1 Filed 3/20/13 P. v. Bonson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. TRAVIS RYAN BONSON, Defendant and Appellant. A136551
(Lake County Super. Ct. No. CR927291)

Defendant Travis Ryan Bonson was charged with committing a lewd and lascivious act upon his daughter, a child und er the age of 14. (Pen. Code, § 288, subd. (a).) 1 He entered a no contest plea pursuant to an agreement that his sentence would not exceed three years in stat e prison. The court ordered a diagnosis pursuant to section
1203.03 to aid its assessment of whether de fendant, who is a vetera n with posttraumatic stress disorder, should be gr anted probation. (§§ 1170.9, 1203.03.) The court reviewed the psychological report, denied probation, a nd sentenced defendant to three years in prison. Defendant appeals, c ontending that the trial cour t wrongly failed to order a psychiatric evaluation pursuant to section 288. 1 and to properly consider his request for probation as a veteran and improperly imposed a fine and fee without determining his ability to pay the charges. We find no error and shall affirm the judgment. 

### STATEMENT OF FACTS
Defendant faced a maximum sentence of eight years in state prison for lewd and lascivious conduct. (§ 288, subd. (a).) He agr eed to plead no contest in exchange for a

1 All further statutory references are to the Penal Code except as noted.2 “3 year lid.” Defendant was advised that, as a consequence of his plea , he could be placed temporarily at a diagnostic facility for psychological assessm ent (§ 1203.03) or evaluated by a psychologist (§ 288.1). Initially, the court referred the matter to the probation department for preparation of a sentencing report without ordering a psychological

assessment. The probation department recommended a three-year state prison term based on police findings that defendant had touched his daughter’s vagi nal area on numerous occasions and had, as a teenager, molested hi s two sisters when they were children. In summarizing the state of defendant’s physical health, the probation report noted that “The Department of Veterans Affairs has determin ed the defendant is 70 percent disabled due to posttraumatic stress di sorder, which he incurred while on active duty in Iraq.” The probation report was s ubmitted to the court at a se ntencing hearing conducted
several months after defendant’s no contest plea. At the hear ing, defense counsel raised
the issue of defendant’s service-related me ntal condition and aske d for a psychological
evaluation under section 288. 1 to consider defendant’s suitability for probation and outpatient sex offender treatment. The court as ked counsel if there wa s any evidence that
defendant’s crime was committed as a result of defendant’s posttraumatic stress disorder. Defense counsel replied “I don’t know that we understand fully the implications of posttraumatic stress disorder, what its manife stations might be and whether or not it might be a relevant factor in this case. I think that’s why I’m as king for the report.” The prosecutor opposed defendant’s re quest for a psychological evaluation and urged imposition of a prison se ntence. The prosecutor said defendant was offered a threeyear prison term, the lowest available for a child moleste r, partly in recognition of defendant’s military service. The prosecutor argued that a ny claimed connection between defendant’s posttraumatic stress disorder and ac ts of child molestat ion was “undercut by
the fact that there was eviden ce in the probation report that this behavior began when he was 12 or 13 when he did things that were sim ilar to . . . the underlyi ng offense . . . to his
sisters who I think were seven or eight at the time. So this is something . . . that he did before he went to Iraq.” The prosecutor also argued that any consider ation of defendant’s3 posttraumatic stress disorder would also have to weigh the likelihood that the disorder adversely affects defendant’s ability to co ntrol his pedophilic be havior, making prison over probation the pr eferred disposition. The court concluded that “a just dispositi on of the case requires a referral to the Department of Corrections and Rehabilitatio n for a [diagnosis] and recommendation by that agency” under section 1203.03. In response to defense counsel’s request for a section 288.1 report as well, the cour t said the section 1203.03 re port would address defendant’s posttraumatic stress disorder and “if down the road I need a [section] 288.1 report, I can get it.” Sentencing was con tinued to a future date. Two psychologists evaluated defendant pursuant to section 1203.03. They
conducted a mental status ex amination, interviewed defenda nt, and reviewed documents that included the Department of Veterans Affairs Decision for Service-Connected Compensation. The psychologists submitted a ten page report describing their findings. They reported that defendant’s posttraumatic stress disorder arose from his tour of duty on the Kuwait-Iraq border in 2003 to 2004, where he served as a Marine truck driver in ground support. In addition to defendant’s posttraumatic stre ss disorder, the psychologists also noted that he struggles with depre ssion predating his military service and has a chronic history of substance abuse dating back to age 12. Defendant’s “ongoing pattern
of behavior” that included sexual abuse of his sisters and daughter was found to be “suggestive of pedophilia” but not conclusive . The psychologists noted concerns that
defendant minimized his acts of child molestation. They concluded that defendant’s symptoms are best “explained by his depressive disorder” but also noted that “[i]t is not
clear if he ever met the full criteria for a major depressive episode as his concurrent history of substance abuse make[s] the etiol ogy of his symptoms difficult to determine.” The psychologists reported th at for defendant “to be succ essful on probation it will be extremely important for him to secure and main tain the appropriate tr eatment for not only for his pedophilic behavior, but also for substa nce abuse, [post-traumatic stress disorder], and depressive symptoms.” The probation department prepared a supplemental report following the diagnostic evaluation that continued to recommend a prison sentence.4 After reviewing the section 1203.03 report a nd the probation reports, the trial court denied probation. The court st ated: “Probation is denied prim arily because of the serious nature of the molestation of his very young daughter over a lengthy period of time and because of the dangers he does present to others.” The court imposed a three-year prison
term and various fines and fees. Defe ndant filed a timely notice of appeal. 

