Penal Code 136.1 makes it a crime to knowingly and maliciously prevent or dissuade a witness or victim from testifying, or from reporting a crime.
It is a wobbler — and any felony conviction is a “strike” under PC 1192.7(c)(37), with no force-or-threat requirement.
What PC 136.1 Says
PC 136.1 covers knowingly and maliciously preventing or dissuading (or attempting to prevent or dissuade) a witness or victim from attending or testifying at a proceeding, or from reporting a crime or seeking the arrest of the person who committed it. The knowing and malicious requirement is key — an honest conversation or a genuine misunderstanding is not this crime.
Wobbler and Strike
PC 136.1 is a wobbler: a misdemeanor carrying up to one year in county jail, or a felony. Under subdivision (c) it becomes a felony when it is accompanied by force or an express or implied threat, done as part of a conspiracy, or for money. But strike status does not turn on subdivision (c): a felony conviction for dissuading a witness or victim under PC 136.1 is a serious felony “strike” under PC 1192.7(c)(37), which lists “intimidation of victims or witnesses, in violation of Section 136.1” — the whole section, with no force-or-threat requirement. Where 136.1 is charged and convicted as a misdemeanor, it is not a strike. Keeping the case out of felony territory altogether — not just out of (c) — is often the whole fight.
Defenses
- Not knowing or malicious. Asking a family member how they feel about a case, or a genuine misunderstanding, is not dissuading a witness.
- No force or threat — which keeps the case out of the automatic-felony category under subdivision (c). It does not by itself avoid strike exposure: any felony 136.1 conviction, under any subdivision, is a strike under PC 1192.7(c)(37) — so keeping the case a misdemeanor is the goal.
- No attempt to prevent testimony or a report — the statement did not aim at the proceeding.
- False or exaggerated allegation. These charges are common add-ons in domestic cases.
Frequently Asked Questions
Is dissuading a witness a felony in California?
PC 136.1 is a wobbler. As a misdemeanor it carries up to one year in county jail. A felony conviction for dissuading a witness or victim under PC 136.1 is a 'serious felony' and a strike under PC 1192.7(c)(37), which lists 'intimidation of victims or witnesses, in violation of Section 136.1' — the whole section, with no force-or-threat requirement. Subdivision (c) makes certain aggravated conduct — force or a threat, done as part of a conspiracy, or for money — a felony rather than a wobbler, but strike status applies to any felony 136.1 conviction, not just those under subdivision (c). Where 136.1 is charged and convicted as a misdemeanor, it is not a strike.
What does the prosecution have to prove under PC 136.1?
That you knowingly and maliciously prevented or dissuaded, or tried to prevent or dissuade, a witness or victim from attending or testifying at a proceeding, or from reporting a crime. An honest conversation or genuine misunderstanding does not meet the 'knowing and malicious' standard.
Can talking to a witness be a crime?
Only if it is done knowingly and maliciously to prevent them from testifying or reporting a crime. Asking a family member how they feel, or a genuine misunderstanding, is not dissuading a witness — the statute requires knowing and malicious conduct.
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Ahmed S. Hasan
San Francisco Criminal Defense Attorney · State Bar of California #364992
Ahmed S. Hasan is the founder of ASH Legal, a solo criminal defense practice based in San Francisco. The firm runs on flat-fee representation: one lawyer, one fee, from arraignment through resolution. No hourly billing. No surprise invoices.
Ahmed is a graduate of Emory University School of Law and a member in good standing of the State Bar of California (Bar #364992). His practice focuses on San Francisco misdemeanor defense — DUI, domestic violence, petty theft and shoplifting, drug possession, vandalism, trespassing, and assault and battery — with particular attention to diversion-track outcomes that end in dismissal under PC 1001.95, PC 1001.36 (Mental Health Diversion), PC 1001.80 (Military Diversion), and PC 1001.83 (Parental Caregiver Diversion).
Ahmed previously served as a post-bar clerk with the San Francisco Public Defender's Office, the city's largest indigent-defense practice. He is a member of the Asian Pacific American Bar Association of Silicon Valley.
He represents clients at the San Francisco Hall of Justice (850 Bryant Street) and the Civic Center Courthouse. The ASH Legal office is at 15 Boardman Place, Suite 301, San Francisco, CA 94103.
Free 30-minute consultations are available by phone or Zoom. (510) 545-6515 · ahmed@ashlegal.com