Dissuading a witness or victim involves preventing or discouraging an individual from furnishing information or testimony in a legal case. Employing diverse strategies to deter or intimidate said witness or victim, compelling them to withhold or modify their narrative, can effectively impede the investigation or prosecution of a criminal offense.

The methods employed for dissuasion include verbal intimidation, coercive measures, bribes, acts of harassment, or any other means used to discourage or influence the witness or victim. The underlying intent of dissuasion is to undermine the veracity or dependability of their testimony, safeguard the interests of the accused or those implicated in criminal activities, or obstruct the administration of justice in some manner.

Dissuading a witness or victim is a crime under Penal Code 136.1. At California Criminal Lawyer Group, we assist individuals facing charges under 136.1 in Santa Ana in challenging the allegations. Read on to better understand the crime, the potential penalties, and the legal defenses you can raise.

Dissuading a Witness or Victim Under California Law

Penal Code 136.1 addresses dissuading a witness or victim. Per the law, it is a crime to deliberately and with ill intent seek to hinder or discourage a witness or victim from reporting a crime, disclosing relevant information, or offering testimony in an official legal proceeding. Even if your efforts to intimidate or dissuade prove unsuccessful, you can still face conviction for this crime.

PC 136.1, also known as witness intimidation, is targeted explicitly at defendants who engage in the following activities:

  • Pressuring witnesses to refrain from providing testimony regarding the crime.
  • Employ intimidation or coercion tactics to dissuade witnesses from reporting a crime.
  • Encouraging witnesses to refrain from participating in the prosecution process.
  • Discouraging witnesses from assisting in the arrest process.

The prosecution must establish several elements to secure a PC 136.1 case conviction. These elements include the following:

  • You were aware that the individual in question (witness or victim) possessed information pertinent to a crime or was likely to be called as a witness in an official legal proceeding.
  • You consciously and purposefully obstructed or discouraged the witness or victim from reporting the crime, providing relevant information, or testifying.
  • You explicitly engaged in specific actions or behaviors to dissuade the witness or victim. These actions include threats, coercion, bribery, intimidation, harassment, or other similar tactics.
  • You were aware of the potential ramifications of dissuading a witness or victim, for example, by obstructing the administration of justice or impeding the legal process.

The prosecution bears the burden of proof. He/she must prove the allegations beyond a reasonable doubt.

PC 136.1 violations fall under specific intent offenses. These offenses require the prosecution to demonstrate the defendant's mental state or intent when committing the prohibited act. This means the prosecution must establish that you had a specific purpose, motive, or state of mind beyond merely engaging in the offense.

Unlike general intent crimes, specific intent crimes demand an additional mental element. In the context of PC 136.1, the prosecution must prove both knowledge and malice on your part. They must show that you had awareness or knowledge of the witness or victim's involvement and possessed the deliberate intent to intimidate, dissuade, or obstruct their participation in the legal process.

Knowledge

Knowledge refers to the understanding or awareness that a witness or victim holds information about a crime or is expected to testify in an official legal proceeding.

The prosecution should present evidence demonstrating the following:

  • Your awareness of the witness or victim's connection to the case,
  • The victim's or witness’ possession of pertinent information, or
  • The victim’s potential role as a witness.

This awareness can be substantiated through various means, including direct evidence like testimonies or statements and circumstantial evidence that reasonably suggests your knowledge of these circumstances.

For example, Blair is an active participant in a criminal organization. Within this criminal network, Blair becomes aware that Kimberly, a fellow member, has witnessed a significant crime committed by their group. Blair knows Kimberly's vital information and understands the potential impact of Kimberly’s testimony if she were to be called as a witness during court proceedings.

Motivated by a desire to safeguard the interests of their criminal organization, Blair approaches Kimberly directly. Blair clearly and explicitly cautions Kimberly against reporting the crime or divulging any details to the authorities. He takes it further by emphasizing the dire consequences that both Kimberly and her family could face should she choose to cooperate with the legal proceedings.

Malice

Malice in a PC 136.1 case entails acting with wrongful intention or ill will towards the witness or victim. It also points to aiming to intimidate, coerce, or impede the witness or victim's involvement in the legal process.

