Victims or witnesses are essential in any criminal case. For a prosecutor to convict a suspect, he/she could rely on a witness account if it's the only one available. Without the testimony of a witness, the judge may dismiss the case. When you prevent a witness from giving testimony or a victim from reporting a crime, you undermine the justice system. The Prosecutor will find it difficult to prosecute cases.
If accused or charged of dissuading a victim or witness, you need an attorney who can diligently represent you. At Orange County Criminal Defense Attorney Law Firm, we have the necessary skills and expertise to help you with the case.
Legal Definition of Dissuading a Witness or Victim
Dissuading a witness or a victim is described under Penal Code 136.1 PC as the act of preventing or attempting to block witnesses and victims of crimes from giving their testimonies or making a report about a particular crime. The law makes it clear that the victim or witnesses don't have to agree for the offense to be a crime, as long as you dissuaded them. Dissuading a witness is also referred to as intimidating a witness, bribing, influencing, threatening witnesses, or falsifying evidence. Discouraging a witness or victim does not always involve threats; even pleading with your relative not to report domestic abuse is considered a crime.
According to section 136.1(a), You are guilty of dissuading a witness if:
- You knowingly or use malice to prevent witnesses and victims of crime from attending or giving their witnesses account on matters concerning the crime in court or any other place provided by the law.
- You knowingly or used malice to try to prevent or discourage a witness/victim of crime from assisting in the prosecution of a suspect according to the law.
- You caused someone to give wrong information to the authorities or in the trial.
- You caused the victim or witness to withhold any information that would be useful to the police.
- You prevented a witness or victim from helping the police make an arrest.
Dissuading a witness or victim is considering a wobbler offense in California. The Prosecutor makes the discretion on how the crime is charged depending on facts surrounding the case. You could get a felony charge if you:
- Use threats to dissuade a witness or victim.
- Dissuade a witness in furtherance of a
- You have prior convictions of dissuading witnesses or victims.
- Someone asked or paid you to dissuade witnesses or victims.
Elements of the Crime
For you to be convicted of the crime under Penal Code 136.1 PC, the Prosecutor must show that certain elements exist. These elements are:
The Prosecutor must show that you knowingly dissuaded the witness or victim from testifying or reporting a crime. He/ she can achieve this by offering proof that you were aware of their status as witnesses or victims. Also, the prosecutor can show that you knew your actions would impact the witness or victim.
The Prosecutor must show that you acted out of malice; you intentionally discouraged the witness or victim from testifying.
Discouraged or Prevented Them
The witness or victims do not have to act on your threats. The law states that as long as you tried to dissuade the witness or victim from reporting a crime.
For the crime to take place, a witness should be there for that particular crime. A witness is someone who observed or heard a crime taking place.
A victim of a crime is someone affected by a specific crime in one way or another.
Threat of Force
The law is clear that it is irrelevant how a witness or victim responds. If you used force, the intensity of the force and the means you used, and if the victim or witness suffered bodily injury.
Conspiracy means you and more people were plotting to prevent or discourage witnesses or victims from testifying or reporting a crime.
Best Legal Defenses to Dissuading a Witness or Victim
Your attorney must use some of the best legal defense for you to stand a chance at trial for dissuading a witness or victim. Some of these defenses are:
- You Had No Knowledge
Knowledge is an essential element which the Prosecutor must show for you to be convicted of the crime. For this reason, your attorney can argue that you did know the status of the witnesses or victims. He/she could also create doubt of the prosecution’s evidence about you.
- False Accusation
Your attorney could also argue that you were accused falsely of the crimes. It's prevalent for people to make a false accusation. Your attorney could find evidence showing the witness or victims are angry at you and has the motive to get back at you.
- Insufficient Evidence
The police and the Prosecutor may rush to arrest you without checking whether the facts of their cases are real or even enough to hold in court. In such a case, your attorney can show the instances where the evidence is not enough.
- No Witness or Victim
The witness or victim of the case is an essential element for the prosecutor to make his case. Even if you dissuaded a person, your attorney could argue that the person was neither a victim or a witness of the crime. However, if your attorney uses this as a defense, you risk being charged with issuing criminal threats, a serious crime under California Penal Code 422 PC.
