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Penal Code 288.1 PC - Mental Evaluations of Defendants Convicted of Sex Crimes

California Penal Code 288.1 PC requires the court to obtain and consider a defendant's mental evaluation before granting probation in some sex crime cases. This evaluation is often called a “Penal Code 288.1 report.”

This evaluation is conducted by a psychologist who will review the case details and the defendant's history. One of their primary goals is to determine whether illegal sexual conduct is likely to recur and whether they are a danger to children.

Notably, PC 288.1 PC does not require the court to order a mental examination. Suppose the defendant's record justifies a denial of probation. In that case, obtaining a report on their mental condition is entirely discretionary.

Penal Code 288.1 PC - Mental Evaluations for Defendants Convicted of Sex Crimes
A PC 288.1 mental evaluation is used by the court to determine whether to grant probation.

Penal Code 288.1 PC says, “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 their sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards outlined in Section 1027, as to the mental condition of that person.”

Suppose the judge decides to order a mental evaluation. In that case, it must be conducted by a licensed, reputable psychiatrist psychologist with a doctoral degree and at least five years of experience diagnosing and treating emotional and mental disorders.

Simply put, if you are convicted and sent to prison for one or more sex crimes involving someone under age 14 in California, the court is required to obtain a mental health evaluation before you are released on probation. The court cannot grant probation unless it determines you are unlikely to be a repeat offender.

Which Sex Crimes Apply to PC 288.1? 

A psychiatrist or psychologist will conduct the actual evaluation and focus on the crime's circumstances and the defendant's history. As noted, the evaluation aims to determine whether the defendant's behavior is likely to recur and whether they will continue to be a danger to children.  

PC 288.1 requires a mental health evaluation for people convicted of committing any lewd or lascivious act against a minor under 14 before the court releases them on probation. 

The defendant must pay for their mental evaluation before being considered for probation. If a defendant cannot afford the report, the court can appoint a psychiatrist and order the county to pay the costs.

Suppose the PC 288.1 report does not satisfy the judge regarding the defendant's mental condition. In that case, they will typically be denied probation and remain incarcerated. Notably, not all sex crimes will require a PC 288.1 report rather only those that are considered lewd and lascivious against a minor under 14, such as the following:

When Should You Get a PC 288.1 Report?

As noted, the PC 288.1 report is not mandatory for all defendants convicted of a qualifying sex crime but rather only as a prerequisite for probation instead of a prison sentence. 

This means a mental evaluation must be ordered if the judge considers suspending the prison sentence and granting probation as an alternative to prison. Another reason is when someone is serving prison time and is eligible to be released on probation.

These mental health evaluations, as they relate to sex crime cases, are often crucial in breaking the tie between a situation where someone is sent to prison for a long time and someone being given an opportunity on probation, where they get some county jail time or a year or less or even no jail time at all.

The doctors who do them are skilled as far as evaluating people who are charged with sex crimes, and they write these all the time.  

The doctor usually performs another test called a Static 99, which the court system will perform to see if a case can be resolved. Static 99 is a generalized test to determine whether someone will be a recidivist.  It's based on several factors, and the person will get a score assessing whether they are a low, middle, or high risk in society.

What If the Report Clears a Defendant for Probation?

If the mental health professional determines a defendant is not a threat to children and subsequent crimes are unlikely, then the judge will typically release them on probation. However, defendants will be ordered to follow strict terms and conditions, including the following: 

  • Routine and regular meetings with a probation officer.
  • Mandatory counseling or treatment.
  • Protective order prohibiting contact with the victim.
  • Prohibition against firearm possession.
  • Prohibition from working in certain positions.
  • Prohibition from associating with others on probation.
  • Prohibition against moving without permission.
  • Maintain a job during your probation or actively seeking work.
  • Notify law enforcement when they move to another location. 

If a defendant violates any of the terms of probation or commits another crime, their probation will be revoked and sent to jail.

Suppose the judge reads the mental health evaluation and determines releasing a defendant on probation is not in the best interest of public safety; they will deny the request for probation, and they will remain incarcerated.

Registration as a Sex Offender

Suppose the PC 288.1 report determines a defendant is not a threat. In that case, they will still have to register as a sex offender in most cases. This is because being convicted of a sex crime involving a minor means requires mandatory registration as a PC 290 sex offender.

Notably, even if someone is not released on probation, the report cannot be used against them in further criminal proceedings. This means that even if the report indicates they are a danger to children or are likely to re-offend, this cannot increase their sentence.

If you or a family member needs help with a Penal Code 288.1 mental evaluation report after a conviction for a child sex crime, contact our firm for a free case review. Perhaps we can negotiate with the prosecutor for a favorable resolution. The Hedding Law Firm is based in Los Angeles, California.

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