laanimalfriends.eponym.com/blog/_archives/2006/8/3/2196047.html LA's Animal Friends Blogger Mary Cummins vs LA City - What is the definition of "Witness Tampering?"
The City of Los Angeles and the LA City Attorney's office now have at least 25 potential witnesses willing to step forward, or answer subpoenas to speak out against Mary Cummins of Animal Advocates frivolous lawsuit for wrongful termination. These are people from all walks of life who know ALL ABOUT Mary Cummins and do not want her to practice her treachery and intimidation EVER again against LAAS employees, volunteers and the city's homeless animals.
Two days ago, Mary Cummins (posting in that idiotic alias Ann Angeleno or AnnAngeleno) had her "article" stripped down from LA Voice. The site now says that the post "has been deleted because of alleged copyright infringement and missappopriation of identities. We're keeping an eye out for any further attempts to hijack this site." Maybe former LA Voice Publisher Mack Reed--who was harassed by Mary Cummins and had his wife defamed by Mary Cummins ON HIS OWN BLOG--contacted the new publishers when he realized AnnAngeleno is a fake name and also that Cummins had the temerity to post one item in his name.
But we digress. Today we were contacted by Mary Cummins victims who post to the closed blog http://mary-cummins.blogspot.com. Many were concerned about Mary Cummins latest post to her wacko lying blog http://laanimalfriends.eponym.com, as there are many nasty emails now posted there.
On her blog, Animal Advocates' Mary Cummins now admits to speaking about ALF-like actions against decent citizens, some of whom aren't even in the humane community. She admits her knowledge of a proposed campaign of terror against HER critics by posting flyers and contacting their neighbors and to multiple trips to LAPD to get these citizens arrested. FOR WHAT? For figuring out what a nut she is! That is right folks! Deputy Mayor Jim Bickhart's girlfriend Mary Cummins did this AND MORE, all the while Jim Bickhart was sponsoring and defending his girlfriend Mary Cummins, disgracing the Mayor, the City of Los Angeles, his position. Jim Bickhart acted with total disregard for the citizens of Los Angeles and to the detriment of all.
Moreover, the witnesses expressed concerns that Mary Cummins, who is A KNOWN EMAIL FORGER, spammer and computer identity thief, would continue on this path AGAINST THE CITY'S POTENTIAL WITNESSES with the possible result of terrifying or disuading the city's witnesses against testifying in this case by using her infamous Mary Cummins nonsense, lies, defamation, libel, slander, harassment, contacting their employers, families and friends, DEFAMING their employers, families and friends, fabricating emails, fabricating false criminal records and threats to have her detractors fired and/or arrested (ALL KNOWN MARY CUMMINS TOOLS).
Is this witness tampering? We honestly don't know. However, one of the City's key potential witnesses had his attorneys fax over this definition this morning. We are posting it, without making any comments to how the content pertains to Mary Cummins latest crazy posts on http://laanimalfriends.eponym.com. You will have to go there and read them for yourself. And we will continue to take information--as well as monitor the tides in cyberspace--for the brave folks who have decided to speak out about this bogus Mary Cummins lawsuit that is packed with lies and inaccuracies.
Other avenues worth exploring in the context of this case:
Board of Animal Services Commissioner Kathleen Riordan learned from Mary Cummins that she was planning to sue LA City and Ed Boks in early March, 2007. Kathleen Riordan expressed her delight about the proposed Mary Cummins lawsuit against Mr. Boks to witnesses who balked at the idea. They declared to Kathleen Riordan that they would go forward in defense of the city. One day later they informed Kathleen Riordan that they had indeed promised other city officials of their intention to give declarations and court testimony on behalf of The City of Los Angeles in what they felt was a frivilous lawsuit.
At that point, Kathleen Riordan and Jim Bickhart fed personal information (including conversations Kathleen Riordan had had with the witnesses under the guise of "friendship") and emails from several of these declared witnesses to Mary Cummins, which appeared as distortions of the truth to harass abuse and libel these witnesses in emails from Mary Cummins to said potential city witnesses, their friends, employers and family members, and on Mary Cummins' various libelous and abusive blogs. Does this fit the definition of "witness tampering" or "conspiracy" as set forth by the state and federal codes cited below? Again, we don't know. We will be keeping a close watch on this situation, presenting the facts as they come available and then leaving it up to the courts to decide.