Prosecutors could present various forms of evidence to establish malice, such as:

  • Your actions,
  • Statements or
  • Other relevant circumstances surrounding the offense.

The prosecution must establish that your intent surpassed mere negligence or accidental behavior, demonstrating that you consciously and intentionally engaged in the prohibited conduct to dissuade the witness or victim.

For example, Mark assaults Emily. Mark has a reputation for aggressive behavior. Determined to seek justice, Emily reports the incident to the police, becoming a crucial witness in the subsequent criminal case against Mark.

However, upon discovering Emily's decision to come forward and testify against him, Mark develops an intense hatred toward her. Mark then harasses and intimidates Emily to dissuade her from participating further in the legal proceedings.

Mark sends Emily menacing messages, explicitly threatening her with severe harm if she proceeds with testifying. Moreover, he takes deliberate measures to besmirch Emily's character by spreading baseless rumors, aiming to undermine her credibility as a witness. In a further display of malice, Mark engages the services of individuals to stalk and intimidate Emily, effectively creating an environment rife with fear and coercion.

Mark’s actions exceed acts that would be considered accidental or negligent behavior.

Note: According to PC 136.1, a victim is an individual who genuinely believes that they have been subjected to a state or federal crime. This definition encompasses those who reasonably perceive themselves as victims of criminal activity, regardless of whether an actual offense occurred.

Furthermore, the success or failure of preventing or discouraging a witness does not determine guilt in a witness tampering case. The focus is on the attempt itself. Intentionally dissuading or obstructing a witness, irrespective of the outcome, is deemed sufficient to establish a violation of PC 136.1.

Defenses You Can Use in Dissuading a Witness or Victim Case

Multiple defenses can be raised in a PC 136.1 case to challenge the prosecution's allegations. Due to the complexity and nuances of each case, it is crucial to seek the guidance of a skilled criminal defense attorney. Some of the common defenses are:

  1. Lack of Knowledge

You can assert that you lacked knowledge or awareness of the witness or victim's possession of information about a crime or their potential role as a witness. You can challenge the prosecution's claim of intentional dissuasion by demonstrating your lack of knowledge.

To prove a lack of knowledge in a PC 136.1 case, you can present various forms of evidence that support your claim:

  • Credible testimony or statements from yourself or others that establish your lack of knowledge about the witness's or victim's involvement or their potential as a witness can bolster your defense.
  • Phone records, emails, text messages, or other communication records can demonstrate a lack of communication or interaction between you and the witness or victim regarding the crime or legal proceedings. These records can indicate that you did not know of their involvement or potential as a witness.
  • Relevant documents, for example, official records, letters, or documents related to the crime or investigation — The documentation demonstrates your lack of awareness or involvement in the witness or victim's situation.
  • Evidence highlighting the timing or circumstances surrounding the alleged dissuasion attempts — This evidence helps establish that you acted without prior knowledge of the witness's or victim's involvement or their potential as a witness.

  1. Lack of Malice

You can assert that your actions were not driven by wrongful intention or ill will towards the witness or victim.

You can present evidence demonstrating the following to support a lack of maliciousness defense:

  • Absence of intent — Provide evidence indicating that you did not have a specific purpose or motive to intimidate, coerce, or obstruct the witness or victim's involvement in the legal process. This evidence can include your actions or statements that show a lack of ill will towards the witness or victim.
  • Alternative motivations —Evidence suggesting alternative explanations or reasons for your behavior unrelated to dissuading the witness or victim can be helpful. It will establish that malicious intent did not drive your actions.
  • Non-harmful conduct — If your actions did not involve the use of force, threats, violence, or other harmful behavior towards the witness, victim, or their property, it could strengthen your defense of lacking malicious intent.

  1. You Were Falsely Accused

False accusations are common, especially in domestic violence cases. The false allegations defense can apply when a spouse falsely claims abuse and accuses you of threatening further harm if they report the crime. This defense aims to challenge the credibility and truthfulness of the accuser's allegations.

