“Waiver” of Rights at Sentencing in California Felony and Misdemeanor Cases
“Waivers” Overview
A “waiver” in criminal procedure means a person, usually the criminal defendant, is giving up a Constitutional right or privilege in exchange for some benefit.
For example, if defendant’s wife wants to testify against her husband in a domestic battery case, then wife might be willing to give up her marital or spousal privilege rights to no be compelled to testify against her husband. Similarly, if wife decides to testify in the same case, she might be asked to waiver her own right against self-incrimination for any criminal allegations that might be charged against her for the same conduct that lead to her husband's domestic battery charge (i.e., mutually combative spouses).
There are lots of rights and privileges that a person might have that are capable of being waived, such as the right to a jury trial in a criminal case, the privilege of confidential communication between a lawyer and her client, and so. This article deals with common waivers as they apply to sentencing hearings in criminal cases.
Valid Waiver: A waiver of any right or privilege can only be valid if the person who is waiving the right or privilege demonstrates to the court that the waiver is made voluntarily and knowingly. Voluntary means that the defendant is not being threatened or otherwise operating under duress to when he gives up his right or privileged. Knowingly means the defendant clearly understand the right or privilege that he is waiving.
Note: A waiver is usually offered from the defendant or witness to the criminal court judge, but it is not necessary that the judge “takes” the waiver, so long as the judge believes that the waiver was voluntarily and knowingly made. For example, a notarized written waiver of the right to appear for sentencing is allowed (appearance by defendant's lawyer) with court approval when the defendant is in custody on another matter (PC 1193(a)).
Harvey Waiver
A Harvey Waiver is a waiver of the defendant’s right to not be punished for crimes upon which she was not convicted. A Harvey waiver occurs when the defendant is charged with multiple criminal charges and the district attorney is willing to dismiss some of the charges so long as the defendant is willing to pay restitution damages, or be punished upon, the dismissed charges.
For example: David is charged with three counts of receiving stolen property (PC 496). The property is alleged to have been stolen from three different victims (V1, V2, & V3). As part of a plea bargain, the district attorney is willing to dismiss the two counts of vandalism that are related to V2 & V3 so long as the defendant agrees to pay restitution to all three victims. This is true even though V2 and V3 are not considered "victims" after the dismissal of the criminal charges related to them; therefore, without the Harvey waiver those victims could otherwise not recover restitution.
Essentially, a Harvey Waiver allows all victims to recover restitution from the defendant’s criminal conduct even though some of defendant’s criminal charges are dismissed. The same is true for a single victim where multiple criminal charges are alleged against a single defendant who allegedly caused separate injuries to a single person (i.e. five counts of welfare fraud reduced to one for purposes of plea bargaining, etc.).
Note: If the defendant does not sign a Harvey Waiver then the court cannot punish the defendant on dismissed charges that were dismissed as part of a plea bargain. However, in practice the district attorney does not miss this fact and in virtually all cases the defendant must choose between not accepting the district attorney’s offer (or court’s offer) or signing the Harvey waiver.
Arbuckle Waiver
An Arbuckle Waiver is a waiver of the right to be sentenced by the same judge as the judge who took the defendant’s plea. This waiver allows a sentencing judge to go forward with the sentencing even if the judge who took the plea is not available on the day set for sentencing.
Essentially, a defendant has the right to be sentenced by the judge who has already expressed the use of her discretion in accepting the defendant’s plea. Alternatively, if a different judge sentences the defendant according to the terms of a plea bargain that another judge accepted, then it would appear that the subsequent judge did not have sentencing discretion. Therefore, an Arbuckle Waiver is used to allow a different criminal court judge to sentence the defendant even if that judge did not accept the defendant’s plea.
Example: If David signs a plea bargain agreement whereby he will plead guilty to the crime criminal threats with a low term prison sentence of sixteen months, then David has the right to be sentenced by the judge who accepted his plea (assuming the date set for sentencing is subsequent to the date the plea was accepted, which is common). If David is not sentenced by the same judge as the judge who entered his plea, and if there is no waiver of David’s right to have his sentence entered by the judge who accepted his plea, then David would have the right to withdraw his plea.
Note: In most cases, an Arbuckle Waiver is not the “make it or break it” term in a plea bargain agreement. If the defendant does not waive this right, and the judge who sentences the defendant is different than the judge who accepted his plea, then the issue is not likely to cause anything but unnecessary delay. This is because most plea agreements contain a “right to withdraw the plea if the judge does not follow the terms of the plea agreement.”
