Is Dissuading a Witness a Felony in California? Penal Code 136.1 Explained
Is Dissuading a Witness a Felony in California?
The short answer: it can be. Dissuading a witness under Penal Code section 136.1 is a wobbler in its basic form, which means the prosecutor can file it as a misdemeanor or a felony, and it becomes a straight felony under subdivision (c) when it involves force, a threat of violence, a conspiracy, a prior conviction, or payment. The felony version is listed as a serious felony under Penal Code section 1192.7, which makes it a strike. The charge is most often added in domestic violence cases after a recorded jail call, a text message, or a message passed through a relative asking the other person not to show up to court, and it frequently carries more exposure than the original charge.
Why this charge surprises people. Most people charged under section 136.1 did not threaten anyone. They called from the Robert Presley Detention Center in Riverside or the West Valley Detention Center in Rancho Cucamonga, said "please just tell them you don't want to press charges," and had no idea the call was recorded and would be played at the Riverside Hall of Justice or the San Bernardino Justice Center. Prosecutors in Riverside County, San Bernardino County, Los Angeles County, and Orange County treat these calls as witness tampering, and they file the charge to protect the underlying case. Understanding the elements is the first step in defending it, and so is reading our guide on whether a victim can drop domestic violence charges.
What the Prosecutor Must Prove Under Penal Code 136.1
Subdivision (a) protects testimony. Under Penal Code section 136.1, subdivision (a), the prosecutor must prove beyond a reasonable doubt that (1) the defendant knowingly and maliciously prevented or dissuaded, or attempted to prevent or dissuade, (2) a person who was a witness or a victim, (3) from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. Penal Code section 136 defines a witness broadly to include anyone who has knowledge of a crime or has reported it, and defines "malice" to include an intent to injure or annoy or to thwart the administration of justice.
Subdivision (b) protects reporting and prosecution. Under subdivision (b), the prosecutor must prove that the defendant attempted to prevent or dissuade a victim or witness from (1) making a report of the crime to any peace officer, prosecutor, probation officer, or judge, (2) causing a complaint, indictment, or information to be sought and prosecuted and assisting in that prosecution, or (3) arresting or causing or seeking the arrest of any person in connection with the crime. This is the subdivision used for the "don't go to court" and "tell them it didn't happen" calls, and courts have held that it does not require proof of malice, as the Court of Appeal explained in People v. Navarro (2013) 212 Cal.App.4th 1336.
Subdivision (c) adds the aggravating facts. Under subdivision (c), the offense becomes a felony when the act was (1) accompanied by force or by an express or implied threat of force or violence against the witness, the victim, or their property or family, (2) in furtherance of a conspiracy, (3) committed by a person previously convicted under the section, or (4) committed for financial gain or at the request of another person for money. A threat does not have to be stated outright, and "you know what happens if you go to court" can be enough for a jury to find an implied threat.
The attempt is the crime. Section 136.1 punishes the attempt the same as the completed act. The witness does not have to actually skip court or change a statement, and the fact that the witness testified anyway is not a defense. The Court of Appeal in People v. Wahidi (2013) 222 Cal.App.4th 802 held that an ambiguous request can satisfy the statute when the surrounding circumstances show the defendant intended to discourage the witness from participating, which is why the full context of the call or message matters so much.
How Jail Calls and Text Messages Become a 136.1 Charge
Every jail call is recorded. Calls from the Robert Presley Detention Center, the Cois Byrd Detention Center in Murrieta, the West Valley Detention Center, the High Desert Detention Center in Adelanto, and the Los Angeles County jails are recorded and begin with a warning. Detectives and prosecutors in domestic violence units routinely pull the calls made in the first 48 hours after an arrest for corporal injury under Penal Code section 273.5 or domestic battery under Penal Code section 243, subdivision (e)(1), looking for exactly this conduct.
Text messages and social media count too. A text that says "if you love me you won't testify," a direct message asking a friend to talk to the witness, or a relative who passes along a request can all support a charge. We explain how your text messages can be used against you in a separate guide. Contact through a third party is still contact, and it is also a violation of any criminal protective order already in place.
The protective order makes it worse. At the first court date in a domestic violence case the judge issues a criminal protective order under Penal Code section 136.2 on form CR-160, usually ordering no contact at all. A call asking the witness not to come to court then supports both a section 136.1 charge and a violation of the order under Penal Code section 273.6 or Penal Code section 166. Judges in the Victorville courthouse, the Southwest Justice Center, and the Central Justice Center in Santa Ana treat contact in violation of a protective order as a reason to raise or revoke bail.
