Sometimes it is tempting to dissuade a witness or victim, especially if they could give testimony that could implicate you or your loved one. In California, dissuading a witness or victim is considered a criminal act and could lead to severe penalties. You should contact an experienced criminal lawyer to build suitable defenses to have your case dismissed or charges reduced. At Los Angeles Criminal Lawyer, we will schedule a meeting, review your charges, and build a defense strategy to achieve the best outcome.
Legal Definition of Dissuading a Witness or Victim as a California Crime
Dissuading a victim or witness is a crime in California under Penal Code 136.1. Under this statute, this crime is defined as knowingly and maliciously preventing or discouraging a witness or victim from attending or giving testimony in a case or making any report that would have criminal actions taken on you.
There are several aspects that an attorney should consider while prosecuting an alleged offender for dissuading a witness or victim in California. These aspects are referred to as the elements of the crime, and are as follows:
- The alleged offender knowingly and maliciously
- Dissuaded or prevented (or attempted to dissuade or deter)
- A witness or victim
- From reporting a crime
- Aiding in a prosecution, or
- Aiding an arrest process
From the description of the above-stated elements of the crime, several terms standouts and need to be defined in detail. Let's have a closer look at them.
Knowingly or Maliciously
You could not be prosecuted under Penal Code 136.1 if your actions were not done knowingly. Therefore, your actions must have been done voluntarily with the full knowledge of their criminal nature, and they were not accidental or based on coercion or blackmail.
If the criminal activity was done maliciously, this means that the action was willfully and intentionally, and there are no legal justifications that you can use. However, it is different from doing something “knowingly” based on the extent of force employed by the defendant, such as injuring the plaintiff or seriously threatening them.
Dissuaded or Prevented (or Attempted to do so)
Under Penal Code 136.1, you do not have to prevent or dissuade the witness or victim to report or give a testimony to be prosecuted. Whether it failed or not, the mere attempt to do so is enough to have you prosecuted under this statute. Dissuasion is to induce someone from doing an action. You can dissuade someone to do something (which in this case is preventing a witness or victim from reporting a crime or testifying in court) can be done verbally, through blackmail or coercion.
When the prosecutor charges you under Penal Code 136.1 based on the fact that you prevented the victim or witness from reporting a crime or testifying in court, it means that you physically barred him or her from the intended action. Physical restraint can range from a simple act of obstruction to extreme measures, such as kidnapping the plaintiff.
You can still be prosecuted under this statute if you conspire to dissuade a witness or victim from reporting a crime or testifying in court. When the prosecutor is proving that you conspired in this criminal act, they must prove that you and another perpetrator agreed to commit the act. There was a step taken by both parties or either of them to further the agreement.
Witness or Victim
A witness is anyone who testifies under oath in a trial, or a disposition used when the witness is not available. Witnesses usually have the first-hand experience that is useful in a lawsuit.
Victims are defined as anyone who is the direct proximate recipient of a criminal act. In some cases, they are usually the plaintiff or third-parties involved in a lawsuit. For a person to be a criminal act victim, they should not necessarily be harmed by the action. Remember, you can be charged for dissuading a victim or witness even if you did not accomplish your intentions. As long as the dissuasion or prevention targeted you from your legal action, you are a victim of this illegal action.
Reporting a Crime, aiding a Prosecution or Aiding an Arrest Process
Witnesses play a crucial role in a criminal case since they help clarify what happened in a criminal action by telling the judge what they know about an event. In most cases, witnesses usually tell their part of the story under oath, making the information acceptable. The information provided by the witness is considered as evidence and can be used to determine whether the alleged offender is guilty or not. Therefore, any attempt to prevent or dissuade a witness from telling the judge what they know about a crime would have you arrested under this statute.
Victims also have a crucial role in a criminal case proceeding. In most cases involving Penal Code 136.1, victims appear as the plaintiff. Since they have a legal mandate to report a crime committed either by the defendant or a third-party, any attempt to dissuade them from this can have you arrested under Penal Code 136.1.
Penalties for Dissuading a Witness or Victim in California
Violation of Penal Code 136.1 is a wobbler in California. Therefore, you can be charged either as a felony or a misdemeanor, depending on the crime circumstances. If you are charged as a misdemeanor, the potential punishment includes:
- A maximum of one year in county jail
- A fine of up to $1,000
If you are charged as a felony, the potential punishment includes:
- A maximum of four years in the state prison
- A maximum fine of $10,000
Please note that intimidating a victim or witness can be charged as a felony if the following is true:
- The intimidation was part of a greater conspiracy
- You threatened or used violence while intimidating the defendant
- You have a history of intimidating victims or witnesses
- You hired someone else to intimidate the defendant
There are negative immigration consequences for violating Penal Code 136.1. Under the United States Immigration laws, certain criminal convictions might make a non-citizen deported or marked inadmissible. Deportable or inadmissible crimes usually include aggravated felonies.
Since there is a possibility of being charged as a felony, you can end up being marked inadmissible or deported from the United States if you violate Penal Code 136.1.
Effects of Penal Code 136.1 Charges on Your Gun Rights
A conviction under this statute can negatively affect your gun rights. If you are charged as a misdemeanor, you will face a ten-year ban on owning a firearm. If you are charged as a felony, you will face a lifetime restriction from owning a gun. This makes it extremely necessary to have an attorney by your side once you are convicted under this statute.
Gang Enhancement in Your Conviction
California laws usually impose an additional seven years to a life sentence in the California state prison to anyone who dissuades a victim or witness with the intent of benefitting a criminal street gang. This punishment will be considered along with the sentence received under this statute.
California Three Strike Enhancement
Violating Penal Code 136.1 is a serious felony and results in a "strike" under the California three strike enhancement. If you have a strike in your criminal record, you are at risk of a double sentence as required by the law. Consequently, two previous strike records result in a mandatory sentence of twenty-five years to life.
