California criminal law is strict on individuals who attempt to tamper with the criminal processes. You dissuade a victim or a witness if you intimidate or prevent a witness or victim from reporting a crime, speaking to the police, or testifying about the crime. California PC 136.1 is the statute that addresses this crime. Allegations of dissuading a victim or witness should not be taken lightly. A conviction under this statute can see you spend up to twenty-five years in prison, especially where there are aggravating circumstances in your case.
One of the wisest decisions that you can make when you face an arrest and charges under PC 136.1 is to seek and retain the services of a skilled criminal defense lawyer. At Chula Vista Criminal Attorney, we understand the gravity of the consequences accompanying a guilty verdict for this offense. We will employ our extensive knowledge and experience in criminal defense to ensure the best outcome in your case.
Overview of California Penal Code 136.1
California law is often stringent on individuals who violate state laws. In a criminal case, a witness or victim's testimony holds a lot of weight and can lead to a conviction. For this reason, many defendants or their family and friends could attempt to interfere with the justice system by engaging in acts that could discourage a victim or a witness from testifying in court.
If you willfully or maliciously dissuade or prevent a victim or witness from attending a trial or providing testimony, you can be charged and convicted under California PC 136.1. Charges for witness intimidation are often brought on individuals who coerce or intimidate witnesses into:
- Failing to report criminal activity.
- Failing to assist in the arrest process of criminals.
- Fail to provide information about a crime in court.
It is vital to understand that the prosecution can charge and convict you under PC 136.1 even when your attempts to dissuade or intimidate the victim were unsuccessful.
Before you face a conviction under this statute, the prosecution team must prove the presence of these elements in your case:
You Knowingly and Maliciously
Under California PC 136.1, the prosecution must prove that you knowingly dissuaded a victim or witness. You must have known that the victim viewed your actions as intimidating or threatening. On the other hand, being malicious means that your threat to the victim was aimed at harming someone else or interfering with the justice system.
Dissuaded or Prevented
Another element that must be clear when the prosecution charges you with dissuading a victim is that you prevented or interfered with a witness and their testimony in a particular stage of the criminal justice process. It is vital to understand that this crime is based on intent. Therefore, a successful attempt is unnecessary to secure a conviction for this crime. For example, when you threaten to harm a person if they testify against a case, and they still testify, you can still be charged with violating PC 136.1.
A victim of witness to a Crime from Aiding the Justice System
Under this statute, a witness is an individual who knows the facts of a crime. Witness declaration is critical in a criminal case. The prosecutor needs to prove your knowledge that the person you tried to dissuade was a witness. On the other hand, a victim is a person directly affected by a crime. The testimony and insight of a victim are taken seriously in the justice system.
Legal Penalties for Dissuading a Victim or Witness in California
Violation of PC 136.1 is a wobbler. This means the prosecution can charge you with a felony or a misdemeanor. When the court decides on the nature of your charges, the following factors could play a vital role in the decision:
- Your criminal history. California law seeks to take stringent measures on repeat offenders. If you have felony convictions on your record, the prosecution could gear your crime towards felony charges.
- Circumstances of your case. The factors surrounding the commission of the crime and your arrest may be significant to the nature of your charges.
Without any aggravating circumstances in your case, the prosecution will charge you with a misdemeanor violation of PC 136.1. A conviction, in this case, will attract a maximum jail sentence of one year and a fine not exceeding $1,000.
Under the following circumstances, you will face felony charges:
- Dissuading the victim or witness was part of a conspiracy. A conspiracy, in this case, is an agreement between two or more parties aimed at victim intimidation. If it is clear that you committed the crime as part of a conspiracy and made efforts to carry out the agreement, you will face felony charges.
- You have a prior conviction for dissuading a victim. When you commit a crime again, the justice system assumes that the punishment handed for the first offense was not enough to discourage you from future criminal activity. For this reason, the prosecutor could seek a felony conviction to ensure you suffer the harshest penalty possible.
- Another person hired you to dissuade the alleged victim. If you dissuaded a victim while following an order from another person, your offense would attract felony charges.
- You used force, violence, or threats against the victim or witness. Using violence or threats to intimidate a victim or a witness is not necessary to find guilty of dissuading a witness or victim. However, in the presence of these factors, you will face charges and a possible conviction for a felony under PC 136.1.
As a felony, dissuading a witness is punishable by a two to four years prison sentence and a minimum fine of $10,000. Sometimes, the court could sentence you to probation, an alternative to prison or jail time. This allows you to serve part of the entire sentence out of jail. If the judge sentences you to probation, they will order that you:
- Attend anger management classes.
- Pay victim restitution.
- Report your progress with your probation officer.
- Do some community service.
