P. v. Rollins CA1/1

Filed 8/20/26 P. v. Rollins CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A174290
v.
DAVANTE ROLLINS, (Solano County
Super. Ct. No. F25-00228)
Defendant and Appellant.

The People appeal from an order granting defendant Davante Rollins’s
motion to dismiss a felony case for vindictive prosecution. They claim the
trial court applied an incorrect legal standard in ruling and there was
insufficient evidence of vindictiveness under the correct standard. We agree,
and we therefore reverse and remand for the matter to be reinstated.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
This appeal involves three different criminal cases against Rollins,
which we will refer to as Case One, Case Two, and Case Three. The
dismissal order at issue was entered in Case Two. We do not discuss the
underlying facts of any of the offenses with which Rollins was charged
because they are not relevant to our analysis.
In November 2024, a complaint was filed in case no. F24-02540 (Case
One) charging Rollins with five felony counts committed earlier that month.1
Deputy District Attorney (DDA) Kara Morris was the assigned prosecutor.
On November 27, she emailed Rollins’s public defender an offer to settle Case
One but noted the “offer may change, given another matter concerning
Mr. Rollins is under investigation.”
After a preliminary hearing on December 3, 2024, Rollins was held to
answer on only two of the charges in Case One. A week later, DDA Shelly
Moore, a supervisor responsible for filing most of the felony cases in the
Solano County District Attorney’s Vallejo office, filed an information in the
case. The information charged Rollins with three felonies—two counts of
possession of a firearm by a felon and one count of unlawful possession of
ammunition—and a misdemeanor count of possession of a controlled
substance.2 Later in December, Rollins was arraigned on the information,
and a trial was set for Wednesday, February 5, 2025.
Meanwhile, the Vallejo Police Department submitted reports of two
May 2024 incidents involving Rollins to the District Attorney’s Office for
charging. The first police report, regarding a May 29 incident, was submitted

1 The complaint charged Rollins with one count of possession of a

controlled substance while armed with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a)), two counts of possession of a firearm by a felon (Pen.
Code, § 29800, subd. (a)(1)), one count of receiving stolen property (id.,
§ 496d, subd. (a)), and one count of unlawful possession of ammunition (id.,
§ 30305, subd. (a)(1)). All further statutory references are to the Penal Code
unless otherwise noted.
2 The charges were brought under sections 29800, subdivision (a)(1)

(firearm possession), and 30305, subdivision (a)(1) (ammunition possession),
and Health and Safety Code section 11350, subdivision (a) (drug possession).
Three aggravating factors under California Rules of Court, rule 4.421(b),
were alleged as to the felony counts.

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on December 30, 2024, and the second police report, regarding a May 30
incident, was submitted on January 29, 2025, a week before trial was
scheduled to begin in Case One. These incidents were not the subject of the
“investigation” DDA Morris previously alluded to, which did not result in
charges.
DDA Moore brought both police reports to DDA Morris’s attention on
January 29, 2025, which was a Wednesday. That morning, Rollins’s public
defender had emailed DDA Morris to inquire about resolving Case One and
let her know that he was traveling with intermittent access to email.
DDA Morris responded that her office had the two new reports, saying, “I
don’t know yet if we’ll charge them, though I’m asking the charging DDA
[Moore] to review them given our trial [next] Wednesday. I will let you know
ASAP whether we’ll file them.”
Shortly after 5:00 p.m. on January 29, DDA Morris emailed Rollins’s
public defender again stating that her office planned to file a new complaint
the next day (Thursday) for arraignment on Monday, February 3. The new
complaint would “likely” charge two felony counts, under section 496d,
subdivision (a) (receiving stolen property), and Vehicle Code section 2800.4
(evading a peace officer while driving against traffic), and one misdemeanor
count, under section 148, subdivision (a)(1) (resisting a peace officer).
In the same email, DDA Morris presented Rollins’s counsel with two
alternative offers. First, if Rollins wished to resolve Case One, he could enter
a plea to one of the firearm-possession charges in exchange for a two-year
term. Second, if he would enter a plea to both firearm-possession charges in
exchange for a three-year term, the People would “agree to dismiss the new
case prior to arraignment on Monday.” DDA Morris closed by saying that if

