Harvey waiver in California

2026He checked boxes on a preprinted form stating an information was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or other theory under which malice is imputed to a person based solely on that person’s participation in a crime; he accepted a plea offer in lieu of a trial at which he could have been convicted of 4 The attempted murder count was dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754 ). 6. murder; and he could not presently be convicted of murder because of change

2026As we explained People v. Weatherton (2015) 238 Cal.App.4th 676 , 678: In Harvey, supra, 25 Cal.3d 754 , “our Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences.

2025(See, e.g., People v. Goulart (1990) 224 Cal.App.3d 71, 80 [trial court’s award for offenses which defendant was not convicted was affirmed because restitution was a condition of probation, not a penal consequence]; People v. Beck (1993) 17 Cal.App.4th 209 , 215–216 [restitution order affirmed where defendant was sentenced to prison and restitution was ordered for dismissed counts pursuant to a Harvey waiver].) 7 Despite this relaxed standard of proof, we conclude there is insufficient evidence establishing a causal nexus between Belloli’s conduct and the loss of the truck and other tools.

2024(People v. Lai (2006) 138 Cal.App.4th 1227, 1246 ; People v. Foalima (2015) 239 Cal.App.4th 1376, 1395-1396 .) Defendant is correct that because he was not convicted of theft, did not agree to a Harvey waiver allowing the sentencing judge to consider unfiled charges (see People v. Goulart (1990) 224 Cal.App.3d 71, 80 ), and was sentenced to state prison as opposed to probation, the trial court could only impose restitution for losses caused by the criminal conduct for which he was convicted.

2023(See In re S.B. (2004) 32 Cal.4th 1287, 1293 [“application of the forfeiture rule is not automatic”].) 8 dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences”].) The principle in Harvey that the trial court may consider the facts supporting the dismissed count by agreement of the defendant was extended in People v. Baumann (1985) 176 Cal.App.3d 67 , 74-75 to cover restitution, and was later codified in section 1192.3, subdivision (b).

2023In 2018, Velez stole a car, which the victim was able to track with the cellphone he left inside the car, and Velez was determined to have broken into another car to steal the day before. 9 The Court of Appeal disagreed, and held “a Harvey waiver was ineffective to eliminate the ‘pleading and proving requirements necessary to make a defendant statutorily ineligible to receive probation or to impose an enhancement term.’ ” (People v. Baumann (1985) 176 Cal.App.3d 67 , 75–76 [discussing Myers].) The circumstances of Myers are not present here.

2026As we explained People v. Weatherton (2015) 238 Cal.App.4th 676 , 678: In Harvey, supra, 25 Cal.3d 754 , “our Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences.

2025But it will definitely—if it’s determined by the Court that there’s restitution to be paid to the [VCB] . . ., you’re on the hook for that, whatever the Court decides.” Younger and her counsel agreed. 3 “In People v. Harvey (1979) 25 Cal.3d 754 , 758–759 [citation], our Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences.” (People v. Weatherton (2015) 238 Cal.App.4th 676, 678 (Weatherton).) 5 After confirming that Younger was fr

2022(People v. Martin (2010) 51 Cal.4th 75, 77 ; Crump, at pp. 246-247.) A trial court is prohibited from imposing a condition of probation based on facts underlying a dismissed count absent a Harvey waiver unless those facts are “transactionally related to” the admitted offense. ( Beagle, supra, at p. 423 .) “Cases interpreting the [Harvey] exception have identified facts from which it could at least be inferred that some action of defendant giving rise to the dismissed count was also involved in the admitted count.” (Beagle, at p. 421.) Here, defendant admitted only to the elements of the unlawf

2015DISCUSSION Article I, section 28, subdivision (b)(13)(A) of the California Constitution provides, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” Harvey held that “[i]mplicit in . . . a plea bargain . . . is the understanding (in the absence of a contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely perta

2012In People v. Martin (2010) 51 Cal.4th 75 [ 119 Cal.Rptr.3d 99 , 244 P.3d 496 ] {Martin), our high court reiterated what it had said in Harvey. “[A]n implied term of a plea agreement is that a defendant will not be adversely affected ‘by reason of the facts underlying, and solely pertaining to, the dismissed count.’ [Citation.]” {Id. at p. 81, italics added.) Thus, the foundational basis for the Harvey rule is the reasonable expectations of the parties concerning counts dismissed as part of the plea bargain. {People v. Franco (1986) 181 Cal.App.3d 342, 349 [ 226 Cal.Rptr. 280 ].) The November 2

2012In People v. Martin (2010) 51 Cal.4th 75 [ 119 Cal.Rptr.3d 99 , 244 P.3d 496 ] {Martin), our high court reiterated what it had said in Harvey. “[A]n implied term of a plea agreement is that a defendant will not be adversely affected ‘by reason of the facts underlying, and solely pertaining to, the dismissed count.’ [Citation.]” {Id. at p. 81, italics added.) Thus, the foundational basis for the Harvey rule is the reasonable expectations of the parties concerning counts dismissed as part of the plea bargain. {People v. Franco (1986) 181 Cal.App.3d 342, 349 [ 226 Cal.Rptr. 280 ].) The November 2

2024(See People v. Brooks (2017) 15 Cal.App.5th 331, 334, fn 3 [“A Harvey waiver is a defendant’s agreement, as part of a plea bargain, to allow the sentencing court to consider 3 court sentenced Gibbs to an aggregate term of 41 years in state prison.