(And due to the fact that some of these witnesses have been libeled and harassed by Mary Cummins friend Edward Muzika, we will also keep an eye out for potential interference with city witnesses on Muzika's blog @ http://laanimalwatch.blogspot.com.)
Meanwhile, here is the California statute regarding WITNESS TAMPERING...(the Federal definition follows below
West's Ann.Cal.Penal Code § 136.1
West's Annotated California Codes Currentness
Penal Code (Refs & Annos)
Part 1. Of Crimes and Punishments
Title 7. Of Crimes Against Public Justice
Chapter 6. Falsifying Evidence, and Bribing, Influencing, Intimidating or Threatening Witnesses (Refs & Annos)
§ 136.1. Intimidation of witnesses and victims; offenses; penalties; enhancement; aggravation
(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.
(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.
(2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in connection with that victimization.
(c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances:
(1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.
(2) Where the act is in furtherance of a conspiracy.
(3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section.
(4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony.
(d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section.
(e) Nothing in this section precludes the imposition of an enhancement for great bodily injury where the injury inflicted is significant or substantial.
(f) The use of force during the commission of any offense described in subdivision (c) shall be considered a circumstance in aggravation of the crime in imposing a term of imprisonment under subdivision (b) of Section 1170.
CREDIT(S)
(Added by Stats.1980, c. 686, p. 2076, § 2.1. Amended by Stats.1982, c. 1098, p. 3997, § 1; Stats.1990, c. 350 (S.B. 2054), § 10; Stats.1997, c. 500 (S.B.940), § 1.)
HISTORICAL AND STATUTORY NOTES
1999 Main Volume
The 1982 amendment added subds. (e) and (f).
The 1990 amendment rewrote subd. (a), which had provided:
"(a) Except as provided in subdivision (c), every person who knowingly and maliciously prevents or dissuades or attempts to so prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law is guilty of a misdemeanor."
Stats.1997, c. 500, in subds. (a) and (b), in the first paragraph, substituted "public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison" for "misdemeanor"; in subd. (a), added par. (3), relating to family members; and made nonsubstantive changes.
Section 4 of Stats.1997, c. 500 (S.B.940), provides:
"This act shall become operative only if Assembly Bill 856 [Stats.1997, c. 507] of the 1997-98 Regular Session is enacted and becomes effective on or before January 1, 1998 [so enacted and effective]."
Derivation: Former § 136, enacted 1872, amended by Stats.1967, c. 1094, p. 2735, § 1; Stats.1976, c. 1125, p. 5035, § 13.7; Stats.1976, c. 1139, p. 5092, § 119; Stats.1979, c. 944, p. 3252, § 1.
CROSS REFERENCES
Criminal gang activity, engaging in acts punishable under this section, see Penal Code § 186.22.
Deadly weapon, intent to use to commit violation of this section, see Penal Code § 136.5.
Multiple felony convictions, including attempt to dissuade witness, see Penal Code § 1170.15.
Punishment for misdemeanor, see Penal Code §§ 19, 19.2.
Willfully defined, see Penal Code § 7.
Witnesses,
Generally, see Penal Code § 1321 et seq.
Compelling attendance, see Penal Code § 1326 et seq.; Code of Civil Procedure § 128; Military and Veterans Code § 460.
Conditional examination, see Penal Code § 1335 et seq.
Contempt, see Code of Civil Procedure § 1991 et seq.
Definition, see Code of Civil Procedure § 1878.
Rights and duties, see Code of Civil Procedure §§ 2064, 2065.
LAW REVIEW AND JOURNAL COMMENTARIES
Civil restraining orders for domestic violence: The unresolved question of "efficacy". 11 S.Cal.Interdisciplinary L.J. 361 (2002).
Eighth Amendment rediscovered. Stanley Mosk. 1 Loy.L.A.L.Rev. 4 (1968).
Third party consent to police searches. (1967) 2 San Fern.V.L.Rev. 141.
LIBRARY REFERENCES
1999 Main Volume
Obstructing Justice 4.
Westlaw Topic No. 282.
C.J.S. Obstructing Justice or Governmental Administration §§ 9, 16, 17.