Possibility of Expunging in Your Conviction
You can have your conviction expunged if you complete probation or complete your jail time. Usually, the initial sentence of offenders who have the possibility of expunging their conviction is reinstated if they violate the probation term. However, with convictions under Penal Code 136.1, the offense can still be expunged but would be under the judge's discretion. When you are having your convictions expunged, it means that all penalties and disabilities that arise from your charges are released.
Legal Defenses for California Penal Code 136.1
Once you have hired an attorney to represent you in your case, you expect them to adopt several legal defenses to either have your case dismissed or reduced to a less severe charge. Not every legal defense argument can work in your case. You need to choose specific defenses that have the best chances of dismissing your case or reducing your charges. Let's have a closer look at some of these legal defenses.
False accusation is a common type of defense that is used in criminal defense. When you are implying that you were falsely accused of a particular criminal action, this means that someone else is trying to frame you for committing a specific crime. Most people falsely accuse others in an attempt to settle an existing grudge.
If you want to use false accusations as your legal defense, you need to prove that you were not part and parcel of the dissuasion or prevention of a witness or victim. You can use your mobile phone records, credit card records, or receipts to show your absence from the crime scene.
Absence of Knowledge or Maliciousness
You could not be charged under Penal Code 136.1 if your actions were not done out of your knowledge or maliciously done. This means that you had no intention to do so, and probably you were blackmailed into committing the crime. For instance, if you didn’t know that the person involved in your persuasion was a victim or witness in a criminal case, your attorney should convince the judge or jury about this and probably have the charges dropped.
Lack of Enough Evidence
Sometimes prosecutors proceed into convicting an alleged offender without enough evidence. This is common when the prosecutor relies heavily on circumstantial evidence rather than direct evidence. Your attorney should evaluate the nature of the prosecutor's evidence and find loopholes that would help dismiss your case.
Lack of Witness or Victim
The prosecutor has the burden to prove that the dissuaded person is a witness or victim of a criminal charge. Therefore, if the person is not either a witness or victim of a criminal charge you are interested in, this would not make you guilty of violating Penal Code 136.1.
Coercion of the Defendant
Sometimes people are involved in criminal actions out of coercion. Coercion can involve a simple action such as depriving something precious of the defendant to seriously threatening his or her life or a loved one's life.
You have to provide enough evidence to convince the judge that you were under some pressure hence your involvement in dissuading or preventing a witness or a victim.
Law enforcement officers can be involved in misconduct during their duties in several ways. Some of these instances include unwarranted arrest, denial of legal representation, and forced interrogation. These kinds of police misconducts do not necessarily help dismiss your case, but can help nullify the officers’ evidence. Therefore, you will be in a better position to win your case.
Crimes Related to California Penal Code 136.1
There are several crimes related to California Penal Code 136.1. These crimes either share the same criminal charges, are convicted in place of or along with this crime. It is relevant to learn about these crimes to know about the implications they might have on you.
Penal Code 422: Criminal Threat
Penal Code 422 makes it a crime to make criminal threats to kill or harm another person. This included risks of significant bodily injury or death intended to place the victims in reasonable fear for their safety or their families'. The criminal threat is considered valid if it was specific and unequivocal and was communicated verbally, electronically transmitted, or in writing.
Making criminal threats in California is a wobbler, meaning that you can be charged as a felony or misdemeanor. A misdemeanor conviction has a potential punishment of a maximum fine of $1,000 and one year in county jail. On the other hand, if you face a felony charge, the possible sentence includes a three-year state prison term and a maximum fine of $10,000.
If you used a dangerous weapon to threaten the victim, you could face an additional conviction of one year in prison. If you make threats on several occasions, against several people, or have different objectives, the court can impose penalties for every threat.
Penal Code 236: False Imprisonment
Penal Code 236 defines false imprisonment as the unlawful violation of another person's liberty. This means that you restrained, detained, or defined another person without his or her consent. This crime does not necessarily need to be commissioned by force or violence to make it viable for prosecution.
False imprisonment is a wobbler offense, meaning that you can be charged as a misdemeanor or a felony. The penalties can be enhanced depending on whether the victim was an elder or a dependent adult.
To be charged with a misdemeanor means that you did not commit the offense with menace, deceit, fraud, or violence. The potential punishment includes a maximum fine of $1,000 and a maximum of one year in county jail. In a felony charge, it means that the crime was commissioned by deceit, menace, fraud, or violence. The potential punishment includes 16 months, two years, or three years in county jail.
Penal Code 207: Kidnapping
Penal Code 207 defines kidnapping as moving a person at a substantial distance without his or her consent by using fear or force. Kidnapping can be simple or aggravating based on the factors surrounding the crime.
Simple kidnapping is considered a California felony and carries a potential punishment of 3,5 or 8 years in prison. It also carries a fine of up to $10,000. Aggravating kidnapping is a more severe crime than simple kidnapping and carries a potential punishment such as:
- 5, 8, or 11 years in the California state prison if the crime involves a victim below 14 years
- Life imprisonment with parole if you kidnapped the victim for a reward, ransom, extortion, robbery, etc.
- Life imprisonment without parole if you kidnapped the victim for reward, ransom, or extortion and the alleged victim suffers bodily harm, death, or placed him or her in a condition that would lead to his or her death
Find a Criminal Lawyer Near Me
You cannot risk trusting anyone except the most skilled and dedicated criminal lawyer if you face arrest or charges for dissuading a witness or victim in Los Angeles. Hiring an attorney can make a significant difference between being guilty and not guilty. At the Los Angeles Criminal Lawyer, we are committed to offering our clients the best legal services. Contact us anytime at 310-502-1314 for a free consultation.