Offense
Nonviolently try to persuade a witness or victim not to file a police report
Aggravated Felony (AF)
To securely avoid AF as obstruction, obtain 364 days or less imposed on each count, but see Advice.
Not an AF as a COV.
Crime Involving Moral Turpitude (CIMT)
Probably not a CIMT. Ninth Cir held it is overbroad as a CIMT. BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion.1PC 136.1(b)(1) as a CIMT. The 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 a CIMT. Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017), citing cases like People v. Wahidi (2013) 222 Cal App 4th 802.
Section 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.
The BIA has not held in a precedent opinion that § 136.1(b)(1) is not a CIMT, which means that there is always the chance that the Board would do this, and the Ninth Circuit would defer to the BIA. That seems unlikely, however. See also, e.g., unpublished decision holding 136.1(b)(1) is categorically not a CIMT. Matter of C-E-P-G– (BIA Dec. 18, 2018).
Therefore, while 136.1(b)(1) is a very reasonable plea to avoid a CIMT, it remains possible that in future the BIA will find this to be a CIMT, and Ninth Circuit might defer.
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)
AF: Defenders must assume that PC 136.1(b)(1) is an AF as obstruction of justice, if a sentence of a year or more is imposed. The Ninth Circuit will address this issue on remand from the Supreme Court. See discussion of Pugin and Cordero-Garcia, below.
AF: PC § 136.1(b)(1) is an AF as obstruction of justice if a sentence of a year or more is imposed. 2Cordero-Garcia v. Garland, 105 F.4th 1168 (9th Cir. 2024), citing Pugin v. Garland, 599 U.S. 600 (2023).
The Ninth Circuit held that this decision is retroactive and also applies to convictions entered before June 22, 2023 – the date of the Supreme Court’s decision in Pugin. 3Cordero 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.
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, above, 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).