Cal Digest of Official Reports 3d Series, Obstructing Justice §§ 1 et seq.
RESEARCH REFERENCES
ALR Library
119 ALR, Federal 319, What Constitutes "Violent Felony" for Purpose of Sentence Enhancement Under Armed Career Criminal Act (18 U.S.C.A. § 924(E)(1)).
8 ALR 4th 769, Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Influencing, Intimidating, or Tampering With Witness.
169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged.
62 ALR 136, Evidence as to Threats Made to Keep Witness Away from Criminal Trial.
48 ALR 746, What Constitutes Offense of Obstructing or Resisting Officer.
Encyclopedias
CA Jur. 3d Contempt § 10, Interruption Of, or Interference With, Judicial Proceedings.
Cal. Jur. 3d Criminal Law: Crimes Against Justice § 594, Preventing or Dissuading Attendance, Testimony, or Other Acts of Witness or Victim.
Cal. Jur. 3d Criminal Law: Crimes Against Justice § 595, Preventing or Dissuading Attendance, Testimony, or Other Acts of Witness or Victim--Orders Issuable.
CA Jur. 3d Criminal Law: Post-Trial Proceedings § 185, Felony Committed for Benefit Of, or at Direction Of, or in Association With, Criminal Street Gang.
CA Jur. 3d Criminal Law: Post-Trial Proceedings § 324, Subsequent Offense Against Witness or Victim.
CA Jur. 3d Criminal Law: Post-Trial Proceedings § 378, Violent Crimes Involving Firearms.
Cal. Jur. 3d Criminal Law: Pretrial Proceedings § 764, Limitations.
Cal. Jur. 3d Criminal Law: Rights of the Accused § 212, Scope of Right.
CA Jur. 3d Delinquent and Dependent Children § 216, Offenses Creating Presumption of Unfitness.
Treatises and Practice Aids
California Jury Instructions - Criminal, 6th Ed. 7.14, Intimidation of Witness.
California Jury Instructions - Criminal, 6th Ed. 7.15, Intimidation of Witness by Force or Fear--Furtherance of Conspiracy.
Rutter, Cal. Practice Guide: Prof. Responsibility Ch. 8-D, D. Restrictions on Speech and Behavior Outside Courtroom.
Simons California Evidence Manual § 2:113, Forfeiture by Wrongdoing.
Restatement (3d) of Law Governing Law § 116, Interviewing and Preparing a Prospective Witness.
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 6, Preventing or Dissuading Person from Testifying or Reporting Crime.
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 8, Threat of Force by Convicted Felon.
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 10, Orders and Sanctions.
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 12, (S 12) Inducing Witness to Give False or Withhold True Testimony.
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 30, (S 30) Offenses Constituting Contempt.
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 39, Bribery to Prevent Attendance.