Also, even with the sentencing judge’s implied discretion with sentencing, the sentencing judge will usually move forward with the terms of the agreement. Therefore, unless the defendant changes his mind and wants to withdraw his plea agreement between the time of the signing of the plea agreement and the date set for sentencing, the Arbuckle Waiver will serve only to save time.
Finally, in cases where the defendant is ordered “forthwith” to jail or prison immediately after entry of the plea bargain, then the sentencing judge and the judge who accepted the defendant’s plea agreement will always be the same and an Arbuckle Waiver will have no effect.
Ibarra Waiver
An Ibarra Waiver is a waiver of the right to attack the sentence and conviction based on the possible coercive nature and circumstances under which the defendant agreed to enter into a plea agreement.
An Ibarra waiver is associated with a “package deal” or “global resolution" offered to codefendants in a criminal case. The package deal states that all the codefendants must either accept his or her individual plea bargain offer, or none of the codefendants may accept his or her particular plea bargain offer.
Example: David and Goliath are charged as codefendants with conspiracy to commit robbery (PC 182/211). David and Goliath are offered a “package deal,” whereby both David and Goliath must either accept a respective plea bargain offer from the district attorney, or neither of them may accept his respective plea bargain offer from the district attorney.
Essentially, a “package deal” can put undue pressure on a codefendant to sign his respective plea bargain offer only so that his codefendant may also receive the benefits of his plea bargain offer. This occurs more frequently in codefendants defending against criminal street gang crimes (fear of retaliation from other gang members for not signing the plea bargain to help gang affiliates), and crimes where members of the same family are charged as codefendants (parents charged with willful child endangerment, child neglect, etc.).
Note: A package deal, or global resolution, is impliedly coercive. Under federal and California state law, a judge must make an independent analysis of whether or not the defendant entered his plea without undue coercion and a district attorney or federal prosecutor must inform the judge as to whether the defendants are receiving a package deal or a global resolution.
Also, even when the codefendants waive a right to attack the sentence and conviction with an Ibarra Waiver, the court will make a full inquiry as to whether or not the waiver is intelligently, knowingly, and voluntarily made.
Actual Threats: The courts have stated: It is beyond dispute that a guilty plea is involuntary and therefore invalid if it is obtained “by actual or threatened physical harm or by coercion overbearing the will of the defendant.” Brady v. United States, 397 U.S. 742, 750 (1970).
Vargas Waiver
A Vargas Waiver is a waiver of the defendant’s right to withdraw his plea when the judge imposes a greater punishment at sentencing because the defendant violated a term of his pre-sentence release. Ordinarily, a defendant has the right to withdraw his plea if the court does not impose the sentence bargained for in a plea agreement. But, when a defendant violates a term of the plea bargain, such as by not appearing before the probation department as ordered to do so before the date of sentencing, or by lying about his criminal history (as discovered by the probation department), then the judge may impose the greater punishment agreed upon without the defendant being able to withdraw his plea.
For example: If David is charged with criminal threats (PC 422) and he thereafter accepts a plea bargain whereby he agrees to plead guilty to a lesser charge of attempted criminal threats (PC 665/422(a)), then David may usually withdraw his plea if the judge does not follow the terms of the plea agreement. This is true even if David violated a condition of his presentence release. However, if the defendant Waives his right to be sentenced on the greater charge if he does not abide by the court’s order in the interim between the plea bargain and the sentencing date, then the defendant may be sentenced on the greater punishment and defendant may not withdraw his plea.
Cruz Waiver
A Cruz Waiver allows the sentencing judge to release the defendant until the date set for sentencing on the condition that the judge may sentence the defendant to more than the terms of the plea bargain if the defendant either fails to appear for sentencing, fails to abide by the conditions of pre-sentence release, or commits a new criminal violation during his pre-sentence release.
Without a Cruz Waiver, the judge must abide by the terms of the plea agreement even if the defendant either does not appear for sentencing, or even if the defendant does not show up to the probation department as ordered to do so in the interim between the entry of plea and the day of judgement (sentencing).
In essence, a Cruz Waiver allows the defendant to be released from custody, on court conditions, so that he may handle personal business before he is incarcerated at sentencing.
