Dissuading a Witness or Victim

The Legal Definition of Dissuading a Witness or Victim

Penal Code 136.1 is California’s Primary Law on dissuading a witness or victim. According to Penal Code 136.1, it is unlawful to maliciously and knowingly dissuade or prevent a witness/victim to a criminal offense from:

• Testifying or attending court-authorized criminal proceedings
• Making reports
• Providing information or cooperating with the California Criminal Investigation Department and the Prosecution Department
• Arresting or making or causing another person to be arrested on the basis of committing a crime or being involved in the commission of a crime.

Take note that you can still be charged under PEN 136.1 if you only attempted to dissuade a victim or witness, regardless of whether or not you were successful. The criminal offense of dissuading a witness/victim is categorized as a wobbler. This means that the California Department of Prosecution can charge it as a felony or a misdemeanor. This will depend on the facts and circumstances of your case.

What the Prosecution must prove for you to be convicted for Dissuading a Witness or Victim

For the court to convict you, the prosecutor must prove the following elements beyond a reasonable doubt:

• You acted maliciously and knowingly
• Your actions were directed towards a victim/ witness
• You dissuaded or prevented

Let us discuss each of these elements comprehensively:

1. Maliciously and Knowingly

Knowledge is a crucial element that the prosecutor must prove for you to be convicted for this offense. The prosecutor must show that you knew that the person you dissuaded or prevented (or attempted to) was a witness/victim. If you didn’t know that whom you were dissuading was a victim or a witness, then you probably have a good defense.

Also, the prosecutor must show that you knew you were acting in a manner that may cause the victim or witness to be dissuaded. If you provide sufficient proof to show that you had no knowledge that your actions would have dissuaded the victim, you might receive an acquittal.

Additionally, the prosecution must demonstrate that you acted maliciously. He/she must prove that you had a specific intent to injure, harm, annoy, or threaten a witness or victim.

2. Victim or Witness

The scope of the term ‘victim’ is quite narrow. According to PEN 136.1, a victim is someone who believes or thinks that you or another person has committed a federal or state crime against him/her.

On the other hand, the term 'witness' is broad, and it encompasses numerous situations. A witness can be a person who has probably heard or seen you being involved in a criminal act, is under oath or subpoena to testify during criminal proceedings, or reported a crime.

The prosecutor must prove that your actions were directed towards a victim or witness. This means that you can exonerate yourself if you accept that you threatened, harmed, annoyed, or injured another person or attempted to do so, but he/she wasn’t a witness or victim.

3. Dissuaded or Prevented

The prosecution must demonstrate that you dissuaded or prevented a witness/victim from attending court proceedings, testifying, reporting a criminal offense, or helping in the arrest or prosecution process. You can still be convicted under PC 136.1, even if you were unsuccessful in dissuading or preventing the victim/witness.

The court would hold that you have dissuaded or prevented a witness or victim if you utilized threats or force against him/her. Moreover, you may receive a conviction if the prosecution proves that you had conspired with another person or group to dissuade or prevent a victim/witness.

The Penalties for Dissuading a Witness or Victim

The California Department of Prosecution can charge you with the criminal offense of dissuading a witness or victim as either a felony or a misdemeanor. If you are convicted for misdemeanor dissuading a witness or victim, you may be ordered to pay a fine not exceeding $1,000 or serve a county jail term of a maximum of one year. The punishment for felony dissuading a witness or victim is a jail or state prison term of a minimum of 16 months and a maximum of four years, or a fine of up to $10,000.

However, this criminal offense is typically charged as a misdemeanor. Specifically, you will be charged with this offense as a felony in the following situations:

• You acted with extreme force or violence against the victim or witness
• You acted to further a conspiracy against the witness or victim
• You have one or more prior convictions for this offense
• You were promised financial gain or any other form of consideration by another person for dissuading the victim/witness

Sentencing Enhancements for Dissuading a Witness or Victim

The court can make you face additional consequences upon conviction for PC 136.1. For instance, you may be ordered to restitute or compensate the victim.

Take note that even if you have been convicted, the victim still has the right to institute a civil claim against you for compensation. If the victim wins the lawsuit, the court can award him/her punitive damages, which you will be required to pay. This means that you can find yourself facing two separate court proceedings: the criminal trial process and the civil lawsuit.

The burden of proof in a California Civil Lawsuit is on the plaintiff, and the standard of proof is on a balance of probabilities. This standard of proof isn’t as high as that required in criminal cases, and the plaintiff can win the case quite easily, especially if you have already been convicted. If you won the criminal case, you might have a higher chance of winning the civil lawsuit.

If you utilized a gun when dissuading the victim or witness, you might receive a sentencing enhancement of 1 – 10 years. Additionally, if you had dissuaded a witness or victim to further the interests of a criminal street gang, the court may sentence you to imprisonment for a minimum of seven years to life. 

Immigration Consequences for Dissuading a Witness or Victim

If you are a non-US citizen and you have been convicted for felony dissuading a witness or victim, you may face negative immigration consequences. According to the US Immigration Law, if a non-US citizen is convicted for an aggravated felony, he/she may be deported and become marked as ‘inadmissible.’ The offense of dissuading a witness or victim, if charged as a felony, falls into the class of aggravated felonies.

Therefore, if you are a non-citizen and you have been charged with felony dissuading a witness, you should hire an attorney who has expertise in both criminal defense law and immigration law. This way, you will boost the chances of obtaining a favorable outcome in your criminal trial, as well as avoid being deported and becoming marked as ‘inadmissible.’

How a Conviction under PC 136.1 Affects Gun Rights

If you have been convicted for either misdemeanor or felony, you may lose your gun rights. This means that you will not be permitted to possess or own a firearm.