2 Witkin Cal. Crim. L. 3d Crimes Against Peace Welf § 25, (S 25) Participation in Gang.
1 Witkin Cal. Crim. L. 3d Criminal Elements § 34, (S 34) Miscellaneous Solicitation Statutes.
3 Witkin Cal. Crim. L. 3d Punishment § 174, (S 174) Intimidating Witness.
3 Witkin Cal. Crim. L. 3d Punishment § 313, (S 313) Crimes Against Victim or Witness.
3 Witkin Cal. Crim. L. 3d Punishment § 336, Violent Felonies.
3 Witkin Cal. Crim. L. 3d Punishment § 342, (S 342) Statutory Provisions.
3 Witkin Cal. Crim. L. 3d Punishment § 506, (S 506) Personal Use of Firearm.
2 Witkin Cal. Evid. 4th Witnesses § 28, In General.
7 Witkin Cal. Proc. 4th Trial § 212, (S 212) Assisting Witness to Evade Subpena.
NOTES OF DECISIONS
In general 1
Attorney-client privilege 11
Capital murder, aggravating circumstance 10.5
Construction with other law 1.5
Contempt 5
Evidence, generally 6
Felony offenses 2.5
Instructions 9
Intent 4
Interpreting threats 3
Multiple punishment, sentence and punishment 10
Nature and elements of offense 2
Review 12
Search and seizure 7
Weight and sufficiency of evidence 8
Wobbler offense 3.5
1. In general
Attempt to influence the victim's testimony at a preliminary hearing was not unlawful attempt to dissuade a witness from making a "report" of victimization to any law enforcement officer or to any judge; other statutory provisions addressing attempts to influence testimony indicated that charged offense was intended to apply to reports, rather than testimony. People v. Fernandez (App. 2 Dist. 2003) 131 Cal.Rptr.2d 358, 106 Cal.App.4th 943. Obstructing Justice 1
Misdemeanor intimidation of witness was lesser included offense within felony offense of intimidation by force or threat. People v. Brenner (App. 2 Dist. 1992) 7 Cal.Rptr.2d 260, 5 Cal.App.4th 335. Indictment And Information 191(.5)
There is no requirement that defendant must say "Don't testify" or words tantamount thereto in order to commit offense of threatening witness, as long as his words or actions support the inference that he sought to prevent or dissuade potential witness from attending upon trial or attempting by threat or force to induce a person to withhold testimony. People v. Thomas (App. 2 Dist. 1978) 148 Cal.Rptr. 52, 83 Cal.App.3d 511. Obstructing Justice 4
1.5. Construction with other law
All felony violations of Penal Code section prohibiting intimidation of victims or witnesses were "serious felonies" within the meaning of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, rather than just those violations involving force or threat of force or violence, and therefore defendant's conviction under the intimidation statute was a serious felony that justified imposition of a five-year enhancement; such an interpretation of Proposition 21 was consistent with the language of both the intimidation statute and Proposition 21, with the legislative aid to statutory construction, with a reading of the provision of Proposition 21 in the context of the entire statutory scheme, and with the intent of the voters to expand the list of serious felonies and make them subject to increased penalties. People v. Neely (App. 2 Dist. 2004) 22 Cal.Rptr.3d 274, 124 Cal.App.4th 1258, review denied. Sentencing And Punishment 66
2. Nature and elements of offense
Trying to dissuade a victim from reporting a crime is itself a crime, which can be either a misdemeanor or felony; if the perpetrator tried to dissuade by using force or the threat of force, it is a felony. People v. Ortiz (App. 2 Dist. 2002) 124 Cal.Rptr.2d 92, 101 Cal.App.4th 410, rehearing denied, review denied. Obstructing Justice 1
There is no talismanic requirement that defendant must say 'Don't testify' or words tantamount thereto, to commit offense of attempting to dissuade witness by express or implied threat of force or violence; defendant is properly convicted as long as words or actions support inference that he attempted by threat of force to induce person to withhold testimony. People v. Mendoza (App. 2 Dist. 1997) 69 Cal.Rptr.2d 728, 59 Cal.App.4th 1333. Obstructing Justice 4
2.5. Felony offenses
A wobbler offense charged as a felony is regarded as a felony for all purposes until imposition of sentence or judgment; if state prison is imposed, the offense remains a felony, and if a misdemeanor sentence is imposed, the offense is thereafter deemed a misdemeanor. People v. McElroy (App. 3 Dist. 2005) 24 Cal.Rptr.3d 439, 126 Cal.App.4th 874, review denied. Criminal Law 27
Defendant was properly charged with feloniously dissuading a witness or victim without the necessity for an allegation of the element of force or fear; the absence of defendant's use of force or fear did not make the wobbler offense a misdemeanor, and when the trial court imposed state prison sentence, defendant was properly convicted of a felony. People v. McElroy (App. 3 Dist. 2005) 24 Cal.Rptr.3d 439, 126 Cal.App.4th 874, review denied. Criminal Law 27
