Weatherton

In People v. Harvey (1979) 25 Cal.3d 754, 758-759 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ] (Harvey) our Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences. The principle éxpanded to cover victim restitution (e.g., People v. Baumann (1985) 176 Cal.App.3d 67, 74-75 [ 222 Cal.Rptr. 32 ]) and was soon codified. (Stats. 1988, ch. 287, § 1, p. 989, adding Pen. Code, § 1192.3, subd. (b) [“If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, ... the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ] from the defendant as to the dismissed count.”].)

The novel issue for decision here is whether, notwithstanding a Harvey waiver, a defendant is entitled to an evidentiary hearing in the hope of establishing that no restitution is owing to the victim of a dismissed charge because the defendant did not commit the offense, an issue that arises out of these circumstances:

On Christmas Eve 2011, Yasmin Jenkins was…