Filed 4/29/13 P. v. Schaap CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064001
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF249458)
                   v.

DOUGLAS SCHAAP,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Wiseman, Acting P.J., Franson, J. and Peña, J.
       Appellant, Douglas Schaap, pled guilty to lewd and lascivious conduct with a
child under the age of 14 (Pen. Code, § 288, subd. (a))1 and he admitted an aggravated
circumstance (§ 667.61, subds. (a) & (d)), a serious felony enhancement (§ 667, subd.
(a)(1)), and allegations that he had 11 prior convictions within the meaning of the three
strikes law (§ 667, subds. (b)-(i)).
       On September 28, 2011, the court sentenced Schaap to an indeterminate term of
80 years to life.
       On appeal Schaap contends the court imposed an unauthorized sentence when it
ordered him to pay a restitution fine of $1,000 pursuant to section 284, subdivision (b).
We will find merit to this contention and strike the restitution fine. Additionally, we will
direct the trial court to correct errors in Schaap’s abstract of judgment that our review of
the record uncovered. As modified, we will affirm the judgment.
                                          FACTS
       In January 2011, the Tulare County Sheriff’s Department received information
from Kentucky Child Welfare Services that Schaap’s adoptive son reported that he had
been molested by Schaap when the family lived in Tulare County. During an interview
on January 25, 2011, the victim stated that on numerous occasions when he was
approximately 13 years old, Schaap fondled the victim’s genitals over and under his
clothing.
       On March 29, 2011, the district attorney filed an amended complaint charging
Schaap with eight counts of lewd and lascivious conduct with a child under the age of 14
(counts 1-5, 7-9) and one count of lewd and lascivious conduct with a child under the age
of 14 by force (count 6/§ 288, subd. (b)(1)). The complaint also alleged, in pertinent part,
an aggravated circumstance, that Schaap was a habitual offender (§ 667.71), a serious




1      All further statutory references are to the Penal Code.


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felony enhancement, and that he had 11 prior convictions within the meaning of the three
strikes law.
       On September 1, 2011, Schaap entered his plea in this matter in exchange for a
stipulated term of 80 years and the dismissal of the remaining counts and allegations.
       On September 28, 2011, the court sentenced Schaap to an aggregate term of 80
years to life as per his plea agreement: 25 years to life pursuant to section 667.61,
subdivisions (a) and (d), tripled to 75 years to life pursuant to the three strike law, and a
five-year serious felony enhancement. The court also ordered Schaap to pay a $10,000
restitution fine pursuant to section 1202.4, a parole revocation fine in the same amount
pursuant to section 1202.45 and a $1,000 restitution fine pursuant to section 294,
subdivision (b).
                                       DISCUSSION
The Restitution Fine Pursuant to Section 294
       Schaap contends the court imposed an unauthorized sentenced when it ordered
him to pay a restitution fine pursuant to section 294, subdivision (b) because the offense
he committed is not listed in that section. Respondent concedes and we agree.
       Section 294 provides:

              “(a) Upon conviction of any person for a violation of Section 273a,
       273d, 288.5, 311.2, 311.3, or 647.6, the court may, in addition to any other
       penalty or restitution fine imposed, order the defendant to pay a restitution
       fine based on the defendant’s ability to pay not to exceed five thousand
       dollars ($5,000), upon a felony conviction, or one thousand dollars
       ($1,000), upon a misdemeanor conviction, to be deposited in the Restitution
       Fund to be transferred to the county children’s trust fund for the purposes
       of child abuse prevention.

               “(b) Upon conviction of any person for a violation of Section 261,
       264.1, 285, 286, 288a, or 289 where the violation is with a minor under the
       age of 14 years, the court may, in addition to any other penalty or
       restitution fine imposed, order the defendant to pay a restitution fine based
       on the defendant’s ability to pay not to exceed five thousand dollars
       ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon
       a misdemeanor conviction, to be deposited in the Restitution Fund to be

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       transferred to the county children’s trust fund for the purpose of child abuse
       prevention.”
       Schaap pled guilty to one count of violating section 288, subdivision (a). Since
this section is not listed in either subdivision (a) or (b) of section 294, we agree with
Schaap that the $1,000 restitution fine the court ordered him to pay pursuant to section
294, subdivision (b) constitutes an unauthorized sentence.
Schaap’s Abstract of Judgment
       Our review of the record disclosed that Schaap’s abstract of judgment erroneously
lists Schaap’s date of conviction as September 28, 2011, the day he was sentenced, rather
than September 1, 2011, the day he entered his plea. Additionally, the Penal Code
section for Schaap’s serious felony enhancement is erroneously listed as section 667.5,
subdivision (a), rather than section 667, subdivision (a). We will direct the trial court to
correct these errors.
                                      DISPOSITION
       The $1,000 restitution fine that the trial court imposed pursuant to section 294,
subdivision (b) is stricken. The trial court is directed to prepare an amended abstract of
judgment that is consistent with this opinion and corrects the errors noted above and to
forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.




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