Penalty Enhancements Under PC 136.1
There are circumstances under which the court could enhance your penalties for dissuading a victim:
- Firearm enhancement. The firearm sentencing enhancement increases the sentence for individuals who commit felony offenses using a firearm. If you used a gun to threaten, dissuade or intimidate a victim, you risk facing a one to ten years' additional prison sentence. Often, the firearm enhancement applies when you face a felony conviction, and the additional sentence is consecutive to the punishment for dissuading a victim.
- Gang enhancement. California Penal Code 186.22 punishes individuals who commit crimes to aid gang activities. If you face a conviction for dissuading a witness for the benefit of a street gang, the court will impose an additional sentence of seven years to life.
- Great bodily injury enhancement. Great bodily injury is any significant physical injury to a person. Under California PC 12022.7, you will face a penalty enhancement when you cause GBI to another person during the commission of a felony. If you used force and violence to dissuade a victim and cause them significant bodily injury, you would serve an additional three to six years in prison.
- California three strikes law. Violation of CPC 136.1 is a strike under California's three-strikes law. If you commit another felony and are convicted under this statute, your sentence for the subsequent felony will be twice the term stipulated under the law. When you have three strikes on your record, a felony conviction will attract a mandatory semitone of twenty-five years to life in prison.
Immigration Consequences for Dissuading a Victim or Witness
A conviction under California Penal Code 136.1 will have serious immigration consequences. If you are an immigrant to the United States, you risk deportation for committing a crime of moral turpitude or aggravated felony. When you use force or violence to dissuade a victim, the prosecution could charge you with an aggravated felony and secure a conviction which causes you to lose the right to remain in the United States.
If you are an immigrant and are facing criminal charges for dissuading a victim, you must seek the guidance of an experienced attorney.
Effect of a PC 136.1 Conviction on your Gun Rights
Facing a conviction for intimidating a victim or a witness will cause you to lose your gun rights. After a misdemeanor conviction under this statute, you will lose your right to own, use or purchase a firearm for up to ten years. On the other hand, a felony conviction results in a lifetime firearm ban.
Legal Defense Against PC 136.1 Charges
While criminal charges for dissuading a victim or witness are severe, you should not give up after learning of the arrest. With the insight of a skilled attorney, you can assert the following defenses to your case:
1. Lack of Knowledge or Malicious Intent
You cannot face a conviction for dissuading a witness or victim unless the prosecutor proves that your actions were intentional. Additionally, it should be clear that you acted with malice. The crime of dissuading a witness is a specific intent crime. Therefore, your guilt is based upon your intent to prevent the victim from giving testimony. You can argue that you did not have the intention to constitute this crime.
Being a victim or a witness to a criminal offense could be very dangerous, especially when you are willing to provide testimony regarding the crime. To protect a family member who wishes to testify, you may be compelled to convince them not to testify. If your only intention of dissuading the victim or witness is to protect them from harm, you can point out a lack of malice in court.
2. Lack of Knowledge Regarding a Pending Case
If you are involved in a criminal case, talking to a victim or a witness may be an attempt to prevent them from testifying in court. However, you cannot be found guilty under this statute if you were unaware of a pending case or if the alleged person was a witness.
3. The Person You Talked to is not a Witness or Victim
You can only be held liable for violating California PC 136,1 if the person you attempted to dissuade is an actual witness or victim of a crime. You can argue that while you may have intimidated someone, they were not a victim or witness. However, it is vital to understand that issuing threats is a crime. Therefore, you could escape prosecution under PC 136.1 but still face a conviction under PC 422.
4. False Allegations
False allegations of the crime of dissuading a victim or witness are common in domestic violence cases. Individuals in domestic disputes may rely on anger, jealousy, or the need for revenge to falsely accuse their ex-spouse or partner. With the help of a skilled attorney, you can examine the alleged victim's motives and argue a case of false accusations before the court.
5. Insufficient Evidence
The court does not just rely on a victim's testimony when determining your guilt under PC 136.1. Before you face a conviction for dissuading a witness or a victim, you have a right to have all your charges proven beyond a reasonable doubt. If the evidence presented to prove that you committed the crime is not enough, you can avoid a conviction under this statute.
Offenses Related to Dissuading a Witness or Victim
There are offenses under California law that are closely related to PC 136.1. These offenses can be charged together with or instead of dissuading a victim or witness:
Bribery if a Witness Regarding Trial Attendance
California PC 137 criminalizes offering or giving a bribe to a witness to influence their statements to law enforcement or court. A prosecutor proves your guilt under this statute by showing that:
- You offered or gave a bribe to a witness. Under this statute, a witness is any person who has been called upon to provide valuable information about a crime to law enforcement.
