Are You the Target of Vindictive or Retaliatory Prosecution?
Instead, such prosecution occurs when a prosecutor files more serious charges against a defendant after defendant’s exercise of a legal right or defense against the original charge. The defense can then file a motion to dismiss. See People v. Edwards (1991) 54 Cal.3d 787, 828, 1 Cal.Rptr.2d 696.
Brief Synopsis: A Motion to Dismiss for Vindictive or Retaliatory Prosecution must be based on increased charges being filed after defendant exercises a procedural right, such as not waiving time, not stipulating to the results of a lab report, i.e. The prosecution can defeat the motion by showing new evidence supports the increased charges, the disposition in a parallel criminal case against defendant or defendant’s response to a plea proposal.
If the motion is made before defendant demands trial, this is considered “before jeopardy has attached.” Then no presumption of vindictiveness arises when the prosecution adds counts or enhancements before trial. People v. Lucious (1984) 153 Cal.App.3d 416, 422, 200 Cal.Rptr. 251. What the defendant must show is that the prosecutor’s decision to file additional or more serious charges was motivated by a desire to punish defendant for exercising a legal right. U.S. v. Goodwin (1982) 457 U.S. 368, 384, 73 L.Ed.2d 74, 87, 102 S.Ct. 2485; People v. Bracey (1994) 21 Cal.App.4th 1532, 1549, 26 Cal.Rptr.2d 730.
Defendant should be aware, however, that discovery of additional evidence will justify such an increase in the original charge. U.S. v. Preciado-Gomez (9th Cir. 1976) 529 F.2d 935, 940. Likewise, misconduct by defendant after the filing of the original charge(s) can justify increased charges. In re Anthony M. (1976) 64 Cal.App.3d 464, 469, 134 Cal.Rptr. 540.
This motion should be raised before trial. Twiggs, supra, at 371. The only way to raise this on appeal is through a claim of ineffective assistance of counsel. See People v. Tirado (1984) 151 Cal.App.3d 341, 354, 198 Cal.Rptr. 682, overruled on other grounds in People v. Mendez (1999) 19 Cal.4th 1089, 1097, 81 Cal.Rptr.2d 301.
In the context of after jeopardy has attached, the prosecution then bears the burden of rebutting the presumption of vindictiveness, by showing that the increase in the severity of the new charge was not motivated by vindictiveness. The prosecution, in other words, must dispel the appearance of vindictiveness as well the inference of actual vindictiveness. Twiggs, supra, at 371; see also People v. Bower (1985) 38 Cal.3d 865, 878, 215 Cal.Rptr. 267.
How can the defendant lose such a motion by the prosecutor successfully rebutting this presumption? The prosecution can show that the more serious charge arises from the discovery of additional evidence. Preciado-Gomez, supra, at 940. The prosecution may also be able to rebut the presumption based on an evidentiary ruling from the judge. Robinson v. Superior Court (1986) 181 Cal.App.3d 746, 226 Cal.Rptr. 724.
Surprisingly, failed plea negotiations can justify the prosecutor adding enhancements while at the pretrial stage of proceedings. People v. Matthews (1986) 183 Cal.App.3d 458, 464, 228 Cal.Rptr. 316. We especially dislike this case. Likewise, the prosecutor can successfully rebut the presumption by explaining that he waited to see what sentence defendant received on an unrelated case. People v. Mendez (1999) 19 Cal.4th 1089, 1097, 81 Cal.Rtpr.2d 301. In other words, the prosecutor did not think the sentence in the other case was high enough, so he increased the charges in the pending case – and this was found to rebut the presumption of retaliatory or vindictive prosecution!
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