Penal code 136

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California Penal Code Section 136.1 PC: Intimidating A Witness Or Victim

witness related crime

1. Definition and Elements of the Crime

Discouraging a witness or victim from reporting a crime or from testifying about a crime is itself a serious criminal offense under California Penal Code Section 136.1 PC.

In order to prove an allegation of Intimidating a Witness or Victim, a prosecutor must be able to establish the following elements:

  1. That a person knowingly and maliciously
  2. Prevented or dissuaded, or attempted to prevent or dissuade
  3. A victim or witness from
    1. Appearing at or testifying during a legal proceeding
    2. Reporting a crime to authorities
    3. Assisting in the prosecution of a crime
    4. OR assisting in the arrest process

Someone is a victim if there is reason to believe that a federal or state crime was committed or was attempted against him or her.

It does not matter if the defendant was successful in preventing or discouraging the victim or witness, the attempt to intimidate the victim or witness is enough for the defendant to be held criminally liable under Penal Code 136.1 PC.

It also does not matter if no one was actually injured or intimidated as a result of the defendant's attempts to prevent a victim or witness from coming forward or cooperating with authorities.

2. Examples

A man has non-consensual sex with a woman he met at a bar and is afraid that she will file a report with the local police and he will charged with a Sex Crime, specifically Forcible Rape under California Penal Code Section 261(a)(2). He approaches the woman and offers to pay her a large sum of money if she agrees not to report him to authorities. This man would be guilty of Dissuading a Victim under California Penal Code Section 136.1 PC, as he attempted to prevent her, a victim, from reporting a crime.

However, in another example a witness is set to testify in a trial involving a large-scale Identity Theft ring run by a notorious organized crime syndicate. The witness is not aware that this particular group has a history of going after witnesses who testify against them. The witness' friend is aware of this reputation, and desperately tries to warn his friend about the dangers of testifying against this particular organization. This friend would not be guilty of Intimidating a Witness, because his actions came from a genuine concern for his friend’s wellbeing, and were not made maliciously as required by the statute.

3. Related Offenses

Related offenses include:

  1. Criminal Threats - California Penal Code Section 422 PC
  2. Bribery of a Witness Regarding Testimony – California Penal Code Section 137(a) PC
  3. Bribery of a Witness Regarding Trial Attendance - California Penal Code Section 138(a) PC

4. Defenses to Intimidating a Witness or Victim Charges

As in the example above, if someone unintentionally puts a victim or witness in fear by their statements or actions, that person would not be guilty of a crime and would have a legitimate Accident Defense, as they did not realize the effect their words would have.

Additionally, this is an offense in which there may be False Accusations made that someone tried to prevent or dissuade another from testifying or reporting a crime.

5. Penalties

Intimidating a Witness or Victim is a "wobbler" offense, meaning that it can be filed as either a felony or a misdemeanor, depending on the facts of the case and the criminal history of the defendant.

However, if any of the following factors exist, the charge must always be filed as a felony:

  1. If the intimidation was part of a greater Conspiracy
  2. If the intimidation involved using or threatening violence against someone
  3. If the defendant has previously been convicted of intimidating a victim or witness
  4. OR where the defendant was hired by someone else to commit the crime.

If filed as a misdemeanor, Intimidating a Witness or Victim can carry a sentence of up to a year in jail and up to a $1,000 fine plus penalties and assessments. In addition, there would be a ten-year ban on the defendant's ability to own or purchase a gun.

If charged as a felony, the defendant could face four years in prison, substantial fines, and a lifetime restriction from owning or purchasing guns.

6. Criminal Defense for Intimidating a Witness or Victim Cases

If you or someone you know has been accused of Intimidating a Victim or Witness, it is critical that you consult with an experienced Los Angeles Criminal Defense Attorney right away. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles Criminal Defense Attorney Michael Kraut has handled matters of this nature from a prosecutorial and defense perspective and is able to effectively fight these charges on behalf of his clients. Mr. Kraut has maintained important relationships with law enforcement and prosecutors and is highly respected throughout the court system.

For more information about Intimidating a Witness or Victim, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

Sours: https://www.losangelescriminallawyer.pro/california-penal-code-section-136-1-pc-intimidating-a-witness-or.html

Violent Crimes

Crime: Intimidating a Witness

Code Section: Penal Code 136.1 (click here to view the statute)

Related CALCRIM: 2622, 2623

PC 136.1 Brief Summary:

Penal Code 136.1 criminalize situations where a person tries to intimidate, prevent, or dissuade a victim or witness from reporting a crime or testifying about a crime. Penal Code 136.1 is commonly charged in domestic violence cases, where one person tries to then prevent the other person from calling the cops or reporting a crime. Penal Code 1361.1 applies when a person prevents or tries to prevent, dissuade, or intimidate a crime victim from reporting a crime, or testify in court, or cooperating with law enforcement so as to avoid being arrested, charged, or convicted of a crime. Penal Code 136.1 can be charged as either a felony or as a misdemeanor depending on the facts of the case and the defendant’s criminal history.

