As a matter of law, the evidence could not sustain convictions for preventing or dissuading a report to law enforcement (Pen. Code, § 136.1(b)(1)), where the witnesses had reported the criminal conduct to law enforcement prior to the defendant suggesting the witnesses lie. After discharging a firearm out of a bathroom window while his two children were home, defendant was charged with negligent discharge of a firearm and felony child endangerment. While in jail, defendant spoke with his two children by phone multiple times, encouraging them to lie and say they never saw a firearm. The prosecutor filed an amended information adding counts of attempting to dissuade a witness from reporting a crime (§ 136.1(b)(1)), and attempting to dissuade a witness from reporting a crime by force or fear (§ 136.1(c)(1)), along with other charges. For these counts, the jury was only instructed on the elements of section 136.1(a), preventing witnesses from testifying in court. Defendant was convicted and appealed. Held: Dissuading witness counts reversed. Section 136.1, subdivisions (b)(1) and (c)(1) involve preventing a witness or victim from reporting a crime to police. The facts here were insufficient to support a conviction under subdivisions (b) and (c). Common usage of the word “report” does not necessarily include “testimony.” Instead, making a report of victimization under subdivision (b)(1) means notifying the authorities that the crime has occurred and providing the account of the event that made someone a victim. Subdivision (b)(1) contains no specificity as to the timing of the report, and could include reports of a new victimization pre- or postarrest. But subdivision (b)(1) does not pertain to a supplemental or a follow up report in which details are simply confirmed or reviewed. [Editor’s Note: The following issue is currently pending in the California Supreme Court in People v. Reynoza (2022) 75 Cal.App.5th 181, review granted 5/11/2022 (S273797/H047594) (the court distinguished Reynoza in this case): Does Penal Code section 136.1, subdivision (b)(2), which prohibits dissuading or attempting to dissuade a victim or witness from causing a charging document “to be sought and prosecuted, and assisting in the prosecution thereof,” encompass attempts to dissuade a victim or witness after a charging document has been filed?]
As a matter of law, the evidence cannot sustain convictions for preventing or dissuading witness testimony (Pen. Code, § 136.1(a)(2)), where the defendant suggested that the witnesses testify, but lie. The People asserted, in the alternative, that the facts support a conviction under section 136(a)(2) based on defendant’s attempts to dissuade his children from testifying at the preliminary hearing or trial. Since defendant was charged pursuant to subdivision (b), but the jury was instructed on a violation of subdivision (a), the court examined the sufficiency of the evidence as to both charges. Subdivision (a)(2) involves preventing or dissuading witnesses from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. In the conversations between defendant and his children, he did not attempt to dissuade their testimony, but instead attempted to get them to lie. This aligns with Penal Code section 137(c), which penalizes knowingly inducing another person to give false testimony or withhold true testimony. Section 136.1 is not a catch-all provision designed to punish efforts to improperly influence a witness.