PC 136.1 makes it a crime to dissuade a witness or a victim from reporting or testifying a crime. If you are accused of violating this law, you will face misdemeanor or felony charges that get severely punished upon a conviction. You may discourage a witness or a victim from testifying because you fear for their lives or because their testimony will result in your conviction. Persuasion can be either by paying for the individual's silence or by threatening them.
When you are charged with violating the law, it is critical to defending yourself against a conviction that could adversely alter your life. With our help at Orange County Criminal Defense Attorney Law Firm, we will passionately work together to challenge the accusations against you for favorable results.
Defining PC 136.1 and its Elements
As earlier stated, discouraging, dissuading, or threatening a victim or witness from testifying or reporting an offense is a crime under this law. If you are accused of intimidating a dissuading or intimidating a witness, the prosecutor must prove various elements to the crime to receive your conviction. These elements include:
- That you maliciously and knowingly
- Intimidated, persuaded, discouraged or attempted to
- A witness or a victim from
- Coming to court and giving testimony in a trial
- Reporting an offense to the law enforcement officers
- Helping a prosecutor in prosecuting an offense or
- Helping in the process of arrest
Typically, a person becomes a victim for this offense if they reasonably believe that a crime or a federal offense was tried. According to the law, you don't need to have succeeded in discouraging or preventing the witness or victim. However, an attempt is enough to get you criminally charged with the offense.
For instance, you had non-consensual intercourse with a lady you met at a club and are afraid she will report you. To prevent her from reporting you for the offense, you offer her money to silence her instead. You may also opt to threaten the woman to prevent her from reporting you. In such a case, you are guilty of violating PC 136.1, in addition to the sex crime.
Another example would be when you persuade your friend not to testify or report a crime to protect them. For instance, you have a friend who will testify against a notorious criminal group involved in organized crime. You are aware that the group goes after those that testify against them, but your friend doesn't know that. You decide you want to protect your friend against danger by persuading them against testifying. In such a case, you cannot be charged with violating PC 136.1 because you did this without malicious intent, which is a requirement for a conviction.
Defining the Elements of the Crime
Earlier, we have outlined the elements a prosecutor must determine to have you convicted of violating PC 136.1. The elements are centered on important words or phrases critical to understand and their impact on your case. These include:
The Element of Knowingly
According to PC 136.1, a prosecutor must prove that you knowingly discouraged or intimidated a witness from testifying. The prosecutor must show that you knew your actions were to intimidate or threaten a person when you knew they were victims of a crime or a witness. For instance, there is a shooting in your neighborhood, and you discuss it with your neighbor John. During the discussion, you state that any person who will testify about the shooting may face serious consequences from the offense's perpetrators.
Your words scared John, a witness to the crime and was ready to give testimony on it. However, as you made the statement, you did not know that John witnessed the crime or was to testify about it. In this case, you cannot be charged with violating this law since you did not know.
The Element of Malice
For a guilty verdict against you, the prosecutor must show that your actions were malicious. According to this statute, you act maliciously when you illegally plan to annoy, hurt, or injure a person and interfere with administering justice.
For instance, in the above example, you share with John that the shooting is said to be the work of an organized criminal group. You further state that you have heard the group usually goes after any person threatening their organization in any way and their families. While sharing this information, you do not do it with a malicious intent to interfere with justice or hurt John. In this case, you did not violate PC 136.1, even if John was scared to testify.
The Element of Dissuaded or Prevented
According to the law, your intent to prevent or dissuade the victim is enough to find you guilty of the offense even when your attempt was unsuccessful. For instance, if you had non-consensual sex with a woman, as in the earlier example, you can intimidate her against reporting the offense. You tell her you will kill her if she says anything about the incidence or reports it. Fortunately, she feels compelled to seek justice and reports you anyway.
In this case, your threats did not silence her, and her reporting you will expose you to at least two charges, that of rape and violating PC 136.1.
Witness as an Element
Before receiving a conviction for violating this statute, the prosecutor must show that you knew the person was a witness to a crime. A witness, according to the law, is the person that fits the following description:
- Is aware of the various facts to the offense
- Whose their statement under oath is perceived as evidence
- Who reported an offense or
- Has been issued a subpoena
If you knew the person you were talking to fit the above criteria and still talked to them discouraging them from testifying, you knew they were a witness and interfered with justice. In this case, you are guilty of violating PC 136.1.
Defining a Victim
The law defines a victim as a person that is at the receiving end of a crime. According to an earlier example, a woman that was forced into sex is a victim, and if you threaten or persuade her against reporting, it is an offense.