The forfeiture-by-wrongdoing rule. If the prosecution can show that the defendant caused the witness to be unavailable, Evidence Code section 1390 allows the witness's earlier statements to come in even though the witness is not in court to be cross-examined. The United States Supreme Court recognized the same doctrine in Giles v. California (2008) 554 U.S. 353, requiring proof that the defendant intended to prevent the testimony. In other words, a successful attempt to keep the witness away can hand the prosecutor the witness's statements to the police and the 911 call without the confrontation protections of Crawford v. Washington (2004) 541 U.S. 36.
Penalties for Dissuading a Witness in California
The misdemeanor range. When subdivisions (a) or (b) are charged as a misdemeanor, the maximum is up to one year in county jail. Misdemeanor section 136.1 charges are often resolved alongside the underlying domestic violence case, with probation, a protective order, and the terms discussed in our guide to how probation works in California.
The felony range. When subdivisions (a) or (b) are charged as a felony, the sentence is state prison, which under Penal Code section 18 means 16 months, two, or three years because section 136.1 does not specify a felony term. When subdivision (c) applies, the sentence is two, three, or four years in state prison. A felony conviction under section 136.1 is a serious felony under Penal Code section 1192.7, subdivision (c), which means it counts as a strike for any future felony and adds five years to a future serious felony sentence under Penal Code section 667, subdivision (a). That strike consequence is often the most important fact in the case, and it is the reason the felony-versus-misdemeanor decision deserves a fight at the filing stage and at the preliminary hearing.
Related charges. Prosecutors sometimes file Penal Code section 137 for offering a bribe or using fraud to influence testimony, Penal Code section 140 for threatening a witness after the witness has testified or reported, and Penal Code section 422 for criminal threats when the message included a threat of violence. Stalking under Penal Code section 646.9 is also added when the contact was repeated.
Collateral Consequences of a 136.1 Conviction
Immigration. A conviction for dissuading a witness is treated by immigration authorities as a crime involving moral turpitude in many cases, and a felony conviction with a sentence of a year or more can be charged as an aggravated felony relating to obstruction of justice. Non-citizens must receive accurate advice before any plea under Padilla v. Kentucky (2010) 559 U.S. 356 and Penal Code section 1016.3, and the plea structure matters enormously.
Firearms. A felony conviction results in a lifetime California firearm prohibition under Penal Code section 29800, and a misdemeanor conviction for a domestic violence offense in the same case triggers the bans discussed in our guide to owning a gun after a domestic violence conviction.
Custody and family court. A finding that a parent tried to keep the other parent from testifying is powerful evidence in a custody case and in a domestic violence restraining order hearing. Our guides to how a domestic violence arrest affects child custody and our child custody practice page explain the Family Code section 3044 presumption that follows a domestic violence finding.
Professional licenses and employment. A witness intimidation conviction is a crime of dishonesty in the eyes of most licensing boards, including nursing, real estate, security, and teaching credentials, and it appears on background checks as obstruction. Felony convictions can sometimes be reduced later under Penal Code section 17, subdivision (b), and dismissed under Penal Code section 1203.4, but avoiding the conviction is far better than cleaning it up.
Defenses to a Dissuading a Witness Charge
No intent to dissuade. The statute requires that the defendant intended to keep the witness from testifying, reporting, or assisting. A call that says "I'm sorry, I miss you, I hope we can work this out" is not a request to stay away from court, even though prosecutors sometimes charge it that way. Under Wahidi the context decides, so the defense builds the context: the whole call, the relationship, and what was actually asked.
The statement was not about the case. Asking a spouse to come home, to bring the kids to visit, or to talk to a lawyer about dropping a civil restraining order is different from asking them not to cooperate with the prosecution. The defense examines whether the request was directed at the proceeding at all.
No malice under subdivision (a). Subdivision (a) requires malice, and a request made out of fear, confusion, or a desire to reconcile is not necessarily malicious. Subdivision (b) does not require malice under Navarro, so the defense strategy depends on which subdivision is charged, and that is a point we raise at the filing stage and in a motion to dismiss after the preliminary hearing.
No threat under subdivision (c). When the felony is based on an implied threat, the defense tests whether a reasonable person would have understood the words as a threat of force. A frustrated "you're ruining my life" is not a threat of violence. If the threat allegation fails, the charge may drop to a wobbler and then to a misdemeanor.
The person was not a witness or victim. The statute protects witnesses and victims as defined in Penal Code section 136. Asking a friend who knows nothing about the incident to stop posting about it is not dissuading a witness.
