The severity of this crime can include something as insidious as murdering a victim’s relative to prevent him or her from testifying against you. Or it can take the form of something as relatively innocuous as an attorney inserting a clause in a civil lawsuit settlement agreement wherein one of the parties promises not to cooperate with any law enforcement agency in consideration for receiving a sum of money.
Because of that range of criminal culpability, the prosecutor has the power to charge you with a misdemeanor or felony – thus, this crime is a “wobbler”. With the latter, if you’re convicted, you can face serious prison time, particularly with sentencing enhancements. Indeed, dissuading a witness or victim is considered a “strike” offense (see below). You can even go to prison if all you did was attempt to dissuade a victim or witness from testifying or making a police report against you or a third party.
FYI, this crime is also occasionally referred to as witness intimidation or witness tampering.
California Statutes Regarding Violent Crimes – Dissuading a Witness or Victim
California Penal Code section 136.1
This is the primary statute covering this offense. It entails you intentionally and malevolently preventing, dissuading, or attempting to prevent or dissuade, a witness or victim from testifying in any legal proceeding or filing a report with any law enforcement official/agent. The latter includes judges and probation officers.
Again, this can either be prosecuted as a misdemeanor or felony. However, if you actually prevented/dissuaded the subject, or attempted to do so, by the use of violence or threat thereof – whether explicit or implicit, then you will definitely be charged with a felony.
You will also definitely be charged with a felony under any of the following circumstances:
you harm or threaten to harm any third person to achieve the dissuasion;
you harm or threaten to steal, damage or destroy your target’s property or that of a third person;
you acted as part of a criminal conspiracy;
you acted on behalf of another person in exchange for money or some other financial consideration;
you promised to pay, or actually paid another person with, money or other consideration to act on your behalf in dissuading the witness or victim; or
you have previously been convicted of a Pen. Code section 136.1 offense.
See Pen. Code section 136.1(c)(4).
California Penal Code § 137(a)
This is a related statute because it involves bribing or attempting to bribe a witness or victim to not testify or report (as opposed to not offering money or financial consideration, or using force or a threat, to achieve that purpose).
The bribe can be in the form of a promise of future payment or consideration. In addition, unlike P.C. § 136.1, this crime will always be charged and prosecuted as a felony.
Alternatively, if you induced or attempted to induce the person to refrain from doing the same – but without the bribe – then you will only face a misdemeanor charge under Pen. Code § 137(c)).
California Penal Code § 137(b)
Another mandatory-felony charge involves the use or threat of violence to force someone to give perjured testimony in a court, to withhold truthful testimony in the same, to make a false police report, or to withhold truthful information in a police report.
California Penal Code section 140(a)
If you intentionally and maliciously retaliate against a victim or witness after he or she testifies or reports – either through violence or theft/destruction of his or her property – then you’ll be charged under this criminal code. Even if you simply threaten to retaliate, you can also be charged under this law.
As with Pen. Code § 136.1, this is a wobbler so you’ll be prosecuted either for a misdemeanor or felony.
Convictions and Sentencing Terms for Violent Crimes – Dissuading a Witness or Victim
California Penal Code section 136.1
If convicted of attempting to dissuade the victim or witness from testifying or reporting, you will receive the following punishment:
up to one year in county jail (misdemeanor or felony);
the same but in state prison (felony only); or
twenty-four, thirty-six, or forty-eight months in prison (felony only – see Pen. Code § 136.1(c)).
Attempts at prevention/dissuasion will fall into one of the first two preceding categories of punishment per Pen. Code § 136.1(b).
Using force or threatening to do so will get you sentenced under the third category. Pen. Code § 136.1(c)(1).
California Penal Code section 137
If you’re convicted of a misdemeanor, at most you’ll face twelve months in the county jail. For felonies, the maximum prison sentences will be two, three, or four years in a penitentiary. Pen. Code § 137(b).
California Penal Code section 140(a)
If you’re convicted of witness or victim retaliation after they testify or report, then you’ll face up to a year in a county facility (misdemeanor or felony), or twenty-four, thirty-six, or forty-eight months in a state penal institution (felony only).
California Penal Code section 1170.15
In a nutshell, this statute states that if you’re convicted of any felony and then are convicted of a second felony for dissuading or bribing the witness or victim from testifying or reporting against you for the initial felony, then the judge will be required to give you at least the middle prison term for the first felony.
Keep in mind, though, that this statute is only applicable if your judge intend to order consecutive prison terms for the two felonies.
See People v. Woodworth, 245 Cal. App. 4th 1473 (2016) at: https://law.justia.com/cases/california/court-of-appeal/2016/f069139.html.
