Dissuading a Witness or Victim

Dissuading a witness or victim is a serious crime under California Penal Code 136.1 PC.  The prosecution must prove a certain set of elements for a conviction.

Definition of Dissuading a Witness or Victim

Under California Penal Code 136.1 PC, dissuading a witness entails knowingly and maliciously preventing or dissuading a victim or witness to a crime from any of the following acts:

• Attending or testifying at a proceeding authorized by law;
• Making a report;
• Cooperating or providing information so that a complaint/ indictment/ information/ probation violation/parole violation could be sought and prosecuted, and from helping to prosecute that action; or
• Arresting/causing/seeking the arrest of someone in connection with a crime.

Can You Be Charged With Dissuading If You Only Attempted To Dissuade?

You can be charged with the offense even if you did not succeed in dissuading or intimidating a witness.

An attempt to do so is sufficient to be charged with the offense.

How Does the Prosecutor Prove Someone Dissuaded A Witness or Victim?

To prove that you are guilty of this offense, the prosecutor has to prove the following facts or elements¹:

1. The Element Of Knowing
2. The Element Of Maliciously
3. Preventing or attempting to prevent

What Is The Element Of Knowing?

The word “knowingly” imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code.

This means that if you did not know that the person you were dissuading was a witness or victim or did not think or realize you were engaged in the type of behavior that would cause the witness to be intimidated and thereby dissuaded, then you have a defense to this charge.

Example Of Not “Knowing”

Mary told her neighbor Jason that the last person who testified against her co-worker who robbed a bank has disappeared and has not been heard from for days.

Unbeknownst to Mary, Jason also witnessed the robbery under penal code 211 pc and was called to testify.

Because of what Mary told him, he now fears for his safety and plans on refusing to testify.

Mary cannot be charged with the offense in this instance because she did not know that Jason is a witness

What Is The Element Of Acting Maliciously?

A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice.²;

What Is Preventing or Attempting to Prevent?

You do not have to succeed at preventing or dissuading the victim/witness from performing the acts listed under this section; an attempt to do so will be sufficient for a conviction³.

Example Of Preventing

Robert, a primary suspect in a bank robbery sent James, a bank teller who got a glimpse of Robert’s face under the mask, a note that read “Testify and you’re dead.”

Robert could be charged with the offense because he threatened James to prevent him from testifying about Robert’s participation in the robbery.

Legal Defenses

There are four legal defenses available for this charge.

Lack of intent or lack of knowledge

It is a defense to this charge if you did not intend or know that the person you were dissuading was a witness or victim or did not think or realize you were engaged in the type of behavior that would cause the witness to be intimidated and thereby dissuaded.

False Accusations

False accusations sometimes occur in a situation involving domestic violence or in other situations wherein the accusing witness has a motive to lie.

In such a situation, the facts will need to be investigated further to determine the real cause behind the accusation.

Insufficient Evidence

When the prosecutor lacks the corroborating evidence to convict you of this charge, he/she will not be able to meet the burden of proof to convict you with this crime.

Person Is Not A Witness

One of the elements of this charge is that the person you tried or dissuade is a witness. As defined earlier, a witness is someone who knows facts relating to the crime.

In a situation where the person you intimidated is not a witness, this would be a defense to this charge.

Penalties

Under Penal Code section 136.1, you can be charged either with a misdemeanor or a felony.

Penalty	Misdemeanor	Felony
Fine	Up to $1,000	Up to $10,000
Jail or Prison	Up to 1 year county jail	16 months – 4 years prison

What Is The Difference In A Charge Of A Misdemeanor v. Felony?

The following list will increase the charge to a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances:

• Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.
• Where the act is in furtherance of a conspiracy.
• Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section.
• Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony.

Related Offenses

• California Penal Code 422 | Criminal Threats
• Penal Code 69 California’s “Resisting an Executive Officer” Law
• California Bribery of Witnesses Laws | California Penal Code 137 & 138 PC
• Penal Code 141 California’s “Tampering with or Planting Evidence” Law

1. Penal Code 136.1: Elements of the offense listed. [↩]
2. Malice Defined. Penal Code 136(1). [↩]
3. See CALCRIM §2622: Intimidating a Witness Penal Code Section 136.1(a) & (b). [↩]