Upon conviction for misdemeanor dissuading a victim or witness, you will lose your right to possess or own a gun for ten years. A felony conviction for this offense will result in a lifetime ban. For you to restore your gun rights, you will have to receive a pardon from the Governor of California.

Legal Defenses to Dissuading a Witness or Victim

You can raise various legal defenses to fight the criminal charge of dissuading a witness/ victim. The most common California legal defenses to this charge include:

• Absence of malice or knowledge
• No victim or witness
• False accusations

Here is a brief discussion of each of them:

1. Absence of Malice or Knowledge

Remember that for you to be convicted for dissuading a victim or witness, the prosecutor must prove beyond a reasonable doubt that you acted with both malice and knowledge. Therefore, you can employ a defense strategy to convince the court that you didn’t have a specific intent to dissuade the victim or witness.

2. No Victim or Witness

The prosecutor must show that you dissuaded a victim or witness. You can attempt to exonerate yourself by convincing the jury that although you threatened or injured another person, he/she wasn’t a victim or witness to a specific crime.

However, if you admit that you had threatened or injured another person, or attempted to do so, you may be charged with another offense, such as criminal threats or assault, in lieu of dissuading a victim or witness. You should only consider using this defense strategy if you intend to enter into a plea bargaining agreement with the prosecutor.

3. False Accusations  

This defense is often used in cases involving domestic violence. For instance, your spouse can inform the police that he/she was abused, and you threatened that you would abuse him/her more if he/she reports the crime.

In this situation, you can simply say that your spouse ‘wrongfully accused’ you. However, you will be required to provide sufficient proof to show that, indeed, it was a false accusation.

Apart from domestic violence, false accusations might also come from angry business partners or corrupt police officers. Whatever the situation, an experienced criminal defense attorney will conduct a thorough investigation of the false accusations, and highlight their inveracity during the trial.

4. Insufficient Evidence

The burden of proof in California criminal cases is on the prosecution, and the standard of proof is beyond a reasonable doubt. The prosecutor must attain this high standard when proving each element of this criminal offense.

In most instances, the prosecution normally fails to reach this standard, especially if you have built a robust defense strategy. Your attorney can poke holes in the case by discrediting witnesses and evidence. Subsequently, your case will be dismissed.

5. Human Rights Violations

Often, the police do not always observe the proper procedures when arresting or investigating a suspect. As a result, some of your human rights may be violated during arrest or investigations.

For instance, they may search your house or car without having a search warrant. Or, they may force you to confess towards the commission of the crime.

During consultations, make sure you inform your attorney if you believe that law enforcement violated some of your human rights during investigations or at the point of arrest. Your attorney can request a suppression hearing to exclude the evidence obtained at these stages. This way, the prosecution will be left with insufficient evidence, and you may receive either a dismissal or an acquittal.

Expungement of a Conviction for Dissuading a Witness or Victim

You can expunge a conviction for misdemeanor dissuading a witness or victim. On the other hand, it will be difficult to expunge a felony conviction for dissuading a witness or victim, unless you did not serve state prison time.

Pc 1203.4 is California’s Primary Law on expungement. According to it, when you receive an expungement, you will be released from virtually ‘all disabilities and penalties’ that arise from the criminal conviction.

Dissuading a Witness or Victim and Related Offenses

Various offenses are related to dissuading a witness or victim, including the following:

• Penal Code 422 Criminal Threats
• Penal Code 236 False Imprisonment
• Penal Code 207 Kidnapping

Let us discuss each of these offenses briefly:

1. Penal Code 422 Criminal Threats

According to PC 422, it is unlawful to threaten to kill or harm another person. For you to be convicted for this offense, the prosecution must prove that the alleged victim reasonably feared for his/her life and safety due to your threats. Also, the prosecutor must show that the threat was unequivocal and specific, and you communicated it verbally, through an electronically transmitted device, or in writing.

Unlike PC 136.1, it isn’t necessary for the person threatened to have been a victim or witness. Also, just like PC 136.1, this offense is a wobbler, and it can be charged as either a felony or a misdemeanor. The penalty for misdemeanor criminal threats is a jail term of a maximum of one year or a fine of up to $1,000. A felony conviction is punished by a state prison term of 16 months, two years, or three years.

2. Penal Code 236 False Imprisonment

As per PC 236, you can be charged with the criminal offense of false imprisonment if you restrain, confine, or detain another person without his/her consent. Dissuading a witness or victim by detaining, restraining, or confining him/her, the prosecution could opt to charge you with false imprisonment, alongside or instead of dissuading a witness or victim.

PC 236 is a wobbler. As a misdemeanor, it attracts a fine whose maximum value is $1,000 or a jail term of up to one year upon conviction. The punishment for felony false imprisonment is a state prison sentence of 16 months, two years, or three years.

3. Penal Code 207 Kidnapping

If you abduct another person and hold him/her captive while using fear or force, you will be charged under PC 207. Note that if you had dissuaded or attempted to dissuade a victim or witness by kidnapping him/her, you may be charged under PC 207, alongside or instead of PC 136.1. In such a situation, the prosecutor can elevate this offense to aggravated kidnapping.

Upon conviction for kidnapping, you will be obliged to serve a state prison sentence of a maximum of eight years. Aggravated kidnapping has more severe consequences – it carries a minimum of a five-year state prison term, which can be lengthened to life.

Find a Criminal Defense Attorney Near Me

If you have been charged with dissuading a witness or victim and you would like to speak to an attorney in Los Angeles, contact Leah Legal at 818-484-1100 for a free, confidential consultation. We are here to help you.