Your attorney will use the following strategies when asserting this defense:

  • Evaluate the evidence — He/she will assess whether any corroborating evidence substantiates the spouse's accusations. A lack of physical evidence, for example, documented incidents or injuries, can cast doubt on the validity of their claims.
  • Identify inconsistencies — Your attorney will scrutinize the spouse's statements to law enforcement, medical professionals, or other witnesses for discrepancies or contradictions. These inconsistencies can be used to undermine the credibility of their allegations.
  • Analyze the alleged victim’s motive — Your attorney will investigate whether the spouse has any reasons or incentives to fabricate the abuse allegations. These investigations examine factors like child custody disputes, financial gain, vengeful intentions, or attempts to gain an advantage in divorce proceedings. Demonstrating a potential motive can create doubts about the spouse's credibility.
  • Gathering witness testimony — He/she will locate witnesses who observed your interactions with the spouse and can provide affidavits attesting to the absence of abuse or threats. Their accounts can serve as valuable evidence to counter the spouse's allegations.
  • Documentation of prior false accusations — If the spouse has a history of making false accusations or has been involved in similar incidents, compile evidence to establish this pattern. Presenting proof of their previous false allegations can weaken their credibility and support the argument that they could again engage in false accusations.

  1. You Did Not Dissuade a Potential Witness or Victim

You can assert that despite making threats towards an individual, they do not qualify as a witness or a victim under the legal definition. By establishing that the person on the receiving end of your threats does not meet the criteria outlined by the law, you can contest the prosecution's case under PC 136.1.

According to Penal Code 136, a witness is an individual who:

  • Knows of the existence or nonexistence of facts relating to any crime.
  • Has provided or is providing a declaration under oath as evidence.
  • Has reported a crime to specified individuals, namely, peace officers, probation officers, prosecutors, parole officers, judicial officers, or correctional officers.
  • Has been served with a subpoena issued by a court, or
  • Would be believed by a reasonable person to fall within the descriptions mentioned.

A victim, per the same law, refers to an individual who has suffered harm, injury, or loss due to a criminal offense.

While this defense strategy offers potential exoneration from a PC 136.1 charge, it does not release you from possible responsibility for other offenses, like criminal threats (a violation of PC 422). The resolution of these charges will depend on the specific circumstances and evidence presented in your case.

Penalties if Convicted of Dissuading a Witness or Victim

PC 136.1 violations are wobbler offenses. You can face misdemeanor or felony charges, depending on the facts of your case and your criminal history.

Misdemeanor Penalties

You will face the following penalties if you are convicted of a misdemeanor violation:

  • A jail sentence of up to one year.
  • A maximum fine of $1,000.

Felony Penalties

A felony conviction is likely if the following facts are true in your case:

  • You used force or an explicit or implicit threat of force or violence directed towards the witness, victim, a third person, or their property — Acting in this manner signifies a heightened level of harm and intimidation. This emphasizes the seriousness of using physical force or the threat of violence to dissuade others.
  • You committed the act as part of a conspiracy — This means your actions were a component of a larger plan or agreement to obstruct justice. All individuals involved in the conspiracy can be held accountable. This provision ensures that all co-conspirators are responsible for their roles in the dissuasion scheme.
  • You have a prior conviction for violating PC 136.1 or a similar law at the state or federal level.
  • The act is motivated by financial gain or any other consideration, and you acted upon the request of another individual — Both you and the person who requested it are guilty of a felony. This provision punishes people manipulating others into dissuading witnesses or victims for personal gain. It holds both parties accountable for their involvement in the offense.

You will face the following penalties if you are convicted of a felony violation:

  • A prison sentence of 2, 3, or 4 years.
  • A maximum fine of $10,000.

Immigration Consequences if Convicted Under PC 136.1

Witness tampering convictions or related offenses can result in immigration consequences, especially if you are convicted of a felony under PC 136.1. The crime is an aggravated felony under immigration law. These consequences include:

  • Inadmissibility — Offenses classified as witness tampering can be categorized as crimes involving moral turpitude, rendering individuals inadmissible to the country. As a result, they could encounter obstacles in obtaining visas or green cards and be denied entry.
  • Removal proceedings — Non-citizens convicted of witness tampering or similar offenses could face removal (deportation) proceedings. These convictions are aggravated felonies, which carry severe immigration consequences and lead to mandatory deportation.
  • Visa revocation — Non-citizens residing in the country on visas who are convicted of witness tampering could have their visas revoked. This can lead to an immediate loss of legal status and the potential for deportation.

