no injuries were reported and no police calls were made to prove that the accusations are false. When a person is actually intimidated, it is likely to show in the way they behave. If the accuser still communicated with you or behaved in a manner that cannot be attributed to an individual who fears for their safety, their credibility is highly compromised.
The facts of the situation will be used in your defense and not the fabricated story of the accuser. There have been numerous instances where a mere argument has been turned into a felony of witness intimidation. By revealing the truth, you can fight these false accusations and save your reputation. Someone reporting you to the police and lying about you does not make you a criminal.
Speak to a Criminal Lawyer Near Me
A charge for dissuading a witness or victim is a direct attack on your future. You require a criminal lawyer for immediate legal representation and counsel. The California justice system is unforgiving if its proceedings are interfered with. Possible punishments upon conviction are indicative of this brutal fact. You are also facing the possibility of a felony strike, years of imprisonment, and lifelong limited rights.
However, with an experienced defense lawyer, you could cross-examine the prosecution and fight to secure a favorable outcome. At CCLG: Los Angeles Criminal Attorney, we are committed to delivering to you a strong defense that values your freedom and your rights as its number one priority. We deeply understand Penal Code 136.1 and how to capitalize on the flaws in the prosecution’s case. You can contact us at 323-922-3418 today for a case review if you are facing a violent crime charge.
