California PC136.1 explains the offense of dissuading a witness, also known as witness tampering or intimidating a witness. According to this law, it is a crime to prevent a victim of a crime or a witness from testifying. If you are facing charges for dissuading a witness or victim in Van Nuys, get in touch with us at Leah Legal for expert criminal defense services.
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Elements of the Crime of Dissuading A Witness or Victim
A prosecutor cannot accuse you of dissuading a witness unless he/she can prove various elements of the crime. It should be evident that you acted intentionally or maliciously to prevent, dissuade, or attempted to prevent or dissuade a victim or a witness to a crime from testifying. You can violate PC 136.1PC if you prevent a victim from:
- Testifying or attending a judicial meeting
- Reporting an offense
- Aiding or assisting in the prosecution process
- Aiding or assisting in the arrest process
The crime of dissuading or intimidating a witness is a specific intent crime. Therefore, to be guilty of this offense, you must have acted intentionally and with malice. Acting knowingly means that at the time of dissuading the witness, the defendant was aware of his/her actions and the consequences. Malice means that the defendant had the desire to injure or annoy another person.
Who is a victim under California law? A victim is any person who feels or believes that a state or federal violation or crime has been committed against him/her. On the other hand, a witness is any person who knows about the facts of a crime and whose declaration under oath could be accepted as evidence. Any person who has reported a crime or who has been served with a subpoena qualifies as a witness. If you believe that the person you are trying to dissuade fits the description of a witness, then intimidating the person could implicate you.
You do not have to succeed in intimidating the witness or victim for you to be guilty. You could face charges as long as you attempted to intimidate the witness.
Most people commit the crime of dissuading a witness without even realizing it. For instance, you might realize that someone has seen you or your loved one commit a crime. You decide to talk to the person and persuade him/her not to report what he/she saw. By doing this, you could put yourself into jeopardy of facing felony or misdemeanor charges for dissuading a witness.
Does Dissuading a Witness Always Involve Threats?
When a victim or a witness gives their account of what happened in a crime scene, this evidence could implicate the accused. The witness or the victim reveals to the judge what he/she witnessed and this influences the outcome of a case. In some cases, there is no such physical evidence and a witness statement could be all a prosecutor is relying on. Without the witness testimony, the prosecutor might not have any other evidence and might have to drop the case. For this reasoning, doing anything to prevent a witness or victim from giving testimony is a crime.
You do not have to threaten a victim or witness to be guilty of dissuading a witness. In a case of domestic violence, a relative could try to persuade the victim to drop the charges. A relative could convince the victim that the accused person made a mistake and deserves forgiveness. However, even if the dissuasion does not involve a threat but a persuasion, it is still a crime.
It is unlawful to persuade or attempt to persuade a victim or a witness from reporting a crime. This involves reporting a crime or victimization to the law enforcement officer or a judge. You should not stop a person from filing a complaint, and indictment, or reporting a parole violation. You should not stop someone from seeking the arrest of a person for victimization. If a restraining order exists and the restrained person violates the order, it is illegal to prevent the victim from reporting the violation.
Consequences for Dissuading a Witness
Intimidating a witness is a wobbler according to California law. The prosecutor has the discretion to charge the crime as a felony or misdemeanor. If the offense is a misdemeanor, the offense is punishable by jail time of up to one year in county jail. The court could also impose a penalty that does not exceed $1,000.
If the crime is a felony, the penalties include imprisonment in a state prison in California. The imprisonment period could be up to four years. You could also have to pay a hefty fine not exceeding $10,000.
In some instances, the crime of dissuading a witness is an automatic felony:
- If the dissuasion was part of a higher conspiracy
- If you used violence or force while dissuading the witness
- If you have a prior conviction of dissuading or intimidating a witness
- If another person hired you to commit the crime of dissuading a witness of his/her behalf
Immigration Consequences of the Crime
The crime of intimidating or dissuading a witness could have negative immigration consequences. Therefore, if you commit this crime and you are not a citizen of the United States, you should seek immediate legal counsel. The crime could lead to deportation or removal from the United States. A conviction could also render you inadmissible into the United States.