3. Interpreting threats
Defendant's threat made at time of commission of crime, to effect that defendant would blow victim's house up if she told anyone about what had happened, did not fall within this section; threat was not broad enough to encompass violation of this section. People v. Hallock (App. 5 Dist. 1989) 256 Cal.Rptr. 264, 208 Cal.App.3d 595, review denied. Obstructing Justice 4
Statement by defendant to witness, who had turned state's evidence after latter had finished testimony at preliminary hearing, that "you punk, we'll get you, you've got kids," could properly have been interpreted as a warning or threat not to testify in future for purposes of conviction of attempting to prevent witness from testifying by means of threat, rather than merely retaliation for testimony defendant had already given at preliminary hearing. People v. Ford (App. 5 Dist. 1983) 193 Cal.Rptr. 684, 145 Cal.App.3d 985. Obstructing Justice 4
3.5. Wobbler offense
Three-year felony statute of limitations, rather than one year misdemeanor statute of limitations, applied to charged "wobbler" offenses of inflicting corporal injury on a spouse, dissuading a witness, and causing injury to a phone line, even though offenses were originally charged as misdemeanors. People v. Sillas, 2002, 123 Cal.Rptr.2d 340, 100 Cal.App.4th Supp. 1. Criminal Law 147
4. Intent
Instructing jury that intimidation of a victim is a general intent crime was harmless error where defendant's threatening statements, during which he said, "don't testify, man" and "I'll do whatever I have to, man," unambiguously demonstrated an explicit intent to dissuade witness from testifying and a threat of some form of reprisal. People v. Jones (App. 2 Dist. 1998) 79 Cal.Rptr.2d 258, 67 Cal.App.4th 724. Criminal Law 1172.1(3)
Felony of using force or threat to prevent or dissuade or attempt to prevent or dissuade witness from testifying requires specific intent to keep witness from giving any testimony. People v. Womack (App. 2 Dist. 1995) 47 Cal.Rptr.2d 76, 40 Cal.App.4th 926. Obstructing Justice 4
Offense of preventing or dissuading witness or victim from testifying or from doing other enumerated acts is specific intent crime; defendant's acts must be intended to achieve further consequence of affecting or influencing potential witness' or victim's testimony or acts. People v. McDaniel (App. 2 Dist. 1994) 27 Cal.Rptr.2d 306, 22 Cal.App.4th 278. Obstructing Justice 4
Crime of threatening victim or witness is specific intent crime. People v. Brenner (App. 2 Dist. 1992) 7 Cal.Rptr.2d 260, 5 Cal.App.4th 335. Obstructing Justice 4
Statute prohibiting defendant from dissuading or attempt to dissuade victim from testifying against him defines a specific intent crime. People v. Lyons (App. 3 Dist. 1991) 1 Cal.Rptr.2d 763, 235 Cal.App.3d 1456, review denied, denial of habeas corpus affirmed 26 F.3d 131, certiorari denied 115 S.Ct. 588, 513 U.S. 1021, 130 L.Ed.2d 501. Obstructing Justice 4
Trial court's erroneous instruction that crime of attempting to dissuade victim from testifying against defendant by threat of force or violence constituted general intent crime was harmless error, even though crime is specific intent crime, where jury could not sensibly have applied general intent instruction to elements of crime without concluding that to convict defendant it was required to find that he acted with intent that victim not testify. People v. Lyons (App. 3 Dist. 1991) 1 Cal.Rptr.2d 763, 235 Cal.App.3d 1456, review denied, denial of habeas corpus affirmed 26 F.3d 131, certiorari denied 115 S.Ct. 588, 513 U.S. 1021, 130 L.Ed.2d 501. Criminal Law 1172.1(3)
5. Contempt
Trial court's finding that petitioner, member of state bar, who was held in contempt for interference with court's orderly business and aiding her husband to evade service of process which caused substantial delay in trial, was flagrantly assisting her husband in attempt to avoid service of subpoena was supported by substantial evidence. Matter of Holmes (App. 2 Dist. 1983) 193 Cal.Rptr. 790, 145 Cal.App.3d 934. Contempt 60(3)
6. Evidence, generally
Testimony concerning threats made to witness in criminal prosecution was nonhearsay as to witness where offered on credibility issue raised by witness' retraction of identification of defendant as perpetrator of crime. People v. Brooks (App. 2 Dist. 1979) 151 Cal.Rptr. 606, 88 Cal.App.3d 180. Witnesses 331.5
Though, at trial of juvenile, witness recanted to a degree, his testimony that juvenile had said to him "Don't tell no lie on him" or "Don't tell no law on him" or "Stay out of his way," together with witness' previous statement to police officer concerning threats of juvenile to kill witness if he testified, provided substantial evidence to support finding that juvenile did in fact attempt to improperly dissuade witness from testifying. Matter of Michael T. (App. 2 Dist. 1978) 149 Cal.Rptr. 87, 84 Cal.App.3d 907. Infants 176
