Don’t Speak

I once represented a client charged with violating Penal Code section 136.1(a)(2) - knowingly and maliciously attempting to prevent a witness/victim from attending and giving testimony at a trial, proceeding, or other inquiry authorized by law. This charge is usually referred to simply as dissuading. The case was filed following a fight between my client and his former girlfriend right after they broke up. They go separate ways and an hour or so later my client sent her some text messages but she wouldn’t respond. Receiving no response, my client sent a hyperlink to the song “Don’t Speak” by No Doubt. The DA filed an Information in the case alleging a violation of 136.1. Uh? I later found out that the DA’s position was that by linking to “Don’t Speak,” my client was dissuading Jane Doe from reporting what had occurred to the police. Ok, that’s creative. It really is.

Section 136.1 proscribes a variety of intimidating conduct directed towards victims of, or witnesses to, a crime. The statute includes preventing or dissuading (or attempting to prevent or dissuade) a witness from attending and giving testimony at a trial, proceeding, and inquiry authorized by law. (See CALCRIM 2622.) Penal Code section 136.1 is a specific intent crime. (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.) That is, the accused must have known that he was trying to prevent or discourage a witness to a crime from taking appropriate law enforcement action, and must have intended to do so.

Quite imaginatively, the People argued that my client, by hyperlinking to a song about a break up titled “Don’t Speak”, right after a break up and in response to the other person not speaking, was attempting to dissuade her from reporting their fight to the authorities? Something like that. “Don’t Speak” to the police? I’m guessing that’s how they saw it. It is definitely creative and the sort of stuff that I love. The Court respectfully rejected the DA’s interpretation of the message and dismissed the charge after I made a motion under Penal Code section 995.

Be careful out there! What a great song, too. Here, let me hyperlink to it: Don’t Speak by No Doubt.