The Court Process
California Penal Code section 825 requires that once you have been arrested for any crime, including dissuading a witness or victim, you stand trial within 48 hours without any delay. It's upon the Prosecutor to charge you or release you. If charged, you will be taken to court within the 48 hours to stand trial. Here are all the steps that take place in a criminal court process:
During the arraignment, the judge will read the charges that have been brought against you then ask you whether you understand them. He will then ask how you plead for those charges. The types of pleas you can choose to enter are guilty, not guilty, and no contest. If you decide to plead guilty or no contest for dissuading a witness or victim, you will be taken back into custody and wait for the sentencing. A no contest plea is similar to a guilty plea. However, if you plead not guilty, the case will proceed to the next step. If you don’t have an attorney to represent you, it is at this point that the judge will appoint a public defendant for your case.
During the pretrial, a lot of activities take place. First, it is at this point that your defense attorney and the prosecutor will exchange all the relevant information concerning the case, including evidence. The discovery process is essential to avoid surprise evidence during a trial. Both attorneys can also file motions to either allow or dismiss specific proof. Your attorney could file a motion to suppress evidence if the police violated your rights based on the fourth amendment. This amendment protects you against illegal searches, so if the prosecutor has any evidence that was illegally obtained, the judge could dismiss them. Plea bargains also occur at this stage. You may agree to plead guilty to the charges of dissuading a witness or a victim in exchange for a lesser sentence for the original crime.
California has two kinds of trials: jury trial and bench trial. The judge will act as both the judge and jury throughout the trial in a bench trial. On the other hand, a jury trial involves 12 members of the community selected to preside over the trial.
The Prosecutor will start with opening statements and submitting evidence since the burden of proof rests with the state. The attorneys will take turns to present evidence and argue their cases. Finally, the attorneys will give their closing arguments; then, the court will take a short break for the jury to deliberate about the case. After the short recess, the jury will be called back to give their verdict. The verdict could be either guilty or not guilty.
After the jury finds you guilty of dissuading a witness or victim, a date will be set for the sentencing hearing. A sentencing hearing gives both attorneys room from either side to share their opinions about the preferred type of punishment for your crime. During the hearing, your attorney could present a specific circumstance that could allow you to receive a lenient sentence. On the other hand, the prosecutor may argue why you should receive harsher penalties for the crime.
If the jury found you guilty of dissuading a witness or victim, the law allows you to appeal. You must file an appeal within specified dates after the case. If charged with a misdemeanor offense, you should file the matter within 30 days. If the charge was a felony, you should file the matter within 60 days from the day of the judgment order. The appellate court will review your case and check whether any errors were made. The appellate court only reviews a case based on two factors:
- If you believe the evidence presented was not enough for the verdict, you got
- Certain mistakes of law occurred before the trial that affected the outcome of your case.
Penalties for Dissuading a Witness or Victim
Dissuading a witness or victim is punished as a wobbler offense in California. If the Prosecutor charges you for the crime as a misdemeanor, you will serve a jail term of one year or $1000 fine. You could also serve the jail term and still pay the fine. The Prosecutor will charge the crime as a felony, depending on the facts of the case. If charged as a felony, you could serve up to four years in state prison or pay a fine of $10000 or face both jail terms and still pay the fine.
Dissuading a witness or victim hurts your immigrant status, but only if you were charged as a felony. The immigration law states that you can lose your immigration privileges if you are convicted of certain offenses. You risk being deported or marked as inadmissible if you engage in acts considered aggravated felonies.
A conviction under Penal Code 136.1 PC also has adverse effects on your rights to own a gun. For a misdemeanor conviction, you will be banned from using or owning a firearm for ten years. If you get a felony conviction, the state will revoke your rights to own a firearm.
If you discouraged a witness to please a gang, you could get an additional jail term according to Penal Code 186.22(b) PC. The law makes it a crime to engage in any gang-related activities or participates in any felony activities that could benefit gangs. Therefore, if charged with dissuading a witness or a victim as a felony that involved helping a gang, you could serve up to 25 years in prison.
Three Strikes Law
The three-strike law in California states that if convicted of a felony but have prior convictions of serious felonies, you should serve twice your jail term in state prison. If you have prior convictions with three strikes, you could serve up to 25 years in state prison. Dissuading a witness or victim charged as a felony count as part of the three-strikes law. For this reason, if convicted, you could get a strike on your criminal record.
Criminal records’ expungement is a dismissal or sealing of your criminal record after being convicted of a crime. You can have your record sealed if you have fulfilled all the requirements of your sentencing. You will make a petition with the court for the dismissal. Expungement under section 1203.4 of the penal code qualifies people who have been convicted of crimes considered as misdemeanors, infraction, or certain felonies but sentenced to the county jail for expungement.