Crimes that often render a defendant deportable or inadmissible are aggravated felonies. The prosecutor has the liberty of charging the crime of intimidating a witness or victim as a felony. Therefore, if the crime is a felony, you might be deported from the U.S. If you are inadmissible, you cannot be able to gain U.S citizenship through naturalization or another method.
Effects on your Gun Rights
The crime of intimidating a witness could also affect your gun rights in California. For a crime of misdemeanor intimidating a witness, you could receive a ban on your gun rights for ten years. For a felony intimidating of a witness or victim, the court could impose a ban on your gun rights for a lifetime.
If you dissuade a witness at the direction of, in association with, or for the benefit of a criminal street gang, you could face additional charges. The California gang enhancement law imposes additional and consecutive sentencing to your state prison sentence.
If the prosecutor charges the crime of dissuading a witness as a felony, it might count as a strike on your criminal law according to the Three Strikes Law in California. If you commit a subsequent felony, you will become a second striker. A second striker should serve twice the minimum sentence recommended by the law. If you later commit another felony and earn a third strike, you could be subject to 25years or life imprisonment in a state prison in California.
Expungement of the Conviction
The expungement of a criminal conviction is the removal of the conviction from your record. After an expungement, the conviction will no longer appear on your record even after conducting a background search. An expungement is beneficial because it protects you from discrimination based on your criminal history. When seeking employment, your potential employer is likely to conduct a background check on you. If the check reveals your previous criminal record, you might not get the job. The conviction could also affect your ability to get tenancy or a license.
A person convicted of intimidating a witness can get an expungement after completing the probation successfully and complying with all the requirements of probation. You could also qualify for expungement after you complete the jail term successfully. This condition will depend on whether the court had imposed a jail time or probation after you committed the offense.
Can you qualify for expungement if you violate the terms or the conditions of probation? Yes, it is still possible to get an expungement even after violating the terms of probation. However, this will depend on the judge's discretion. The California PC 1203.4 outlines the expungement law, which helps to relieve the defendant all the disabilities and penalties that could arise from a conviction.
Typical Legal Defenses
You should not give up after an accusation of dissuading a witness. With the help of a competent criminal defense attorney, fight the charges in court. Some of the typical legal defenses for the crime of dissuading a witness are:
You did not Act Knowingly or Maliciously
You cannot be guilty of dissuading a witness if you did not act intentionally or knowingly. It should also be evident that you acted with malice. The crime of intimidating a witness is a specific intent crime. Therefore, you cannot be guilty unless the prosecutor proves that you acted with both knowledge and malice. You can defend yourself by convincing the judge that you did not act with this specific intent.
Being a witness to a crime can be dangerous. A witness or a victim of a crime could be willing to give a testimony about what happened. However, in fear of what might happen to the victim or witness, a family member could attempt to dissuade the victim or the witness. If your interest was only to protect the witness or the victim, you can defend yourself by pointing out that you had no malice.
Not a Victim or a Witness
You can only be guilty of dissuading a witness or a victim if the person you dissuaded is indeed a witness or a victim of an offense you have committed. Therefore, you could defend yourself by pointing out that even if you threatened or intimidated someone, he/she is not a victim or a witness to a crime you committed. However, it is important to note that California law prohibits threatening another person. Therefore, even if you will not be guilty of dissuading a witness, you could still be guilty of issuing criminal threats as outlined under PC422.
You could be a victim of false accusations especially in a case of domestic violence. Your spouse could go to the police and accuse you of threatening him/her to prevent them from reporting a crime. If you are the victim of a false accusation, you can beat the charges with the help of your attorney.