2024(See People v. Brooks (2017) 15 Cal.App.5th 331, 334, fn. 3 [“A Harvey waiver is a defendant’s agreement, as part of a plea bargain, to allow the sentencing court to consider facts supporting dismissed counts”].) 4 a term of five years.

2023(People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).) “A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167 , citing People v. Moser (1996) 50 Cal.App.4th 130 , 132–133.) 4. considered improper factors in aggravating his terms and the error was prejudicial, entitling him to remand for resentencing.5 The People contend that defendant forfeited his claims of sentencing error

2022(People v. Moser (1996) 50 Cal.App.4th 130, 132-133 .) Here, Zamora’s change of plea form contained the following statement regarding the Harvey waiver: “The sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence.” (emphasis added.) Thus, the court was not limited to the $400 amount defining the misdemeanor offense. 6 B.

2026Harvey allows a trial court to consider facts underlying a dismissed count if that conduct is “transactionally related to the offense to which the defendant pleaded guilty.” (Harvey, supra, 25 Cal.3d at p. 758 , italics omitted.) A transactional relationship exists where “it could at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count.” (People v. Beagle (2004) 125 Cal.App.4th 415, 421 .) The Attorney General acknowledges that the People did not obtain a Harvey waiver when the burglary charge was dismissed as part of de

2022(Anderson, at p. 32.) Unlike victim restitution, a condition of probation adds a restriction to defendant’s conduct, constituting “adverse sentencing consequence” under Harvey. ( Crump, supra, 37 Cal.App.5th at pp. 246-247; People v. Beagle (2004) 125 Cal.App.4th 415, 421 .) Thus, the Harvey rule, and its exception, apply to the imposition of conditions of probation.

2000“Implicit in such a plea bargain, we think, is the understanding (in the absence of a contrary agreement) that defendant will suffer no adverse sentencing consequence by reason of the facts underlying, and solely pertaining to, the dismissed count.” (Id. at p. 758.) The court noted, however, that the rule did not disturb “the authority of the sentencing court to take into account certain facts underlying charges dismissed pursuant to a plea bargain [when] those facts are transactionally related to the offense to which defendant pleaded guilty.” (Ibid., italics omitted.) Hence, the Harvey rule

2000“Implicit in such a plea bargain, we think, is the understanding (in the absence of a contrary agreement) that defendant will suffer no adverse sentencing consequence by reason of the facts underlying, and solely pertaining to, the dismissed count.” (Id. at p. 758.) The court noted, however, that the rule did not disturb “the authority of the sentencing court to take into account certain facts underlying charges dismissed pursuant to a plea bargain [when] those facts are transactionally related to the offense to which defendant pleaded guilty.” (Ibid., italics omitted.) Hence, the Harvey rule

2015(Harvey, supra, 25 Cal.3d at p. 758 .) In the absence of a Harvey waiver, a trial court still may consider the conduct on which dismissed charges were based if the “[f]acts surrounding a dismissed charge . . . 7 are ‘transactionally related’ to defendant’s admitted offense.” (People v. Klaess (1982) 129 Cal.App.3d 820, 823 .) “The requirements of due process are satisfied by providing the defendant a hearing on ability to pay as well as the extent of the loss occasioned by the defendant’s criminal conduct.

1996(Harvey, supra, 25 Cal.3d at p. 758 ; People v. Franco, supra, 181 Cal.App.3d at p. 350 ; People v. Klaess, supra, 129 Cal.App.3d at p. 823 .) Thus, in People v. Bustamante (1992) 7 Cal.App.4th 722 [ 9 Cal.Rptr.2d 244 ], this court held that, where a defendant entered a plea to *1684 one count of child molestation pursuant to an agreement requiring dismissal of two other incidents of molestation, the Harvey rule was inapplicable.

2025In any event, Escobar relied on the reasoning in People v. Richards (1976) 17 Cal.3d 614, 620 , but Richards was both distinguished and disapproved in Carbajal, supra, 10 Cal.4th at page 1126 . 8 unlimited discretion as to the kind of information they can consider.5 (People v. Prosser (2007) 157 Cal.App.4th 682, 692 .) This includes evidence that would otherwise be inadmissible on the issue of guilt.

