California PC 136.1 outlines the crime of dissuading a witness, also known as witness tampering or intimidating a witness. You could be guilty of this crime if you prevent a victim or witness of a crime from reporting the crime or testifying about it. Witness tampering is a serious offense with detrimental consequences. If you are facing charges for dissuading a witness or victim, the California Criminal Lawyer Group can assist you in coming up with a good defense.
Violation of PC 136.1
You could violate PC 136.1 if you prevent, dissuade, or attempt to prevent or dissuade a victim or a witness from attending a trial or giving testimony at a trial. The prosecutor will have to prove that you committed the violation intentionally or maliciously. Preventing a victim or witness from taking part in any inquiry or proceeding authorized by the law is a violation of PC 136.1.
You could also be guilty of witness tampering if you prevent or attempt to prevent a victim of a crime from filing a report regarding the victimization to the relevant authorities. You should not prevent or attempt to prevent a victim from informing a peace officer or law enforcement officer about a crime.
Preventing or trying to prevent a witness from reporting a probation or parole violation is a crime under PC 136.1. You should not dissuade or attempt to dissuade a witness from causing an arrest of a person associated with a crime.
Elements of Witness Tampering
For an accusation of witness tampering, the prosecutor has to prove certain elements of the crime. The prosecutor must prove that you acted knowingly and maliciously. Acting knowingly means that you acted on purpose.
It should also be evident that you dissuaded or prevented a witness or victim. You do not have to succeed in dissuading or preventing a witness or victim to be guilty. As long as you attempted to dissuade or prevent a victim from giving information regarding a crime, you could be guilty under PC 136.1.
It should be clear that you prevented or dissuade a witness or victim from taking certain actions:
- Attending a legal proceeding or testifying
- Reporting or informing the authorities about a crime
- Assisting in the prosecution procedures
- Aiding or assisting in the arrest process
The crime of witness tampering requires the perpetrator to have a specific intent for committing the crime. Therefore, you can’t be guilty of the crime unless you acted knowingly or on purpose. You must also have acted in malice at the time of committing the crime. Acting knowingly means that you were aware that your actions could have detrimental consequences under the law. Acting in malice implies that you had a desire to injure or annoy another person.
According to the law, a victim is any person who believes that a state or federal crime has been committed against him/her. You do not have to succeed in dissuading or discouraging a victim or witness from being guilty under PC 136.1. An attempt to discourage or dissuade a victim or witness is enough.
Ways of Dissuading a Witness
There are several ways of dissuading a witness. At times, you could be dissuading a witness without even realizing it. For instance, you could be guilty of witness tampering if you take or hide the victim’s phone to prevent him or her from contacting the police. Taking a witness or victim’s phone and refusing to give it back after the witness or victim states that he or she intends to contact the police is a crime.
Sometimes, you might have nothing to do with the case, and you could only be passing a message on behalf of another person. Even if you are dissuading a witness or victim on behalf of another person, you could still be guilty under PC 136.1. Dissuading a witness on behalf of another person is a felony offense.
Perhaps you just informed the witness or victim that you would be upset if he or she cooperated with the prosecution. You could also have threatened the victim or witness by telling him or her that you would get some people to deal with him or her for cooperating with the police. The outlined actions would qualify as preventing a witness or victim from providing information regarding a crime.
At times, you might have prevented or dissuaded a victim or witness from testifying, but he or she still testified. You would still be guilty under PC 136.1, even if the victim did not give in to your intimidation.
Punishment for Dissuading a Witness
The crime of witness tampering is a wobbler and might attract felony or misdemeanor charges. When deciding whether to charge the offense as a felony or misdemeanor, the prosecutor will consider the facts of the case and your criminal history.
A misdemeanor conviction is punishable by imprisonment in a county jail in California; the imprisonment period does not exceed one year. The court might also require you to pay a fine that does not exceed $1,000.
For a felony conviction, the penalties include imprisonment in a state prison in California; the imprisonment period does not exceed four years. The court might also require you to pay a fine that does not exceed $10,000.
The crime of witness tampering will be an automatic felony if:
- You intimidate or dissuade a witness or victim as part of a higher conspiracy.
- You used threats of violence at the time or dissuading the witness or victim.
- You have on your record a prior conviction for dissuading a witness.
- Another person hired you to commit the crime of dissuading a victim.
Negative Immigration Consequences
The crime of witness tampering could have negative immigration consequences. According to the United States Immigration law, aggravated felonies have negative immigration consequences. Therefore, if the prosecutor charges the crime of witness tampering as a felony, it might have adverse effects on your immigration status. The crime of witness tampering will qualify as an aggravated felony is aggravating factors are present.
