What does PC 136.1 witness intimidation require, and what is the penalty?

Penal Code 136.1 makes it a crime to knowingly try to stop a witness or victim from testifying, reporting a crime, helping a prosecution, or seeking an arrest, even if the attempt fails. A basic violation can be a misdemeanor or felony; done maliciously with force or threats, a conspiracy, a prior conviction, or payment, it is a felony carrying two, three, or four years in prison.

What the prosecution must prove under PC 136.1

Penal Code section 136.1 has two main branches. Subdivision (a) covers knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade, a witness or victim "from attending or giving testimony at a trial, proceeding, or inquiry authorized by law." Subdivision (b) covers attempting to prevent or dissuade a crime victim or witness from any of three things:

• Making a report of the crime to a peace officer or other law enforcement officer, a probation, parole, or correctional officer, a prosecuting agency, or a judge.
• Causing a complaint, indictment, information, or probation or parole violation "to be sought and prosecuted, or assisting in the prosecution thereof."
• Arresting, or causing or seeking the arrest of, a person in connection with the crime.

For every branch, CALCRIM No. 2622, the standard jury instruction (revised February 2026), requires proof that the person targeted was a witness or crime victim and that the defendant "knew" he or she was trying to prevent or discourage that person "and intended to do so." Malice is an added element under subdivision (a). Penal Code section 136(1) defines it as "an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice." The California Supreme Court noted in People v. Reynoza (2024) that subdivision (b)(2) has no malice requirement like the one in subdivision (a), and CALCRIM's authority notes cite People v. Brackins (2019) for the rule that malice is not required under subdivision (b).

Two more rules widen the statute. A witness includes anyone who knows facts relating to a crime, has reported a crime, or has been served with a subpoena, and anyone a reasonable person would believe fits one of those descriptions (section 136(2)). And under section 136.1(d), an attempt is treated the same as a completed act: "The fact that no person was injured physically, or in fact intimidated, is not a defense against prosecution under this section."

When PC 136.1 becomes a straight felony: subdivision (c)

Subdivision (c) turns a violation of (a) or (b) into a felony with two, three, or four years in state prison when the act is done "knowingly and maliciously" and one of four circumstances applies:

• 136.1(c)(1): the act "is accompanied by force or by an express or implied threat of force or violence, upon a witness, victim, or any third person or the property of a victim, witness, or any third person." CALCRIM's notes cite People v. Johnson (2022) for the point that a third person does not include the defendant.
• 136.1(c)(2): the act is in furtherance of a conspiracy.
• 136.1(c)(3): the defendant has a prior conviction under section 136.1, a predecessor law, or a comparable federal or other-state statute.
• 136.1(c)(4): the act is committed for pecuniary gain or other consideration at someone else's request. The statute adds: "All parties to the transaction are guilty of a felony."

Because subdivision (c) requires malice even when the underlying act falls under subdivision (b), CALCRIM No. 2623 has the jury decide the subdivision (c) allegation separately, including malice when it has not already been found, and the prosecution must prove the allegation beyond a reasonable doubt. Under section 136.1(f), the use of force in a subdivision (c) offense is a circumstance in aggravation when the court chooses the prison term.

PC 136.1 penalties and strike consequences

A felony conviction under section 136.1 is on the serious felony list in Penal Code 1192.7(c)(37), "intimidation of victims or witnesses, in violation of Section 136.1," so it can count as a strike in a later case under the Three Strikes law. It is a violent felony under Penal Code 667.5(c)(20) only when the threats would also constitute a felony violation of the gang statute, section 186.22. When a felony 136.1 count was committed against the victim of, or a witness to, another felony the person is also convicted of, Penal Code 1170.15 makes any consecutive term for the dissuasion count the full middle term rather than the usual one third of it.

Because subdivisions (a) and (b) are wobblers, a felony conviction without a subdivision (c) circumstance may be eligible for reduction to a misdemeanor under Penal Code 17(b). A subdivision (c) conviction, a straight felony, is not.

Contact with a witness while your case is pending

Once a criminal case is open, the court can restrict contact before any dissuading charge exists. On "a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur," Penal Code 136.2(a)(1) lets the court order a defendant not to violate section 136.1, or to have "no communication whatsoever" with a specified witness or victim except through an attorney under reasonable restrictions. A willful and knowing violation of that order is a separate misdemeanor under Penal Code 166(c)(1), punishable by up to 364 days in county jail, a fine of up to $1,000, or both; see violating a protective order.

Timing also matters under subdivision (b)(2). In People v. Reynoza (2024), the California Supreme Court held that the former wording, which reached dissuading a victim or witness from causing a charge "to be sought and prosecuted, and assisting in the prosecution thereof," did not support a conviction based only on dissuading someone from assisting in the prosecution after the charging document was filed. Assembly Bill 535 (2025) changed "and" to "or," effective January 1, 2026, and the Legislative Counsel's Digest describes the change as "expanding the scope of a crime." For conduct on or after that date, asking a victim or witness to stop helping a prosecution after charges are filed can fall under subdivision (b)(2), and an attempt to keep a witness from attending or testifying at a proceeding is addressed by subdivision (a) regardless of timing.

The safer course is to route any necessary contact through counsel. A defense lawyer or investigator can ask to interview an alleged victim, who may decline; see whether your lawyer can interview the alleged victim and how to preserve evidence without contacting the complaining witness.

Questions a PC 136.1 defense can raise

• Intent. The instruction requires proof that the defendant knew he or she was trying to discourage the person and intended to do so, so the exact words, their context, and their timing are central, especially for ambiguous messages.
• Malice under subdivisions (a) and (c). Without an intent to vex, annoy, harm, or injure, or to interfere with the administration of justice, a subdivision (a) or (c) theory fails. Under section 136.1(a)(3), evidence that the defendant was a family member who interceded to protect the witness or victim "shall create a presumption that the act was without malice."
• Which branch and which date. Each branch targets a different step: testimony, a report, a charge or prosecution, or an arrest. The conduct has to fit the branch charged, and for subdivision (b)(2) conduct that occurred before January 1, 2026, the former wording that Reynoza interpreted may control.
• The subdivision (c) circumstance. Force or a threat, a conspiracy, a qualifying prior, or payment must be proved beyond a reasonable doubt. If the jury finds it not proved, CALCRIM's notes say the offense is set at the level of the lesser subdivision (a) or (b) offense.

How PC 136.1 differs from related witness crimes

• Penal Code 137 covers bribing a witness to influence testimony or information, and using force, threats, or fraud to induce false testimony or the withholding of true testimony or information.
• Penal Code 140 covers force or threats against a witness, victim, or other person because that person already gave assistance or information to law enforcement or a prosecutor, punishable by up to 364 days in county jail or two, three, or four years under section 1170(h).
• Penal Code 166(c)(1) covers violating the protective order itself, even when no attempt to dissuade is proved.

For a pending PC 136.1 charge, see the Law Offices of David S. Chesley's witness intimidation defense page.