PC 136.1 Elements:

To prove someone guilty of this crime, the government must prove:

  1. The defendant maliciously tried to prevent or discourage a witness or crime victim from giving testimony, or reporting a crime;
  2. When the defendant acted, he knew he was trying to prevent or discourage the victim or witness.

PC 136.1 Punishment:

The punishment for a felony violation of Penal Code 136.1(a) or (b) is 16 months, two years, or three years in state prison. Penal Code 136.1(a) or (b) can also be charged as a misdemeanor with a maximum exposure of up to a year in county jail. In some situations where a person used violence or threats of violence to intimidate a witness or victim, a felony strike offense can be charged under Penal Code 136.1(c). The maximum felony exposure under Penal Code 136.1(c) is two, three, or four years in state prison. In cases where a person has not been sentenced to prison, probation can be granted for any conviction under Penal Code 136.1. Other fines, fees, and possible probation terms could be applied. In some felony cases, Penal Code 136.1 is a “strike” offense, meaning that a conviction can be used against you in the future to drastically increase your maximum exposure and potentially make you eligible for life in prison if you were convicted of a qualifying offense after having been previously convicted of two other prior strikes. “Strike” offenses can also be used against you in other ways.

PC 136.1 Lesser Included Offenses:

A lesser included offense is one that contains all of the elements of the charged offense, but for which the consequences are less severe. Typically, a conviction for a lesser included offense only occurs when there is no conviction for the more serious offense. An attempt is often times a lesser included offense to a charged offense and occurs when the defendant intended and tried to commit the charged offense, but for whatever reason, was unable to finish committing that crime. For Penal Code 136.1, there are no lesser included offenses because the Penal Code 136.1 itself also criminalizes attempts the same as successfully intimidating a witness.

PC 136.1 Related Charges:

  • Penal Code 236-False Imprisonment
  • Penal Code 242-Battery
  • Penal Code 243(e)(1)-Domestic Battery
  • Penal Code 245(a)(4)-Assault Likely to Produce GBI
  • Penal Code 273.5(a)-Domestic Violence
  • Penal Code 422-Criminal Threat
  • Penal Code 417-Brandishing a Weapon
Sours: https://www.grollinslaw.com/riverside-violent-crimes-lawyer/intimidating-a-witness-pc-136-1-penal-code-136-1/
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Dissuading a Witness – Penal Code 136.1 PC

Dissuading a witness crime in California Penal Code 136.1 PC

You know that someone may have seen you or a loved one commit a crime, so you decide to go over and speak to that person and help them understand it was a mistake. “You didn’t see what you thought you saw,” you tell them. “Do me a favor and don’t say anything,” you ask of them. Well, you’ve just put yourself in jeopardy of being charged with a misdemeanor or felony crime for dissuading a witness.

California Penal Code Section 136.1 PC states that any person who knowingly and maliciously prevents or dissuades any witness or victim or attempts to do so from attending or giving testimony at any proceeding, or making any kind of report that would lead to any kind of criminal action being taken can be charged with the crime of dissuading a witness.

Even if your attempt at dissuasion or intimidation failed and nobody was injured, you could still be convicted of this crime.

Prosecution of Dissuading a Witness (PC 136.1)

In order for you to be found guilty of dissuading a witness under Penal Code 136.1 PC, the prosecution must prove the following beyond a reasonable doubt:

  • You maliciously dissuaded or prevented, or attempted to dissuade or prevent a person from doing any of the following:
    1. attending or giving testimony,
    2. making a report;
    3. cooperating with police that would lead to a complaint/indictment/violation;
    4. provide information that would lead to an arrest; and
  • You knowingly did so.

Sentencing and Punishment for Dissuading a Witness

Dissuading a witness is a wobbler offense, meaning it could be charged as a misdemeanor or a felony. If you are convicted of misdemeanor dissuading a witness under PC 136.1, you face up to six months in county jail and a fine of up to $1,000. If you are convicted of a felony for dissuading a witness, you face 16 months, 2 or 3 years in state prison.

If you are convicted of dissuading a witness and the crime was a felony because any of the elements above were involved, the crime is punishable by 2, 3 or 4 years in state prison.

The crime of dissuading a witness automatically becomes a felony if any of the following elements are found:

  • There was force or fear used in this dissuasion or prevention;
  • There was a conspiracy to assist in this dissuasion or prevention; or
  • The act was done for financial interest.

Legal Defenses to Dissuading a Witness

Possible legal defenses to dissuading a witness charge in California.

