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