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Rollins wished to accept either offer, she “need[ed] to know by Friday at
5:00 pm,” less than 48 hours later.
The next day, Thursday, January 30, DDA Moore filed a complaint in
case no. F25-00228 (Case Two), the underlying case in this appeal. The
complaint charged Rollins with the two felonies and one misdemeanor
DDA Morris had identified as being the likely charges. DDA Morris and
Rollins’s public defender attempted to negotiate a plea bargain throughout
the weekend, but no agreement was reached, and Rollins was arraigned on
the new complaint on Monday, February 3.
Meanwhile, also on January 30, DDA Moore discovered a different
Vallejo Police Department report pertaining to Rollins that was submitted to
the District Attorney’s Office in 2023 and was pending investigation. After
following up with the police, who had not provided other evidence they had
since developed, DDA Moore concluded there was sufficient evidence to
charge Rollins for the incident. On February 3, she filed a complaint in case
no. F25-00236 (Case Three) charging him with five felonies committed in
February 2023.3
On the morning of February 3, DDA Morris learned from DDA Moore
about Case Three’s filing. DDA Morris emailed Rollins’s public defender to
notify him of the new charges and informed him that the prosecution’s
“current offers [were] off the table.” Later that evening, DDA Morris offered
a global resolution of all three cases for a total term of four years, four
months, plus credit for time served.

3 The complaint charged Rollins with second degree robbery (§ 211),

criminal threats (§ 422, subd. (a)), possession of a firearm by a felon (§ 29800,
subd. (a)(1)), unlawful possession of ammunition (§ 30305, subd. (a)(1)), and
receiving stolen property (§ 496d, subd. (a)).

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Rollins did not accept the offer, and he was arraigned in Case Three on
Wednesday, February 5, the same day that trial in Case One began. He
orally moved to dismiss Case One on the basis of vindictive prosecution and
indicated he would do the same in the other two cases. The trial court
declined to rule on the motion at that juncture and instead requested full
briefing. The jury ultimately acquitted Rollins of all charges in Case One.
In June 2025, Rollins filed a motion to dismiss Cases Two and Three for
vindictive prosecution. He argued that the filing of the new cases “appear[ed]
to be in retaliation for [his] decision to exercise his legal right to a jury trial”
in Case One. The People opposed, claiming no presumption of vindictiveness
applied and there was no evidence of an actual vindictive motive. At the
eventual hearing on the motion, DDA Morris denied that she had any
vindictive intent.
On July 3, 2025, after a preliminary hearing in Case Two, the felony
count of evading a peace officer was dismissed and Rollins was held to
answer on the other two counts. Six days later, the trial court granted in
part and denied in part Rollins’s motion to dismiss. As to Case Two, the
court stated that it could find “some sort of an implied vindictiveness,” or
draw “an inference” of vindictiveness, based on “the settlement negotiations
and the timeline.” Specifically, DDA Morris “had everything she needed to
file” Case Two but did not do so until after Rollins rejected a plea offer to
which she gave him only two days to respond. The court then found that the
People failed to “rebut[]” the inference of vindictiveness, requiring Case Two
to be dismissed. It declined to dismiss Case Three, however, because that

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case was filed “outside of Ms. Morris’s purview or knowledge.” The People
appealed from the order dismissing Case Two.4
II.
DISCUSSION
A. General Legal Standards
“The due process clauses of the state and federal Constitutions prohibit
prosecutors from punishing criminal defendants for exercising their
constitutional rights.” (Short v. Superior Court (2019) 42 Cal.App.5th 905,
914 (Short); People v. Jurado (2006) 38 Cal.4th 72, 98.) “The gravamen of a
vindictive prosecution is the increase in charges or a new prosecution brought
in retaliation” for a defendant’s decision to appeal, go to trial, or pursue
similar procedural rights. (People v. Valli (2010) 187 Cal.App.4th 786, 802;
see, e.g., Blackledge v. Perry (1974) 417 U.S. 21, 22–23, 28–29 [defendant
charged with felony after exercising right to new trial on misdemeanor
charge]; Twiggs v. Superior Court (1983) 34 Cal.3d 360, 368, 371 (Twiggs)
[defendant charged with additional crimes after exercising right to retrial
after mistrial on original charges]; People v. Ledesma (2006) 39 Cal.4th 641,
731 [increase in charges after defendant’s successful appeal may support
claim for vindictive prosecution].)
There are two ways to establish a claim of vindictive prosecution. (See
United States v. Goodwin (1982) 457 U.S. 368, 380–381 (Goodwin).) First, a

4 In their opening brief, the People stated the order is appealable under

section 1238, subdivision (a)(8), which gives them the right to appeal to the
Courts of Appeal orders “dismissing or otherwise terminating all or any
portion of the action” in a “felony case.” (§§ 1238, subd. (a), 1235.) Based on
then-unsettled law, Rollins initially claimed we lacked jurisdiction because
the filing of a felony complaint does not suffice to initiate a “felony case.” But
he withdrew the claim based on a recent Supreme Court decision holding
otherwise (People v. Hyatt (Aug. 6, 2026, S290426) __ Cal.5th __ [p. 2]), and in
light of Hyatt we conclude we do have jurisdiction.

