(D)

Vindictive Sentencing.  Due process is violated if a defendant is sentenced more harshly upon re-conviction following a successful appellate attack based on vindictive motives.[168]  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.”[169]  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.[170]  No presumption of vindictiveness arises, however, when the first sentence was based upon a guilty plea, and the second followed a jury trial.[171]

[168] See North Carolina v. Pearce, 395 U.S. 711 (1969); People v. Williams (1998) 61 Cal.App.4th 649; People v. Henderson (1963) 60 Cal.2d 482. 

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

[170] Ibid. 

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

Other

CAL POST CON " SENTENCE " GROUNDS " SENTENCE MAY NOT BE BASED ON FACT FOUND NOT TRUE BY JURY
People v Lopez, 208 Cal.App.4th 1049, 146 Cal.Rptr.3d 113 (Aug. 22, 2012) (sentence cannot be based on a fact not found true by the jury).