A conviction under PC 136.1 could lead to the deportation of a non-citizen from the United States. The conviction could also make you inadmissible into the United States. If you are inadmissible into the U.S, you can’t apply for citizenship in the U.S.
It is important to contact a criminal defense attorney immediately; the prosecutor accuses you of witness tampering. It’s particularly important to contact an attorney if you are not a citizen of the United States. By including an attorney in the case, you will have a higher chance of avoiding the negative immigration consequences. You could be able to avoid deportation by having an experienced attorney handle your case. You could also be able to retain your admissibility into the United States.
Effects on Your Gun Rights
A conviction for witness tampering in California could also affect your gun rights. After a conviction of witness tampering, the court might prohibit you from owning a gun for up to ten years. The ten-year ban from owning a firearm will apply for a conviction of misdemeanor witness tampering. For a felony conviction of witness tampering, you could lose your gun rights for a lifetime.
Having a Conviction Under PC 136.1 Expunged
After a conviction for a crime of witness tampering, you could request your attorney to help you seek an expungement of the conviction. However, you can’t apply for expungement until you first complete the assigned probation period and comply with all the probation conditions. If the court recommended jail time, you have to complete the jail sentence before seeking an expungement of the conviction.
You could still seek an expungement of the conviction even if you violate the terms of probation. However, an expungement of conviction after violating the terms of probation will mainly depend on the judge’s discretion.
After an expungement of the conviction of witness tampering, you will be free from all the disabilities and penalties arising from the conviction. You will be able to apply to your dream jobs without worrying that the prospective employer will find out about your prior conviction. You will also be able to seek tenancy and license in the U.S without facing discrimination due to your past conviction. After an expungement, the conviction record will no longer show up in your background check results. However, the conviction record will still be available in the FBI and other law enforcement databases.
Therefore, if you commit a subsequent offense of witness tampering after the first offense's expungement, you will be a repeat offender.
Common Legal Defenses
With your attorney's help, you can raise a legal defense for the crime of witness tampering. With a convincing legal defense, the court might be willing to reduce your charges to a lesser offense. The court might also dismiss your charges altogether, especially if there isn't ample evidence against you. Some of the typical legal defenses for witness tampering include:
No Specific Intent
The crime of witness tampering requires the perpetrator to have a specific intent when committing the offense. You must have acted knowingly and maliciously to be guilty of witness tampering. You can point out that you did not act knowingly or with malice.
Not a Victim or Witness
You can only be guilty under PC 136.1 if you dissuade a witness or a victim. You can’t be guilty if the person involved is neither a witness nor a victim of a crime. You could indeed have threatened another person. However, if the person you threatened is not a victim or witness to a crime, you can’t be guilty of witness tampering.
However, if you threaten another person, you could face alternative charges even if you are not a witness or victim. You could face charges for Criminal Threats under California PC 422.
You could also fight witness tampering charges of another person accusing you falsely. False accusation is common in domestic violence cases. For instance, your spouse or domestic partner could accuse you of abusing him or her and preventing him or her from reporting the abuse.
The motivation for false accusations is usually jealousy, anger, revenge. A former spouse or romantic partner could accuse you falsely to get back at you for breaking up with him/her. A spouse could also accuse you of witness tampering to get a preferential outcome in divorce or child custody proceedings.
Lack of Knowledge
You could also fight the charges of witness tampering by asserting that you did not know a person was a victim or a witness to a crime. For instance, you could have talked to a person about how witnesses to crimes often end up dying without knowing that the person is a witness to a crime. If the person later accuses you of preventing or trying to prevent him/her from testifying, you can state that you were unaware that the person was a witness.
As long as it is evident that you were not aware that a person was a witness or victim of a crime, you can’t be guilty of witness tampering. You are only guilty if you act knowingly and with malice.
Lack of Malice
Acting in malice means that you intended to annoy or cause harm or pain to another person. If you manage to convict the court that you did not act maliciously, you can fight witness tampering charges. For instance, you could be a family member of the witness or the victim. You can state that you did not act with malice, but you were just trying to protect him/her.
The prosecutor must have sufficient evidence to accuse you of witness tampering. If the prosecutor does not have ample evidence, he/she might not be able to satisfy all the witness tampering elements. Your attorney can challenge the prosecutor's evidence. If the prosecutor realizes that he or she does not have ample evidence, he/she might be willing to give you a plea bargain for the offense.
Certain offenses in California are almost closely-related to the crime of witness tampering. Most people receive convictions for the related offenses instead of witness tampering or alongside the conviction for witness tampering. Some of the related offenses are:
PC 422- Criminal Threats
Formerly referred to as terrorist threats, criminal threats involve threatening another person with immediate harm. The prosecutor should be able to prove that you intended to cause the victims to fear and that you indeed caused the victim's fear.
