Penal Code 136.5: Possession of a Deadly Weapon for the Purposes of Intimidating a Witness Laws in California

I. PC 136.5: Possession of a Deadly Weapon for the Purposes of Intimidating a Witness

Legal Definition:  “Any person who has upon his person a deadly weapon with the intent to use such weapon to commit a violation of Section 136.1 is guilty of an offense punishable by imprisonment in the county jail for not more than one year, or in the state prison.”

To be found guilty under PC 136.5 the prosecution must prove that you:

1. You had upon your person a deadly weapon;

AND

2. You intended to use the deadly weapon to intimidate a witness under PC 136.1.

II. What does this mean?

A deadly weapon can be obvious items such as a firearm or a knife, but it can also be something as simple as a bottle or a broom. There is no specific definition in California of what a deadly weapon, but it is typically based on the facts of each case. A broom, or a bat, if used in a way to attack another, can be considered a deadly weapon.

This criminal charge essentially expands upon a person who commits the crime of Intimidating a Witness but does this with a deadly weapon. You must also have intended to use the deadly weapon on you, to intimidate another person. In other words, having a firearm or other deadly weapon on you, is not enough for this charge, if you lack the intent to intimidate the witness with that deadly weapon.

III. Penalties

A violation under PC 136.5 is a wobbler offense in California. This means you can be charged with this section as a misdemeanor or as a felony offense. Whether you are charged with a felony or a misdemeanor is based on your criminal history and the specific facts of your case. If you are convicted of this charged as a felony, you could be sentenced to State Prison for up to 16 months, 2 or 3 years. If you are convicted of this section as a misdemeanor you could be sentenced to up to one year in County Jail. You would have to serve at least 50% of that time in custody. You would also lose your ability to own or possess a firearm for a misdemeanor conviction in California. This is a lifetime ban if this is a felony conviction.

This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you could face Deportation in Immigration Court since this crime is a crime of moral turpitude.

IV. Common Defenses

1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence
4. Coerced Confessions

You cannot be convicted under this section if you lack the intent to commit the crime. As mentioned, this requires you intentionally using the deadly weapon to commit the crime of intimidating a witness. If you simply are armed with a deadly weapon, but don’t use it, or do not use it in order to intimidate a witness, you cannot be found guilty under this section. Failing to show intent, would mean there is insufficient evidence to prove you guilty of the charge.

Generally speaking, a person who confesses to a crime that is forced out of them by police conduct, it would be inadmissible to be used against them in Court. This makes logical sense, if the police force a confession out of a person illegally, it should not be able to be brought into Court to be used against them. Generally, this can happen during police interrogations where police, believing they have their person, do whatever it takes to make you confess. They can do this through physical abuse or psychological abuse. If police coerce you into confessing to this charge, your Ontario Criminal Defense Attorney can argue this defense, to throw out the confession in your case. This will not dismiss your case, but can strongly push the DA in your case to dismiss if they lack other evidence of you committing this crime.

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