Dissuading a witness involves attempting to discourage a witness from testifying or cooperating with law enforcement or legal proceedings. This can happen through various means, like intimidation, threats, persuasion, or other tactics to prevent a witness from providing information or testimony.

The consequences can be severe if convicted, including significant prison sentences and fines. The severity of the crime and potential penalties depend on factors, including whether force or threats were involved, the nature of the underlying crime, and the case's specific circumstances. Therefore, it is advisable to promptly contact a criminal defense attorney if you are under investigation or facing charges related to dissuading a witness or victim. The Fresno team at California Criminal Lawyer Group will ensure that your rights are protected and provide assistance in navigating the complexities of the legal process. Call us for assistance.

Dissuading A Witness Or Victim Under California Law

Per PC 136.1’s definition of the crime, you are liable for criminal prosecution if you knowingly and maliciously prevent or attempt to dissuade:

  • A witness or crime victim from attending or testifying in a court proceeding.
  • A witness or crime victim from reporting a crime.
  • A witness or crime victim from participating in the prosecution process.
  • A witness or crime victim from aiding in the arrest process.

Let us look at the elements in more detail. They form the basis of what the prosecution must prove for the jury to find you guilty.

  1. Acting Knowingly and Maliciously

When you act knowingly and maliciously, you are fully aware of your actions and intentionally causing harm.

Knowingly

When you act with knowledge, you consciously choose to engage in the behavior. It further means that you understand its nature and potential consequences.

Maliciously

Acting maliciously involves your deliberate intention to cause harm, going beyond mere negligence. It implies your desire to harm others or your intentional disregard for the potentially harmful consequences of your actions.

So, when the law specifies that an action must be done "knowingly and maliciously," you must possess both awareness and an intentional desire to cause harm or interfere with a legal process. This intentional and harmful mindset is crucial in establishing your guilt.

  1. Dissuading or Attempting to Dissuade a Witness or Victim

Dissuading or attempting to dissuade involves actively discouraging or persuading someone against a particular course of action and trying to dissuade them, even if the attempt is unsuccessful. This language is commonly used to describe actions that hinder the participation of witnesses or victims in:

  • Legal proceedings.
  • Reporting crimes.
  • Aiding in prosecution, or
  • Aiding in the arrest process.

Actions related to dissuading or attempting to dissuade a witness or victim aim to obstruct the justice system. Examples of these actions include:

  • Intimidation — Using threats or other forms of intimidation to discourage a witness or victim from testifying or reporting a crime.
  • Harassment — Engaging in persistent, unwanted behavior or communication to deter a witness or victim from participating in legal proceedings.
  • Bribery — Offering incentives, financial or otherwise, to induce a witness or victim not to testify or report a crime.
  • Physical harm or violence — Physically harming or threatening to harm a witness, victim, or their property to dissuade them from involvement in legal proceedings.
  • Tampering with evidence — Destroying, altering, or concealing evidence relevant to a case to hinder the legal process.
  • False information — Providing misleading information to dissuade a witness or victim, leading them to refrain from participating in legal proceedings.
  • Coercion — Pressuring or manipulating a witness or victim to withhold information, not testify, or not cooperate with law enforcement.
  • Retaliation — Taking retaliatory actions against a witness or victim in response to their cooperation with legal authorities.
  • Conspiracy — Collaborating with others to dissuade a witness or victim collectively, demonstrating a premeditated effort to obstruct justice.

  1. Witnesses and Victims

Witnesses and victims, both crucial in legal proceedings, play distinct roles.

Witnesses contribute by providing firsthand knowledge in court. Witnesses offer vital evidence for establishing case facts under oath. While witnesses often report criminal activity, this is not mandatory. Some witnesses come forward voluntarily, while others could be compelled to testify through a subpoena. Their testimony, expected to be unbiased and truthful, upholds the legal process's fairness and integrity.

On the other hand, victims suffer harm from a crime. These individuals start the legal process by reporting the incident. Beyond reporting, victims actively cooperate in investigations, aiding evidence collection. Further, victims share personal impacts beyond factual details through impact statements.

