PC 136.1 makes it an offense to prevent or attempt to prevent a witness or victim from testifying. Since dissuading the witness or alleged victim can significantly impact a criminal case, the prosecutor will aggressively pursue maximum penalties if accused of obstructing justice. A conviction carries severe criminal penalties and collateral consequences. If you are charged with this violent crime, you should retain an experienced Santa Ana attorney. With many years of experience, the legal team at Darwish Law can fight for your freedom and rights.
When Will You Face Dissuading a Witness or Victim Charges?
Under PC 136.1, it is illegal to tamper with, intimidate, or dissuade a crime’s witness or the alleged victim. It means trying to prevent the victim or witness from:
- Reporting or testifying about criminal conduct, or
- Cooperating with law enforcement officers
Before convicting you of this offense, the prosecutor must establish that:
- You maliciously and knowingly
- Stopped or persuade against (or attempted to dissuade or prevent)
- A crime’s witness or victim from
- Testifying or showing up at judicial proceedings
- Reporting your offense
- Helping the police in arresting you
- Aiding the criminal judicial process
PC 136.1 is a specific intent criminal act. To be convicted, the accused person must have committed the crime knowingly and with malice.
The legal term “knowingly” only applies to the knowledge that circumstances led to the omission or act violating PC 136.1 provisions.
A person acts with malice when they intend to hurt or upset someone else.
Regarding this code, an “alleged victim” is any individual against whom state or federal criminal activity has been committed. A victim is any person who:
- Is aware of the case facts
- Has been served with a subpoena
- Has reported the offense
- Whose declaration under oath can be considered evidence
Also, you could be found guilty of violating this statute if you attempted to dissuade the victim or witness. The attempt does not have to be successful.
Finally, even if you did not cause injuries, threatening to use or using force against the victim or a witness is sufficient to be considered a violation.
Criminal Penalties and Consequences Attracted by Violation of Dissuading a Witness or Victim Statute
Violating PC 1361a is a wobbler. In other words, the prosecutor can charge the crime either as a misdemeanor or a felony, depending on your case circumstances and criminal record.
A misdemeanor has the following maximum penalties:
- One thousand dollars in fine
- One year in jail
You will face a California felony if either of these statements is correct:
- Your intimidation formed a significant part of the conspiracy
- Your intimidation involved the use or threats of violence
- You have previously been convicted of PC 136.1
- Somebody else hired you to violate the law
Under this statute, conspiracy means an arrangement between at least two individuals to dissuade or intimidate victims or witnesses when they take overt steps to execute their plan.
A felony attracts a fine of ten thousand dollars and a four-year maximum sentence in California state prison.
Immigration Consequences
Prosecutors sometimes charge this crime as a felony. In other words, if the case circumstances show that a non-citizen violated an aggravated felony, they risk deportation or being marked inadmissible under the federal Immigration and Nationality Act (INA).
Deportation happens when the federal government orders that a non-citizen is removed from the United States.
On the other hand, being “inadmissible” means you do not qualify to receive benefits granted by the United States immigration authorities. Some of the things you cannot do include:
- Becoming a U.S. citizen
- Applying for permanent residence (green card)
- Re-entering the U.S. after leaving (even when you have a valid visa to reside in the country or are a lawful permanent resident
- Applying for an adjustment of status (the change from illegal to lawful immigration status)
If you are a non-citizen, you should fight the criminal charges aggressively. It is also in your interest to avoid a no-contest or guilty plea, even if accepting it would be sensible for a U.S. citizen. The intersection of immigration and criminal law is complicated, and you should be represented by an attorney acquainted with both areas.
Your Conviction Could Affect Your Firearm Rights
If you are found guilty of dissuading or intimidating the witness:
- for the benefit of,
- in association with, or
- at the direction of a criminal street gang,
the judge will impose an additional and consecutive seven years in state prison to life sentence under PC 186.22.
Three Strike Law
A PC 136.1 conviction is a California strike on your criminal record.
If you have one previous strike on your criminal record and are later charged with a felony, the court will punish you as a second striker. That means you will serve twice the maximum sentence for violation of PC 136.1.
The accused is a third-strike defendant if they have two (2) previous convictions for violent or serious felonies and are currently charged with another violent or serious felony. If all these are correct, they will face a California state prison sentence of 25 years to life for PC 136.1.
Legal Defenses
Your skilled and experienced defense lawyer should listen to you, analyze your case facts, and know the most effective legal defenses. Common legal strategies include:
The Defendant Did Not Act with Intent
One defense to this crime is when a person is unaware of any possible, pending, or existing court case, inquiry, or proceeding.
Additionally, if you warned someone else about the consequences of "snitches getting stitches" but didn't realize the person was a witness or potential victim of crime, you did not intend to stop them from reporting the crime. You cannot be sentenced for this crime.
You Did Not Act with Malice
Being a witness to a criminal act can be dangerous. While the alleged victim or witness may be willing to testify about what occurred, their loved ones will be concerned for their safety.
