Criminal Defense of Immigrants


§ 11.77 (B)

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(B)  Right Against Vindictive Reprosecution.  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.[455]  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.[456]  Reversal of a conviction on a greater offense, coupled with a final conviction on a lesser included offense, does not preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial.[457]


                Nonetheless, the basic principle that due process forbids punishing a defendant for the exercise of a constitutional right has continuing vitality today.[458]  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.


[455] 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).

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

[457]  United States v. Jose, 425 F.3d 1237 (9th Cir. Oct. 19, 2005).

[458] 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).