P. v. Bonson CA1/3

Filed 3/20/13 P. v. Bonson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

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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 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