The facts of a case significantly influence how the prosecution establishes the elements of the offense. If prosecutors can prove that you were aware of or had reason to believe the individual was a witness or victim and intentionally dissuaded them, it would enhance the case against you. The particulars regarding your knowledge and intent are critical in the legal proceedings.

Exception Provided Under Penal Code 136.1

An exception is outlined in subdivision (a)(3) of Penal Code 136.1. This exception stipulates that if the person accused of dissuading or attempting to dissuade a witness or victim is a family member who intervened to protect the witness or victim, there is a presumption that the act was carried out without malice.

This exception formally recognizes the unique dynamics involved when family members take action to safeguard their loved ones in legal contexts.

Fighting Dissuading a Witness or Victim Charges

Dissuading a witness or victim charges carries significant gravity, necessitating a strategic defense. You must use defenses that effectively challenge the prosecution's case to enhance your chances of a favorable outcome. The defense strategy should aim to introduce reasonable doubt. Success in doing so could result in an acquittal or a reduction of charges, subsequently mitigating the associated penalties.

Potential defenses for dissuading a witness or victim include the following:

  1. You Lacked the Intent and the Awareness Required to Dissuade a Witness or Victim

You can assert that you lacked the knowledge or malicious intent necessary for the offense.

For example:

  • Lack of knowledge — Argue that you were unaware of the witness or victim involvement in legal proceedings or that your actions were not intended to dissuade them.
  • Absence of malicious intent — Assert that even if your actions discouraged a witness or victim, they were not driven by malicious intent to interfere with legal proceedings.

In addition, present evidence indicating that your actions had an innocent motive or were unrelated to legal proceedings. Providing context and explaining the circumstances that led to your actions in a way that contradicts malicious intent is crucial. Your attorney can scrutinize the content and context of any communication or interaction with the alleged witness or victim. This approach seeks to show the absence of dissuasive intent.

Defense attorneys can also present evidence supporting an alternative interpretation of your actions.

  1. You Were Falsely Accused

False accusations are regrettably not uncommon in criminal cases. Being falsely accused of dissuading a witness or victim is a distinct possibility. The intricacies of legal proceedings can lead to misunderstandings, misinterpretations, or intentional falsehoods. All these result in individuals facing grave charges grounded in inaccurate or malicious claims.

When charged with dissuading a witness or victim, you can assert that you were falsely accused as a defense strategy. This entails:

  • Challenging the credibility of the accuser.
  • Presenting evidence that contradicts the allegations, and
  • Affirming your innocence in the face of the charges.

In numerous instances involving violent crimes or situations where individuals falsely accuse others of dissuading a witness or victim, a common motivation is to downplay their involvement or divert responsibility away from themselves. This conduct arises from a desire to evade legal consequences, shift blame, or create a diversion from their actions. Several reasons underpinning false accusations in violent crime situations include:

  • Minimizing personal liability — Individuals engaged in violent crimes falsely accuse others of diminishing their role to lessen potential legal consequences.
  • Diverting attention — False accusations function could be a tactic to shift focus from the accuser's actions. This, in turn, complicates investigations or legal proceedings and sows confusion.
  • Creating a defense — Falsely accusing someone else can be a preemptive defense strategy. Your accuser could anticipate legal scrutiny and craft a narrative that places responsibility on you.
  • Retaliation or revenge — In personal disputes or conflicts, false accusations could serve as a form of retaliation or revenge. These accusations no doubt cause you harm while your accuser seeks retribution.
  • Seeking sympathy or leniency — By portraying themselves as victims who were dissuaded or intimidated, individuals could aspire to elicit sympathy or leniency from law enforcement, legal authorities, or the public.

  1. The Alleged Victim Was Neither a Witness nor a Victim

Penal Code 136.1 violations specifically address wrongdoings against victims or witnesses. You can therefore, challenge the charges by asserting that the alleged victim neither qualifies as a victim nor a witness.

