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.” Reportedly, the ATM was targeted as part of a larger scheme to help a co-defendant “destroy the evidence in 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 November 2015 hearing on Osotonu’s petition, the trial court denied the petition as to count 10, stating: “t does not appear to the Court that the ATM outside the building is a burglary of a commercial building, a bank.” After Osotonu’s attorney argued that the entry into the ATM in an attempt to get the money was “obviously attempted larceny,” the trial court countered: “But these aren’t open business hours. The eastside of the bank was damaged and a portion of the ATM machine was blown apart. 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. Only one of those three convictions-that involving count 10-is at issue in this appeal. Thereafter, in October 2015, Osotonu filed the instant petition, asking the trial court to recall his three convictions for second degree burglary and resentence him to misdemeanor shoplifting. The next month, pursuant to stipulation, the trial court sentenced him to 26 years in state prison. In July 2000, Osotonu entered a no contest plea to 17 of the 20 counts and admitted a prior conviction. 1 (§ 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. BACKGROUND In October 1996, Osotonu and several alleged co-conspirators were charged by indictment out of the Solano County Superior Court with 20 counts, including 3 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 1 All statutory references are to the Penal Code unless otherwise specified. Osotonu (Osotonu) pursuant to Penal Code section 1170.18.1 Specifically, the court concluded that Osotonu’s second degree burglary conviction (§ 459) for using explosives to blow open an ATM machine 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). The trial court denied the Proposition 47 petition for resentencing brought by defendant and appellant Oston G. The court remanded for a determination of whether resentencing is appropriate under these specific facts.įiled 9/4/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, A147060 Plaintiff and Respondent, v. Shoplifting is defined as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours.” Osotonu entered the ATM with the intent “to get money” and an ATM is “open during regular business hours” whenever it is available to the public to provide financial services. The court denied the petition as to count 10. In 2015, Osotonu asked the court to recall his three second-degree burglary convictions and resentence him to misdemeanor shoplifting under Proposition 47, Penal Code 1170.18. In 2000, Osotonu entered a no contest plea and was sentenced to 26 years' imprisonment. They had used explosives to blow open an ATM during the night. In 1996, Osotonu and others were charged in Solano County with three counts of second-degree burglary, six counts of possession of a destructive device near certain places, five counts of sale or transportation of a destructive device, one count of attempted use of a destructive device, two counts of terrorizing, two counts of use of a destructive device to destroy property, and one count of conspiracy to commit a crime.
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