Opinion
G037953
12-4-2007
THE PEOPLE, Plaintiff and Respondent, v. DIANA DARLENE PROSSER, Defendant and Appellant.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Diana Prosser a real estate broker, was charged by information with nine counts of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), two counts of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)), and one count of receiving stolen property (Pen. Code, § 496, subd. (a)). It was alleged that she used her broker key card to access lockboxes on homes listed for sale, thereby gaining entry and thereafter stealing property from within. It was further alleged that the police recovered over $400,000 worth of stolen property from defendants residence.
Defendant pled guilty to all 12 counts and was sentenced to two years in state prison. The court did not grant probation. It ordered that the Department of Real Estate be notified of the felony sentence. It also ordered that defendant not act as a real estate broker, agent or salesperson in any real estate transaction. In her appeal, defendant contends that the latter order constitutes an unauthorized sentence.
We agree. The abstract of judgment shall be modified to delete the order prohibiting defendant from acting as a real estate broker, agent or salesperson. The judgment is otherwise affirmed.
I
DISCUSSION
Penal Code section 12 provides: "The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed." This section is interpreted to mean that the court may only impose punishment as prescribed by statute. "It is well settled that the sentencing court has no inherent authority to devise ad hoc penalties for crimes. (See Pen. Code, § 12; [citation].)" (People v. Montano (1992) 6 Cal.App.4th 118, 123; see also Pen. Code, § 13 [punishment to be within limits prescribed by code].)
Here, defendant pled guilty to residential and commercial burglary and receiving stolen property. The punishment for those crimes is prescribed by Penal Code sections 461 and 496, subdivision (a). Those statutes do not authorize the court to prohibit the defendant from engaging in a certain occupation. Consequently, the courts imposition of an order so prohibiting was unauthorized. (People v. Montano, supra, 6 Cal.App.4th at p. 123.) Respondent has filed a letter brief conceding the point.
While the court no doubt had the protection of the public in mind in fashioning the order, it nonetheless exceeded its authority. The Legislature has vested in the Real Estate Commissioner the authority to bar convicted felons from practicing as real estate brokers, agents or salespersons. (Bus. & Prof. Code, §§ 10003, 10177, subd. (b) [suspension or revocation of license on felony conviction].)
II
DISPOSITION
The clerk of the court is directed to modify the abstract of judgment to delete the order prohibiting defendant from acting as a real estate broker, agent or salesperson. The clerk shall forward a new abstract of judgment to the California Department of Corrections. As modified, the judgment is affirmed.
The clerk of this court shall forward a copy of this opinion to the Department of Real Estate.
We concur:
SILLS, P. J.
FYBEL, J. --------------- Notes: In a companion appeal, People v. Prosser (G038481, app. pending), we decide whether the court erred in making certain subsequent restitution orders with respect to stolen jewelry.