California Witness Dissuasion Offers an Immigration-Safe Alternative Disposition, Especially in Domestic Violence Cases
A plea to simple witness dissuasion, in violation of California Penal Code § 136.1(b), does not trigger deportation under any ground, at least if there is no sentence imposed of one year or more in custody, whether or not execution is suspended. See generally N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005) (updated monthly on www.NortonTooby.com.
There may well be a factual basis for a plea to this offense in many domestic cases. For example, the defendant may have urged his wife: “Honey, please don’t call the cops.” Even if there is no factual basis, it may be possible to enter a plea of nolo contendere without admitting factual guilt, under People v. West (1970) 3 Cal.3d 595.
This statute punishes anyone who “attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime” from making a police report, filing a charge and assisting the prosecution, or seeking an arrest. There is no requirement of any malice or violence in connection with this subdivision. This conviction should not be considered a crime involving moral turpitude. It involves no malice or other culpable mental state. Compare Penal Code § 136.1(a). See People v. Upsher, 155 Cal.App.4th 1311, 1320 (2007). It should not be considered a crime of violence, because it involves no element of force and includes non-violent verbal persuasion. Ibid. Compare Penal Code § 136.1(c). It does not trigger any other conviction-based ground of deportation. The only possible exception is that it might be considered to be an obstruction of justice aggravated felony, under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S), but only if a sentence of one year or more imprisonment is imposed (whether or not execution is suspended). To protect against this possibility, it is safer to enter a plea to dissuading someone from filing a police report, a violation of Penal Code § 136.1(b)(1), because that cannot be considered interference with an ongoing judicial proceeding. See Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892-93 (BIA 1999); Salazar-Luviano v. Mukasey, 551 F.3d 857, 862-63 (9th Cir. 2008). See also Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), replacing 532 F.3d 949 (9th Cir. 2008). Failing that, leave the record of conviction vague as to the subdivision (e.g., (1), (2), or (3)) to take advantage of the burden of proof on the government to show deportability and the minimum-conduct rule.
This offense is punishable as an alternative felony-misdemeanor by a state prison sentence of 16 months, two or three years, or by up to a year in the county jail. It is also a strike. Penal Code § 1192.7(c)(37). (Note: it is not a strike under the alternative statute, Penal Code § 667.5(c)(20), unless a gang enhancement is found true.) This means that upon a new conviction of any felony, the strike prior may be pleaded and proved, and, if found true, will double any state prison sentence imposed for the new offense. This feature makes this alternative disposition more attractive to certain prosecutors, who may be more willing to agree to vacate a deportable disposition, and allow the defendant to plead guilty to this alternative knowing that if the defendant suffers a new felony conviction, the prison sentence would be doubled, providing a greater incentive toward law-abiding behavior in the future. This alternative felony-misdemeanor can still be reduced to a misdemeanor upon successful completion of probation, under Penal Code § 17(b)(3). This reduction, however, would not eliminate its consideration as a strike prior if the defendant is convicted of a new felony. Penal Code § 667(d)(1). But the offense, after reduction, would be a misdemeanor for all other purposes, including immigration purposes. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).