Some of the elements of criminal threats that a prosecutor has to prove are:
- That you intentionally threatened to injure or kill another person
- You intended your written, verbal, or electronically communicated statement to serve as a threat.
- The threat issued was unconditional, equivocal, immediate, and specific.
- The person you threatened feared for his or her safety or the safety of his or her family after receiving the threat from you
It is important to note that you could be guilty of criminal threats under California law, even if you do not address the victim directly. For instance, if you are fighting with a person, then you instruct your companion to shoot the opponent, you could be guilty of criminal threats. As long as it is evident that you intended your statement to serve as a threat, you could be guilty of criminal threats.
You do not have to threaten to commit a specific crime against the victim for you to face criminal threat charges. Threatening to inflict bodily injury or kill the victim is enough to earn you charges. Great bodily injuries mean substantial or significant bodily injury.
You can communicate a criminal threat verbally by addressing the victim directly. You could also issue a written criminal threat. A criminal threat could also be electronically communicated through phone, email, SMS, or other electronic means.
Just like the crime of witness tampering, criminal threats could either attract misdemeanor or felony charges. A misdemeanor criminal threats conviction could attract a jail time that does not exceed one year and a fine that does not exceed $1,000. For a felony criminal threat conviction, penalties could include imprisonment of three years and a fine that does not exceed $10,000.
PC 236- False Imprisonment
According to California PC 236, you could be guilty of false imprisonment if you unlawfully violate another person's liberty. You could face charges under PC 236 if you confine, detain, or restrain another person without the person’s consent. You can commit the crime of false imprisonment by using force or no force at all.
The prosecutor would have to prove several elements to accuse you of false imprisonment; he or she must prove several elements of the crime:
- It should be evident that you confined, restrained, or detained another person against their will.
- The restrain caused the victim to stay in a certain location or go to another location for a considerable time, even if it was just for a short while
- The victim had not consented to your actions.
- The victim suffered harm, no matter how small.
- Your conduct was a substantial element in causing the victim's harm.
There are several ways in which the defendant can imprison or restrain a victim. A defendant can use threats, fear, or force to restrain the victim. The defendant could also use unreasonable duress, fraud, or deceit to restrain the victim. Other ways of restraining a victim include menace or physical barriers. The law does not require the victim to be aware that he or she is being restrained for you to face charges.
False imprisonment is a criminal offense, and it could also give rise to a civil lawsuit. The victim could seek compensation for damages like:
- The inconvenience and physical discomfort
- Time lost due to the unlawful
- Business interruptions
- Injuries resulting from the unlawful restraint
- Any damage to the victim’s reputation
According to California law, the crime of false imprisonment is a wobbler offense. The offense could attract misdemeanor or felony charges, depending on the discretion of the prosecutor.
PC 207- Kidnapping
You could be guilty of kidnapping under California PC 207 if you move another person for a considerable distance without the person’s consent. Some of the important elements of kidnapping include violence, restrain, and the use of fear or force.
In certain circumstances, the prosecutor could charge you with aggravated kidnapping. Aggravated kidnapping will attract more penalties than a case where aggravating factors are not present. Some of the aggravating factors in kidnapping cases include:
- Kidnapping a person who is below 14 years
- Holding a victim for ransom
- When the victim of kidnapping suffers great bodily injury or death
- When you kidnap another person while committing the crime of carjacking
You can only face kidnapping charges if you did not have the victim’s consent. Lack of victim’s consent means that the victim did not agree to go with you voluntarily. Some people are unable to give legal consent. For instance, if the victim is a child or an incapacitated person, he or she cannot give consent. Therefore, the element of consent is not necessary in a case involving a child or incapacitated person.
You can fight kidnapping charges by stating that you had the victim’s consent. This means that the victim did not act out of coercion, fear, or fraud, but chose to accompany you out of a free will. You could also state that you did not move the victim for a substantial distance to qualify as kidnapping. If the victim is your child, you can state that you had the parental rights to travel with the child. You could also state that you were falsely accused, and you did not commit the kidnapping crime.
The penalties for violating PC 207 will depend on whether you committed simple kidnapping or aggravated kidnapping. The charges for simple kidnapping include imprisonment in a state prison in California for 3,5 or 8 years. The court could also impose a penalty not exceeding $10,000. You will get enhanced penalties for aggravated kidnapping.
Find a California Criminal Lawyer Near Me
You should not take an accusation of witness tampering lightly because the consequences could be severe. It is important to contact an experienced attorney immediately; the prosecutor accuses you of kidnapping. California Criminal Lawyer Group can help you in fighting the criminal charges. Contact us at 408-622-0204 and speak to one of our attorneys.