Not everyone convicted of a sexual offense with a child is a dangerous predator. Sometimes a good person acts out of character, and similar conduct is not likely ever to reoccur.
When this is the case, it is sometimes possible for us to "mitigate" the penalty for the crime by focusing on our client's good character. In a "mitigation" case, the judge may sentence the client to probation instead of California state prison. A state prison sentence can often mean a year -- sometimes many years -- of incarceration. Probation involves at most one year in county jail, and sometimes no jail time at all.
But before a judge may legally grant probation, the court must obtain a "Penal Code 288.1 report". This is an evaluation of the person's mental condition by a trained psychologist or psychiatrist, who will interview the defendant and look at:
- the circumstances of the offense, and
- the defendant's history.
The emphasis of the evaluation will be whether the conduct is likely to happen again, and whether the defendant is a danger to other children.
Penal Code 288 PC does not require the court to order a mental examination. If the record supports a denial of probation, a report on the defendant's mental condition lies within the court's discretion.
If the court does order a report, it must be issued by either:
- a reputable psychiatrist, or
- a reputable licensed psychologist who has:
- a doctoral degree in psychology, and
- at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders.
If the defendant cannot afford the report, the court may appoint a psychiatrist and order the costs to be paid by the county.
Crimes to which Penal Code 288.1 applies
Penal Code 288.1 reports apply to any lewd or lascivious act which is upon... or with any part of... the body of child under age 14.
Examples of lewd or lascivious acts on a child include (but are not limited to):
- Penal Code 261 PC, rape,
- Penal Code 288 PC, lewd acts with a child,
- Penal Code 288a PC, oral copulation by force or fear,
- Penal Code 286 PC, sodomy, and
- Penal Code 243.4 PC, sexual battery.
Call us for help...
If you or a loved one is in need of help with Penal Code 288.1 Reports mental evaluations of people convicted of sex crimes with a child and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
- California Penal Code 288.1 -- Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of 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 who meets the standards set forth in Section 1027, as to the mental condition of that person.
- People v. Thompson (1989) 214 Cal.App.3d 1547, 263 Cal.Rptr. 272 ("It is clear from the language of section 288.1 that a 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. 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. Where the court, as in this case, has no intention of granting probation, and the record supports such a denial of probation, a section 288.1 report is not mandated. In other words, if after reviewing all the facts, the pre-sentence report and the statements in mitigation and aggravation, the court does not feel that probation is proper, then there is no duty to request a section 288.1 report.").
- California Penal Code 1027(a) -- When a defendant pleads not guilty by reason of insanity the court shall select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders...
- Op.Atty.Gen. No. 03-902 (May 13, 2004) ("The state is responsible for the payment of the costs of (1) a report required before a court may consider suspension of a defendant's sentence, where the defendant has been convicted of a lewd or lascivious act on a minor under age 14...").