Threatening Cooperative Government Witnesses – Penal Code Section 140

Penal Code Section 140 punishes those who retaliate against witnesses and crime victims after they have cooperated with government.

Elements of the Offense:

1. The defendant willfully did any one of the following to a witness or crime victim:

a. Used force or violence;

b. Threatened to use force or violence;

c. Communicated a threat to take, damage or destroy personal property.

AND

2. The threat or force was the result of the witness or victim providing assistance or information to a law enforcement officer or prosecutor for a criminal matter.1

AND

3. A reasonable person in a similar situation would believe the threat, in light of the totality of the circumstances, was a serious communication to commit an act of unlawful force or violence.2

Possible Defenses:

An act of alleged witness intimidation under Section 140 has many possible defenses. The context of the alleged threat or use of force is critical. The defendant may not have known that person was a past witness, and may have struck up a quarrel for completely unrelated reasons. Additionally, words made in simple jest or frustration do not rise to a criminal act. The threat must be a “serious expression of an intent to commit an act of unlawful force.”3

A skilled lawyer will closely scrutinize all police reports, audio recordings, and witness statements. The attorney should then conduct a competent investigation to explore the best possible defense for the client.

Possible Punishment:

A violation of Penal Code Section 140 is punishable as follows:
• Felony jail (local prison) sentence of 2, 3 or 4 years;

• Probation accompanied by a jail sentence of up to one year.

Unlike other forms of “witness intimidation,” a Penal Code Section 140 violation is not a “strike.”

Commentary:

Ventura County law enforcement officials will take any alleged threat against a former witness very seriously. If you are confronted with an allegation that you intimidated a witness – remain silent and ask for an attorney immediately. Police officers are trained to lie and deceive suspects when interviewing them. Additionally, there is no guarantee that they will record you. Accordingly, if you make an unrecorded statement to a law enforcement officer, you will be bound not by what you said – but what the officer writes in his report.

Ventura County prosecutors will often add any special allegation they can think of to increase your jail or prison exposure. Gang allegations, for example, are used frequently in Ventura County. Prosecutors will allege that almost any act committed by an alleged gang member or associate is committed for the benefit of a criminal street gang in violation of the Street Terrorism Act. If you find yourself facing criminal charges of this nature in Ventura County, you should hire an experienced criminal defense attorney immediately.

About the Author:

Bill Haney is a former major crimes attorney and supervising prosecutor in the Ventura County District Attorney’s Office. Mr. Haney also teaches law at a major Southern California law school.  ventura-county-criminal-defense-attorney-cutout

Sources Cited:

(1) Adult or juvenile crime
(2) California Criminal Jury Instruction Number 2624.
(3) California Criminal Jury Instruction Number 2624.

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