A skilled criminal defense attorney will know the legal defenses to the charge of dissuading a witness under Penal Code 136.1 PC. Some defenses an experienced attorney could use include:

No intent – There was no intent to dissuade or prevent a witness or victim from testifying or otherwise aid criminal prosecution. If you were talking about how “snitches get stiches” to another person, but did not know that other person was a witness or a victim of a crime, then you did not knowingly dissuade or prevent this person.

There was no maliciousness – Under California Penal Code Section 136.1(a)(3), you cannot be convicted of dissuading a witness if you are a family member of the victim who interceded to protect that person. In this case, there was no maliciousness involved and you cannot be convicted of this crime.

Frequently Asked Questions Regarding Dissuading a Witness

At Wallin & Klarich, we frequently receive questions from those facing a charge of dissuading a witness. These include:
What if the intimidation didn’t work and that person went and testified without any fear of doing so?

You could still be convicted of this crime if you made an attempt to dissuade a witness. Your attempt doesn’t have to be a successful.

What if I expressed to a witness/victim how upset I was that they gave testimony or cooperated with criminal prosecution?

If it is accompanied by some kind of threat, such as “I should have killed you” or “I’m going to get some guys together and find you because of what you did,” it can still be considered trying to dissuade or prevent any future testimony or cooperation with criminal prosecution.

What if I just held, or hid a cell phone from the witness/victim so they couldn’t call the police?

Any act you take that would prevent or delay a person from being able to contact police can be considered preventing someone from testifying or cooperating with criminal prosecution. This can include taking a phone, striking it from their hand, or refusing to give it to them after they make it clear they are going to contact the police.

What if I’m just passing the message along from someone else, and I have nothing to do with the case?

Both of you can be charged with dissuading or preventing a witness/victim from testifying or cooperating with criminal prosecution.
What if I’m just standing next to someone else who made a threat against another person to keep them from testifying, but I didn’t say or do anything?

It depends on the circumstances. If you make a verbal or physical affirmation after the other person threatened or commented towards the witness/victim against cooperating with criminal prosecution, it can be considered an attempt to dissuade or prevent. These can include saying “uh-huh,” or staring, posturing, or nodding when the threat or comment is made.

Call the Criminal Defense Attorneys at Wallin & Klarich Today

Dissuading a witness attorney Penal Code 136.1 PC

If you or a loved one has been charged with dissuading a witness, you need to contact an experienced criminal defense attorney immediately. At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing charges of dissuading a witness for over 40 years. We will meet with you immediately to review the facts of your case, and plan a defense strategy that will help you get the very best outcome possible in your case.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

Sours: https://www.wklaw.com/practice-areas/dissuading-a-witness-pc-136-1/
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Intimidating a witness or victim

Intimidating a witness or victim charges are classified as “wobblers”, which means they can be charged as either a felony or misdemeanor.

If charged as a misdemeanor, the person convicted faces up to one (1) year in county jail. If charged as a felony, the person convicted faces a term of 16 months, 2 or 3 years, depending on the circumstances.

If you or a loved one has been charged with a crime, do not wait to retain legal counsel. Contact us for a free consultation.

Learn more about specific charges on our criminal law pages.

California Penal Code Section 136.1(B)(1)

“(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

(1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.”

Sours: https://glewkimlaw.com/marijuanalaws/california-penal-code-section-136-1b1-2/

136 penal code

136.1.  

(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

(3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.

(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

(1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.

(2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.

(3) Arresting or causing or seeking the arrest of any person in connection with that victimization.

(c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances:

(1) 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.

(2) Where the act is in furtherance of a conspiracy.

(3) 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.

(4) 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.

(d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section.

(e) Nothing in this section precludes the imposition of an enhancement for great bodily injury where the injury inflicted is significant or substantial.

(f) The use of force during the commission of any offense described in subdivision (c) shall be considered a circumstance in aggravation of the crime in imposing a term of imprisonment under subdivision (b) of Section 1170.

(Amended by Stats. 1997, Ch. 500, Sec. 1. Effective January 1, 1998.)
Sours: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=136.1
Coup d’etat (Article 134-A of the Revised Penal Code)

Witness Intimidation – Penal Code Section 136.1

California law harshly punishes anyone who interferes with the legal system through an act of witness intimidation. The crime is broadly defined and heavily used in some jurisdictions like Ventura County.

Elements of the Offense:

There are several forms of witness intimidation under California law:

Witness Intimidation Defined by Penal Code Sections 136.1(a) & 136.1(b);

1. The defendant maliciously1 prevented or discouraged, or maliciously tried to prevent or discourage a witness2 or crime victim from doing any of the following:

a. Attend a legal proceeding;

b. Provide testimony at a legal proceeding;

c. Make a report that he or someone else was the victim of a crime;

d. Cooperate or provide information relevant to a criminal complaint, indictment, probation or parole violation;

e. Prevent a person from arresting, causing or seeking the arrest of someone in connection with a crime.3

AND

2. The defendant knew he was preventing or discouraging, or trying to prevent or discourage the witness or crime victim from taking any action listed in 1(a) through 1(e) above.

