(C)  Procedural Rules Governing the New Prosecution.  Vacating the conviction is only half the battle.  It is true that vacating the conviction eliminates it, at least temporarily, for immigration purposes.  It returns the client to the position s/he occupied immediately prior to the conviction, and all original charges, even those that have previously been dismissed as part of a plea‑bargain, are reinstated.  The client thus runs some risk of being convicted of additional charges, over and above the original convictions, and some risk of being sentenced to a greater sentence than the original sentence, and should have been advised of this possibility before vacating the conviction.  Counsel should be prepared to argue that the client cannot legally receive a greater sentence as a penalty for the exercise of the rights which required that the conviction be vacated, and that the client must be given credit for all time served, and all other punishment previously served.

 

                (1)  The Client Cannot be Punished for Exercising the Right to Vacate the Conviction.  While the black letter law states that the client cannot be punished for exercising the right to vacate the conviction, this protection has become riddled with exceptions.  For example, there is no presumption of vindictive prosecution where a greater sentence is imposed after trial than was originally imposed after a guilty plea.[443]  If the original sentence was a legally “unauthorized” one (either too great or too small), and the client attacks the conviction, the improper sentence may be set aside at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence.[444]

 

                Nonetheless, the basic principle that due process forbids punishing a defendant for the exercise of a constitutional right has continuing vitality today:

 

            In formulating the constitutional procedural doctrines that permit waiver, and in many instances forfeiture, of constitutional rights, the high court long has recognized that the state may not punish a defendant for the exercise of a constitutional right, or promise leniency to a defendant for refraining from the exercise of that right.  (United States v. Jackson (1968) 390 U.S. 570, 580-582; Waley v. Johnston (1942) 316 U.S. 101, 104.)  Coercion in either form has been rejected, whether its source is executive, legislative, or judicial in nature.  (See, e.g., Blackledge v. Perry (1974) 417 U.S. 21, 27-31 [prosecutor prohibited by Fourteenth Amendment due process clause from reindicting a convicted misdemeanant on a felony charge following misdemeanant’s successful invocation of appellate remedy, because of the “realistic likelihood of ‘vindictiveness’ ”]; North Carolina v. Pearce (1969) 395 U.S. 711, 725 [trial court prohibited by Fourteenth Amendment due process clause from sentencing a defendant more harshly as retaliation for filing an appeal, because “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial”]; United States v. Jackson, supra, 390 U.S. at pp. 580-583 [Federal Kidnapping Act prescribing life imprisonment upon a plea of guilty but permitting jury to impose death sentence upon the defendant’s election of a trial, discouraged exercise of right to plead not guilty and have a jury trial, and was unconstitutional].)

 

            The line of decisions prohibiting such coercion condemns “the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right . . . .”  (Bordenkircher v. Hayes (1978) 434 U.S. 357, 362 (Bordenkircher), italics added.)  The denial of due process of law frequently recognized in that line of decisions is attributable to the danger that the state might act in retaliation against the defendant for lawfully challenging his or her conviction. (Id. at p. 363.)  “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort [citation], and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’  [Citations.]”  (Ibid.; see Wasman v. United States (1984) 468 U.S. 559, 567-568 (plur. opn. of Burger, C.J.); United States v. Goodwin (1982) 457 U.S. 368, 372.)

            In Lewallen, supra, 23 Cal.3d 274, 278-281, this court recognized and applied the principle, enunciated in the federal high court decisions, that the state is prohibited by the federal Constitution from punishing a defendant for the exercise of a constitutional right, or rewarding a defendant for forbearing from the exercise of such a right.  In Lewallen, the defendant declined to accept the prosecutor’s offer of a reduced prison sentence on one count in exchange for a plea of guilty on that count.  Following the defendant’s trial, in which he was found not guilty on that count but guilty on other counts, the trial court in sentencing the defendant expressly determined that he should receive a sentence greater than he would have received under the terms of the rejected offer premised upon a plea of guilty, merely because of his election of a jury trial.  The trial court in Lewallen stated in this regard:  “[A]s far as I’m concerned, if a defendant wants a jury trial he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.”  (Id. at p. 277.)  We concluded that the trial court essentially had punished the defendant for the exercise of his right to trial and held that his sentence must be vacated.  (Id. at pp. 279-281; People v. Colds (1981) 125 Cal.App.3d 860, 863-864 [trial court’s imposition of mitigated sentence, based solely upon circumstance that the defendant had waived his right to jury trial, was unauthorized and illegal]; accord, People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1 (Cahill) [confession obtained through threat of greater punishment or promise of more lenient sentence deemed involuntary].)