### DISCUSSION
Defendant contends the tr ial court was required to order a psychological study
under section 288.1 before denying probation to a vetera n suffering from posttraumatic
stress disorder. Defe ndant is mistaken. A person convicted of violating sec tion 288(a) may not have his sentence suspended and probation gran ted unless the court orders a diagnostic evaluation “pursuant to Section 1203.03, or similar ev aluation by the county probation department.” (§ 1203.067, subd. (a )(1).) The court must also “[c]ond uct a hearing at the time of sentencing to determine if probation of the defe ndant would pose a threat to the victim.” (§ 1203.067, subd. (a)(2).) 2 The court shall “order any ps ychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the threat to the victim and the defendant’s potential for positive res ponse to treatment in making his or her report to the court. Nothing in this section sh all be construed to require the court to order
an examination of the victim .” (§ 1203.067, subd. (a)(3).) Section 288.1 provides: “Any person convicted of committing any lewd or lascivious act” upon “a child u nder the age of 14 years shall not have his or her sentence suspended until the court obtain s a report from a reputable psychiatrist, from a reputable psychologist . . . as to the mental condition of that pers on.” “The obvious intent of the Legislature in enacting this statute was to protect society by requiring a psychiatric or psychological report insuring that defendant is a suitable candidate for probation.” ( People v. Thompson (1989) 214 Cal.App.3d 1547, 1549.) A section 288.1 “report is not