Unlawful search or involuntary statement. Messages pulled from a phone without a warrant or valid consent can be suppressed under Penal Code section 1538.5, and statements taken in custody without warnings under Miranda v. Arizona (1966) 384 U.S. 436 can be excluded. We review every source of the evidence, and we remind clients what not to say to police and detectives who call "just to get your side."
How These Cases Move Through Court in Southern California
Filing and arraignment. Prosecutors decide whether to file section 136.1 as a misdemeanor or a felony based on the words used, any threat, the defendant's record, and whether the witness was actually deterred, which is part of what prosecutors look at before filing charges. At arraignment the court addresses bail, and a new charge of contacting the witness is a common reason judges deny release or add conditions under In re Humphrey (2021) 11 Cal.5th 135. Our guide to how bail works in San Bernardino County explains the hearing.
Diversion is limited. Misdemeanor diversion under Penal Code section 1001.95 excludes several domestic violence offenses, so whether a misdemeanor section 136.1 count qualifies depends on the specific charges filed and the judge, and the prosecutor's objection does not control. Mental health diversion under Penal Code section 1001.36 may be available when a qualifying diagnosis played a role.
Negotiation and trial. Because the felony is a strike, the most common negotiated outcomes involve reducing section 136.1 to a misdemeanor, dismissing it in exchange for a plea on the underlying count, or substituting a non-strike offense. Whether to accept any offer depends on the strength of the recording and the context, which is the analysis in our guide on whether to take a plea deal. When the recording is ambiguous, these cases are winnable at a jury trial.
High Desert and Inland Empire cases. Domestic violence and witness intimidation cases from Hesperia, Victorville, Apple Valley, and Adelanto are heard at the Victorville courthouse, cases from Barstow at the Barstow courthouse, and cases from the San Bernardino valley at the San Bernardino Justice Center. Riverside County cases go to the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, or the Larson Justice Center in Indio depending on where the offense occurred. Confirm the assignment on the court's current website. Our Hesperia, Victorville, and Riverside criminal defense pages describe how we handle cases in each court.
Frequently Asked Questions
Is dissuading a witness a felony or a misdemeanor in California?
It can be either. Penal Code section 136.1, subdivisions (a) and (b), are wobblers that the prosecutor may file as a misdemeanor punishable by up to one year in county jail or as a felony punishable by state prison, generally 16 months, two, or three years under Penal Code section 18. Under subdivision (c), the charge is a straight felony punishable by two, three, or four years when it involves force, a threat, a conspiracy, a prior conviction, or payment.
Is dissuading a witness a strike in California?
The felony version is. A felony conviction under Penal Code section 136.1 is a serious felony under Penal Code section 1192.7, subdivision (c), so it counts as a strike under California's three strikes law and can add five years to a future serious felony sentence under Penal Code section 667. A misdemeanor conviction is not a strike.
Can I be charged for asking my spouse to drop the charges?
Yes. Asking a victim or witness not to report, not to cooperate with the prosecution, or not to come to court can be charged under Penal Code section 136.1, subdivision (b), even without any threat, and the request does not have to succeed. If a criminal protective order is in place, the contact is also a violation of Penal Code section 273.6 or Penal Code section 166.
Are jail phone calls really used as evidence?
Yes, routinely. Calls from county jails in Riverside, San Bernardino, Los Angeles, and Orange County are recorded, and domestic violence prosecutors pull them specifically to look for requests not to testify. The calls are usually admissible as the defendant's own statements, and a call that causes the witness to disappear can also allow the witness's earlier statements into evidence under Evidence Code section 1390.
What if the witness testified anyway?
It is still a crime. Penal Code section 136.1 punishes the attempt the same as a completed act, so the fact that the witness came to court is not a defense. The defense instead focuses on whether the statement was actually a request to stay away, whether the required intent existed, and whether any threat was made.
Do I need a lawyer for a Penal Code 136.1 charge?
Yes. The felony version is a strike with prison exposure, and the misdemeanor version carries immigration, firearm, licensing, and custody consequences. Daniel Gramling, Esq. offers flat-fee criminal defense for witness intimidation and domestic violence cases so you know the cost before you decide.
Talk to a Criminal Defense Lawyer About a 136.1 Charge
Gramling Law Group defends dissuading a witness and domestic violence cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, the Rancho Cucamonga and Victorville courthouses, and the criminal courts of Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you can get the recording reviewed and the charging decision challenged early. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
We defend witness intimidation and domestic violence cases in Riverside, San Bernardino, and Hesperia, and across the Inland Empire. If a restraining order is also involved, see our domestic violence restraining order defense page.
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