- You acted intending to influence the testimony or statements of the witness.
Bribing a witness regarding their trial attendance or interviews with law enforcement is a felony. A conviction for this crime could attract four-year imprisonment. Bribery is a crime of moral turpitude. Therefore, a conviction under this statute could attract serious immigration consequences if you are an immigrant.
You commit the crime of kidnapping when you move another person a distance away against their will. It is not uncommon for people to kidnap victims and witnesses with the intent to prevent them from testifying in court. Kidnapping is a serious felony offense and is charged under California PC 207.
California PC 207 has the following elements that the prosecution must clear up before you face a conviction:
- You held another person by fear or force. The first element that must be clear when prosecuting PC 207 is that you used force or threats to hold the alleged victim. Physical force may involve dragging the victim or even restraining them.
- You moved the person a significant distance away. To be guilty of kidnapping in California, you must have moved the alleged victim considerably. Whether or not the distance is substantial is determined by the court based on the risk through which you put the victim.
- You acted without the victim's consent. Lack of consent means that you moved the victim against their will. However, it is essential to understand that if the victim went with you willfully for fear of harm will not suffice as consent from them.
Kidnapping is classified as either simple or aggravated. A conviction for simple kidnapping will see you spend up to five years in prison and pay $10,000 fines. Under the following circumstances, the prosecution will charge you with aggravated kidnapping:
- The victim of your crime is a juvenile under fourteen years.
- You kidnapped a person while committing the crime of carjacking.
- While committing the crime, you caused the victim to suffer severe bodily injury.
If the court finds you guilty of aggravated kidnapping, you risk facing life imprisonment.
If you unlawfully restrain or detain another person against their will, you could face arrest and criminal charges for false imprisonment. The crime of false imprisonment is charged under California PC 236, and your conviction is based on these factors:
- You deliberately and unlawfully detained someone.
- You commissioned the crime using menace or violence. The use of threat or violence is using a physical force that is more than necessary to restrain someone or defend yourself.
- The alleged victim stayed against their will. If a person does not agree to an act voluntarily, it means you acted against their will.
Unlike in kidnaping, where you need to have moved the victim, false imprisonment will apply for merely preventing another person from leaving. In most cases, the prosecution charges false imprisonment as a misdemeanor. The punishment for misdemeanor false imprisonment includes a year in county jail and a maximum of $1,000 in fines.
If you use threats or violence to imprison another person, you will face a felony conviction which is punishable by up to three years in state prison.
California PC 422 makes it an offense for anyone to communicate a threat to harm or kill someone else. Your words or actions are considered to be threatening if the alleged victim of the criminal threats reasonably fears for their safety and that of their families. If you used threats to prevent a victim or witness from giving testimony in a case, you could be charged with both Penal Code 136.1 and PC 422.
When a prosecutor establishes your guilt for the crime of making criminal threats, they must prove the following elements:
- You willfully threatened to cause serious injuries or death to another person. The court will only find you guilty of making criminal threats if it involves death or serious bodily injury.
- You relayed the threats through writing, verbal, or electronic communication. Threats can only suffice under this statute if you made it explicitly. Any gestures interpreted as threats cannot attract a conviction under this statute.
- The alleged victim received what you communicated as an actual threat.
- Your threats were unconditional and specific.
- Your threats made the victim fear for their lives. The prosecution must prove that the alleged victim took the information you related seriously and, for that reason, felt unsafe.
It is essential to understand that you can face an arrest or charges for making criminal threats even when you did not intend to go through with them.
Violation of PC 422 is a wobbler. When the prosecutor charges the offense as a felony, a conviction will attract a prison sentence of up to three years and fines not exceeding $10,000. On the other hand, a misdemeanor PC 422 is punishable by a year in county jail and a minimum of $1,000 in fines. If you use a weapon to threaten another person, the court could impose an additional sentence of one year in prison.
If you attempt to influence the outcome of a criminal proceeding by intimidating or tampering with a witness, you risk facing an arrest and charges under California PC 136.1. The prosecutors and judges take allegations of dissuading a victim or witness very seriously. For this reason, a conviction for the offense will attract severe and life-changing consequences. Fortunately, not all defendants who face charges under this statute will face a conviction. With a solid legal team by your side, you can fight the charges and avoid the consequences of a conviction.
If you or your loved one faces accusations of dissuading a witness or a victim, you should not hesitate to seek legal guidance. At Chula Vista Criminal Attorney, we will guide you through the process of building a solid defense against your chances to ensure the best possible outcome in your case. We serve clients seeking competent legal guidance or representation to battle Penal Code 136.1 charges in Chula Vista, CA. Contact us today at 619-877-6894 and allow us to guide you through the complicated legal process.