You Did Not Know about the Pending Court Case
You can also fight charges for dissuading a victim by pointing out that you were not aware of any pending or existing court case, inquiry, or proceeding. You can also point out that you were not aware that the person you were talking to was a witness or a victim. You should talk to an experienced attorney to find out about the best defenses available to help you fight the conviction of dissuading a witness.
The prosecutor could accuse you of dissuading a witness based on allegations and not facts. The defense of insufficient evidence could apply if there is an absence of evidence collaborating the accused person's claim of being intentionally intimidated or dissuaded. A case with insufficient evidence has little substance and has room for defense.
Three crimes in California are closely related to the crime of dissuading a witness:
California PC 422-Criminal Threats
You could be guilty of criminal threats under PC422 if you threaten another person with immediate harm and cause reasonable and sustained fear in that person. For the prosecutor to accuse you of criminal threats, he/she has to prove several elements of the crime.
The prosecutor should prove that you intentionally or willingly threatened to seriously injure or kill another person. You should also have issued a threat verbally, either electronically, or through a written statement. The threat issued should be unconditional, unequivocal, specific, and immediate. The threat should also convey an immediate likelihood or possibility of execution. The prosecutor also has to prove that the threatened person feared for his/her safety or the safety of his/her family.
According to California law, the prosecutor might charge the crime of criminal threats as felony or misdemeanor. When deciding whether to charge the offense as a felony or misdemeanor, the prosecutor will consider your criminal history and the circumstances of the offense.
If you use a dangerous or deadly weapon to communicate the criminal threat, you could get one additional and consecutive year to your sentencing. The penalties could also apply for each threat if you issue criminal threats on more than one occasion, against different individuals, and for different objectives.
California PC236-False Imprisonment
You could be guilty of false imprisonment if you unlawfully violate the personal liberty of another person without the person's permission. You do not have to use force or violence while committing false imprisonment. The prosecutor should prove that you knowingly detained, confined, or restrained another person. It should be evident that confinement or detention forced the person to go to another place even for a short period. The prosecutor should also prove the victim did not consent to the imprisonment. It should be apparent that the victim suffered harm, or that the actions of the defendant were adequate to cause harm to the victim.
The crime of false imprisonment is a wobbler that could attract misdemeanor or felony charges. For a misdemeanor charge, the penalties include a fine that does not exceed $1,000. You could also be subject to imprisonment in a county jail for a period not exceeding one year.
For felony false imprisonment, penalties include a county jail term for 16 months, two years, or three years. You could adopt several defenses for the crime of false imprisonment including self-defense, victim's consent, legal authority to restrain, parental rights, and shopkeeper's privilege.
California PC 207- Kidnapping
You can commit the crime of kidnapping under California OC 207 if you move another person for a substantial distance without the person’s consent. To be guilty of kidnapping, you should have moved the person using fear or force.
Aggravated kidnapping charges might apply if the victim of the kidnapping is a child below 14 years. If you kidnap a person and hold him/her for ransom, aggravated kidnapping charges might apply. Aggravated charges might also apply if you kidnap another person during a carjacking or if you subject the victim to great bodily harm or death.
The crime of simple kidnapping is a felony under California law. The penalties include imprisonment in a state prison in California for three, five, or eight years. You could also be subject to a fine that does not exceed $10,000.
You will face long imprisonment if you commit an aggravated kidnapping crime. You could be subject to imprisonment in a state prison in California for 5, 8, or 11 years if the person you kidnapped is less than 14 years. The crime of kidnapping will also earn you a strike on your criminal record according to the Three Strikes Law in California.
Find a Criminal Defense Attorney Near Me
You should not attempt to fight the charges of dissuading a witness or a victim on your own. The prosecutor will be determined to prove that you are guilty. You need a competent and experienced criminal defense attorney to stand up to the prosecutor. You can count on Leah Legal for the best criminal defense in Van Nuys. Contact us at 818-484-1100 and talk to one of our experienced criminal defense attorneys.