If a relative intervenes in an attempt to safeguard the alleged victim or witness, that can be evidence that they did not act with malice. The judge cannot convict them of this crime.
Absence of Knowledge
It would be your legal defense to this crime if you did not realize or think your conduct would have frightened and thereby dissuaded the witness or alleged victim.
You are a Victim of False Allegations
False accusations are not uncommon in cases involving domestic violence and situations when the witness has lying motives.
Your criminal defense counsel should investigate further to determine the motive behind the accusations.
The Individual Was Not a Witness
Before convicting you of this criminal charge, the prosecutor must prove that you attempted or dissuaded a witness. A witness is a person who knows and understands facts about the offense.
That means it is your defense to urge that the person you intimidated was not a witness.
Insufficient Evidence
When the prosecution has insufficient evidence to sentence you, they will not meet their burden of proof to convict you of the offense.
How to Handle Your Case as an Innocent Defendant
Most individuals are behind bars for offenses they did not commit. Read this section to learn steps to take to avoid trial, paying heavy fines, and serving time.
A prosecutor should file a criminal case. They often depend on a police report and may need more details on what occurred. The report can be inaccurate and affect the authenticity of the account of events. The incorrect facts can lead to lies by a witness and the law enforcer’s misstatements and prejudice.
An inaccurate police report can state that your spouse contacted law enforcement and falsely claimed that you abused them and threatened more abuse if they reported the offense. Alternatively, the alleged victim can lie about sustaining injuries or exaggerate. If your criminal charges are untrue, you can decide to proceed to trial if you are more likely to win your case. However, trials can be time-consuming and costly, making it essential to seek skilled legal representation.
Even if you believe you are innocent, the consequences of this charge are severe. You should not assume that the prosecution, police, and jury will take your word and accept your innocence claim. You should take the matter seriously throughout the case.
Seek Legal Invention Before Your Charges Progress Further
Hiring an attorney once you learn of the charge is the most effective method to handle the charge.
Your lawyer will intervene or attempt to talk to the prosecutor before they bring the criminal charges. The invention can involve the legal counsel speaking with the law enforcer who investigated your matter or arrested you. They should act before the police hand over the matter to the prosecution. If your case is with the prosecutor, your attorney can speak with the prosecution before filing your criminal charge.
The advocate's intervention can bear fruit if your criminal case is not serious.
Seek a Charge Dismal
If you believe you are innocent, you should wait for the prosecutor to bring the charge before your defense attorney can begin defending you. Bringing your case does not necessarily mean you will proceed to trial.
Ensure you are as truthful and open to your attorney as possible. Also, give them all the relevant details, like your relationship with the witness or alleged victim. With these details, the legal expert can know the way forward.
The proof is the foundation of your case. The presence or absence of evidence makes the difference between being convicted or having your charge dismissed.
Work with your lawyer while collecting the proof you will submit in court. Sometimes, the victim or witness can be a person you know well. It could be your colleague, employer, friend, or spouse. If you know the witness/victim, your lawyer can request your comment about your relationship. They can also be required to write down an account of what took place.
Print your communication with the witness or victim via social media, letters, phone calls, texts, or mail and submit them to your attorney. The communication helps the attorney develop a robust defense strategy.
You can also request a character witness to testify on your behalf. A character witness is an individual who knows you well.
Do Not Talk to Any Person, Including Police Officers, about Your Case
Resist any urge to say to police officers your version of the story when they are arresting you. Instead, remain silent; whatever you say can and will be used against you in a court of law.
The officers are arresting you because they believe you violated PC 131.1. They are trained to trick defendants into saying self-incriminating words. Instead, ask for your attorney and evoke the entitlement to remain silent.
Do Not Contact the Witness or Victim
It can be tempting to talk with the victim or witness to clear your name. It is unwise to do so. Moreover, you should not ask your loved one to speak with the victim or witness.
Respect the California Legal Procedure
Even when you believe you are innocent, respect the judicial process. Adhere to every court proceeding. Be polite to all law enforcers handling your charges. Do not resist your arrest but remain silent.
Do not engage in aggressive conduct toward the victim or witness. Doing so through proxies, online, or in person can hurt your case.
What Information is Revealed in a Criminal Background Check?
Most defendants in Santa Ana are concerned about whether their arrest or conviction shows up on background checks, including employment and rental applications. Employers are increasingly relying on background checks when hiring.
A background check allows a person to examine your criminal history to see if you have a previous conviction, arrest, or currently facing criminal charges. When a law enforcer looks into your background or arrests you, they will acquire a rap sheet from the Federal Bureau of Investigations (FBI) or the California Department of Justice that highlights when you were arrested and the arrest results. The rap sheet is confidential and should not be made available to anyone requesting your criminal history. Relieving your rap sheet without justification or authorization is a misdemeanor.
You can request your rap from the California Department of Justice to check for mistakes.
