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 BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion.1PC 136.1(b)(1) as a CIMT.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 See also, e.g., unpublished decision holding 136.1(b)(1) is categorically not a CIMT.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.
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.
Regarding the cases, the Ninth Circuit held that 136.1(b)(1) does not meet the definition of obstruction of justice because it does not require interference with a pending (already existing) investigation or proceeding. Cordero-Garcia v. Garland, 44 F.4th 1181 (9th Cir. 2022). The Supreme Court accepted cert on the issue of the definition of obstruction, considering Cordero-Garcia and a Fourth Circuit case, Pugin v. Garland, that had upheld a finding that Virginia accessory after the fact is obstruction. In Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023), the Court affirmed that the accessory after the fact offense is obstruction, and specifically rejected the Ninth Circuit’s requirement that obstruction involve interference with a pending proceeding. It remanded Cordero-Garcia to the Ninth Circuit for decision on 136.1(b)(1) as obstruction, in light of its ruling in Pugin.
On remand experts will argue that even in light of Pugin, 136.1(b)(1) should not be held obstruction. ILRC will publish briefs when available.2PC § 136.1(b)(1) as AF as obstruction. As stated in the Chart text, at this writing this issue is on remand to the Ninth Circuit in Cordero-Garcia, and defenders must assume conservatively that it will be found to be obstruction. Removal defense advocates arguing against that can point out that PC § 136.1(b)(1) lacks elements of either “corrupt persuasion” or intentional harassment. It does not even require malice. Compare § 136.1(b)(1) with (a) and (c), which do require malice, and see, e.g., People v. Brackins (2019) 37 Cal.App.5th 56, 64-67; see also discussion in Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017) (holding that even 136.1(a), a more serious offense, is not a CIMT). Compare this to the federal definition of persuading a witness not to provide evidence that a crime occurred, 18 USC § 1512. Section 1512 requires “knowing use of intimidation, physical force, threats, corrupt persuasion, or misleading conduct” and intentional harassment. It is true that the Pugin majority did not require a match to elements of federal obstruction offenses. But it also true that the Pugin majority did not provide a cogent definition of obstruction, and in her concurrence Justice Jackson argued that the relevant federal offenses should be the generic definition of obstruction.
They also will argue that the Pugin definition does not apply to convictions from before Sept. 11, 2018. Removal defense advocates will assert these arguments, but criminal defense counsel must assume conservatively that they will not prevail and avoid a conviction with a year or more.
See further discussion of Pugin at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).