Can a defendant be convicted of a charge under section 137 of the California Penal Code for influencing or influencing testimony at a preliminary hearing?

"The entire sense of Penal Code section 137 is that testimony will be given, but the perpetrator will attempt to influence the testimony given. This is clear from a comparison of the language of sections 136.1 and 138. Section 138 punishes anyone 'who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that the person shall not attend upon any trial or other judicial proceeding, or . . . who attempts by means of any offer of a bribe to dissuade any person from attending upon any trial or other judicial proceeding.' [] Section 136.1 punishes anyone who "[k]nowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law " or from attempting to do so. [] These sections clearly contemplate that the perpetrator will prevent or dissuade a prospective witness from giving testimony, or will attempt to do so. Preventing or dissuading a witness from testifying altogether is incompatible with influencing or shaping the testimony the witness gives." (People v. Womack (1995) 40 Cal.App.4th 926, 930-931, Italics omitted.)

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In People v. Fernandez (2003) 106 Cal.App.4th 943, the defendant took his friend's disability check, forged his friend's signature and cashed the check. The defendant was charged with fraud and a preliminary hearing was set. The defendant convinced his friend to attend the hearing but told him how he should testify. (Id. at pp. 945-946.) The defendant was convicted of violating section 136.1, subdivision (b)(1).⁴ On appeal, the defendant argued that he could not be convicted of violating section 136.1 based on his efforts to dissuade his friend from giving truthful testimony at the preliminary hearing. He acknowledged his actions violated section 137 but that the People charged him with the wrong statute. (Fernandez, at p. 947.)

The appellate court agreed. It noted, "[A]n effort to influence the contents of a victim's or witness's preliminary hearing testimony is governed by section 137, and an effort to prevent a victim or witness from testifying entirely is governed by sections 136.1, subdivision (a) and 138, subdivision (a). Section 136.1, subdivision (b)(1) should not be construed to punish efforts to prevent or influence testimony when it does not do so expressly, and there are other statutes within the same scheme that cover such conduct." (People v. Fernandez, supra, 106 Cal.App.4th at pp. 949-950.) It further noted, "The distinction between the offenses is not merely a semantic one. The

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