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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                         A136551
v.
TRAVIS RYAN BONSON,                                                      (Lake County
                                                                         Super. Ct. No. CR927291)
         Defendant and Appellant.

         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

1
    All further statutory references are to the Penal Code except as noted.


                                                             1
“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 three-
year 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


                                              2
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.


                                              3
       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


2
 See also section 1203.066, subdivision (d)(1) [probation limitations for resident child
molester].


                                              4
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


                                                5
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



                                                6
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.




                                               7
                                 DISPOSITION
     The judgment is affirmed.




                                          _________________________
                                          Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Siggins, J.




                                      8
