Dissuading a Witness Law & Defense
PC 136.1 Crimes
The law against dissuading, preventing, or intimidating a witness from testifying, is found at California PC 136.1(a) and 137(b).
The most common charge of dissuading or preventing a witness from testifying is found at penal code section 136.1(a). This article deals mostly with that crime; however, we have included information on similar crimes at the bottom of this article.
PC 136.1(a) Law
To prove that the defendant dissuaded (or attempted to dissuade) a witness from testifying, the District Attorney must prove:
The Defendant used force or threats against a victim or witness
When the Defendant used force or threats against a victim his or her purpose was to influence a witness either to not testify, or to testify falsely.
Dissuading a witness includes any type of the following: bribery, threats, force, physical interference, and, physical preventing. Any witness or victim in a civil or criminal proceeding may be a victim.
The defendant may also be charged with PC 136.1(a) if he dissuaded a witness from giving important information to a prosecutor, defense attorney, or police officer.
PC 136.1(a) Penalties
Almost every criminal charge of dissuading or preventing a witness from testifying under PC 136.1(a) is classified as a felony. However, non-threatening dissuading or preventing a witness from testifying could be classified as misdemeanor.
Prison or Jail: If found guilty of felony preventing or dissuading a witness from testifying, the defendant could face up to three years in prison. Misdemeanor PC 136.1(a) convictions subject the defendant to up to 180 days in the county jail as a maximum sentence.
Probation Sentence: A probation sentence is period of supervision as opposed to jail or prison. Probation sentence are allowed in PC 136.1(a) cases, but whether or not the defendant is granted a probation sentence after a conviction for PC 136.1(a) depends largely on the facts of the case and the defendant's criminal history, if any.
PC 1170(h) Sentence: If the defendant is convicted of witness intimation as a felony, and the defendant is not granted a probation sentence, then he or she must serve his or her incarceration in a state prison (as opposed to a local county jail), and that prison sentence may not be split or suspended. A split prison sentence is one that is served partially in custody and partially out of custody (on work release or house arrest) and a suspended prison sentence is a sentence that does not need to be served at all unless the defendant violates the terms of his or her probation.
Three Strikes Law: Dissuading or preventing a witness from testifying is considered a strike offense under California's Three Strikes Law. PC 136.1(a) is considered a serious and a violent offense in California.
CIMT: PC 136.1(a) is considered a crime involving moral turpitude, which may have a negative impact on the defendant's immigration status or professional licensing status (Dentist, therapist, nurses, teachers, lawyers, etc.).
In addition to any possible jail time, if found guilty of dissuading or preventing a witness from testifying under PC 136.1(a), the defendant may suffer other penalties, including, but not limited to, civil lawsuits, fines, loss of the right to own or possess a firearm, probation or parole terms, restraining orders, and more.
PC 136.1(a) Defense
Common defenses to PC 136.1(a), include: statute of limitations, insufficient evidence to prove guilt beyond a reasonable doubt, mistake of fact, insanity, and more.
Note: It is not a defense for the defendant to prove that the witness was not actually intimidated, prevented, or dissuaded, from testifying. The crime is complete upon proof that there was at least an attempt to dissuade or prevent a witness from testifying.
If you are charged with dissuading or preventing a witness from testifying (aka intimidating a witness) under California penal code sections 136.1(a) or 137, contact our criminal defense attorneys without delay. We offer free consultations and we are available 7 days a week to answer all of your questions. Call today!
PC 136.1(b)(1) Prevent victim from making report
PC 136.1(c) Dissuade witness or victim
PC 136.1(c)(1) Prevent witness by force or threat
PC 136.1(c)(2) Conspire to dissuade witness
PC 136.1(c)(4) Dissuade witness for financial gain
PC 137(b) Induce false testimony by force or threat
Quick Legal Reference
Crime: Dissuade a Witness from Testifying
Code: PC 136.1(a) (CalCrim No. 2622)
Wobbler: Yes. PC 136.1(a) is a wobbler crime. This means that PC 136.1(a) may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 136.1(a) prison sentence range: 16 months, 2 or 3 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in PC 136.1(a) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 136.1(a) is not subject to PC 1170(h) sentencing. This means that, unless the defendant is sentenced to probation, incarceration for a felony conviction must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 136.1(a) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7), and a Violent offense [where injury occurs] (PC 667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 50% good conduct credits available for misdemeanor and 50% or 15% for felony depending on whether or not the crime is classified as a serious or violent offense.
CIMT: PC 136.1(a) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony PC 136.1(a) convictions prohibit a defendant from owning or possessing a firearm. Misdemeanor PC 136.1(a) convictions prohibit the defendant from owning or possessing a firearm for 10 years.
Bail: $100,000 (Felony) (San Bernardino County)