Force or Threatening Force
You will also be found guilty of violating PE 136.1 if you threatened a victim or witness to use force against them if they report or testify. However, the prosecutor must prove that you issued threats, and the threats were aimed at intimidating the victim or witness.
Penalties for Violating PC 136.1
Dissuading a witness or a victim is a wobbler in California. The decision on how to prosecute the offense is left to the prosecutor. The prosecution examines the nature of the offense, circumstances of the crime, and your criminal background in deciding whether to charge you with a felony or misdemeanor.
If you are charged with a misdemeanor offense, a conviction will earn you the punishments below:
- A year of county jail imprisonment with a fine not exceeding $1,000
- A ban from owning, buying or accessing a gun for ten years
If the prosecutor prefers felony charges against you, the punishments are steeper. After finding you guilty the judge, can sentence you to:
- A minimum of sixteen months and a maximum of four years of state imprisonment
- A cash fine not over $10,000
- A ban for the rest of your life from owning or having firearms
It is critical to note that the offense is automatically charged as a felony if any of the following are factual:
- Your actions to intimidate were directed at a greater plan
- When you were intimidating the victim or witness, you threatened them with using violence
- You have a prior conviction for the same offense or
- You were hired to commit the offense on behalf of another person
Aside from the standard penalties, the circumstances of the offense can have aggravating factors that enhance the punishment you will receive. If you had a gun and used it to intimidate or dissuade the victim or witness, this serves as an aggravating factor. In this case, the judge will sentence you to extra prison time lasting between a year and ten years served consecutively with your standard sentence.
Additionally, if your actions of dissuading the witness or victim were to benefit a gang or a criminal group, you will receive an additional sentence according to gang enhancement laws.
The Three Strikes Law
If you are convicted of dissuading or intimidating a witness or a victim, you earn a strike according to California's three-strikes law. When you earn a strike in your record, a conviction for a crime later will earn you twice the sentence you would have received without a strike. If you later earn another strike, it becomes your third, and a conviction will earn you a minimum mandatory sentence of 25 years. A third strike also can earn you life imprisonment if convicted.
Defenses for Violating PC 136.1
From these penalties, it is evident that intimidating a witness or a victim is a severely punished offense in California. If you are faced with charges of violating this statute, finding an experienced attorney to defend you becomes critical. Your attorney will study the elements and facts of your case to formulate strong defenses that challenge the prosecutor's case.
Some of the defenses that will help argue your case are:
You Had no Knowledge or Intent
One crucial element of this crime is knowledge. When you know what you are doing, you automatically do it with an intended outcome or end. As earlier stated, a prosecutor must prove that you knew the person was a victim or a witness to a crime and that when you talked to them or did something, you intended to dissuade them and interfere with justice.
However, your lawyer can challenge this element by claiming you did not know that the person was a victim or a witness to a crime. Further, your talking to them was innocent without interfering with the law's process. If the prosecutor is unable to prove your intentions and knowledge, the charges against you are dropped.
You Had no Malicious Intent
For a guilty verdict, the element of malice must be proven. You are only guilty of this offense if your actions were maliciously driven with a selfish end to it. However, if your actions were not malicious, you cannot be found guilty of this offense. For instance, you may have dissuaded a witness to protect them but not to interfere with justice.
According to an earlier example, you know your brother is a witness to a money-laundering syndicate, and the persons behind it are ruthlessly dangerous. Over time, you have heard stories of what they do to those that go against them and are afraid of your brother's life. As a result, you try to convince your brother against testifying to protect him.
Your actions, in this case, were not malicious or to prevent justice. Your intention to protect your brother from harm is not a criminal offense. If this is what happened, your lawyer will present your version, and the judge will acquit you from the charges.
False accusations are common in criminal cases. When a person wants to get back at you for one reason or another, they can falsely accuse you of breaking the law. In domestic violence cases, false allegations of dissuading a witness are common. If your partner feels aggrieved, they may accuse you that you physically abused them and threatened them against reporting it. The alleged victim can distort information to get you in trouble with the law to gain their revenge.
If you are falsely accused of dissuading or intimidating a victim or witness, your skilled attorney can expose the accuser's motives to get you acquitted. Your lawyer can present testimonies from witnesses that will testify to your character or even your whereabouts at the time of the alleged crime. If your lawyer convinces the court, the case is dismissed.
Lack of Evidence
For any criminal case to result in a conviction, the prosecutor must prove the various elements beyond a reasonable doubt. In most cases, the prosecutor, while presenting their case, depends on hearsay allegations. Often, there is no sufficient evidence to support the criminal claims against a defendant. If the prosecutor cannot prove that you threatened or intimidated a victim or a witness, you are innocent.
