(C)  Exercise of Right to Appeal.  Due process is violated if a defendant is sentenced more harshly upon re-conviction in retaliation for exercising the right to appeal following a successful appellate attack based on vindictive motives.[287]  There is a rebuttable presumption of judicial vindictiveness whenever a harsher sentence is imposed after a successful appeal and “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.”[288]  The presumption may only be overcome by evidence placed on the record by the sentencing judge in support of the claim that factors, events or conduct occurred after the first sentence that justify imposition of greater punishment than was originally imposed.[289]  No presumption of vindictiveness arises, however, when the first sentence was based upon a guilty plea, and the second followed a jury trial.[290]

 

[287] See North Carolina v. Pearce, 395 U.S. 711 (1969); United States v. Peyton, 353 F.3d 1080 (9th Cir. Dec. 31, 2003) (where court imposed twice a long a sentence after a successful appeal resulted in reversal of six of eight convictions, court of appeal held the record does not rebut presumption that district judge acted in a vindictive manner by applying obstruction of justice enhancement on resentencing after he had considered, but rejected, this enhancement at the original sentencing); Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir. 2003); United States v. Garcia-Guizar, 234 F.3d 483, 489 (9th Cir. 2000) (holding that the Pearce presumption applies to resentencings as well as retrials); People v. Williams, 61 Cal.App.4th 649 (1998); People v. Henderson, 60 Cal.2d 482 (1963). 

[288] Pearce, supra, at 799 (citation omitted). 

[289] Ibid. 

[290] Alabama v. Smith, 490 U.S. 794 (1989).

Other

POST CON - GROUNDS - CONVICTION - SENTENCE
The sentencing court may not sentence the defendant more harshly for exercising the constitutional right to jury trial, or threaten the defendant with harsher punishment to coerce a plea. In re Lewallen, 23 Cal.3d 274, 278-281 (1979) (court commits judicial misconduct and violates due process by threatening the defendant with a sentence in excess of the plea bargain sentence if he goes to trial, or by sentencing him more harshly for exercising constitutional right to trial by jury); Ryan v. Comn on Judicial Performance, 45 Cal. 3d 518, 534 (1988) (judge removed from the bench in part for using harsh sentencing as a punishment for going to trial). See also Schaffner v. Greco, 458 F.Supp. 202 (S.D.N.Y. 1978) (trial judges bias during trial and repeatedly trying to coerce defendant to plead guilty invalidated the guilty plea).