For example, David is charged with the crime of robbery (PC 211). David is in jail during the criminal proceedings. At some point in the criminal proceedings, David decides to except an offer from the district attorney whereby David agrees to plead guilty to a lesser crime of assault with a deadly weapon (PC 245). David is to serve 90 days in jail as part of the agreement. The plea bargain is entered with the judge and the date for sentencing is set for two weeks later. If David agrees to abide by certain conditions (Cruz Waiver), the judge will release David from jail until the date set for sentencing.
Note: A Cruz Waiver is not necessarily needed where a defendant is on bond (bail) because the judge may just keep the bond in place until the day of sentencing. The same is true for Own Recognizance Release. Therefore, a Cruz Waiver will usually only contain conditions that assist the plea to move forward, such as report to probation department, commit no violation of law, comply with the terms of a criminal protective order, etc.
Also, a Cruz Waiver is not needed if the entry of plea and the date set for sentencing are the same day (waiver of probation report and sentencing forthwith (go directly to jail). However, sentencing forthwith is not common where there are named victims in the case because victims have the right to be present at the sentencing hearing and they usually need advance notice of the date set for sentencing.
Note: Vargas Waiver and Cruz Waiver (See above) are very similar in purpose and procedure. In fact, many criminal defense lawyers refer to these waivers as a single unit (i.e. “Cruz-Vargas Waiver” or “Vargas-Cruz Waiver). However, there are technical differences in these two common waivers and they should not be confused for being identical. Namely, Cruz Waiver allows pre-sentence release upon conditions. If the Cruz waiver conditions are not met, the judge may impose the greater sentence on the criminal offense to which the defendant plead guilty. A Vargas Waiver would allow the judge to sentence the defendant on the charge otherwise dismissed as part of the plea bargain agreement in the same situation.).
Faretta Waiver
A Faretta Waiver is a waiver of the defendant’s right to be represented by an attorney at all stages of the criminal process, including sentencing.
In practice, a judge will not take a waiver of the defendant’s right to be represented by counsel without first determining that the defendant fully understands his constitutional rights to an attorney and the consequences and penalties that he faces if he is convicted (mentally competent). The judge must also ensure that the Faretta waiver is intelligently and voluntarily made. A judge can deny a defendant’s motion to act as his own attorney in a criminal case (no waiver taken by court).
A judge taking a Faretta Waiver will likely appoint "stand-by" counsel for the defendant if the Faretta waiver is approved by the judge.
Johnson Waiver
A Johnson Waiver is a waiver of the defendant’s right to have any custody credit applied towards his sentence. A Johnson Waiver is more common in cases where the defendant is either:
pleading to a lesser offense than the complaint’s allegation, but the district attorney wants more jail time as part of the plea bargain, or
where the defendant is attempting to avoid immigration consequences for being sentenced to more than a year in custody (defendant avoiding an “aggravated” jail or prison sentence in an effort to avoid a deportable condition).
Example I: Defendant is charged with felony criminal threats (PC422(a)-F); he is held in custody during the criminal proceedings. Defendant subsequently enters a negotiated plea bargain with the district attorney whereby the defendant agrees to plead guilty to a misdemeanor charge of criminal threats (PC422(a)-M) in exchange for a six (6) months of jail sentence. However, defendant already has sufficient custody credits to be released from jail if he accepts the deal and the district attorney wants defendant to serve another month in custody. In this scenario, defendant may be asked to waive some or all of his custody credit (Johnson Waiver) so that both sides are agreeable to the deal.
Example II: Defendant is a non-U.S. citizen. He is charged with unauthorized use of a vehicle (VC 10851(a)). Defendant is in custody for a year fighting his criminal case. Subsequently, the district attorney offers the defendant the following: Defendant plead guilty to the crime in exchange for the low-term jail sentence of 16 months. Defendant wants to take the deal as he has already been in custody for a year. However, if the defendant is sentenced to more than a year in jail or prison, then he will have greater immigration consequences (i.e. deportation, denial of reentry, etc.). This is because an imposed jail sentence of more than a year is considered an “aggravated sentence” for purposes of immigration law. Therefore, the defendant decides to waive his custody credits in exchange for a jail sentence of four (4) months. Under this scenario, the total jail term is the same, but the defendant has avoided an “aggravated felony” sentence.
Note: Johnson Waivers had more purpose when California sent defendants who were sentenced to more than a year of jail to a California state prison and sent defendants who were sentenced to less than a year to a local county jail. In essence, if the defendant waived enough custody credits at his plea hearing, then he could be sentenced to a local county jail because he had less than a year to serve in jail. Today, PC 1170(h) sentencing determines where a defendant is incarcerated depending on the name of the offense, not the length of the offense; therefore, a Johnson Waiver, while still important for certain cases, is used less today than is was prior to the passing of PC 1170(h) sentencing in 2011.
