Offense
Nonviolently try to persuade a witness or victim not to file a police report
Aggravated Felony (AF)
Get 364 days or less to avoid an AF as obstruction of justice.1Cordero-Garcia v. Garland, 105 F.4th 1168 (9th Cir. 2024).
This applies to all convictions under 136.1(a), (b), or (c).
See Advice.
Not an AF as a COV.
Crime Involving Moral Turpitude (CIMT)
Under Ninth Cir law, 136.1(b)(1) (as well as (a)(1)) is not a CIMT.2The Ninth Circuit held that the minimum conduct to commit § 136.1(a), “knowingly and maliciously” preventing or dissuading a witness or victim from participating in a trial, proceeding, or inquiry, is not categorically a CIMT. Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017), citing cases like People v. Wahidi (2013) 222 Cal App 4th 802. The court remanded to the BIA to see if it wanted to find the section divisible, but there have been no further cases on that point.
Based on Escobar, 136.1(b)(1) also is not a CIMT, but with an even stronger argument. Section 136.1(a) is not a CIMT despite the fact that it requires knowing and malicious action. Section 136.1(b)(1) has no requirement of knowing or malicious conduct unless a provision of § 136.1(c) also applies. See, e.g., People v. Usher (2007) 144 Cal.App.4th 1311, 1321 and discussion at CALCRIM No. 2622. But even when malice does apply, § 136.1(b) uses the same definition as § 136.1(a) and so is not a CIMT.
It is possible that another circuit would hold differently.
Other Removal Grounds
No other removal grounds.
Great substitute plea for drug, violence, DV, fraud, firearms, etc. because it does not take on those elements. See also PC 32.
Because a felony is a strike with high exposure, it can substitute for more serious charges. But get 364 days or less, either with felony probation or as a consecutive prison sentence of eight months.
Advice and Comments
PC 136.1 (b)(1)
The Ninth Circuit held that PC 136.1(a), (b), and (c) all are AFs as obstruction of justice if a sentence of a year or more is imposed. 3Cordero-Garcia v. Garland, 105 F.4th 1168 (9th Cir. 2024), citing Pugin v. Garland, 599 U.S. 600 (2023). See also, Godoy-Aguilar v. Garland, 125 F.4th 985 (9th Cir. 2025).
The Ninth Circuit held that this decision is retroactive and applies to convictions entered before June 22, 2023 – the date of the Supreme Court’s decision in Pugin. 4Cordero Garcia, 105 F.4th at 1173 n. 5 (9th Cir. 2024) (rejecting Cordero Garcia’s retroactivity argument and finding that the Supreme Court’s decision in Pugin was based on a plain reading of the statute and therefore raised no retroactivity concerns).If a year or more sentence is needed, consider safer pleas such as PC 236/237, 459/460(a) or (b), 487, 591, possession of a weapon, or probably 207. (But if the client is not an LPR or was not admitted to the U.S with a visa, 459 or 487 will subject them to mandatory detention. See Overview: Mandatory Detention)
If a lot of time and a strike is required, consider making 136.1(b)(1) the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence.
See further discussion of Pugin at Advice to PC 32, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023) (but note that the Ninth Circuit held that Pugin will be applied retroactively).
SB54: Law enforcement is permitted to notify/transfer to ICE indefinitely. The misdemeanor conviction permits law enforcement cooperation for 5 years. See SB 54 advisory at www.ilrc.org/crimes-summaries.
Mandatory Detention: People not admitted to U.S. are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.