For example, you could argue that the individual in question does not meet the legal criteria for being considered a victim in the context of the alleged offense. This could involve disputing whether they genuinely suffered harm due to a crime.

If the charges rely on the person's status as a witness, you can contest this characterization. In your submission, your attorney will claim that the alleged victim lacked relevant knowledge of the events or was not intended to be a participant in legal proceedings.

It is best to work closely with your attorney. He/she can help evaluate the particulars of your case, compile compelling evidence, and formulate persuasive arguments to challenge how the prosecution categorizes the alleged victim.

  1. There Was Insufficient Evidence

In criminal proceedings, the onus is on prosecutors to establish crucial facts and meet the evidentiary standard with reasonable certainty. They carry the weight of proving your guilt beyond a reasonable doubt to the trier of fact—typically the judge or jury.

When faced with a defense argument challenging the adequacy of evidence, prosecutors entertain the idea of a plea deal. Their decision-making depends on evaluating the case's strengths and anticipating potential challenges during a trial. If they spot weaknesses in the evidence or vulnerabilities in their case, a plea deal could be on the table.

A plea deal is an agreement where you, as the defendant, agree to plead guilty to a lesser charge or accept a more lenient sentence to sidestep a trial. Prosecutors see these deals as a pragmatic route to securing a conviction. It is a viable option, even if it means settling for a lesser offense and avoiding the uncertainties of a trial.

Consequences of Being Convicted of Dissuading a Witness or Victim

A Penal Code 136.1 violation is a wobbler offense. You could face misdemeanor or felony charges, depending on the facts of your case.

If you are convicted of a misdemeanor offense, you will face the following penalties:

  • A maximum of one year in jail.
  • A maximum fine of $1,000 or both.

You are likely to face felony charges if the following are true:

  • You used violence or threatened to use violence to intimidate the witness or victim.
  • The intimidation happened as part of a greater conspiracy.
  • You have a prior conviction for intimidating a witness or victim.
  • You were hired to commit the crime.

If you are convicted of a felony offense, you will face the following penalties:

  • A maximum of four years in prison.
  • A maximum fine of $10,000 or both.

Sentence Enhancements

In certain instances, when dissuading witnesses or victims involves the use of threats or violence, the repercussions can be severe, potentially leading to significant bodily harm to the victim. In such scenarios, the legal system may apply sentence enhancements. These enhancements come into play when the dissuasion results in substantial physical injury to the witness, victim, or any other person.

The penalties outlined under Penal Code 12022.7 include the following:

  • An extra three years of imprisonment for personally causing great bodily injury in the course of a felony or attempted felony.
  • A more severe penalty of an additional five years of imprisonment if the inflicted great bodily injury leads to the victim remaining in comatose or permanent paralysis.
  • A further five years of imprisonment for causing great bodily injury to a person aged 70 or older during the commission of a felony or attempted felony.
  • An additional four, five, or six years of imprisonment for causing great bodily injury to a minor under five years old when committing or attempting to commit a felony.
  • An additional three, four, or five years of imprisonment for causing great bodily injury under circumstances involving domestic violence when committing or attempting to commit a felony.

Impact of Your Conviction on Your Immigration Status

Conviction of dissuading a witness or victim, particularly if charged as a felony, can pose significant immigration risks for non-citizens. This offense falls under crimes involving moral turpitude (CIMT). Therefore, convictions could lead to severe consequences, including:

  • Deportation.
  • Ineligibility for specific visas or immigration benefits, and
  • Challenges in maintaining legal immigration status.

Once deported, you face a ban on reentry into the country.

Impact of a Conviction on Your Gun Rights

A conviction for dissuading a witness or victim can impact your gun rights. Felons in California are denied Second Amendment rights per PC 29800. This denial is a legal measure aimed at enhancing public safety by restricting firearm access for individuals with a history of serious criminal offenses.

You will lose the right to purchase, own, or possess firearms if convicted. You will also be required to surrender existing firearms to the authorities.

