What is the test for establishing a vindictive prosecution claim?

A vindictive prosecution claim may be established " by producing direct evidence of the prosecutor's punitive motivation...." ( United States v. Brown (9th Cir. 2017) 875 F.3d 1235, 1240.) In the absence of direct evidence of vindictiveness, a criminal defendant may raise a rebuttable presumption of vindictiveness " by showing that the circumstances establish a "reasonable likelihood of vindictiveness." " ( Ibid. ) When a presumption of vindictiveness exists, "the burden shifts to the government to present objective evidence justifying the prosecutor's action. " ( Ibid. )

"[A]n inference of vindictive prosecution is raised if, upon retrial after a successful appeal, the prosecution increases the charges so that the defendant faces a sentence potentially more severe than the sentence he or she faced at the first trial." ( People v. Ledesma (2006) 39 Cal.4th 641, 731, 47 Cal.Rptr.3d 326, 140 P.3d 657.) A presumption of vindictiveness likewise is raised where the prosecutor adds additional charges, which subject the defendant to a greater potential penalty, after a mistrial. ( Twiggs v. Superior Court (1983) 34 Cal.3d 360, 368-369, 194 Cal.Rptr. 152, 667 P.2d 1165 ; see Bower , supra , 38 Cal.3d at p. 873, 215 Cal.Rptr. 267, 700 P.2d 1269 ["the due process prohibition against prosecutorial vindictiveness bars the People from increasing the severity of the potential charges against [a criminal defendant] after he [or she] move[s] for a mistrial"].)