The Harvey Waiver and the Diagnostic Evaluations

In People v. Harvey (1979) 25 Cal.3d 754, the California Supreme Court held that a court may not consider the facts underlying charges dismissed as part of a plea bargain to aggravate or enhance the defendant's sentence. (Harvey, supra, 25 Cal.3d at p. 758.) The agreement to allow the court to consider the factual basis of uncharged or dismissed counts is termed a "Harvey waiver." (People v. Beck (1993) 17 Cal.App.4th 209, 215.) "The Harvey rule is based on the reasonable expectations of the parties to the bargain. 'Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.' (Harvey, supra, 25 Cal.3d at p. 758.) That rule is inapplicable to defendants who plead guilty to violating Penal Code section 288 because they can have no reasonable expectation regarding dismissed charges in light of section 288.1's requirement of a report on their current mental condition as it relates to suitability for probation. . . . 'Thus, in denying or granting probation in a section 288 case, one of the primary concerns is the defendant's mental condition. To limit the expert preparing the psychiatric report to the specific facts of the particular offense(s) would hamper both the expert and the sentencing court. In making an accurate and comprehensive evaluation of a defendant's mental condition, it is self-evident that neither the psychiatrist nor the court should be limited to facts surrounding the admitted offense but must consider the totality of a defendant's behavior and course of conduct of which the particular offense(s) logically is a part.' " (People v. Lamb (1999) 76 Cal.App.4th 664, 672-673.) In Lamb, the appellant pled guilty to multiple charges of violating section 288, subdivision (a), with several other counts dismissed as part of the bargain. (Lamb, supra, 76 Cal.App.4th at pp. 668-669.) Lamb contended that the plea bargain had been violated by the prosecution and the court in reliance at sentencing on all dismissed counts instead of only two dismissed counts as to which there had been an express Harvey waiver. (Id. at p. 672.) The plea bargain was set aside on appeal not because of a Harvey violation, since Harvey has no application in the context of Penal Code section 288 cases, but because the appellant had been misled by the court about the extent to which his dismissed charges could be considered in sentencing. (Id. at p. 674.) In People v. Harvey (1979) 25 Cal.3d 754, the court held that, in sentencing a defendant who had pleaded guilty as part of a plea bargain, the trial court had improperly considered a dismissed count as a factor in aggravation supporting the selection of an upper term. (Harvey, supra, 25 Cal.3d at pp. 757-758.) Harvey noted that "it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count . . . for purposes of aggravating or enhancing defendant's sentence. . . . Implicit in . . . a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Id. at p. 758.) Thus, a "Harvey waiver permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) By statute, the principle extends to restitution orders, as well. Section 1192.3, subdivision (b) provides: "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 supra 25 Cal.3d 754 from the defendant as to the dismissed count." Although it is uncontested that Webb did not initial the Harvey waiver on the waiver of rights form, he nonetheless failed to object at the time the restitution order was entered. Consequently, Webb has forfeited this issue. (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) In Scott, the California Supreme Court determined that the "waiver" doctrine applies to a sentencing judge's reasoning in imposing a discretionary sentence. "We conclude that the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case . . . ." (Scott, supra, 9 Cal.4th at p. 353.) The forfeiture rule is, however, subject to certain exceptions, such as instances of " 'unauthorized sentences' or sentences entered in 'excess of jurisdiction.' " (People v. Welch (1993) 5 Cal.4th 228, 235.) The rationale for such exceptions is that "the errors presented 'pure questions of law' , and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (People v. Smith (2001) 24 Cal.4th 849, 852.)