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Name: People v. Puentes
Case #: H034546
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/20/2010

The presumption of vindictive prosecution after the defendant exercised the right to appeal was not rebutted. In this second appeal, appellant argued he was penalized for appealing when the prosecution recharged the felony it had sought to dismiss in the interests of justice after his misdemeanor conviction was reversed on appeal. The Court of Appeal agreed. There is a presumption of vindictiveness when the prosecution ups the ante with more serious charges after a defendant has exercised a post-conviction right. The court rejected respondent’s claim that the charges had not been escalated after the first appeal because the refiling returned appellant to his original position. To rebut a presumption of vindictive prosecution, it must be shown that the increased charges were justified by an objective change in circumstances or the state of the evidence, and that the new information was not available at the time of the initial filing. Here, the prosecution dismissed the felony because it discussed the case with the jury, learned that conviction on the felony was unlikely, and decided that misdemeanor punishment was appropriate. The about-face that it was not in the interests of justice to dismiss the felony presents the appearance that the successful appeal is what changed the prosecutor’s mind.