 

            We stated in Lewallen:  “Appellate courts in California and in other jurisdictions have vacated sentences when the trial court has apparently used its sentencing power, either more severely or more leniently than the norm, in order to expedite the resolution of criminal matters.  [Citations.]”  (Lewallen, supra, 23 Cal.3d 274, 279.)  The impropriety of a trial court’s explicit promise of more lenient treatment in sentencing if the defendant waives trial by jury is comparable to the impropriety of harsher treatment imposed because of the defendant’s having invoked his or her right to trial by jury.[445]

 

Therefore, due process forbids imposing a harsher punishment on the defendant in retaliation for his action in obtaining post-conviction relief to vindicate a constitutional right.  See § 5.13, supra.

 

                As a practical matter, because of the law requiring credit for time served and because the case may be old, if the client has developed a good record in custody and otherwise since the original conviction, it is often extremely unlikely that the court would resentence the client to a greater punishment after reconviction unless the court were required to do so by mandatory sentencing laws.  Counsel should, however, analyze the specific likelihood carefully in the particular case, and discuss the possibility fully with the client so the client is fully aware of this risk when deciding whether to go forward with an attack on the validity of the conviction.  See § 11.54, supra.

 

                CAVEAT:  In this age of mandatory sentences, in some cases if the client is convicted after trial of greater offenses or enhancements, the law may require the court to impose greater punishment.[446]

                (2)  The Client Must Be Given Full Credit for All Time Served as a Result of the Original Conviction.  When the client is resentenced in the same case, the law generally requires that s/he receive full and mandatory credit for time served for every day previously spent in custody on the original sentence.[447]

 

                (3)  The Statute of Limitations May Prevent Filing of New Charges at This Point, Even if They Could Lawfully Have Been Filed at the Time of the Original Disposition.  When a defendant mounts a successful collateral attack against a conviction, and charges are reinstated, the statute of limitations defense where applicable requires dismissal of charges that were filed too late and are now time-barred.[448]  State courts can be urged to adopt the same rule, for the same reasons.  Note that this does not bar prosecution of any charges that were originally filed prior to the time the operative statute of limitations ran.  It only operates to restrict the prosecution’s ability to file new charges, after the original conviction has been vacated, and after the running of the applicable statute of limitations.  It thus operates as a limit on the prosecution’s ability to threaten greater charges than had originally been filed before the original disposition occurred.

 

[443] Alabama v. Smith, 490 U.S. 794 (1989) (Pearce presumption of vindictiveness does not apply when greater sentence is imposed after trial than was imposed after prior guilty plea).

[444] United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986); People v. Serrato, 9 Cal.3d 753, 764 (1973).

[445] People v. Collins, 26 Cal.4th 297 (2001) (holding the waiver of a jury trial obtained by a trial court’s assurance of an unspecified benefit is not a valid waiver under due process).

[446] E.g., California Penal Code § 12022.5(c) (use of gun in commission of drug offense requires a mandatory consecutive prison term of three, four or ten years).

[447] E.g., California Penal Code § 2900.5.

[448] United States v. Midgley, 142 F.3d 174 (3d Cir. 1998); United States v. Podde, 105 F.3d 813 (2d Cir. 1997), vacating United States v. Reguer, 901 F.Supp. 525 (E.D.N.Y. 1995).

Ninth Circuit

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).