7. Search and seizure
Lawful arrest on charge of threatening witness did not justify seizure of sun roof, rearview mirrors and luggage rack which defendant sought to suppress in prosecution for receiving stolen property. Wilder v. Superior Court of Tulare County (App. 5 Dist. 1979) 154 Cal.Rptr. 494, 92 Cal.App.3d 90. Arrest 71.1(5)
8. Weight and sufficiency of evidence
There was sufficient evidence to support defendant's conviction for dissuading a victim, where he forcefully prevented his live-in girlfriend from calling the police to report her victimization of domestic violence. People v. McElroy (App. 3 Dist. 2005) 24 Cal.Rptr.3d 439, 126 Cal.App.4th 874, review denied. Obstructing Justice 16
The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying. People v. Young (2005) 24 Cal.Rptr.3d 112, 34 Cal.4th 1149, 105 P.3d 487, certiorari denied 126 S.Ct. 57, 163 L.Ed.2d 86. Obstructing Justice 4
In prosecution for dissuading witnesses by force or threat, probative value of testimony of defendant's former attorney, that defendant told attorney that defendant would kill witnesses if he was not successful in bribing them, was not substantially outweighed by its prejudicial effect. People v. Dang (App. 2 Dist. 2001) 113 Cal.Rptr.2d 763, 93 Cal.App.4th 1293, review denied. Criminal Law 343
Defendant's statements to witness, that she had "fucked up his brother's testimony," and that he was "going to talk to some guys from [their gang]," supported conviction for attempting to dissuade witness by express or implied threat of force or violence; although defendant claimed that statements referred to witness's past testimony at preliminary hearing and not her upcoming testimony at defendant's brother's murder trial, jury could find that words were not only expression of dissatisfaction with witness's past testimony but were also an attempt to prevent her from giving any further damaging testimony in the future. People v. Mendoza (App. 2 Dist. 1997) 69 Cal.Rptr.2d 728, 59 Cal.App.4th 1333. Obstructing Justice 4
9. Instructions
Trial court improperly omitted, from its jury instruction on offense of trying to dissuade a victim from reporting a crime, requirement that defendant have used or threatened force against victim, where defendant was charged with such offense as felony rather than as misdemeanor. People v. Ortiz (App. 2 Dist. 2002) 124 Cal.Rptr.2d 92, 101 Cal.App.4th 410, rehearing denied, review denied. Obstructing Justice 18
Trial court's erroneous failure to instruct jury, in prosecution for felony trying to dissuade a victim from reporting a crime, as to element of offense requiring that defendant have used or threatened force against victim, was harmless, where uncontradicted testimony at trial indicated that defendant dissuaded victim from going to police by warning him, "If you want to live, shut up . . . [i]f you want to die, speak[]"; no reasonable jury could have decided defendant uttered such statements and yet have viewed such statements as not threatening force. People v. Ortiz (App. 2 Dist. 2002) 124 Cal.Rptr.2d 92, 101 Cal.App.4th 410, rehearing denied, review denied. Criminal Law 1173.2(2)
Failing to instruct, sua sponte, that crime of threatening victim or witness is specific intent crime was error. People v. Brenner (App. 2 Dist. 1992) 7 Cal.Rptr.2d 260, 5 Cal.App.4th 335. Criminal Law 824(1)
Trial court had no sua sponte obligation to instruct jury on lesser included offense of misdemeanor intimidation of witness during prosecution for felony offense of intimidation by force or threat where only relevant evidence was defendant's alleged statement was that if victim called police, defendant would kill him; if jury believed defendant there was neither felony offense nor lesser included misdemeanor offense established. People v. Brenner (App. 2 Dist. 1992) 7 Cal.Rptr.2d 260, 5 Cal.App.4th 335. Criminal Law 824(3)
Failing to instruct that crime of threatening victim or witness was specific intent crime was harmless error where defendant's statement that if victim called police, defendant would kill him was plainly made for purpose of preventing victim from calling police. People v. Brenner (App. 2 Dist. 1992) 7 Cal.Rptr.2d 260, 5 Cal.App.4th 335. Criminal Law 1173.2(2)
Crime of preventing or dissuading witness or victim from testifying involves continuous course of conduct, and thus prosecutor is not required to elect which particular acts are being charged, and court is not required to give unanimity instruction. People v. Salvato (App. 1 Dist. 1991) 285 Cal.Rptr. 837, 234 Cal.App.3d 872, review denied. Criminal Law 678(1); Criminal Law 798(.7)
