P. v. Schaap CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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