People v. Osotonu

Filed 9/4/18

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.

The trial court denied the Proposition 47 petition for resentencing brought by

defendant and appellant Oston G. 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). We disagree and

therefore reverse.

I. 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.

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(§ 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

admitted a prior conviction. The next month, pursuant to stipulation, the trial court

sentenced him to 26 years in state prison.

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. 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.” Reportedly, the ATM was 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 November 2015 hearing on Osotonu’s petition, the trial court denied the

petition as to count 10, stating: “[I]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.

That’s why they blew it up.” Osotonu’s attorney, however, asserted that “for the purpose

of this individual analysis of the ATM, since the ATM is presumably a 24-hour operating

machine, . . . [a]s long as the ATM is working, the business is open; and for that reason,

all of the elements are met for a shoplifting.” Calling this “an interesting theory,” and

stating that Osotonu’s attorney should “certainly feel free” to appeal the matter, the trial

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court reiterated its denial of the recall petition. Osotonu timely appealed, and the matter

is now before this court for decision.

II. DISCUSSION

In November 2014, California voters approved Proposition 47, the Safe

Neighborhoods and Schools Act. Proposition 47 added section 1170.18, which provides

that any defendant currently “serving a sentence for a conviction . . . of a felony or

felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it]

been in effect at the time of the offense may petition for a recall of sentence before the

trial court that entered the judgment of conviction in his or her case to request

resentencing.” (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4,

2014) text of Prop. 47, § 14, pp. 73-74.) Pertinent to this case, Proposition 47

added section 459.5 which establishes the offense of shoplifting, defined as “entering a

commercial establishment with intent to commit larceny while that establishment is open

during regular business hours, where the value of the property that is taken or intended to

be taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a);

see People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) In essence, this new offense

displaces the crime of burglary for many commercial thefts that do not exceed the $950

statutory ceiling. (§ 459.5, subd. (a); id., subd. (b) [requiring any act defined as

shoplifting pursuant to section 459.5 to be charged as shoplifting]; see also § 459

[defining burglary as entry into a “building . . . with intent to commit grand or petit

larceny or any felony”].) Pursuant to section 459.5, shoplifting is punishable as a

misdemeanor unless a defendant has previously been convicted of one or more specified

offenses. (§ 459.5, subd. (a).)

Here, the trial court denied Osotonu’s petition because it concluded that an ATM

on the exterior of a bank building is not a “commercial establishment” for purposes of

resentencing pursuant to section 459.5. It further opined that theft from an ATM at a

time when the bank, itself, was not open, failed to meet the “regular business hours”

requirement of the shoplifting statute. We review the interpretation of a statute

independently. (People v. Smith (2016) 1 Cal.App.5th 266, 271 (Smith).) Moreover,

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“ ‘[i]n interpreting a voter initiative like [Proposition 47], [the courts] apply the same

principles that govern statutory construction.’ ” (Ibid.) Thus, under both scenarios, our

primary mandate is to effectuate the intent of the enacting body. (People v. Gonzales

(2017) 2 Cal.5th 858, 868 (Gonzales) [“ ‘[i]n construing constitutional and statutory

provisions, whether enacted by the Legislature or by initiative, the intent of the enacting

body is the paramount consideration’ ”].) Based on our de novo review of section 459.5,

we conclude that the trial court’s restrictive construction of the statute cannot stand.

Our Supreme Court recently opined that, by providing a specific definition of the

term “shoplifting,” section 459.5 created “a term of art, which must be understood as it is

defined not in its colloquial sense.” (Gonzales, supra, 2 Cal.5th at p. 871.) In this regard,

our colleagues in Division One of this Appellate District considered at length the

appropriate definition of “commercial establishment” for purposes of section 459.5, and

concluded that “ ‘commercial establishment’ within the meaning of section 459.5 means

a business that is primarily engaged in the buying and selling of goods or services

regardless of whether these goods or services are sold to members of the general public.”

(People v. Holm (2016) 3 Cal.App.5th 141, 148 (Holm) [private country club is a

commercial establishment under the shoplifting statute]; see also In re J.L. (2015) 242

Cal.App.4th 1108, 1114 [adopting “commonsense meaning” of commercial

establishment as “one that is primarily engaged in commerce, that is, the buying and

selling of goods and services”; under this definition a public high school is not a

“commercial establishment”]; Smith, supra, 1 Cal.App.5th at pp. 272-273 [check-cashing

business is “commercial establishment”].) We agree with the Holm court’s formulation

of the definition of commercial establishment, and adopt it here.

