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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 under 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 state prison. The court ordered a diagnosis pursuant to section 

1203.03 to aid its assessment of whether defendant, who is a veteran with posttraumatic 

stress disorder, should be granted probation. (§§ 1170.9, 1203.03.) The court reviewed 

the psychological report, denied probation, and sentenced defendant to three years in 

prison. Defendant appeals, contending that the trial court 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 agreed to plead no contest in exchange for a 

 

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 All further statutory references are to the Penal Code except as noted. 
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“3 year lid.” Defendant was advised that, as a consequence of his plea, he could be placed 

temporarily at a diagnostic facility for psychological assessment (§ 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 vaginal area on numerous 

occasions and had, as a teenager, molested his 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 determined the defendant is 70 percent disabled due 

to posttraumatic stress disorder, which he incurred while on active duty in Iraq.” 

 The probation report was submitted to the court at a sentencing hearing conducted 

several months after defendant’s no contest plea. At the hearing, defense counsel raised 

the issue of defendant’s service-related mental condition and asked for a psychological 

evaluation under section 288.1 to consider defendant’s suitability for probation and 

outpatient sex offender treatment. The court asked counsel if there was 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 manifestations might be and whether or not it 

might be a relevant factor in this case. I think that’s why I’m asking for the report.” 

 The prosecutor opposed defendant’s request for a psychological evaluation and 

urged imposition of a prison sentence. The prosecutor said defendant was offered a threeyear prison term, the lowest available for a child molester, partly in recognition of 

defendant’s military service. The prosecutor argued that any claimed connection between 

defendant’s posttraumatic stress disorder and acts of child molestation was “undercut by 

the fact that there was evidence in the probation report that this behavior began when he 

was 12 or 13 when he did things that were similar to . . . the underlying 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 consideration of defendant’s 
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posttraumatic stress disorder would also have to weigh the likelihood that the disorder 

adversely affects defendant’s ability to control his pedophilic behavior, making prison 

over probation the preferred disposition. 

 The court concluded that “a just disposition of the case requires a referral to the 

Department of Corrections and Rehabilitation 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 court said the section 1203.03 report 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 continued to a future date. 

 Two psychologists evaluated defendant pursuant to section 1203.03. They 

conducted a mental status examination, interviewed defendant, 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 stress disorder, the psychologists 

also noted that he struggles with depression 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 etiology of his symptoms difficult to determine.” 

The psychologists reported that for defendant “to be successful on probation it will be 

extremely important for him to secure and maintain the appropriate treatment for not only 

for his pedophilic behavior, but also for substance 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. 
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 After reviewing the section 1203.03 report and the probation reports, the trial court 

denied probation. The court stated: “Probation is denied primarily 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. Defendant filed a timely notice of appeal. 

DISCUSSION 

 Defendant contends the trial court was required to order a psychological study 

under section 288.1 before denying probation to a veteran suffering from posttraumatic 

stress disorder. Defendant is mistaken. 

 A person convicted of violating section 288(a) may not have his sentence 

suspended and probation granted unless the court orders a diagnostic evaluation 

“pursuant to Section 1203.03, or similar evaluation by the county probation department.” 

(§ 1203.067, subd. (a)(1).) The court must also “[c]onduct a hearing at the time of 

sentencing to determine if probation of the defendant would pose a threat to the victim.” 

(§ 1203.067, subd. (a)(2).) 2 The court shall “order any psychiatrist 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 response to treatment in making his or her 

report to the court. Nothing in this section shall 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 under the age of 14 years shall not have his or her sentence 

suspended until the court obtains a report from a reputable psychiatrist, from a reputable 

psychologist . . . as to the mental condition of that person.” “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 

 

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 See also section 1203.066, subdivision (d)(1) [probation limitations for resident child 

molester]. 
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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 proper, 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 denying probation. Diagnostic evaluations of sex 

offenders are prerequisite to a grant of probation but are not prerequisite 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 considers a defendant’s status as a veteran with 

a service-related disability when considering whether to grant probation (§ 1170.9, 

subd. (d)) but is not required to order specialized 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 sentenced to county jail or state prison and who 

alleges that he or she committed the offense as a result of . . . post-traumatic stress 

disorder . . . stemming from service in the United States military, the court shall, prior to 

sentencing, make a determination as to whether the defendant was, or currently is, a 

member of the United States military and whether the defendant 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 otherwise eligible for probation and the court 

places the defendant on probation, the court may order the defendant into a local, state, 

federal, or private nonprofit treatment program for a period not to exceed 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 Legislature’s intent “was not to expand probation 

eligibility, but only ‘to ensure that judges are aware that a criminal defendant is a combat 

veteran with these conditions at the time of sentencing and to be aware of any treatment 
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programs that exist and are appropriate for 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. 788, § 1(g), italics omitted.) The statutory 

requirements were met here. 

 Defendant did not expressly allege in the words of section 1170.9 that he 

“committed the offense as a result of . . . post-traumatic stress disorder . . . stemming 

from service in the United States military” but raised the 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 suitability for probation. Arguably, this triggered the court’s 

obligation to make a determination prior to sentencing “as to whether the defendant was, 

or currently is, a member of the United States military and whether the defendant may be 

suffering from . . . post-traumatic stress disorder . . . as a result of that service.” 

(§ 1170.9, subd. (a).) In making 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 evaluation 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 defendant’s military service and mental condition 

when sentencing him but, ultimately, decided 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 assessment as a term of his plea bargain. Defendant signed 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 sentence of “up to 3 years in state prison.” A 
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psychological evaluation under section 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 contention 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 whether forfeiture applies in such 

circumstances. (People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 

29, 2011, S192513.) 

 Assuming the claim was preserved for appeal, it fails on the merits. “The court’s 

finding of the defendant’s present 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 considering whether there is sufficient 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 defendant’s release from prison.” (People v. Gentry 

(1994) 28 Cal.App.4th 1374, 1377.) Defendant 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 worked as a welder, utility line mapper, pipe 

fitter, and store clerk. He is a certified fork lift operator. Defendant told the probation 

officer that his service-related mental disability limits the type of work he can do but 

defendant has worked since his partial disability was established 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 challenged $1,320 in fines and fees from his prison wages and 

future employment income following his release. 
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DISPOSITION 

 The judgment is affirmed. 

 _________________________ 

 Pollak, J. 

We concur: 

_________________________ 

McGuiness, P.J. 

_________________________ 

Siggins, J.