Dissuading A Witness Can Be Proved By Asking A Victim “Can We Settle This Case Out Of Court”

Defendant was charged in criminal court of various assault type offenses. The day before his preliminary hearing, he approached witness Kahn after prayer services at Kahn’s mosque, apologized for the incident, and asked whether they could settle the matter out of court “in a more Muslim manner family to family.” Defendant was found guilty of assault with a deadly weapon, vandalism, and misdemeanor attempting to dissuade a witness. He claimed on appeal there was insufficient evidence of dissuading a witness.

The Appeals Court Justices Opined that Penal Code section 136.1, subdivision (a) requires that the attempt to dissuade a witness from testifying be knowing and malicious. Given the facts—that Kahn had never previously seen defendant at his mosque until the day before the preliminary hearing and defendant was asking him not to testify, the “knowing” element was met. As for malice, section 136 defines it to include an intent to “thwart or interfere in any manner with the orderly administration of justice.” This means that section 136.1, subdivision (a)(2) makes it a crime to attempt to prevent a witness from testifying when the attempt is made with knowledge and the intent to prevent the testimony. While this may appear to write the word “maliciously” out of the statute, a review of the legislative history of sections 136 and 136.1, reflects the Legislature intended a broad interpretation of “maliciously” which can be proved either in the traditional sense (intent to vex, annoy, harm or injure) or in a manner unique to the statute (to thwart or interfere in any manner with the orderly administration of justice).

Cases such as this in Long Beach generally involve allegations of Gang involvement, the District Attorney takes these kind of crimes very serious and will strive to get a conviction in criminal court. (Resources from CCAP)

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