If you are facing a second criminal charge and you are wondering whether a past conviction will impact your new charges, you aren’t alone. With the introduction of Proposition 36 and the intricacies of the legal system, many people out there are asking themselves the same question.
While each case has its own complexities, this guide can give you an idea of what to expect in very general terms, if you have a previous conviction and are facing a new charge.
The Short Answer: Yes, but it’s not always straightforward
To simplify things for this guide, we’re calling a prior conviction to be any past criminal offense where you were found guilty, whether through a trial process or by entering a plea, either for previous misdemeanors or felonies. In California, previous convictions can absolutely affect a new charge, leading to harsher penalties.
Some factors to consider in this are:
- What kind of conviction was it? (for example, was it a felony or a misdemeanor)
- How recent is your past conviction?
- Is the new charge similar to the previous one?
- What is Your overall criminal history?
How prior convictions can impact new charges
There are a number of ways your previous conviction may influence new charges considerably. Here are the most important.
Misdemeanors can become felonies
There are offenses that are considered “wobblers”. These are offenses that are considered a misdemeanor or a felony, depending on the circumstances of the crime and the history of the accused. Having a prior conviction may tip the scales toward a felony charge.
Certain crimes may have enhancements based on prior convictions. For example, theft is now a wobbler offense, which means that a second theft conviction can be elevated to a more serious offense.
Increased bail
Criminal history is taken into account when a judge is setting bail. A previous offence may indicate a higher flight risk or higher recurrence of the crime. Therefore bail may be set higher or denied altogether.
Probation and parole implications
If you are on probation or parole, it is most likely that this new charge is considered to be a violation of your probation or parole. This may lead to jail time and your probation or parole being revoked.
It is also important to note that judges are usually less likely to grant probation if you have a history of violating probation or parole terms.
The California ‘Three Strikes Law’
Lastly, the “Three Strikes Law” in California is a great, and extreme, example of how your criminal record can increase sentencing with a new charge. Under this law, if you have 2 previous convictions for serious/violent crimes and you are charged with a new similar offense, you face the possibility of 25 years to life in jail.
Within the “Three Strikes Law,” if your third charge is not a “strike” charge (the list of charges that are included in the “Three Strikes Law”), it will still be double the usual sentencing. This means that if you are charged with a crime that is not within the list of crimes that activate this “Three Strikes Law,” but it is still your third strike, the sentence may be automatically doubled.
If you do not have to worry about your past conviction activating the “Three Strikes Law,” it is also important to keep in mind that judges still have the discretion to consider a previous conviction an aggravating factor and impose harsher sentences.
So, what can be done?
While a past conviction might add a layer of complexity and challenge to your new charge, there are strategies available to your legal team to get the best possible outcome for your new charge.
- Negotiation with the prosecution – An obvious part of the process would be to negotiate with the prosecution to minimize the impact of previous convictions.
- Presenting mitigating evidence – If your prior conviction cannot be challenged, your legal team may still be able to present mitigating evidence to the court, such as rehabilitation or community service.
- Challenging the validity of previous convictions – In some cases, the defense may be able to challenge the validity of previous convictions especially if there were procedural errors.
Need legal help? Contact Robert M. Helfend today.
Facing a second charge when you already have a past conviction in your criminal record is a nerve wracking situation.
Since 1984, Robert M. Helfend has been defending people with past convictions and has helped thousands of clients obtain favorable verdicts. He has been recognized for his outstanding work by Lead Counsel, SuperLawyers, and the National Trial Lawyers Top 100.
For a free case review, give us a call at 805-273-5611 today.
Published March 3, 2025.