Your lawyer, in your defense, will challenge the prosecutor to produce evidence that you intimidated the alleged victim. If no sufficient evidence is available, you will not be found guilty of the offense.
The Person Was not a Victim or a Witness
You could not be found guilty of violating this statute if the person you are accused of intimidating or dissuading was not a witness or victim to a crime. Although you may have threatened a person, you can argue they were no victims or witnesses to a crime. If this is the case, you are innocent of violating PC 136.1. However, you may be charged with issuing criminal threats according to PC 422 and be found guilty.
A Conviction for PC 136.1 and Your Immigration Status
Not all criminal convictions will lead to adverse consequences to your immigration status. Immigration law states the types of criminal convictions that can result in deportation or inadmissibility. If a crime is an aggravated felony, it can result in your inadmissibility or deportation.
Dissuading or intimidating a witness or a victim can be prosecuted as a felony, and more so if a firearm was used. This makes the offense an aggravated felony that can result in your deportation or inadmissibility.
Expungement of Your Record and Why You Should Have it Expunged
When convicted of a crime, it becomes a matter of public knowledge because the records are accessible to anyone that wants to know your past. Most individuals with a criminal conviction in their past and whose records are still accessible to the public face significant challenges when trying to fit in society. Some of the common challenges faced include:
- Housing challenges – Most landlords run a background check on a potential tenant to their property. A landlord will argue that a morally upright person will not frustrate them with rent or carry out criminal activities in their house. Thus, a landlord will ensure a person with a criminal past is not trusted with their property. This makes it difficult for persons to get rental premises even when they can afford to pay them. Having your record expunged will accord you an equal opportunity to rent a house as a person without a criminal past.
- Employment difficulties – Potential employers want to be able to trust their employees. This makes them run a check on your history to determine if you are trustworthy. A record of your criminal past often discourages employers from giving you a chance. However, when you get your record expunged, an employer will not discriminate against you based on your history.
With these challenges, among others, expunging your record becomes critical for a smooth and quick re-entry into society. Expungement is, however, not an available opportunity if you have not completed your punishment. The law expects you to complete your sentence before you petition the court to expunge your record.
The decision to delete your record is at the discretion of the judge. After you complete your jail time or probation and the conditions set forth, your lawyer can file an expungement petition with the court. The prosecution is informed of your petition and given time to respond. If they oppose the expungement, a date is set to hear the arguments from both sides.
After the judge hears both sides, he decides to grant your petition or deny it. If you receive an expungement, your records will be sealed from public viewing and scrutiny. At the same time, you will not need to declare your criminal past, unless to government agencies or when seeking a government agency.
Related Offenses to PC 136.1
When a crime is related to another, it can be charged alongside or instead of the underlying offense. PC 136.1 has some related offenses to it. These include:
PC 422 – Criminal Threats
Intimidating or dissuading a victim or a witness sometimes is accompanied by threats. If you issued the alleged victim with threats to their life or to harm them if they reported a crime or testified against it, you would be found guilty of violating PC 422. In such a case, the prosecutor will charge you with violating both PC 136.1 and PC 422.
If these charges are proven, the penalties are severe, with devastating consequences. The prosecutor will have you convicted of violating PC 422 if the elements of the crime below are fulfilled. These are:
- That you threatened the person verbally, in writing or through electronic media
- The threats placed the victim in fear
- The threats you issued were specific and achievable
PC 236 - False Imprisonment
It is a criminal offense to imprison a person falsely. You will face charges for this offense if:
- You detain, restrain, or confine a person
- And you do so against their will
If you falsely imprisoned a person to intimidate them against reporting or testifying in a trial, you will face two criminal charges. The prosecutor will charge you with dissuading a witness or victim and false imprisonment of the victim. A conviction on these two offenses will earn you a severe sentence with significant consequences.
PC 207 – Kidnapping
This is another offense that can be charged alongside PC 136.1. In this case, you can get charged with kidnapping a potential witness or victim of a crime to prevent them from testifying or reporting a crime. This is a serious felony in California that results in extended prison sentences, among other punishments.
Find a Criminal Attorney Near Me
Allegations of violating PC 136.1 depend largely on mere accusations of supposed victims. Thus, it is critical to have an experienced attorney to evaluate the evidence against you and expose the truth. At Orange County Criminal Defense Attorney Law Firm, we understand the frustrations such allegations can bring you, and we work to offer you a favorable result. Call us at 714-740-7848 and allow us to defend you against these allegations.