CA Penal Code 136.1: Dissuading or Intimidating a Witness

California Penal Code 136.1 makes it a crime to prevent or discourage a victim or witness from taking part in the justice system, whether by talking them out of reporting a crime, pressuring them not to cooperate with prosecutors, or trying to keep them off the stand. The offense reaches completed acts and failed attempts alike. Depending on how it is charged, a conviction can mean up to a year in county jail, or two to four years in state prison with a strike on your record.

What the Statute Prohibits

The law splits the prohibited conduct into two groups. The first covers anyone who knowingly and maliciously prevents or tries to prevent a victim or witness from attending or testifying at any trial, hearing, or other legal proceeding.¹

The second group covers attempts to stop a victim or witness from:

Reporting a crime to police, prosecutors, probation or parole officers, or a judge.
Helping pursue criminal charges, an indictment, or a probation or parole violation.
Arresting or helping to arrest anyone connected to the crime.

Explicit threats are not required. Emotional pressure, repeated requests, and other forms of persuasion can qualify if the purpose is to keep the person from cooperating.¹

Attempts Count the Same as Success

Subdivision (d) says a person who attempts any of the prohibited conduct is guilty “without regard to success or failure of the attempt.” The prosecution does not have to prove the witness was actually scared, deterred, or even aware of what you did. A failed effort carries the same charge as one that worked.¹

What the Prosecution Has to Prove

The required mental state depends on which part of the statute the charge sits under, and the difference is significant.

Subdivision (a): Knowingly and Maliciously

For charges based on preventing or discouraging testimony at a proceeding, the prosecution must prove the defendant acted “knowingly and maliciously.” Knowingly means aware the other person was a victim or witness. Maliciously means intending to interfere with the justice system or to vex, annoy, or harm the other person. Both have to be there.²

Subdivision (b): No Malice Required

For charges based on discouraging someone from reporting a crime, helping a prosecution, or seeking an arrest, California courts have held that malice is not a separate element. The defendant still has to have specifically intended to prevent the person from participating, but a malicious motive on top of that is not necessary. The Court of Appeal confirmed the distinction in People v. Brackins (2019).³

That makes subdivision (b) charges easier to bring. Someone who leans on a family member to stay quiet about a crime out of a desire to keep things private, not out of hostility, can still be charged if the purpose was to prevent a report. Good intentions are not a defense when the goal is to keep someone from going to police.

When PC 136.1 Becomes an Automatic Felony

The basic offense under subdivisions (a) and (b) is a wobbler, meaning prosecutors can file it as either a misdemeanor or a felony. Subdivision (c) removes that discretion and makes the offense a straight felony punishable by two, three, or four years in state prison when any of these circumstances apply:¹

The defendant used force, or made an express or implied threat of force or violence against the witness, victim, any third person, or their property.
The act was carried out as part of a conspiracy.
The defendant has a prior conviction under this statute, a predecessor law, or an equivalent federal or out-of-state law.
The defendant acted for money or other consideration at someone else’s request. In that arrangement, every party is guilty of a felony.

That last category catches more people than expected. Paying someone to “have a conversation” with a witness before trial exposes both the person who pays and the person who does the talking to an automatic felony.

Penalties

PC 136.1 does not set specific fine amounts, so the default fine provisions under Penal Code 672 control.⁴

Misdemeanor

A misdemeanor conviction carries up to one year in county jail and a maximum fine of $1,000.¹ The court may also impose probation with conditions such as stay-away orders or community service in place of jail time.

Felony

A straight felony under subdivision (c) carries two, three, or four years in state prison and a maximum fine of $10,000.¹⁴ A wobbler under (a) or (b) filed as a felony carries a state prison sentence and the same $10,000 maximum fine.

The Strike Consequence

A felony conviction under PC 136.1 is a “serious felony” under Penal Code 1192.7(c)(37), which means it counts as a strike.⁵ A first strike doubles the prison term on any future felony. A second strike can trigger a sentence of 25 years to life.⁶ The strike often matters more than the immediate sentence, because it follows the defendant into every future encounter with the criminal system.