Sentencing Enhancements – “Three Strikes Law”
Pursuant to California Penal Code sections 667 & 1192.7(c)(37), a P.C. § 136.1 violation is explicitly identified as a “strike” crime. This means that if you’ve previously been convicted of a “serious” or “violent felony” (as defined in those statutes), then you’ll now receive an additional five years in prison. If this is a second strike, you’re sentence will be doubled, and if this is your third, you’ll automatically receive twenty-five years to life.
In addition, even if this is your first strike, you’ll still have to serve eighty-five percent of your sentence before you’ll be eligible for parole – even with good behavior.
Sentencing Enhancements – Miscellaneous
All the other typical enhancements will also apply if the circumstances are present; for example:
criminal street-gang enhancement;
inflicting severe injury;
age of the victim (very young or elderly);
personal use of a firearm or dangerous/deadly weapon.
Defenses to Violent Crimes – Dissuading a Witness or Victim
The following can all be effective defenses to the foregoing charges:
you were acting in your capacity as a family member attempting to prevent harm from coming to the witness or victim (e.g., discouraging your daughter from testifying against a Mafioso – see Pen. Code section 136.1(a)(3);
you did not actually use force or make any such threat;
you did make a threat but it wasn’t believable (see Pen. Code § 137(b));
you did make the threat but you didn’t actually intend the purported victim to give false testimony or information, or withhold true testimony or information;
you’re an attorney and, therefore, were privileged to tell your client not to testify based on his/her Constitutional right against self-incrimination – see also Pen. Code § 137(f));
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 2620 (“Using Force or Threatening a Witness Before Testimony or Information Given”) at: https://www.justia.com/criminal/docs/calcrim/2600/2620/;
see also CALCRIM number 2622 (“Intimidating a Witness”) at: https://www.justia.com/criminal/docs/calcrim/2600/2622/.
It bears repeating that an unsuccessful attempt will not serve as a viable defense per Pen. Code § 136.1(d). However, as stated above, it will affect your sentencing (assuming some incarceration is ordered by the judge).
Nor is it a defense if you never actually injured the purported victim/witness.
Examples of Violent Crimes – Dissuading a Witness or Victim – Felonies
Alleged Covina gang member receives more than 60 years for numerous felonies, including murder
According to a press release from the LA County DA’s Office, on or about March 7, 2014, after leaving a party, Covina resident Angel Rojo (age twenty-eight) robbed a woman in West Covina by physically taking one or more personal items from her, then threatened to harm her if she reported him to the police. He then allegedly drove away with a man named Manny Rodriguez and, after driving at an excessive speed (while possibly inebriated), totaled his vehicle, resulting in Rodriguez’s death.
Rojo then allegedly threatened to harm bystanders who witnessed the accident if they, too, called police, then fled on foot.
Minutes later, West Covina PD supposedly arrested him not far from the scene. In mid December 2017, a jury found him guilty of four felonies: dissuading a witness/victim by force or threat of force, preventing/dissuading a witness/victim from reporting a crime, second-degree murder, and hit & run with death.
As a result, five months later (on or about April 18, 2018), the judge gave him sixty-three-to-life, including enhancements for gang activity and felony resulting in severe injury/death.
Three San Diego men are sentenced for 12-hour robbery/kidnapping and threatening with force
On or about February 19, 2015, three San Diego residents – Pat Adams (age twenty-four), Eric Riddle-Rios (twenty-five), and Ryan Urban (same) – allegedly beat up a man in Long Beach and kept him captive for the next twelve hours (although it’s unclear exactly where they did so). During that period, they allegedly struck him with a handgun and used his bank card to withdraw cash from nearby automatic teller machines.
The following morning, at least one of the men allegedly forced the victim to go to a local bank to directly withdraw more money from his account, but somehow managed to alert the teller about his predicament. Shortly thereafter, Long Beach PD arrested all three men.
At the end of July 2018, Adams pled nolo contendre to the following felonies: dissuasion of a witness/victim by force or threat thereof, and assault with a semi-automatic handgun. That same day, Riddle-Rios and Urban also did the same but only to one felony for second-degree robbery and one for assault with a semi-automatic handgun, respectively.
As a result, in early September 2018, Adams was given a seventeen-year prison term, including an enhancement for felony resulting in severe injury and personal use of a firearm during the commission of a felony. Riddle-Rios and Urban both received half-a-dozen years each.
NorCal attorney receives suspended sentence of almost four years for dissuading witness against client
Between 2016 and 2017, authorities alleged that attorney Roland Bennett, a resident of Corning (in Tehama Co., approximately a hundred miles north of Sacramento), had negotiated a pay-off to a witness against one of his clients in a criminal case involving multiple felonies, including aggravated assault. Specifically, the two men allegedly agreed that Bennett’s client would give the witness a large sum of cash and, in exchange, the witness would refuse to further cooperate with the Tehama Co. DA’s Office.
Somehow the DA caught wind of this scheme and had Bennett arrested in mid November 2017. He eventually accepted guilty pleas for two felony counts, both for violation of P.C. § 136.1(a)(1) (dissuasion of witness/victim).
