A Harvey waiver is a specific provision in a California plea bargain in which a defendant agrees that a judge may consider the facts of dismissed criminal counts when determining the sentence, probation conditions, and victim restitution for the remaining convicted charges.
Named after the landmark California Supreme Court decision People v. Harvey (1979) 25 Cal.3d 754, the general rule establishes that a court cannot punish a defendant using facts related to dismissed charges.
However, by executing a Harvey waiver, the defendant voluntarily surrenders this protection in exchange for the prosecutor dropping certain charges.
Legal Requirements for a Valid Harvey Waiver
For a Harvey waiver to be legally enforceable in a California court, three core requirements must be met:
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Voluntary Agreement: The defendant must knowingly, intelligently, and voluntarily enter into the waiver without coercion.
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Factual Basis: The record must show a factual connection between the dismissed counts and the overall criminal conduct.
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Judicial Acceptance: The presiding judge must review and approve the waiver during the plea colloquy.
Without a valid Harvey waiver on the record, a judge is strictly prohibited from using dismissed charges to increase a defendant's sentence or order restitution related to those dropped counts.
Harvey Waivers and Victim Restitution
The primary application of a Harvey waiver involves victim restitution under California Penal Code § 1202.4 PC and Article I, Section 28(b) of the California Constitution.
In California, crime victims have a constitutional right to full restitution for economic losses resulting from criminal acts. When a plea deal dismisses certain charges, a Harvey waiver allows the court to order the defendant to pay restitution for financial losses linked to those dismissed counts.
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Expense Category |
Coverable Restitution Losses |
| Property Damage | Replacement or repair costs for stolen, damaged, or destroyed property. |
| Medical & Mental Health | Emergency room fees, therapy sessions, medication, and ongoing medical care. |
| Lost Income | Wages lost due to physical injury, court appearances, or investigative time. |
| Legal Fees | Reasonable attorney fees incurred by the victim to collect restitution. |
Understanding Restitution Hearings and Civil Compromises
When financial restitution is contested or misdemeanor charges are involved, two additional legal mechanisms often intersect with Harvey waivers:
Restitution Hearings
If a defendant disputes the restitution amount requested by the prosecution or victim, the court conducts a formal restitution hearing.
The prosecution or victim must prove the financial loss using evidence such as invoices, receipts, medical bills, or repair estimates. The defense can challenge the accuracy or reasonableness of these claims.
Civil Compromise (California Penal Code § 1377 & 1378 PC)
Under California Penal Code § 1377 and 1378 PC, certain misdemeanor offenses involving civil injury (such as minor property damage or hit-and-run) can be completely dismissed through a civil compromise.
If the defendant fully reimburses the victim for their loss and the victim acknowledges satisfaction in court, the judge may dismiss the misdemeanor charges entirely without a conviction.
Frequently Asked Questions (FAQs)
What is the definition of a Harvey waiver in California?
A Harvey waiver is an agreement during a plea bargain that permits a judge to consider dismissed criminal charges when determining sentencing and victim restitution.
What happens if I refuse to sign a Harvey waiver?
If you do not sign a Harvey waiver, the judge cannot order restitution or increase your sentence based on dismissed counts, but the prosecutor may refuse to offer the plea bargain.
Can a judge send me to jail for a dismissed charge under a Harvey waiver?
A judge cannot sentence you above the statutory maximum for your convicted offense, but they can use the facts of dismissed counts to impose a harsher sentence within the allowed statutory range or deny probation.
Is a Harvey waiver required in every California plea bargain?
No. Harvey waivers are negotiated terms used primarily when a plea deal involves dismissing specific counts that carry associated financial losses or aggravating factors.
How does a civil compromise differ from a Harvey waiver?
A civil compromise under PC 1377/1378 results in a full dismissal of misdemeanor charges upon compensating the victim, whereas a Harvey waiver is part of a guilty or no contest plea in which charges are dismissed but still factored into sentencing.
An attorney from Esfandi Law Group in Los Angeles specializing in criminal defense can assist you. Book your free consultation by either calling us or filling out the contact form available here.