If you are convicted on misdemeanor charges, you will receive a four-year ban for owning a gun. On the other hand, if you are convicted of felony charges, you will receive a lifetime ban for owning a gun.

Dismissal of Your Charges After a Conviction

If you have been found guilty of dissuading a witness or victim, you could qualify to request a dismissal under Section 1203.4. However, you must satisfy specific conditions. Per the law, you should:

  • Finish your probation without any violations.
  • Avoid new criminal charges during the process.
  • Fulfill all court-ordered responsibilities, including fines and restitution.

If the court approves your dismissal petition, your guilty or nolo contendere plea will be withdrawn. The accusations or information against you will be dismissed. Although this does not wipe your record entirely, it shifts your plea to "not guilty" and resolves the case.

Note: Your firearm rights remain unaffected by dismissal.

Frequently Asked Questions

  1. Will My Expression of Disapproval to the Witness or Victim that They Offered their Testimony or Cooperated With Law Enforcement Amount to a Violation of PC 136.1?

If you express disappointment or frustration to a witness or victim about their testimony or cooperation with criminal prosecution, it does not automatically lead to charges of dissuading a witness or victim. The key factors depend on the nature of your expression and whether any unlawful elements are involved.

Simply expressing your emotions, like frustration or disagreement, is generally protected under free speech rights. It is not necessarily considered a criminal act. However, legal significance arises if your expression includes unlawful actions such as:

  • Making threats.
  • Engaging in intimidation.
  • Using coercion, or
  • Attempting to prevent the person from participating in legal proceedings.

The critical distinction lies in whether your actions go beyond expressing emotions and involve obstructing the course of justice.

Context is crucial in evaluating the potential legal implications. If your expression of frustration includes threatening behavior or attempts to influence the person against participating in legal proceedings, it raises the likelihood of facing legal consequences.

So, can holding a phone to prevent the witness or victim from calling the officers constitute a crime?

Yes, it could. If the intent behind holding the phone is to interfere with the witness or victim's ability to report a crime, provide testimony, or assist in an investigation, it could be seen as an unlawful attempt to dissuade or obstruct justice.

  1. Is it Still Considered Dissuading a Victim or Witness if I Am Present in the Same Vicinity as the Victim or Witness But I Say Nothing?

Your actions alongside someone who has made threats against a person can have profound implications. If you verbally or physically endorse or support the threatening behavior, you could potentially face charges related to the dissuasion of a witness or victim. These include non-verbal actions, like nodding or adopting an aggressive posture.

Even without explicitly agreeing verbally, your gestures could be seen as endorsing or supporting the threatening behavior.

Engage an Experienced Fresno Criminal Defense Attorney Near Me

Respecting the rights of victims and witnesses stands as a core tenet of our legal system. Any interference with these rights incurs substantial penalties, primarily if these actions severely harm the victim. This underscores the seriousness of compromising legal proceedings and causing injury to those involved.

Acknowledging these severe consequences highlights the imperative of upholding the rights and well-being of victims and witnesses within our legal framework. It stresses the significance of preserving the integrity of legal proceedings and ensuring the safeguarding of those who play crucial roles in the justice system.

The intricacies and severe implications linked to charges of dissuading a witness or victim underscore the crucial necessity for a seasoned criminal defense attorney. An attorney with specialized expertise is vital to navigate legal complexities, construct a robust defense, and protect your rights throughout the legal journey. Experienced criminal defense attorneys can adeptly assess evidence, challenge the prosecution's case, and explore tailored defenses aligned with your unique situation. Engaging the services of an experienced criminal defense attorney is a practical and essential step to ensuring a thorough and effective defense strategy when confronted with charges of this nature.

Call the California Criminal Lawyer Group if you or a loved one are under investigation or face charges for dissuading a victim or witness in Fresno. You need our team’s experience in handling similar cases to secure a favorable legal outcome. Contact us at 559-712-8377 for further assistance and to schedule your case assessment.