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defendant may present “ ‘ “direct evidence of the prosecutor’s punitive
motivation.” ’ ” (Short, supra, 42 Cal.App.5th at p. 915; Goodwin, at pp. 380–
381.) Second, “[i]n the absence of such direct evidence, a defendant may raise
a presumption of vindictiveness by making a prima facie showing that the
prosecutor’s actions raise a ‘reasonable likelihood of vindictiveness.’ ”
(People v. Sanchez (2020) 49 Cal.App.5th 961, 983 (Sanchez), quoting Twiggs,
supra, 34 Cal.3d at p. 373; Goodwin, at p. 381.) If the presumption applies,
“ ‘the burden shifts to the government to present “objective evidence
justifying the prosecutor’s action,” ’ ” such as new information supporting the
additional charges. (Short, at p. 915; In re Bower (1985) 38 Cal.3d 865, 873.)
But if the presumption does not apply, the defendant must present “objective
evidence ‘that the prosecutor’s charging decision was motivated by a desire to
punish [the defendant] for doing something that the law plainly allowed [the
defendant] to do.’ [Citation.] ‘The charge of vindictive prosecution is not a
substitute for evidence.’ ” (People v. Bracey (1994) 21 Cal.App.4th 1532,
1549.)
Generally, a presumption of vindictiveness does not apply in the
pretrial setting. (Goodwin, supra, 457 U.S. at pp. 380–382; People v.
Michaels (2002) 28 Cal.4th 486, 515.) The prosecution has “broad discretion”
to make charging decisions, and “[a]n initial decision should not freeze future
conduct . . . [because] the initial charges filed by a prosecutor may not reflect
the extent to which an individual is legitimately subject to prosecution.”
(Goodwin, at p. 382, fn. omitted.) In particular, vindictiveness is not
presumed merely because a prosecutor follows through on a plea-bargaining
“threat[] to increase the charges if the defendant does not plead guilty.”
(People v. Jurado, supra, 38 Cal.4th at p. 98; Goodwin, at pp. 382–383.)

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Here, it is undisputed that because Case Two was filed before the trial in
Case One began, no presumption of vindictiveness applied.
Although our state Supreme Court “has not clarified the standard of
review for a claim of vindictive prosecution,” we follow other Courts of Appeal
in reviewing the trial court’s factual findings for substantial evidence and its
legal conclusions de novo. (Sanchez, supra, 49 Cal.App.5th at p. 983; Short,
supra, 42 Cal.App.5th at p. 915.) We presume that the challenged order is
correct and that, “[a]bsent evidence to the contrary, . . . the trial court knew
the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042;
Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 383.)
B. The Trial Court Applied an Incorrect Legal Standard in
Granting Rollins’s Motion to Dismiss.
The People claim the trial court erred by applying a presumption of
vindictiveness. Rollins responds that the court “was well aware that a
presumption of vindictiveness did not apply” and any ambiguity in its
reasoning was caused by DDA Morris’s inaccurate articulation of the
governing standard at the hearing.
The trial court and parties discussed Rollins’s motion to dismiss at
length before the court ruled. Addressing DDA Morris, the court explicitly
explained its view of the governing law as follows:
“Let me tell you what my understanding of it is[,] is that,
you know, there can be proven vindictiveness, . . . it’s a legal term
of art. It’s not like if we were to look in Webster’s Dictionary. I
think it would be different[,] would mean that essentially you are
increasing jeopardy or doing something to essentially punish
someone for exercising a certain right.

“In this case it would be for exercising one’s right to a jury
trial, and that can be done with actual vindictiveness or it can be
done with [a] presumption or it can be done with an appearance
of vindictiveness as I understand it. . . . [M]y understanding of

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[the] defense argument is that there’s an appearance of
vindictiveness based on the timing of the charging which
happened—I want to say it doesn’t happen all the time, right,
like, right before a jury trial in the midst of negotiations in a very
truncated time frame.

“I think their argument is that . . . you artificially
truncated that time frame and then in order to essentially punish
Mr. Rollins for exercising his . . . right to a jury trial you filed
these charges in a way with regards to time to, you know, jam
him up essentially and . . . to increase his jeopardy because he did
this. . . .