Instructional error in charging jury on subd. (a) of this section which encompassed only threats designed to prevent witness from testifying at trial, rather than subd. (b) of this section dealing with threats designed to prevent witness or victim from reporting crime did not prevent retrial of defendant on latter charged offense, where there was sufficient evidence presented to convict defendant of that offense, and thus retrial would not violate double jeopardy principles. People v. Hallock (App. 5 Dist. 1989) 256 Cal.Rptr. 264, 208 Cal.App.3d 595, review denied. Double Jeopardy 108
Fact that evidence was sufficient to convict defendant of witness intimidation if jury had been properly instructed on appropriate subdivisions of this section did not prevent instructional error from being prejudicial where defendant's conduct did not fall within subdivision of this section included in instructions; instruction itself was incomplete because it failed to include threat against property as basis for conviction, and jury was also erroneously instructed on soundness of mind and was not instructed on definition of "knowingly and maliciously." People v. Hallock (App. 5 Dist. 1989) 256 Cal.Rptr. 264, 208 Cal.App.3d 595, review denied. Criminal Law 1172.1(3); Obstructing Justice 18
10. Multiple punishment, sentence and punishment
Defendant's convictions for making terrorist threat and attempting to dissuade witness by express or implied threat of force or violence were based on same words and actions and were both incident to same objective, and thus, he could not be separately punished for both convictions, as his terrorist threat could only be considered incidental to primary objective of dissuading victim from testifying at his brother's upcoming trial. People v. Mendoza (App. 2 Dist. 1997) 69 Cal.Rptr.2d 728, 59 Cal.App.4th 1333. Sentencing And Punishment 526
10.5. Capital murder, aggravating circumstance
Jury could consider unadjudicated crimes of child endangerment, witness intimidation, and weapon possession while in custody as aggravating circumstances during the penalty phase of a capital murder prosecution; defendant allegedly threw his child three to four feet, that act involved violence, and defendant's alleged threats to kill former wife if she reported the child-throwing incident involved the threat of violence. People v. Prieto (2003) 133 Cal.Rptr.2d 18, 30 Cal.4th 226, 66 P.3d 1123, rehearing denied, certiorari denied 124 S.Ct. 542, 540 U.S. 1008, 157 L.Ed.2d 416. Sentencing And Punishment 1707
Penalty phase instructions read together adequately informed jury that the unadjudicated crime of witness intimidation occurred only if defendant prevented or dissuaded a witness from reporting a crime to the authorities, even though one instruction required only the specific intent to prevent or dissuade another person from reporting any victimization. People v. Prieto (2003) 133 Cal.Rptr.2d 18, 30 Cal.4th 226, 66 P.3d 1123, rehearing denied, certiorari denied 124 S.Ct. 542, 540 U.S. 1008, 157 L.Ed.2d 416. Sentencing And Punishment 1780(3)
11. Attorney-client privilege
In prosecution for dissuading witnesses by force or threat, evidentiary rule exempting certain communications from the scope of the attorney-client privilege applied to allow defendant's former attorney to testify that defendant told attorney that defendant would kill witnesses if he was not successful in bribing them. People v. Dang (App. 2 Dist. 2001) 113 Cal.Rptr.2d 763, 93 Cal.App.4th 1293, review denied. Witnesses 201(2)
12. Review
In prosecution for dissuading witnesses by force or threat, defendant preserved for appellate review contention that testimony from his former attorney, that defendant told him that he would kill witnesses if he was not successful in bribing them, was more prejudicial than probative; defense counsel made an oblique reference to governing evidentiary rule, and trial court indicated that it understood defendant raised the issue and that it was overruled. People v. Dang (App. 2 Dist. 2001) 113 Cal.Rptr.2d 763, 93 Cal.App.4th 1293, review denied. Criminal Law 1043(1)
West's Ann. Cal. Penal Code § 136.1, CA PENAL § 136.1
FEDERAL CODE
18 U.S.C. § 1512
The federal criminal statute governing witness tampering is 18 U.S.C. § 1512. It does not apply to proceedings in state court, where most expert evidence implicated by medical society rules on expert testimony would be offered. State law governs witness tampering in state proceedings, and it may differ in points of detail from the federal regime, and from jurisdiction to jurisdiction. We are mainly concerned, however, with the general policies animating both state and federal legislation in this category, and with the means typically employed to promote those policies. Section 1512 will therefore serve as a suitable exemplar.