Defenses That Work

Lack of Intent or Mistake of Fact

Because the statute requires specific intent, a defendant who genuinely did not know the other person was a witness or victim has a real defense. Under CALCRIM 3406, a defendant is not guilty if they lacked the required mental state because they reasonably did not know or reasonably misunderstood a key fact. If the conduct would have been lawful under the facts as honestly and reasonably believed, the crime is not established.

Someone who asks a friend not to “get involved in other people’s business” without knowing the friend witnessed a crime, for instance, is in a very different position from someone who knew exactly what the friend saw. The belief has to be reasonable; a claim that strains credulity will not carry the defense.

Protected Speech

Not every statement that upsets a witness is criminal intimidation. The First Amendment protects speech that falls short of a “true threat.” In Watts v. United States (1969), the Supreme Court held that political hyperbole is protected even when it sounds alarming. In Counterman v. Colorado (2023), the Court held that convicting someone based on threatening speech requires proof that the speaker had at least a reckless awareness that the recipient would perceive the words as threatening.⁷

Venting about a court case, expressing frustration publicly, or urging someone to tell the truth are generally protected. The line is crossed when speech is aimed at a specific person with the purpose of preventing their participation and would be understood as threatening by a reasonable person. Heated social media posts sit in a gray area prosecutors evaluate case by case.

Encouraging Truthful Testimony

Asking a witness to tell the truth is not a crime, even if the truth helps you. The statute targets efforts to prevent participation or induce dishonesty, not lawful requests for accurate testimony. The line between “tell the truth” and “reconsider what you saw” can be thin, so how the conversation happened matters enormously.

Protective Orders for Victims and Witnesses

Victims and witnesses do not have to wait for a conviction to get protection. Under Penal Code 136.2, a court in a criminal case can issue a protective order whenever there is good cause to believe that intimidation or harm has occurred or is likely to occur.⁸

Available protections include:

No-contact orders prohibiting any communication with the victim or witness, except through counsel.
Explicit orders directing the defendant, or anyone else in the courtroom including subpoenaed witnesses, not to violate PC 136.1.
Orders directing a law enforcement agency to protect the victim, witness, or immediate family members living in the same household or nearby.
Full protective orders shielding victims of violent crime from all contact by the defendant.

Related Statutes That Often Ride Along

PC 136.1 is part of a cluster of witness-protection laws, and charges under one sometimes accompany charges under another.

Penal Code 137 covers bribing a witness or using force to induce false testimony. Where PC 136.1 targets efforts to prevent participation, PC 137 targets efforts to corrupt the testimony itself. Bribery under that statute is a straight felony; using threats to induce false testimony carries two, three, or four years in prison.⁹

Penal Code 139 applies to defendants who have already been convicted of certain felonies and then threaten a victim or witness from that case with force or violence. Penalties mirror the two-to-four-year range under PC 136.1(c), and a second conviction triggers consecutive prison terms. Being incarcerated at the time of the threat is not a defense: threats made from jail or prison are fully prosecutable.¹⁰

Federal law (18 U.S.C. § 1512) covers witness tampering in federal proceedings, with substantially harsher penalties: up to 20 years for intimidation or corrupt persuasion, up to 30 years when physical force is used or attempted, and penalties matching those for murder if the tampering involves a killing. Federal charges may apply alongside or instead of state charges when the underlying case involves a federal investigation.¹¹

1
California Legislative Information. California Code PEN 136.1 – Intimidating a Witness or Victim
2
California Legislative Information. California Penal Code 136.1
3
Justia. CALCRIM No. 2622 – Intimidating a Witness
4
California Legislative Information. California Penal Code 672
5
California Department of Corrections and Rehabilitation. Definition of Serious Felony Offenses
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California Legislative Information. California Penal Code 1192.7
7
Constitution Annotated. True Threats
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California Legislative Information. California Penal Code 136.2
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California Legislative Information. California Penal Code 137
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California Legislative Information. California Penal Code PEN 139
11
Office of the Law Revision Counsel. 18 USC 1512 – Tampering With a Witness, Victim, or an Informant