Pursuant to this stated definition, a bank clearly qualifies as a commercial

establishment for purposes of section 459.5. In fact, in People v. Hudson (2016)

2 Cal.App.5th 575, 579-583, review granted Oct. 26, 2016, S237340, the court reached

this exact result, reasoning that “[b]ecause ‘commercial’ involves being engaged in

commerce, including financial transactions, we conclude that the term ‘commercial

establishment’ includes a bank.” (Id. at p. 582.) While the court acknowledged “a

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common understanding of the word ‘commercial’ encompasses the buying and selling of

merchandise in a retail establishment,” it went on to observe “nothing in the text of

[Proposition 47] supports this narrow interpretation and we reject it.” (Ibid.; accord

People v. Abarca (2016) 2 Cal.App.5th 475, 480-483, review dismissed June 28, 2017,

S237106 [bank is “commercial establishment”].) Indeed, in Gonzales, the Supreme

Court recently concluded that the “act of entering a bank to cash a stolen check for less

than $950, traditionally regarded as a theft by false pretenses rather than larceny, now

constitutes shoplifting” pursuant to section 459.5. (Gonzales, supra, 2 Cal.5th at p. 862.)

Although the high court did not directly address the definition of commercial

establishment in Gonzales, its analysis is necessarily predicated upon the presumption

that a bank qualifies as such.

Thus, the only question here is whether an ATM attached to the external wall of a

bank should be considered part of the commercial establishment of the bank and/or a

commercial establishment in its own right. We conclude that both can be correct based

on the facts of a particular case. Patrons utilizing an ATM are clearly engaged in

commerce, in particular financial transactions, in a way that is indistinguishable from the

commercial activities of those patrons who choose to go inside of the bank building and

approach a bank teller or other bank employee. As one appellate court has stated in

rejecting the argument that an ATM is distinguishable from a bank and therefore not a

public facility for purposes of handicap access and civil rights laws: “[T]he ATM is an

important adjunct to the bank and constitutes a place where specific services are provided

when the main facility is closed and not open for banking business.” (Donald v.

Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1194 (Donald); see also People v.

Ravenscroft (1988) 198 Cal.App.3d 639, 641, 645 [external ATM “housed within a bank”

is “an arm of that bank building”] (Ravenscroft), disapproved on other grounds as stated

in People v. Davis (1998) 18 Cal.4th 712, 722 & fn. 5 (Davis).) We therefore have little

difficulty holding that an ATM is a commercial establishment for purposes of section

459.5.

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Indeed, the trial court’s concern in this case appears to stem more from the

location of the ATM outside of the bank building, rather than from its belief that an ATM

is not a place where commercial transactions take place. As noted above, in denying

Osotonu’s resentencing petition, the court stated: “It does not appear to the Court that the

ATM outside the building is a burglary of a commercial building, a bank.” We view this

as a concern that stealing from an external ATM fails to constitute a sufficient entry into

a building to support a conviction for burglary or, by analogy, the new crime of

shoplifting defined by section 459.5. (See § 459 [defining burglary as entry into a

“building . . . with intent to commit grand or petit larceny or any felony”]; § 459.5

[defining shoplifting as “entering a commercial establishment with intent to commit

larceny while that establishment is open during regular business hours,” italics added].)

In Gonzales, the Supreme Court opined that the drafters of Proposition 47 “clearly

had burglary in mind when defining ‘shoplifting’ ” and thus the fact that “the shoplifting

statute expressly mentions the burglary statute and uses the same term, ‘larceny,’ makes

plain that the electorate intended ‘larceny’ to have the same meaning in both provisions.”

(Gonzales, supra, 2 Cal.5th at p. 869.) Under similar logic, it appears that the “entry”

required to support a shoplifting conviction should be the same “entry” that justifies a

burglary charge. In Davis, the Supreme Court reviewed the types of “entry” the burglary

statute was intended to prevent, and concluded: “We agree that a burglary may be

committed by using an instrument to enter a building—whether that instrument is used

solely to effect entry, or to accomplish the intended larceny or felony as well. Thus,

using a tire iron to pry open a door, using a tool to create a hole in a store wall, or using

an auger to bore a hole in a corn crib is a sufficient entry to support a conviction of

burglary.” (Davis, supra, 18 Cal.4th. at pp. 717-718; see also id. at p. 716 [describing

case where the defendant bored a hole through the floor of a corn crib and caught the

shelled corn in a sack as it flowed through the hole as sufficient to support a burglary

charge].)

The Davis court, however, went on to decide that “[i]nserting a stolen ATM card

into an ATM, or placing a forged check in a chute in the window of a check-cashing

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facility, is not using an instrument to effect an entry within the meaning of the burglary

statute. Neither act violates the occupant’s possessory interest in the building as does

using a tool to reach into a building and remove property. It is true that the intended

result in each instance is larceny. But the use of a tool to enter a building, whether as a

prelude to a physical entry or to remove property or commit a felony, breaches the

occupant’s possessory interest in the building. Inserting an ATM card or presenting a

forged check does not.” (Davis, supra, 18 Cal.4th at p. 722.) This holding is directly

contrary to the result reached in Ravenscroft, which determined that the insertion of an

