How Does Your Criminal History Affect An Open Case?

A defendant’s criminal history is taken into account by prosecutors and judges in a number of scenarios.

In fact,

A defendant’s criminal history may have a tremendous impact on the outcome of a new criminal case.

Let’s take a look at how a prior criminal history can affect a new case.

Does a Prosecutor Use Prior History When Charging You With A New Crime?

A prior history of criminal activity is nearly always considered when a prosecutor is considering charging you with a new crime.

In What Other Scenarios Does Your Past Criminal History Affect A New Case?

1. Wobbler offenses
2. Plea bargain offers from prosecutors or judges
3. Sentencing for trial

What Are Wobbler Offenses?

Wobbler offenses are crimes that can be charged as either a misdemeanor or a felony.

In some cases where the facts and circumstances are such that the prosecutor could potentially decide whether it is worth pursuing certain criminal charges, your prior history of having engaged in similar or even more serious offenses can sway that determination toward charging you with a felony.

What Happens If You Have An Unresolved Case And Pick Up A New Case?

In circumstances where you have a criminal case pending and you are charged with a new offense it may affect your old case in a number of ways including

• Potential leverage for prosecutor on the old case
• Bail
• Concurrent or consecutive sentences
• Different jurisdictions

In circumstances where you have a criminal case pending and you are charged with a new offense, you may find it difficult to post bail if the offense is serious enough, or you may have to post bail in a higher amount than is standard for that offense. 

Sometimes the new offense can be used as leverage by the prosecutor to negotiate a guilty plea from you for the more serious offense in exchange for either dismissing the other less serious charge or having you plead guilty to both but with concurrent sentences.

What Is A Concurrent Sentence?

A concurrent sentence is where a judge sentences you to 12-months for crime A and 12-months for crime B, but you only serve 12-months instead of 24.

If one sentence is longer than the other, you will be released upon completion of the longer sentence. In some cases, this may be the best available option.  This is in contrast to a consecutive sentence, wherein you would serve the 12 months for crime A and 12 months for crime B, totaling 24 months served.

What Happens If Your Arrests Are In Different Jurisdictions?

There is also the matter of different jurisdictions if one offense was committed in a different county or state than the other.

In these scenarios, prosecutors may be less likely to reach a plea deal that considers any sentence imposed on the case that is resolved first since it could result in an enhanced sentence for the new case if you are convicted of the more recent offense.

If you do have pending charges, the other jurisdiction with the more recent case may delay some aspect of its proceedings while the older charge is resolved. 

Can Your Prior Criminal History Increase Penalties On A Current Case?

In many instances, your prior history will be used to increase or enhance penalties for the current offense.

If your prior offense was a serious felony and a “strike’ under California’s Three-Strikes Law¹, a second strike will enhance your sentence by 5-years, and a third strike will result in a sentence of 25-years to life.

This is also true for DUI offenses². Any subsequent DUI offense committed within 10-years will substantially increase the fines and result in mandatory minimum jail sentences. If you are convicted of a fourth DUI within 10-years, the prosecutor has the discretion to charge you with a felony. 

The existence of the prior conviction must be proved beyond a reasonable doubt by the prosecution. For example, if a defendant is convicted of first-degree burglary ((Penal Code § 459)) and the prosecution wishes to use a prior burglary conviction to increase the penalty, the prosecutor must demonstrate that the prior conviction was a “serious” felony³.

Can Police And Prosecutors See Prior Crimes That Have Been Expunged?

An expungement is a post-conviction procedure where a defendant can petition the court to have a conviction dismissed⁴.

However, an expunged conviction is accessible to police and prosecutors if you are charged with a new offense.

Can An Expunged Conviction Be Used To Enhance A Sentence?

If convicted of the new offense, then the expunged conviction can be used to enhance your sentence. 

Can Prosecutors Tell Jurors About Prior Offenses During a Trial?

In California, a prior felony conviction could be used by the prosecution at trial to impeach the credibility of a defendant only if he chooses to testify on his own behalf, or for any other witness testifying at a trial⁵.

It is not to be used as evidence of the defendant’s guilt, though its introduction can certainly affect the jury’s perception of the person’s veracity or capacity to have committed the subject offense.

There are some exceptions to this rule:

1. If the witness was pardoned based on innocence
2. If the witness was granted a certificate of rehabilitation or pardon
3. The prior felony conviction was not a crime of moral turpitude⁶.
4. The conviction was expunged unless the person testifying is the defendant being prosecuted

A prior misdemeanor conviction can also be used for impeachment purposes “…so long as it has some logical bearing of a witness in a criminal proceeding.”⁷.

Courts do have broad discretion in whether to exclude evidence of prior offenses for impeachment purposes if “its probative value is substantially outweighed by the probability that its admission will

• (a) necessitate undue consumption of time or
• (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”⁸.

Generally, the defense will present a motion in limine, or before the trial, to exclude mention by the prosecution of a prior offense.

The court will consider certain factors in determining whether to grant the motion⁹:

• Whether the prior conviction reflects adversely on an individual’s honesty or veracity
• The nearness or remoteness in time of a prior conviction
• Whether the prior conviction is for the same or substantially similar conduct to the charged offense
• What the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. 

What Happens If The Motion Is Not Granted?

If the motion is not granted, it is doubtful the defendant will testify. In most criminal cases, defense lawyers do not have their clients testify and prefer to cross-examine and challenge the prosecution’s witnesses and evidence to cast reasonable doubt on the facts and evidence presented by the prosecution.

A defendant in any criminal case does not have to present any evidence of innocence in order to be found not guilty. 

Final Thoughts

Plea bargaining requires that your defense attorney be well-versed in the facts and circumstances of your case, the strength and weaknesses of the evidence, possess a strong knowledge of the law and be aware of the character and tendencies of the prosecutor and judge.

1. Penal Code § 667(d)(3 [↩]
2. CVC § 23152(a) and (b [↩]
3. People v, Kelli, (1999) 21 Cal.4^th 452, 455 [↩]
4. Penal Code § 1203.4 [↩]
5. Evidence Code § 788 [↩]
6. People v. Castro (1985) 38 Cal.3d  301 [↩]
7. People v. Wheeler (1992) 4 Cal.4^th 284 [↩]
8. Evidence Code §352 [↩]
9. People v. Mendoza (2000) 78 Cal.App.4^th 918 [↩]