No database that a potential landlord and employer can access offers criminal information about you. However, they can hire a private organization that complies with the mandatory restrictions. Typically, background checks vary significantly between companies. The more expensive firms will perform a due diligence check that can include all states you have resided in and your federal records.
Depending on how thorough the background check is, the details are gathered through county court records and sometimes federal court records. Your potential employer will conduct a thorough criminal background check for sensitive employment positions like financial services.
Nevertheless, the third-party organization should not provide the potential employer with the following information:
- Arrest records that did not lead to a conviction unless your criminal case is pending
- Convictions at least seven (7) years old
- A conviction overturned through a governor’s pardon
The law also prohibits potential employers from asking applicants about their criminal background before a conditional offer of employment. However, the employer can conduct the background check and deny the position based on their assessment that considers the following:
- The job’s nature
- The applicant’s job responsibilities
- The severity and nature of the crime
These laws aim to protect against employment discrimination based on previous convictions. Suppose a company gives you an employment offer subject to a background check and later denies you employment. In that case, it should justify why you are not eligible due to your criminal record based on their individualized assessment criteria.
Miranda Warnings
You have probably heard in movies the warnings police give to suspects when making arrests. Miranda warnings include the following statements:
- You are entitled to remain silent
- Law enforcers can and will use whatever you say against you in court
- You have the right to seek legal representation
- If you cannot raise attorney’s fees, the government will provide one for you at no cost
Then the police officer will ask you whether you understand your rights. They will also ask you whether you would like to waive the right and tell the officer what happened.
The officer should read you these warnings because they should honor every right and privilege in the U.S. Constitution. However, for the law enforcer to give the warnings, the following factors should apply:
- You must be in police custody, and
- You must be questioned or interrogated
If the police approach you in public for interrogations or call you and ask you to go to the station, they are not legally allowed to read you the Miranda Warnings. Even when the police fail to provide warnings, your constitutional rights apply.
Police often ask suspects to visit the station to voluntarily provide the statement so they do not have to offer Miranda rights since you can leave at any time. However, most people who go to police stations do not walk out. Law enforcers are trained and skilled interrogators who can use several techniques to acquire statements from you.
What to Do If You Want to Establish Your Innocence
Even if your statement proves your innocence of violating this crime, you should take advantage of the constitutional privileges and not offer the statement. It is because:
- You are entitled to remain silent
- The laws of proof will not permit the statement proclaiming innocence because the court will consider it hearsay, making it inadmissible in a court hearing or at trial.
- Your statement can undermine your credibility alongside that of potentially essential witnesses.
- Finally, the police can use your innocent statement to challenge your side of the story to build their case against you.
What to Do If You Have Already Given a Statement
If you have already given the police your statement, you should talk with an attorney immediately. Your experienced and competent criminal defense lawyer knows the procedures and policies the law enforcement agency should follow.
Why You Should Engage a Defense Attorney
Most violent crime defendants often ask whether they require a criminal defense lawyer. While the answer is no, hiring an experienced and trained attorney immediately after you learn of your criminal charges is wise.
In California, the criminal courts use a system of procedures and rules unfamiliar to most defendants. The criminal justice system is complicated, and navigating it on your own could significantly affect your case outcome.
Sometimes defendants believe that minor crimes like misdemeanors do not require legal representation. Regrettably, criminal charges often have far-reaching and unforeseen consequences. For instance, a PC 136.1 conviction can bar you from securing employment in some fields.
In other words, hiring a lawyer increases your chances of winning at trial and achieving a favorable case outcome. Here is what your legal counsel can do for you:
- Investigate your case to identify loopholes and gaps to assist in negotiating for reduced charges/penalties or avoiding a conviction. The investigation involves analyzing evidence, speaking with police and witnesses, and collecting necessary information and evidence about your case.
- Handle the required paperwork — All criminal charges involve significant paperwork. Errors you make while collecting, analyzing, filling out, and filing documents can compromise your case defense. Also, you should file the documents on time.
- It is your attorney’s responsibility to file the appropriate paperwork timely.
- Offer objective perspectives — When charged with a crime, it is easy to misinterpret the situation. Your lawyer knows the law works and can help you understand what to expect and make informed decisions.
- Guide you through your trial — If the case proceeds to trial, your attorney should prepare relevant documentation, select jurors, conduct cross-examinations, and deliver opening and closing statements.
Find an Experienced Violent Defense Attorney Near Me
In Santa Ana, there are laws to ensure that the criminal justice system operates effectively. One of these laws prohibits the intimidation of witnesses and victims. Dissuading a person from testifying is a wobbler and carries life-altering consequences like losing firearm rights, incarceration, paying fines, and negative immigration consequences. The seasoned attorneys at Darwish Law understand what is at stake and can aggressively work to litigate your case and stand with you throughout the legal process. We can review the prosecutor’s evidence to identify gaps, challenge illegally obtained evidence, and ensure you obtain the most favorable case outcome.
Call our law firm at 714-887-4810 to schedule your initial consultation. Our seasoned defense attorneys will gladly offer a free evaluation of your case.