As a result, on or about February 20, 2019, Bennett received a term of three-and-three-quarters years in a California penitentiary. Fortunately for him, however, the sentence was suspended pending successful completion of sixty months’ formal probation, as well as three hundred days in the county lock-up.
Celebrity Cases Involving Violent Crimes – Dissuading a Witness or Victim
Suge Knight’s attorneys indicted for and charged with Witness Tampering and Conspiracy
In 2016, while former Death Row Records rap mogul Suge Knight was awaiting trial on a murder charge (for running over a man with his truck on January 29th, 2015), a jailhouse snitch informed the Sheriff’s Dept. that Knight was conspiring with two of his attorneys, Thad Culpepper and Matt Fletcher, as well as Knight’s girlfriend, to pay-off witnesses in order to bolster Knight’s self-defense claim.
(Knight had allegedly killed Terry Carter during the filming of Straight Outta Compton in the parking lot of a South LA burger joint, and also severely injured actor Cle Sloan in the same incident.)
As a result, LASD detectives applied for, and were granted, wiretaps on Knight’s jailhouse conferences with attorney Fletcher. Based on these recordings, in which Fletcher allegedly told Knight that for twenty-five-thousand dollars one of the witnesses would claim they saw firearms at the scene, the LA Co. DA was able to convince a grand jury to indict the two attorneys in January 2018, which is when they were both arrested.
It remains unclear why it took so long for this to occur but it any event, the attorneys were arrested for witness tampering, various conspiracy charges, and a host of other felonies. Fletcher was also arrested for suspicion of suborning perjury.
In mid March 2018, both attorneys pled not guilty at their arraignment. Oddly, there is apparently no publicly available information about what ultimately happened with these cases, which may very well have ultimately been dismissed. Notwithstanding, if they had been convicted, they could have each faced up to three-and-a-quarter years in a state penitentiary.|
Actor Edward Furlong receives 60 days in jail plus probation for assaulting & threatening girlfriend
On or about November 20, 2011 and January 12, 2012, actor Edward Furlong (Terminator 11: Judgment Day) allegedly assaulted his girlfriend and was therefore arrested for, and charged with, two misdemeanors for domestic violence.
Then, on or about May 20, 2013, Furlong (age thirty-five) allegedly returned to the woman’s WeHo residence, thereby violating a semi-permanent restraining order issued against him following the two prior alleged-battery incidents, and assaulted her a third time.
In addition, he allegedly threatened to (further) harm her if she reported this latest incident to the police, then proceeded to destroy her computer. She apparently ignored the threat, called 9-1-1, and once again had him arrested.
Accordingly, he was charged with the following felonies: dissuading a witness by threat of force, assault with force likely to result in severe injury, and vandalism exceeding four hundred dollars. (The two previous misdemeanors were folded into this latest case, which now added a third misdemeanor for suspicion of violating the R.O.)
If he had gone to trial and lost, he would have received as long as a forty-eight-month term in a state penitentiary.
Fortunately for him, however, on or about July 1, 2013, he took a nolo contendre plea to a single felony of intentionally inflicting corporal injury on his former girlfriend in exchange for dismissal of all other charges. He was immediately sentenced to two months in the county jail, sixty months’ formal probation, three months of drug treatment, and one year of weekly batterer’s intervention therapy sessions. He was also ordered to adhere to a five-year stay-away order.
Example of a Violent Crimes Case – Dissuading a Witness or Victim – Handled by LADALF
People v. C.W.: LADALF founding attorney Ninaz Saffari’s client was a veteran female LAPD detective charged in late January 2016 with felony intimidation of a witness through the use of force or threat of force. As such, she was not only facing prison time – up to four-and-three-quarters years – but the loss of her professional career, income, and hard-earned pension.
Specifically, prosecutors claimed that the client had used her authority as a detective to threaten a lover whom she had met online in June 2014 over personal belongings she wanted returned after they broke up. The purported victim allegedly told police that she had threatened to charge him with domestic violence if he reported the alleged threats to her employer.
The DA’s Office, with support from the LAPD brass, prosecuted this case for years, and with such vehemence that it almost seemed like a personal vendetta. In any event, as always, Ninaz pushed the case aggressively through trial, after which the jury unanimously voted not guilty on dissuading a witness. As you can see below, this case received a lot of local media attention. In the end, the client was able to retire with her full pension.
Starting in 2005, LADALF founding attorney Ninaz Saffari has aggressively pushed to trial virtually every major type of criminal threats case, including dissuasion of witnesses/victims. Because these are often charged as strikes – even if it’s your first strike – she understands all too well the devastating ramifications a conviction can have on your life. Therefore, she will relentlessly attack the prosecution’s case at every step until you receive a deal that too’s good to pass up, or you go to trial, where Ninaz’s superb skills and wealth of experience truly shine.