People v. Osotonu

Filed 5/31/19; on remand CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A147060

v. (Solano County Super. Ct. OSTON G. OSOTONU, No. FC44975) Defendant and Appellant.

Oston G. Osotonu appeals from the denial of his Proposition 47 petition for resentencing under Penal Code section 1170.18.1 He contends that his burglary conviction (§ 459) for using explosives to blow open an ATM machine is eligible for resentencing as shoplifting (§ 495.5). We disagree and therefore affirm.

BACKGROUND In October 1996, Osotonu and several alleged co-conspirators were charged by indictment in Solano County Superior Court with 20 counts, including three counts of second degree burglary (§ 459), six counts of possession of a destructive device near certain places (former § 12303.2; see § 18715), five counts of sale or transportation of a destructive device (former 12303.6; see § 18730), one count of attempted use of a destructive device (§ 664; former § 12303.3; see § 18740), two counts of terrorizing (§ 11413), two counts of use of a destructive device to destroy property (former § 12303.3; see § 18740), and one count of conspiracy to commit a crime (§ 182, subd. (a)(1)). In July 2000, Osotonu entered a no contest plea to 17 of the 20 counts and

1 All statutory references are to the Penal Code unless otherwise specified.

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admitted a prior conviction. The next month, pursuant to stipulation, the trial court sentenced him to 26 years in state prison. In October 2015, Osotonu filed the instant petition, asking the trial court to recall his three second degree burglary convictions and resentence him to misdemeanor shoplifting. Only one of those three convictions—that involving count 10—is at issue in this appeal. The Solano County District Attorney’s opposition to the petition describes the incident underlying the relevant offense as follows: “With respect to the burglary in Count 10, on January 26, 1997, a bomb exploded at the Wells Fargo Bank/ATM machine on Tennessee Street in Vallejo at approximately 2:50 a.m. The eastside of the bank was damaged and a portion of the ATM machine was blown apart. The steel frame of the ATM machine was located in a nearby parking lot and there was a crater in the cement wall near the machine.” The ATM was reportedly targeted as part of a larger scheme to help a co-defendant “destroy the evidence in [that co-defendant’s] criminal case by means of an explosion.” According to Osotonu, he agreed to participate in the ATM crime with the intent “to create a diversion and to get money.” At the hearing on Osotonu’s petition, the trial court denied the petition as to count 10, concluding that Osotonu’s use of explosives to blow open an ATM in the middle of the night could not be recast as the lesser offense of shoplifting, which is defined as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours . . . .” (§ 459.5.) This appeal followed. A different panel of this Division initially reversed the trial court, concluding that Osotonu met the statutory requirements of section 459.5 because the ATM was a commercial establishment that he entered during regular business hours with the intent “to get money.” The Attorney General sought review in the Supreme Court, and the matter was transferred to this court “for reconsideration in light of People v. Colbert (2019) 6 Cal.5th 596” (Colbert).