Myers

In a case illustrating how sentencing error can occur through misuse of a “Harvey waiver,” a device spawned by innovative prosecutors and defense counsel in response to the holding in People v. Harvey (1979) 25 Cal.3d 754, 758 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ], Timothy Myers appeals a judgment denying probation after he plea bargained a guilty plea to forgery (Pen. Code, § 470). The requirement the People both plead and prove a defendant’s prior felony convictions beyond a reasonable doubt when establishing probation ineligibility pursuant to section 1203, subdivision (e)(4), mandates the record show the defendant was advised this direct penal consequence would follow and a clear waiver of applicable Boykin/Tahl rights. For the reasons following, we hold a plea agreement by the defendant to a “Harvey waiver” on prior convictions does not avoid the necessity of recording these specific advisements and the taking of express waivers.

We also find the sentencing court did not abuse its discretion by denying Myers’ request for a presentence psychological examination and report. We reverse the judgment and remand for resentencing.

Factual and Procedural Background

Myers…