What is the current state of the law on the basis of "viciousness" against a defendant in a retrial?

Defendant argues, citing North Carolina v. Pearce (1969) 395 U.S. 711, that he was denied due process because the trial court's sentence was vindictive. In North Carolina v. Pearce, the United States Supreme Court held: "Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. [] In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." (Id. at pp. 725-726.)

In People v. Craig (1998) 66 Cal.App.4th 1444, 1448, the appellate court held: "[A]fter successful appeal of a conviction a defendant may not upon reconviction be subjected to an aggregate sentence greater than that imposed at the first trial." But People v. Craig also holds: "When [an unauthorized or illegal] sentence is set aside on appeal a correct, even if more severe, sentence may be imposed upon retrial without offending the principles of double jeopardy." (Id. at p. 1449.)