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Court of Appeal:
Law Does Not Ban Intimidation of Potential Civil Witnesses
Opinion Says Statute Does Not Contemplate Criminalizing Dissuasion of Those Who May Be Called to Testify In Not-Yet-Filed Future Lawsuits, Even if Litigation is Threatened, Eventually Occurs
By Kimber Cooley, associate editor
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Above is a photograph from the Facebook page “Cooper the Missing Pony,” showing the animal at the center of a dispute that resulted in witness intimidation charges being filed against Scott Copeland, the once-close friend of the purported victim, Madelyn Wagner. According to prosecutors, Copeland threatened not to pay Wagner rent on the home he leased from her if she testified against him in a dispute with a third party over Cooper’s ownership. |
Div. One of the Fourth District Court of Appeal has held that a Penal Code section prohibiting the intimidation of witnesses does not apply to those who might be called to testify in future, anticipated civil litigation.
In an opinion authored by Justice Julia C. Kelety, the court acknowledged that amendments to the law, passed in 1980, expanded coverage to include those who might testify in future criminal proceedings but concluded that “[n]owhere did…the Legislature mention expanding the statute to criminalize pre-litigation discussions with a potential witness in a yet-to-be filed civil suit.”
At issue is Penal Code §136.1(a), which provides that “any person who does any of the following is guilty of a public offense” and includes, in subdivision (2), “[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.”
“Witness” is defined in §136(2) as “any natural person, (i) having knowledge of…facts relating to any crime, or (ii) whose declaration under oath…has been received as evidence…, or (iii) who has reported any crime…, or (iv) who has been served with a subpoena issued under the authority of any court in the state, or of any other state or of the United States, or (v) who would be believed by any reasonable person to be an individual described in subparagraphs (i) to (iv), inclusive.”
Pony Dispute
The question arose after once-close friends fell out over a pony named Cooper. From October 2011 through June 2021, Madelyn Wagner rented out the next-door property to her Northern San Diego County home to Samuel Copeland for $1,650 per month.
Wagner introduced Copeland to her friend, Trina West, who was looking to find someone interested in keeping and caring for Cooper. In 2016, Copeland agreed to a feed/lease arrangement for Cooper under which West would allegedly retain ownership and he would house, feed, and care for the animal.
After Copeland refused to return the pony in June 2021, West informed him that she was going to file a lawsuit. West also contacted Wagner, who was present for some of the feed/lease negotiations, telling her that she might be called upon to testify.
Between June 14 and June 21 of that year, Copeland sent a series of text messages to Wagner, saying things like “I suggest you get [West] off my back” and “I can’t afford to pay rent and my lawyer this month.” When Wagner told him that West had indicated that she would subpoena her for testimony if needed, he responded “you don’t have to go” and indicated that rent would be delayed because of the lawsuit.
Copeland did not pay rent to Wagner from June 2021 through January 2022, when he paid $6,600. He continued living at the property until Aug. 31, 2022 but never paid another dollar.
In February 2022, Copeland sold Cooper without West’s permission, and she filed a complaint against him in small-claims court the following month. Wagner was listed as a witness in a hearing in August.
Witness Intimidation
Copeland was arrested for grand theft and witness intimidation, in violation of §136.1(a), in April 2022. The grand theft charges were dropped but he was found guilty by jury of dissuading a witness.
Friday’s opinion, joined in by Presiding Justice Judith McConnell and Justice Richard D. Huffman, reversed his conviction.
Kelety explained that “[t]he prosecution’s theory was that Copeland knowingly and maliciously attempted to dissuade Wagner from testifying in the civil case by threatening to withhold and withholding rent” and noted that Copeland does not dispute that he sent the messages indicating that he could not afford to pay rent if he was sued.
On appeal, Copeland’s only contention is that Wagner is not a “witness” under the meaning of the code.
Plain Text
Noting that the prosecution relies exclusively on the definition of “witness” set forth in §136(2)(v) for its assertion that the section applies to Wagner, the jurist turned to the plain language of the subdivision. She wrote:
“[I]t is apparent that in the civil context, [the section] does not introduce some prospective, forward-looking definition of ‘witness.’ It simply covers an individual that any reasonable person would believe currently falls into categories (i) through (iv) even if, in reality, they do not. For example, it would cover an individual a reasonable person would believe had been subpoenaed or submitted a declaration under oath even if they actually had not.”
Applying that standard, Kelety opined:
“Here, there was no evidence that Copeland believed, or that a reasonable person would believe, that Wagner had been served with a subpoena…when he sent the…text messages. Indeed, for much of the exchange, it appears as though Copeland was trying to get Wagner to persuade West not to file the civil case in the first instance. Wagner brought up the idea of a subpoena…when she said that West ‘has already stated she will [subpoena] me,’ a clear indication that West had not yet done so….Based on this exchange, no reasonable person would believe there was a pending civil suit, or that Wagner had already been subpoenaed or had given a declaration under oath.”
Related Statutes
Even if the plain language could be considered ambiguous, she remarked, “both the legislative history and a comparison to the language of other related statutes supports an interpretation of section 136, subdivision (2) that does not include an expansive, forward-looking definition of ‘witness.’ ”
Noting that other sections prohibit the bribing of any present or future witness, she found it noteworthy that §136.1 did not contain similar language. Kelety concluded:
“Based on our reading of the plain language of the statute, the language of related statutes, and the legislative history, we find that in a civil context, the definition of ‘witness’ in section 136 subdivision (2) is limited to those individuals that have been subpoenaed or have given a declaration under oath, or those that a reasonable person would believe have been subpoenaed or have given a declaration under oath. While we do not intend to suggest that criminal witness intimidation cannot occur in a civil case, we decline to read section 136, subdivision (2)(v) in a manner that would expand the definition of ‘witness’ to encompass a potential witness in civil litigation that has not yet been filed.”
She added:
“One can think of nearly endless scenarios in which an individual may suggest, discuss or even threaten to file civil litigation, and in each such instance, there could be any number of possible witnesses to some aspect of the dispute. We see nothing…to suggest the Legislature intended to criminalize communications with all such potential witnesses in possible, but not-yet filed civil suits.”
The case is People v. Copeland, 2025 S.O.S. 576.
A Facebook page dedicated to Cooper was updated in November of last year to say:
“Cooper is still considered stolen & we are still looking for him!
“We prevailed as Cooper’s legal owners at the initial civil hearing, as well as the appeals hearing. Mr. Copeland was ordered by the civil court to pay us a judgment of $7,756.66 as a penalty for selling our horse without our permission….THIS JUDGEMENT DOES NOT REPRESENT PAYMENT FOR COOPER—COOPER WAS NOT FOR SALE!”
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