Aggravated Witness Intimidation Defined by Penal Code Section 136.1(c)

If the defendant has committed witness intimidation, more serious punishment is available under the following conditions:

1. The defendant act maliciously, AND

2. The defendant did any of the following:

a. Specifically intended to conspire with others to intimidate a witness.

b. Used force or violence, or threatened to directly or indirectly use force or violence on the person or property of a witness or victim or any other person.

c. Acted in order to obtain money or something of value, or at the request of someone else in exchange for something of value.4

Aggravated Witness Intimidation For the Benefit of a Criminal Street Gang:

Under California’s Street Terrorism Enforcement and Prevention (STEP) Act, any act of witness intimidation will receive aggravated punishment where:

The defendant acted:

a. For the benefit of a criminal street gang;

b. At the direction of a criminal street gang; OR

c. In association with a criminal street gang.

AND

d. The defendant had the specific intent to promote, further or assist in any criminal conduct by gang members.5

Important Definitions:  

 

Malice:

Malice is an “intent to vex, annoy, harm, or injure” a person in any way, or to thwart or interfere with the orderly administration of justice in any manner.6

Witness:

Any person the defendant reasonably believed to be someone who: knows about facts relating to a crime, signed a declaration under oath, reported a crime to a law enforcement official, or who has received a subpoena related to a court proceeding.7

Punishment:

Non-Aggravated witness intimidation under Penal Code Sections 136.1(a) and 136.1(b) is punishable as follows:

• Misdemeanor probation and up to 365 days in a county jail; OR
• Felony probation and up to 365 days in a county jail; OR
• 16 months, 2 years or 3 years in the California Department of Corrections.
• A felony conviction under Penal Code Section 136.1(a) or (b) is a “serious felony” 8 or a “strike” under the state’s “3-Strikes” law.

Aggravated witness intimidation under Penal Code Section 136.1(c) is punishable as follows:

• The crime is a straight felony. It cannot be reduced to a misdemeanor.
• Felony probation and up to 365 days in a county jail. OR
• 2, 3 or 4 years in the California Department of Corrections.
• Aggravated witness intimidated under Section 136.1(c) is a “serious felony”9 , commonly referred to as a “strike” under the state’s “3 Strikes” law.

Witness Intimidation on behalf of a criminal street gang is punishable by a term in the California Department of Corrections of 7-years-to-life in prison.10

Commentary:

Prosecutors around the state understandably take witness intimidation seriously. The act of witness intimidation strikes at the integrity of the criminal justice system.
The crime is overly broad as defined. Criminal defendants, along with their friends and family members, should never contact a victim or witness directly. A sensitive witness may report any such contact as an act of intimidation. Some police officers and prosecutors will react very aggressively and seek the arrest of any non-professional who attempts to contact a witness or victim. Witnesses and victims should only be contacted by the defendant’s attorney or a professional investigator hired by the attorney.

Ventura County prosecutors are known to use Section 136.1 with extreme aggression, particularly in gang-related cases. A minor gang-related case can quickly turn utterly serious if prosecutors later allege that the defendant or one of his associates attempted to intimidate a witness for the benefit of the gang. Those convicted of gang-related witness intimidation will be punished with an indeterminate life sentence. The defendant must serve 7 actual years before he or she is eligible for parole.

If you find yourself charged with any form of witness intimidation in Ventura County, hire the best attorney you can afford immediately.

About the Author:

Bill Haney is a former supervising prosecutor in the Ventura County District Attorney’s Office.  Mr. Haney understands the legal and factual issues that arise in alleged cases of witness intimidation.  The charge of witness intimidation is extremely serious.  At your initial consultation, Mr. Haney will help you identify a defense that is designed to give you the best possible chance for a successful outcome in court.

Attorney Bill Haney - Ventura County Criminal Defense Attorney

Sources Cited:

(1) According to Penal Code Section 7(4), “The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” See also Witkin and Esptein, Cal. Criminal Law (4th ed. 2012), Elements § 11.
(2) Witness to a crime.
(3) Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 2622. See Penal Code Section 136.1.
(4) CALCRIM 2623.
(5) Penal Code Section 186.22(b)(1) and 186.22(e)(8).
(6) Penal Code Section 136; 2 Witkin, Cal.Crim. Law 4th (2012) Crimes – Govt, § 6, p. 1423.
(7) CALCRIM 2622.
(8) Penal Code Section 1192.7(c)
(9) Penal Code Section 1192.7(c)
(10) Penal Code Section 136.1(b)(4)(C).

Sours: https://billhaneylaw.com/witness-intimidation-penal-code-section-136-1/

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