Expungement allows you to have a smooth transition into society, particularly when seeking employment. Most employers conduct background checks on their potential employees, and a criminal conviction can make it harder. However, not everyone qualifies for expungement. For you to be eligible according to the law, you must:
- You must complete your probation successfully.
- You did not serve your jail term in state prison.
- Even if you served in state prison, your crime qualified to be a misdemeanor stated under Proposition 47, so instead of serving your sentence in state prison, you could have served in county jail.
So, if charged and convicted of dissuading a witness or victim, you qualify for expungement after serving your sentence.
Related offenses to Dissuading a Witness or Victim
Some of the associated offenses charged in conjunction with a violation of penal code 136.1 are:
Criminal Threats under Penal Code 422 PC
It is a criminal offense to issue threats or injury or harm in California intended to cause unreasonable fear to the victim. Dissuading a witness or victim is a wobbler offense. A misdemeanor charge carries a county jail term of one year and a $1000 fine. If convicted as a felony, you could serve three years in state prison and pay a $10000 fine.
Resisting an Executive Order under penal code 69
Resisting an executive order is defined as making efforts either through threats or the use of violence to prevent a law enforcement officer from performing his/her law mandated duty. The Prosecutor could charge the crime as either a misdemeanor or a felony. A misdemeanor conviction carries a jail term of one year and a $10,000 fine. A felony conviction carries from 16 months to three years in county prison or $10000 fine.
False Imprisonment under Penal Code 236 PC
False imprisonment is defined as violating the liberty of another person. If you restrain or detain a person without their consent, you'll be charged with this offense. False imprisonment is considered a wobbler, which means depending on the facts of your case, the Prosecutor can charge you as either misdemeanor or a felony. As a misdemeanor, the offense carries a one-year jail term and a $1,000 fine. As a felony, you can get from 16 months to three years' term in county prison.
- Solicitation Penal Code 653F
Solicitation involves asking someone else to commit crimes for you. You could be charged with solicitation if you hired or sent someone to discourage a witness or victim. However, you won’t be charged under penal code 136.1 PC. If you commit solicitation, the Prosecutor may charge you as either a misdemeanor or felony offense. As a misdemeanor, the crime carries a one-year jail term in county jail. If charged as a felony, you will serve either 16 months, two, or three years in county prison.
Frequently Asked Questions
Could I still be charged under Penal Code 136.1 PC if my attempts to stop the witness or victims failed?
Yes. The law is clear that the victim or witness does not have to agree to your demands or request. As long as you attempt, you will be charged.
What if the witness or victim is my relative, does that count as dissuading a witness or victim?
Yes. A witness is defined as someone who observed or heard a crime taking place. A witness is also someone who knows something about evidence of a crime or something that could discredit/contradict your testimony. Whether this person is your relative or a friend, they are an integral part of the Prosecutor's case. Therefore, if you attempt to prevent them from making any statements that would help the police and Prosecutor make his/her case, you will be charged.
Would the gang enhancement law affect me even if I was threatened by the gang to issue threats?
For a gang enhancement on the charge of dissuading a witness or victim, the Prosecutor must show that certain facts exist in the crime. The Prosecutor must show:
- You actively participated in the crime.
- You willfully participated in gang activities.
- You helped promote the felony activities of the gang.
So, if the gang members threatened you to commit the offense under Penal Code 136.1 PC, the Prosecutor will first determine whether the above elements exist.
Who is an intimidated witness or victim?
An intimidated witness or victim is someone who has received threats that have made him/her unable to testify or report a crime due to fear or even distress.
Can my attorney question the witness or victim?
Yes. Your attorney will examine the witness in cross-examination in court during a trial to check and try to discredit their testimony. However, your attorney can still question the witness or victim before the trial, but the victim can ask for the Prosecutor to be present during the questioning.
What is Maliciousness in charge of dissuading a witness or victim?
Maliciousness means acting with the wrong intention. The Prosecutor must prove that you maliciously tried to dissuade a witness or victim from testifying or reporting a crime.
Find a Criminal Defense Attorney Near Me
Dissuading a witness or a victim is a serious offense in California. The Prosecutor could charge the crime as either a misdemeanor or felony with harsher consequences. Apart from jail terms or fines, you could also lose certain privileges, including owning a gun. For this reason, you should hire an attorney with great expertise in the crime. At Orange County Criminal Defense Attorney Law Firm, we have lawyers who are the right fit for your case. We will diligently represent you to ensure you avoid harsher penalties or even have the case dismissed. You can reach us at 714-740-7848 for more information.