2 See also section 1203.066, subdivision (d)(1 ) [probation limitations for resident child molester].5 mandated in every lewd or lascivious act case. Only if the trial court is inclined to grant probation must a report be ordered.” ( Ibid. ) Where the court, after reviewing the facts of the case, “does not feel that probation is prope r, then there is no duty to request a section 288.1 report.” ( Ibid. ) Nor does section 1203 .067, subd. (a)(3) require the trial court to order a diagnostic evaluation before denyin g probation. Diagnostic evaluations of sex offenders are prerequisite to a grant of proba tion but are not prerequi site to a denial of probation. ( People v. Ramirez (2006) 143 Cal.App.4th 1512, 1531-1532.)
A defendant’s status as a veteran with posttraumatic stress disorder does not alter the analysis. A sentencing court properly consid ers a defendant’s status as a veteran with a service-related disability wh en considering whether to grant probation (§ 1170.9, subd. (d)) but is not required to order special ized psychological tests before reaching a disposition. Section 1170.9 provides: “(a) In the case of any person convicted of a
criminal offense who could otherwise be sent enced to county jail or state prison and who alleges that he or she committed the offens e as a result of . . . post-traumatic stress disorder . . . stemming from serv ice in the United States milita ry, the court shall, prior to sentencing, make a determination as to whet her the defendant was, or currently is, a
member of the United States military and whether the defe ndant may be suffering from . . . post-traumatic stress disorder . . . as a result of that service. The court may request, through existing resources, an assessment to aid in that determination. [¶] (b) If the court
concludes that a defendant convicted of a criminal offense is a person described in subdivision (a), and if the defendant is othe rwise eligible for probation and the court places the defendant on probation, the court ma y order the defendant in to a local, state, federal, or private nonprofit treatment program for a period not to ex ceed that which the
defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists.” In enacting section 1170.9, the Legislatur e’s intent “was not to expand probation eligibility, but only ‘to ensure th at judges are aware that a cr iminal defendant is a combat
veteran with these conditions at the time of se ntencing and to be aware of any treatment6 programs that exist and are appropriate fo r the person at the time of sentencing if a sentence of probation is appropriate.’ ” ( People v. Ferguson (2011) 194 Cal.App.4th 1070, 1093, quoting Stats. 2006, ch. 7 88, § 1(g), italics omitted.) The statutory requirements were met here. Defendant did not expressl y allege in the words of section 1170.9 that he
“committed the offense as a resu lt of . . . post-traumatic st ress disorder . . . stemming
from service in the United States military” but raised th e issue obliquely by saying that his service-related mental condition “might be” a “relevant factor” in the commission of his offense and requesting a section 288.1 psychological assessment to explore that possibility and defendant’s suita bility for probation. Arguably, this triggered the court’s obligation to make a determination prior to se ntencing “as to whethe r the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from . . . post-traumatic stress diso rder . . . as a result of that service.” (§ 1170.9, subd. (a).) In maki ng that determination, a court “may request, through existing resources, an assessment to aid in that determination.” ( Ibid. ) Section 1170.9
does not require a court to order a psychological ev aluation under section 288.1, section 1203.03, or any other provision but simply permits the court to use “existing resources”
to obtain “an assessment to aid” its determination. Here, the court chose to order a section 1203.03 diagnostic study which confirmed defendant’s service-related posttraumatic
stress disorder. The court considered defe ndant’s military servi ce and mental condition when sentencing him but, ultimately, decide d upon substantial evidence that a prison sentence was warranted given the severity of the crime and public safety concerns. The court was not required to order a section 288. 1 assessment before denying probation, nor
did it abuse its discretion in proceeding here without one. We also reject defendant’s contention that he was entitled to a section 288.1 psychological assess ment as a term of his plea bargai n. Defendant signe d a written plea form that expressly states “open plea with 3 year lid” and lists only one promise he received in exchange for his plea: a senten ce of “up to 3 years in state prison.” A7 psychological evaluation under s ection 288.1 was noted as a possible consequence of his plea but the advisement was not a promised term of the bargain. Also unavailing is defendant’s contenti on that the trial court improperly imposed
fines and fees without a determination of his ability to pay. At issue is a fine of $1,230 imposed upon defendant as a child molester (§ 290.3) and a $90 booking fee (Gov. Code, § 29550, subd. (c)). Defendant did not object to the charges when they were imposed, which leads the People to argue that he has forfeited any claim that he cannot pay them. The California Supreme Court is presently considering whethe r forfeiture applies in such circumstances. ( People v. McCullough (2011) 193 Cal.App.4th 8 64, review granted June 29, 2011, S192513.) Assuming the claim was preserved for appe al, it fails on the merits. “The court’s finding of the defendant’s pres ent ability to pay need not be express, but may be implied through the content and conduct of the hearings.” ( People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.) In cons idering whether there is suffi cient evidence of an ability to pay, we “consider a defendant’s future prison wages in their entirety as well as the possibility of employment upon de fendant’s release from prison.” ( People v. Gentry (1994) 28 Cal.App.4th 1374, 1377.) Defend ant was 32 years old at the time of sentencing. He is a high school graduate and veteran who, following his honorable discharge from the Marines in 2004, has wo rked as a welder, utility line mapper, pipe fitter, and store clerk. He is a certified fo rk lift operator. Defendant told the probation
officer that his service-related mental disab ility limits the type of work he can do but defendant has worked since his partial disa bility was establishe d in 2007. He had a monthly income of $2,700 at the time of sentencing consisting of a $1,600 disability payment and $1,100 in earnings. The record supports the implied finding that defendant has the ability to pay the cha llenged $1,320 in fines and fees from his prison wages and future employment income following his release.8 

### DISPOSITION The judgment is affirmed.

_ ____________ ____________ Pollak, J.

We concur:

_____________ ____________ McGuiness, P.J.

_____________ ____________ Siggins, J.