Relevant provisions from section 1512 include subsections (b) through (f).
Subsection (b)
Pertinent language from subsection (b) includes the following:
(b) Whoever knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to –
(1) influence, delay or prevent the testimony of any person in an official proceeding; [or]
(2) cause or induce any person to –
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; . . .
shall be fined under this title or imprisoned not more than ten years, or both.
Certain of the terms used in subsection (b) are defined in 18 U.S.C. § 1515. The term “official proceeding” includes civil litigation in federal court. The term “corruptly persuades” does not include “conduct which would be misleading conduct but for a lack of a state of mind.”
The AAEM rules on expert testimony are manifestly implicated by this provision, inasmuch as the rules exist entirely for the purpose of “influencing” testimony in civil proceedings (or preventing it altogether, at least in the case of witnesses not meeting the rules’ criteria on qualifications). Whether the AAEM rules also satisfy the statute’s criteria for “intimidation,” “threat[s],” “corrupt[] persua[sion],” or “misleading conduct” will be addressed later – as will the question whether measures taken in abstract contemplation of future, unidentified cases should count as involving any “official proceeding” for purposes of triggering the statute.
Subsection (c)
Subsection (c) provides:
(c) Whoever corruptly –
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
For present purposes, the distinction between subsections (b) and (c) would seem subtle. Almost by definition, one who has influenced testimony in a proceeding by intimidating, threatening, or corruptly persuading a witness (as subsection (b) already proscribes) has also “corruptly” obstructed, influenced, or impeded the proceeding itself (as subsection (c) forbids). Subsection (c)(2), however, also sweeps in conduct that corruptly obstructs, influences, or impedes a proceeding, even if that conduct would not count as intimidating, threatening, or corruptly persuading a witness.
Subsection (d)
Pertinent portions of subsection (d) provide:
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from –
(1) attending or testifying in an official proceeding; . . .
or attempts to do so, shall be fined under this title or imprisoned not more than one year, or both.
This sweeps “harassment” into the arena of prohibited conduct, insofar as the harassment involves an intentional attempt to hinder, dissuade, or prevent a witness from testifying.
Subsection (e)
Subsection (e) provides:
(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.
Subsection (e) makes purity of intent a defense. Mere professions of innocent intent, however, obviously do not confer immunity. Whether the “sole intention” of the actor’s conduct was to promote truthful testimony is a question of fact, and one to which the surrounding circumstances and the actor’s methods may be relevant.
Subsection (f)
Subsection (f) provides:
(f) For the purposes of this section –
(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and
(2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.
Under subsection (f)(1), it is not a defense that no proceeding was pending or imminent at the time of the offense. From a policy standpoint, this is eminently sensible. It has no less deleterious an effect on the administration of justice, if potential witnesses are threatened or intimidated before judicial proceedings are even in preparation. Indeed, witness tampering at that early stage may exert especially pernicious effects, by successfully preventing the subject matter of potential proceedings from ever coming to light in the first place. The statute’s mens rea requirements may demand that the actor have undertaken his conduct with the potential for official proceedings in view. But that is another matter.
A “harmless tampering” defense might also be imagined, in which the offender seeks exoneration on the theory that the evidence he sought to suppress would not have been admissible in any event. Subsection (f)(2) bars such a defense. Thus if a criminal defendant threatens to break the knees of the prosecution’s polygrapher if the polygrapher testifies, the defendant has violated the witness tampering statute even though the trial court may well exclude the polygrapher’s testimony anyway for want of reliability under Daubert.
Arthur Andersen LLP v. United States
Last year, the Supreme Court shed some light on section 1512(b)’s “corruptly persuades” language, and on the sort of nexus required between the offender’s conduct and “official proceedings,” in Arthur Andersen LLP v. United States, 125 S. Ct. 2129 (2005). We will turn to that topic in part 4.
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