A Harvey waiver is a term in a plea agreement that lets the sentencing judge consider specified facts behind dismissed charges for an agreed purpose, despite the usual protection against adverse sentencing consequences based only on an unrelated dismissed charge. It is not a guilty plea to every dismissed count, a blanket admission that every allegation is true, or permission for unlimited punishment. The counts and wording of the agreement matter. (People v. Harvey)
Before accepting a plea with a Harvey clause, ask counsel which counts will be dismissed, what facts the judge may consider, and how the agreement treats sentencing, probation conditions and restitution. A general label alone may not tell you the clause’s scope.
What changes when you agree?
| Issue | What to identify in the plea record |
|---|---|
| Dismissed counts | The exact count numbers and whether dismissal occurs at the plea or after sentencing. |
| Waiver scope | Which dismissed-count facts may be considered, for what purpose, and any agreed sentencing range, cap or condition. |
| Restitution | Whether restitution is covered, what loss is claimed, whether an amount is final or “to be determined,” and what proof remains to be addressed. |
In Harvey, the defendant pleaded to robbery counts while a separate, unrelated robbery count was dismissed. The Supreme Court held that, absent a contrary agreement, the sentencing judge could not use facts relating solely to that unrelated dismissed count to choose a harsher sentence. The Court distinguished facts transactionally related to the admitted offense; it did not create a rule that every fact connected to a dismissed count is always unusable. (People v. Harvey, 25 Cal.3d 754, 757–759 (1979))
The agreement’s scope can matter beyond the prison term. The California Supreme Court has applied the plea-agreement principle to probation conditions based solely on a dismissed charge, while recognizing that express consent or a transactional relationship can change the analysis. (People v. Martin, 51 Cal.4th 75, 80–82 (2010))
Restitution has a separate statutory route
Penal Code § 1192.3 provides a separate procedure for a voluntary, factually supported, court-approved plea to an offense that caused no restitution damage, alongside dismissal of an offense from the same or related course of conduct that did cause damage, provided the admitted offense is not a felony specified in § 1192.5 or § 1192.7. It permits an agreed restitution condition and requires a Harvey waiver for restitution attributed to a dismissed count under that procedure. That statute is not a universal definition of a Harvey waiver and does not mean every dismissed charge produces restitution. (Penal Code § 1192.3(a)–(b))
If the later dispute is about whether restitution can cover losses outside the offense of conviction, see our separate California restitution guide. This page focuses on the earlier decision: what the defendant agrees a judge may consider when the plea is entered.
Review the actual clause before assenting
Read the written plea, attachments and any oral record together. The Judicial Council’s optional CR-101 felony plea form has a separate item 2(g) for agreement allowing consideration of facts underlying dismissed counts for sentencing and restitution; its blank or use in another case does not establish that a particular defendant agreed to those terms. (CR-101 felony plea form, item 2(g))
Before the plea is accepted, have counsel check:
- Which charges are admitted and which are dismissed, including when dismissal takes effect.
- The exact Harvey language, counts covered, and permitted purpose of considering the facts.
- Any agreed sentencing range, cap, probation condition or other term tied to a dismissed count.
- Whether restitution is addressed, including any amount marked “to be determined” and what loss evidence remains disputed.
- Whether the written terms match the plea colloquy and what the court states it accepts.
A waiver does not by itself prove disputed conduct or establish a loss amount. The plea record should reflect the scope the parties actually agreed to. The Law Offices of David S. Chesley can review a proposed criminal plea, dismissed counts and waiver language before acceptance. Call (800) 755-5174.