“So that’s my understanding of the argument, and then my
understanding of the case law is if I do find an appearance of
vindictiveness, then it is the People’s burden to rebut that
appearance via, you know, declarations and other evidence.”
The trial court asked DDA Morris whether its “understanding [was]
deficient in some way” or it was overlooking something. After responding
affirmatively, she said, “So there is a standard for appearance of
vindictiveness. It’s not just assume what you know based on the definition.
It says the appearance of vindictiveness results only where as a practical
matter there is a realistic or reasonable likelihood of prosecutorial conduct
that would not have occurred but for hostility or punitive animus to the
defendant because he has exercised specific legal rights.” She then
emphasized that it was Rollins’s burden to “prove some amount of hostility or
a punitive animus.”
The above comments suggest the trial court believed there were three
ways to establish vindictiveness: by applying a presumption of
vindictiveness, by finding actual vindictiveness, or by finding an appearance
of vindictiveness. The comments also demonstrate that the court believed an
appearance of vindictiveness could be established without any direct evidence
of the prosecutor’s punitive intent and that the People had the burden to

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rebut an appearance of vindictiveness. These beliefs were also reflected in
the court’s final ruling that vindictiveness could be “implied” or “infer[red]”
from “the settlement negotiations and the timeline” and that the People did
not “rebut[]” the inference of vindictiveness.
We agree with the People that “appearance of vindictiveness” is
phrasing “associated with a presumption of vindictiveness” that shifts the
burden to the prosecution, not a separate way to prove vindictiveness. In his
briefing below, Rollins argued that even if a presumption of vindictiveness
does not apply, “[a]fter the defendant makes a prima facie case for
vindictiveness, it is the Government’s burden to dispel both the appearance of
vindictiveness and any actual vindictiveness.” But the two authorities he
cited involved early case law from the Ninth Circuit Court of Appeals about
the presumption of vindictiveness, not the legal standard that applies when a
presumption is unwarranted. (See Twiggs, supra, 34 Cal.3d at p. 371
[discussing Ninth Circuit decisions]; United States v. Griffin (9th Cir. 1980)
617 F.2d 1342, 1347 [“[T]he mere appearance of vindictiveness may give rise
to a presumption of a vindictive motive sufficient to establish a due process
violation”].) As another Ninth Circuit decision explained,
“This circuit has applied the presumption of vindictiveness
doctrine in the form of the ‘appearance of vindictiveness’ test.
Absent direct evidence of an expressed hostility or threat to the
defendant for having exercised a constitutional right, [citations],
to establish a claim of vindictive prosecution the defendant must
make an initial showing that charges of increased severity were
filed because the accused exercised a statutory, procedural, or
constitutional right in circumstances that give rise to an
appearance of vindictiveness. [Citations.] If there is a sufficient
prima facie showing of vindictiveness, the burden shifts to the
prosecution to show that any increase in the severity of the
charges did not stem from a vindictive motive, or was justified by
independent reasons or intervening circumstances that dispel the
appearance of vindictiveness.”

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(United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1168.)
California decisions also reflect this association between the “appearance of
vindictiveness” and the presumption of vindictiveness. (See, e.g., People v.
Puentes (2010) 190 Cal.App.4th 1480, 1486.)
In short, the comments and ruling of the trial court demonstrate that it
effectively employed a presumption of vindictiveness even though no such
presumption applied. This was error, albeit understandable error given that
Rollins’s briefing below incorrectly stated the governing legal standards.
On appeal, Rollins insists that the trial court “understood that a
presumption of vindictiveness did not apply in this case.” That may be true,
but the problem is that the court thought finding an “appearance of
vindictiveness” was an alternative to, not the equivalent of, applying such a
presumption. Rollins also faults DDA Morris for her “unclear articulation” of
the legal standards at the hearing, since she twice referred to “actual or
apparent vindictiveness” as a single alternative to a presumption of
vindictiveness. But DDA Morris consistently argued that a finding of actual
animus was required, and it was Rollins who first muddied the waters by
arguing an appearance of vindictiveness provided a distinct path for
establishing vindictive prosecution.
Having concluded that the trial court erred, we further conclude that
the appropriate remedy is to direct the court to reinstate Case Two, not
remand for the court to reconsider its ruling under the applicable law. This
is because the record is devoid of any direct evidence of actual vindictiveness,
as required in the pretrial setting. (Sanchez, supra, 49 Cal.App.5th at p. 983;
Short, supra, 42 Cal.App.5th at p. 915.) “[D]irect evidence stands on its own”
and “does not require an inference.” (People v. Anderson (2007)
152 Cal.App.4th 919, 931.) Here, there was no “expressed hostility or threat

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to the defendant,” meaning vindictiveness could only be inferred from the
timing and circumstances of the relevant events below. (United States v.
Gallegos-Curiel, supra, 681 F.2d at p. 1168.) As a result, we agree with the
People that Case Two should be reinstated.
III.
DISPOSITION
The July 9, 2025 order dismissing case no. F25-00228 is reversed. The
matter is remanded for further proceedings consistent with this opinion.

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_________________________
Humes, P. J.

WE CONCUR:

_________________________
Banke, J.

_________________________
Smiley, J.

People v. Rollins A174290

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