Personal Presence Waiver
A personal presence waiver is the defendant’s wavier of the right to be present during every stage of the criminal proceedings. For most misdemeanor sentencing hearings, a defendant may appear by way of her attorney, so long as the defendant is made aware of the right to be present at sentencing (PC 977). In felony cases the defendant must first give permission to his attorney in open court before the defendant may appear by way of his attorney at a sentencing hearing. Also, the judge must approve of the defendant’s appearance by way of his attorney at sentencing (PC 977(b).
There is an exception of personal appearance rules at a felony sentencing hearing where the defendant has not previously been granted permission to appear by way of his attorney at sentencing; however, this exception only applies to defendants who are in custody and cannot appear and only where the defendant’s permission is notarized (PC 1193(b)).
Waiver of Probation Report
A Waiver of Probation Report is a wavier of the right to have the probation department prepare a report that demonstrates any mitigating or aggravating factors the judge may consider at sentencing. In practice, the judge will not waive a probation report where there is a named victim in the complaint. This is because the victim has a right to receive notice of, and be present at, the sentencing hearing, and the only likely reason for a wavier of a probation report is to “sentence the defendant forthwith” (sentenced to jail or prison immediately).
Note: In most cases, the defendant may waive the probation report, but the defendant’s waiver of the probation report does not mean that the judge will not order a probation report for purposes of considering the merits of a plea bargain. In fact, in most felony sex crimes, such as lewd and lascivious acts on a minor under 14, or sexual battery, the defendant cannot be granted probation (if probation is even allowed) unless the probation department prepares an analysis of the risk factors associated with granting the defendant probation (PC 288.1).
Time Waiver
A defendant has a right to be sentenced within certain time limitations following the taking of the plea by the court. In misdemeanor cases, the time for sentencing must be no less than six hours after taking the plea and no more than five days. In felony cases, the defendant must be sentenced within 20 days of taking the plea. A defendant can, and often does, waive this right in order to be sentenced immediately (misdemeanor cases), or in order to have time for a private sentencing report (felony cases).
Appeal Waiver
Typically, as part of a plea bargain in felony case, the defendant will agree to waive and give up any right to appeal from any motion that he brought, or could have brought, during the pendency of the criminal case. As part of a plea bargain agreement, the defendant will also usually waive the right to appeal the conviction.
For example, if the defendant, before entering a plea bargain, could have brought a PC 1538.5 Motion to Suppress Evidence based on a Fourth Amendment violation, but the defendant forwent that motion and instead agreed to give up that option as part of a plea bargain, then the defendant cannot later file that motion. This is true even if the defendant later discovers that a PC 1538.5 motion had more likelihood of success than he earlier believed.
Other Waivers
In addition to the waiver discussed above, other waivers associated with sentencing include, but are not limited to, the following: Constitutional Rights Waiver: Jury Trial Waiver; Waiver of the Right Against Unreasonable Search and Seizure During Probationer (“Bravo Waiver” or “Bravo Search Terms), Waiver of the Right to Cross Examine Witnesses, Waiver of the Right to a Preliminary Hearing (felony cases), Waiver of the Right to Remain Silent During Question by Law Enforcement During Probation (Rare, but possible, especially with sex crimes where polygraph examination are a condition of probation [5th Amendment Waiver], and more.
Effect of Withdrawing a Plea: In some cases, the defendant might be able to withdraw his plea. If the defendant successfully withdraws his plea, then the waivers, including Harvey Waivers, Arbuckle Waivers, Ibarra Waivers, Vargas Waives, Crus Waivers, Appeal Waivers, and other sentencing waivers are also withdrawn. For more information, see PC 1018 Motion to Withdraw a Plea.
To learn more about “Waivers” in criminal court, including the common sentencing waivers (Harvey, Cruz, Johnson, Arbuckle, Vargas, Ibarra, Faretta, etc.), contact our criminal defense lawyers for a free consultation. Our criminal defense lawyers practice exclusively in the Inland Empire, including the County of San Bernardino and Riverside (with Pomona court added). Our criminal attorneys are available seven days a week to assist you. We can even visit local jails in felony cases for consultations for a small fee. Call today!
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