P. v. Bonson

























Filed 3/20/13 P. v. Bonson CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




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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).)href="#_ftn1" name="_ftnref1"
title="">[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 “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 href="http://www.fearnotlaw.com/">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 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.

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 href="http://www.sandiegohealthdirectory.com/">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).) href="#_ftn2"
name="_ftnref2" title="">[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 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 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 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.



disposition

The
judgment is affirmed.









_________________________

Pollak,
J.





We concur:





_________________________

McGuiness, P.J.





_________________________

Siggins, J.