The Impact of a Conviction on Gun Rights

A conviction under this statute can negatively affect your gun rights. If you were convicted of a misdemeanor for dissuading a witness or victim, there could be a 10-year prohibition on owning firearms. However, if you are convicted of a felony for dissuading a witness, you could face a lifetime restriction on gun ownership.

Can I Have My Conviction Expunged?

Under California law, individuals convicted under PC 136.1 can seek expungement for their criminal records. Expungement, or record sealing, allows the courts to set aside a conviction and dismiss the case.

You must meet the eligibility criteria, namely:

  • Completing the probation period without any violations or new criminal charges — Adherence to all court-ordered conditions, such as attending counseling programs or paying fines, is essential.
  • A waiting period is typically required before applying for expungement. For most misdemeanor convictions, the waiting period is at least one year after completing probation. For felony convictions, the waiting period is generally longer, ranging from three to five years.
  • You must not face any pending criminal charges or be under investigation for new offenses. Expungement is generally unavailable for individuals with ongoing criminal cases.
  • You must demonstrate that you are rehabilitated. This could involve abiding by the law, engaging in community service, pursuing education or vocational training, and having stable employment or housing.
  • Compliance with all court orders, including restitution payments to the victim, if applicable, is necessary. Meeting financial obligations associated with the conviction is an essential aspect of eligibility.

Note: Expungement does not entirely erase the conviction from the record. However, it can provide certain benefits, like improving employment prospects and mitigating the negative impact of the conviction on one's record.

Frequently Asked Questions in Dissuading a Witness or Victim Cases

  1. Will I Face Prosecution if I Express My Disappointment to the Victim or Witness for their Involvement in Criminal Proceedings?

When you express your feelings of upset or disappointment to a witness or victim regarding their testimony or cooperation with criminal prosecution, it is crucial to consider the context and manner of your communication. Simply expressing your emotions may not automatically constitute witness tampering under California law.

However, if your expression of upset or disappointment takes on a coercive or intimidating nature and aims to dissuade or prevent the witness or victim from testifying or cooperating, it could be seen as witness tampering under PC 136.1.

Be mindful of how others perceive your words and actions to avoid running afoul of the law.

  1. Is it a Crime if I Hide a Victim’s or Witness’ Phone to Prevent Them From Alerting the Authorities?

If you physically restrain or conceal a cell phone from a witness or victim with the explicit intent of impeding their ability to contact the police, your actions could be interpreted as witness tampering or obstruction of justice. Your actions could be perceived as intentional interference with the victim’s or witness’ capacity to report a crime or seek necessary assistance.

  1. What About Being Present When the Threat Was Made, But I Did Not Comment or Act? Am I Criminally Liable?

Under Penal Code 31, mere presence and non-verbal affirmations while standing beside someone threatening to dissuade a witness from testifying can be considered aiding or abetting witness tampering. The critical factor is whether you knowingly and intentionally supported or facilitated the commission of the offense, even without direct participation or verbal statements.

By demonstrating non-verbal affirmations, like nodding or posturing, you could be seen as conveying approval, encouragement, or endorsement of the threatening behavior. This can contribute to the overall atmosphere of intimidation and coercion, thus aiding or abetting witness tampering.

Aiding or abetting is a crime. It includes various forms of assistance or support, including non-verbal actions or passive participation. The specific circumstances and evidence presented in your case will determine the extent of your involvement and whether you can be held liable under PC 31.

Find a Santa Ana Criminal Defense Attorney Near Me

Contact the California Criminal Lawyer Group if you or a loved one is facing criminal charges for dissuading a witness or victim in Santa Ana. Our attorneys will assess your case and advise you on the best legal approach. Contact us today at 714-844-4151 for a case evaluation.