What is a “Harvey Waiver”? How does it affect restitution?

A Harvey waiver is an agreement by a defendant that any counts dismissed as part of a plea agreement can still be considered for the purposes of sentencing on the remaining counts. The waiver is typically used to ensure that victim restitution is ordered to compensate the victims for any losses.

The use of a Harvey waiver is recommended in California Penal Code 1192.3b. According to this statute:

“If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, as described in this section, the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 from the defendant as to the dismissed count.”

An example of a Harvey waiver in operation is a hypothetical criminal case in which a defendant is charged with:

1. assault with a deadly weapon (per PC 245a1), and
2. carrying a loaded firearm (per PC 25850).

In this example, the defendant may decide to plead guilty to the firearm charge if the prosecutor dismisses the assault charge. If this is done, then a judge can consider both charges at sentencing – but only if the defendant has signed a waiver.

Victim restitution refers to a victim’s right to recover any economic losses that he/she incurred as the result of another person’s criminal wrongdoing.

California law provides that victims of crimes are entitled to recover the full amount for any reasonable losses or expenses.

In some cases, restitution may be provided at the beginning of a criminal case. If so, then a judge can dismiss a criminal charge against a defendant after he compensates the victim for any damages his crime caused. This is known as a civil compromise.

Civil compromises are only available if the defendant is charged with a misdemeanor. They are not available for felony offenses.

Our California criminal defense attorneys will highlight the following in this article:

• 1 . What is a “Harvey waiver” under California law?
• 2. What is Penal Code 1192.3b?
• 3. What is victim restitution in California criminal cases?
• 4. How much victim restitution will the court order a defendant to pay?
• 5. What is a restitution hearing?
• 6. What is the difference between a restitution order and a restitution fine?
• 7. What is a civil compromise?

1. What is a “Harvey waiver” under California law?

A “Harvey waiver” is when a defendant stipulates, or agrees, that any dismissed charges can be considered against him during the sentencing phase of a criminal case.

The waiver is typically used for purposes of victim restitution. And, it is common when a defendant enters into a plea bargain for a lesser charge.

Consider, for example, a case where a wheelchair-bound convicted felon is at home in his apartment while a woman is cleaning it. When the woman is done and asks for payment the felon grabs a gun and shoots her in the hand.

The government charges the felon with:

1. assault with a deadly weapon (per PC 245a1), and
2. felon in possession of a firearm (per PC 29800).

The defendant enters into a plea bargain where:

• he pleads guilty to the firearm charge, and
• the prosecutor dismisses the assault charge.

In sentencing, the judge can consider both charges if the defendant signs a Harvey waiver. If he does not, then the judge cannot consider the dismissed charge.¹

2. What is Penal Code 1192.3b?

The legal rule regarding Harvey waivers and sentencing is codified in California Penal Code 1192.3b.²

Please note that, under this statute, a Harvey waiver is valid provided that:

1. the waiver is freely and voluntarily made,
2. there is a factual basis for the waiver, and
3. the waiver is approved by the court.³

3. What is victim restitution in California criminal cases?

Victim restitution (compensation) refers to a victim’s right to recover any economic losses that he/she incurred as the result of another person’s criminal wrongdoing.

“Victims” may include

• the person who suffered a direct or threatened physical, psychological, or financial harm,
• the family of the individual who suffered a loss, or even
• a business, government or other entity that has suffered a loss due to another person’s criminal acts.⁴

“Losses” include (but are not limited to):

• stolen, damaged or destroyed property,
• medical and/or therapy bills,
• lost wages if the victim was unable to work due to the crime,
• damage to a business or its property, and
• any reasonable attorneys’ fees that were incurred by trying to collect the ordered restitution.⁵

4. How much victim restitution will the court order a defendant to pay?

California law provides that victims of crimes are entitled to recover the full amount for any reasonable losses or expenses.⁶

The prosecutor is not even allowed to reduce this amount during a plea bargain, because he/she has no right to waive any claims on the victim’s behalf.⁷

Note that the victim is entitled to collect full restitution from the defendant even if the victim is separately reimbursed by an insurance payment.⁸ However, if it is the defendant’s insurance company that pays the victim, the defendant is entitled to have the insurance payment deducted from his/her remaining victim restitution obligation.⁹

5. What is a restitution hearing?

A restitution hearing is an official court hearing that is used when either:

1. the victim doesn’t know the exact amount of his/her losses, or
2. the defendant wishes to contest the requested amount.

At this hearing, the victim has the burden of proving that the defendant’s criminal conduct substantially caused the victim’s losses.

The victim must also prove that the amount of compensation he/she is requesting is proper. The standard of proof is “a preponderance of the evidence.” This legal concept means “more likely than not”.

In proving that compensation is proper, a victim may use such evidence as:

• bills,
• business records,
• medical expenses, and
• profits lost.

6. What is the difference between a restitution order and a restitution fine?

Victim restitution (sometimes referred to as a restitution order) is different from general restitution (which is also referred to as a restitution fine).

The difference between the two is that victim compensation is money that the defendant pays directly to the victim for his/her wrongdoing. A restitution fine, though, is money that a criminal defendant pays in every case to the state’s Restitution Fund – which helps support the California Victims Compensation Fund.

The Victims Compensation Fund is a program that provides compensation to victims of violent crimes. If a person meets the eligibility criteria, the program will compensate for many types of services when the costs are not covered by other sources, such as

• funeral expenses,
• relocation, and
• rehabilitation.

7. What is a civil compromise?

On the topic of restitution and victim compensation is the legal process of civil compromise.

This is the process where a judge can dismiss a criminal charge if:

1. the crime committed was a misdemeanor; and,
2. the victim of the crime gets reimbursed, by the defendant, for any damages he suffered.¹⁰

Please note that for a civil compromise to even be available, an act must result in both criminal and civil liability.

In civil compromises, once an injured party is reimbursed for any losses or damages, the following events typically occur:

• the victim appears before the court where the criminal case is pending¹¹,
• the victim acknowledges that he has received full compensation for his loss or damages, by the defendant,
• the victim states that he does not desire prosecution of the misdemeanor that caused the damages, and
• the court may order that all criminal charges will be dismissed.¹²

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