2023As the Baumann court noted: “In contrast to Myers, the prosecution was not required to plead and prove the amount of restitution that might be ordered in the event the court, in the exercise of its discretion, granted probation.” (Baumann, at p. 76, italics added.) We also reject Velez’s claim that his due process rights were violated by the prosecution’s “late added requests for unexpected losses.” “The scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited: ‘ “A defendant’s due process rights are protected when the probation rep

2025(Ibid.) The facts of this case fall well within the general rule that permits the court to order restitution as a condition of probation based on “related conduct not resulting in a conviction.” (Carbajal, supra, 10 Cal.4th at p. 1121 .) That is especially true here, where Anderson’s plea agreement included a Harvey waiver that permitted the court to consider “the entire 7 factual background of the case” when it determined restitution.4 The evidence before the court showed that Anderson suffered from a mental health crisis impacting his judgment; the victims’ car was legally parked and no one

2023(Carbajal, supra, 10 Cal.4th at p. 1121 ; Goulart, supra, 224 Cal.App.3d at p. 79 .) It “may also consider crimes which were charged but dismissed [citation]; uncharged crimes, the existence of which is readily apparent from the facts elicited at trial [citation]; or even charges of which the defendant was acquitted, if justice requires they be considered.” (Goulart, at p. 79; accord Carbajal at p. 1121 .) Velez agreed to a standard Harvey waiver with broad terms allowing the sentencing court to consider his “prior criminal history and the entire factual background of the case, including any u

2024A search of appellant’s person and property disclosed a small amount of methamphetamine, paraphernalia, a switch blade knife, and a “belt knife.” 3 “A Harvey waiver is a defendant’s agreement, as part of a plea bargain, to allow the sentencing court to consider facts supporting dismissed counts.” (People v. Brooks (2017) 15 Cal.App.5th 331, 334, fn. 3 , citing People v. Harvey (1979) 25 Cal.3d 754 .) 4 “A ‘Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,’ if the defendant willfully fails to a

2021The court again referred defendant to the probation department and ordered him to return to court on November 6, 2019. 2 “A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted. [Citation.]” (People v. Munoz (2007) 155 Cal.App.4th 160, 167 .) 3 As we will discuss below, “[a] ‘Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,’

2025An officer had to use force to get the defendant to sit on the ground.” 5 “A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167 .) 8 criminal conduct giving rise to his incarceration.

2024Appellant was released on bail. 3 “A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167 .) 3.

2022However, even in the absence of a true finding, admission, or plea agreement involving a Harvey waiver, it is well settled the court “ ‘may impose a victim restitution order as a condition of probation regardless of whether or not the defendant has been convicted of the underlying crime.’ ” (People v. Snow (2012) 205 Cal.App.4th 932, 940 .) 5 counts.

2021DISPOSITION The judgment is affirmed. 4 Section 1192.3, subdivision (b) states that “[i]f restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, … the court shall obtain a [Harvey] waiver … from the defendant as to the dismissed count.” A Harvey waiver “allow[s] the sentencing judge to consider [the defendant’s] entire criminal history, including any unfiled or dismissed charges.” (People v. Goulart (1990) 224 Cal.App.3d 71, 80 ; People v. Snow (2012) 205 Cal.App.4th 932, 937 .) Defendant’s plea form included the following Harvey waiver: “I understand tha

2022(Ibid.) In aggravation, the court considered that the crime involved “great violence and great bodily injury,” and that the defendant had a history of violence and was “increasingly dangerous.” (Ibid.) The defendant challenged the imposition of the upper term, arguing it violated his right to a jury trial and proof beyond a reasonable doubt as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 , Blakely v. Washington (2004) 542 U.S. 296 , and Cunningham v. California 41. (2007) 549 U.S. 270 .) The Munoz court held that by signing the Harvey waiver, “defendant effectively ‘stipulate[d] t

2022(Munoz, at p. 168.) At the time Munoz was decided the United States Supreme Court had concluded “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt.” (Id. at p. 166, citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 ; & Cunningham v. California (2007) 549 U.S. 270 .) The Attorney General argues the application of amended section 1170 in this case raises the same issue as in Munoz, and should be resolved the same

2017(See, e.g., *305 People v. Hoffman (2015) 241 Cal.App.4th 1304 , 1307, 194 Cal.Rptr.3d 658 [pleading defendant executed a Harvey waiver].) We recognized a different implied term for all plea agreements in Arbuckle, supra , 22 Cal.3d 749 , 150 Cal.Rptr. 778 , 587 P.2d 220 , holding that a defendant's negotiated plea agreement necessarily included an implied term that the same judge who accepted his plea would preside at sentencing.

2017(See, e.g., *305 People v. Hoffman (2015) 241 Cal.App.4th 1304 , 1307, 194 Cal.Rptr.3d 658 [pleading defendant executed a Harvey waiver].) We recognized a different implied term for all plea agreements in Arbuckle, supra , 22 Cal.3d 749 , 150 Cal.Rptr. 778 , 587 P.2d 220 , holding that a defendant's negotiated plea agreement necessarily included an implied term that the same judge who accepted his plea would preside at sentencing.