ATM card into an ATM, mounted inside of the bank and secured flush with the exterior

walls of the bank, “constitutes a sufficient entry of a building to support a conviction for

burglary.” (Ravenscroft, supra, 198 Cal.App.3d at p. 641.) Davis recognized as much,

disapproving the decision in Ravenscroft “to the extent it is inconsistent with our

holding.” (Davis, at p. 722, fn. 5.) Interestingly for our purposes, however, the Davis

court further stated: “We do not disapprove the other aspects of the decision in

Ravenscroft, including its conclusion that the ATM card in that case was inserted into the

airspace of the ATM.” (Ibid.; see Ravenscroft, at p. 643 [holding that “[t]he insertion of

an ATM card to effectuate larcenous intent is no less an entry into the air space of a bank

as would be the use of any other tool or instrument”].) Whatever the wisdom of the

distinction made by the Davis court, the clear implication of its analysis is that an entry

into an external ATM through use of an instrument constitutes sufficient “entry into a

building” to support a burglary (and by implication a shoplifting) conviction if use of that

instrument “violates the occupant’s possessory interest in the building as does using a

tool to reach into a building and remove property.” (Davis, at p. 722.) Here, the use of

dynamite as an instrument which blew apart the ATM to the extent that its steel frame

was found in a nearby parking lot, and which therefore presumably allowed residue from

that dynamite to penetrate the ATM’s outer boundary, was sufficient to violate the bank’s

possessory interest in its building. (See Magness v. Superior Court (2012) 54 Cal.4th

270, 275 [approving jury instruction “that ‘ “[u]nder the law of burglary, a person enters

a building if some part of his . . . body or some object under his control penetrates the

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area inside the building’s outer boundary” ’ ”]; id. at pp. 279-280 [“something outside

must go inside for an entry to occur”].) Thus —although perhaps not a classic example

of shoplifting as that term is understood in a colloquial sense—we have no difficulty

concluding that the breach of the ATM in this case constituted a sufficient entry into a

commercial establishment for purposes of section 459.5. (Cf. Gonzales, supra, 2 Cal.5th

at p. 871 [shoplifting statute creates a term of art].)

Moreover, we believe that this construction of section 459.5 is consistent with the

purposes underlying Proposition 47. As the Holm court asserted in a related context:

“Proposition 47 specifies ‘[t]his act shall be liberally construed to effectuate its

purposes.’ (2014 Voter Guide, supra, text of Prop. 47, § 18, p. 74.) Given that these

purposes include reducing felonies to misdemeanors for nonserious nonviolent offenses

and reducing the costs associated with felony incarcerations, it would be inconsistent

with the purposes of this legislation to narrowly construe the pivotal term ‘commercial

establishments.’ ”2 (Holm, supra, 3 Cal.App. 5th at p. 148.) Further, in Gonzales, the

Supreme Court considered the electorate’s intent in adopting Proposition 47 and

concluded that it was the value of the property stolen with which the electorate was

concerned for purposes of differentiating between felonies and misdemeanors, not the

type of theft involved. (Gonzales, supra, 2 Cal.5th at p. 870 [the electorate “set the

amount at issue as the demarcation between felonies and misdemeanors”]; id. at p. 874

[“The degree of culpability can reasonably be linked to the value of property stolen,

regardless of the technique employed. In each case, the thief has a specific intent to

steal”]; see also § 490.2, subd. (a) [“obtaining any property by theft where the value of

the money, labor, real or personal property taken does not exceed nine hundred fifty

2

We recognize that the explosion of the ATM in this case is difficult to

characterize as either nonserious or nonviolent. Indeed, Osotonu was also convicted and

is serving time for use of a destructive device to destroy property (former § 12303.3; see

§ 18740) based on this underlying event. Here, however, we are solely concerned with

whether Osotonu’s second degree burglary conviction arising out of the same incident—

sentencing for which was stayed pursuant to section 654—meets the statutory criteria for

shoplifting.

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dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.”].)

We similarly see no reason why the electorate would differentiate between money stolen

from an ATM and money obtained illegally from a bank teller for purposes of

Proposition 47 relief, as it is the value of the stolen property, not its location within the

commercial enterprise, to which the electorate has attached significance. (Cf. Holm, at

pp. 144, 148 [television stolen from private golf club falls within the purview of the

shoplifting statute].)

In reaching this conclusion, we are not swayed by the Attorney General’s

argument that while “the outside of an operating ATM may be very similar to the inside

of [a] bank that is open for business,” the inside of an ATM is never open to the public

and thus entry into it cannot be deemed entry into a commercial establishment. We are

aware that the Supreme Court is currently considering a case involving the possible

distinction between commercial and non-commercial spaces within an establishment for

purposes of section 459.5. (See People v. Colbert (2016) 5 Cal.App.5th 385, review

granted Feb. 15, 2017, S238954 (Colbert) [identifying issue on review as whether a

defendant’s entry into a separate office area of a commercial establishment that was off-

limits to the general public constitutes an “exit” from the “commercial” part of the

establishment that precluded reducing his conviction for second degree burglary to

misdemeanor shoplifting under Penal Code section 459.5].) However, we do not find the

Colbert situation particularly analogous to the case at hand. Rather, we consider the Fifth

District’s recent opinion in People v. Bunyard (2017) 9 Cal.App.5th 1237 (Bunyard)

instructive.

In Bunyard, the defendant seeking resentencing had been convicted of second

degree burglary after he attempted to break into a coin-operated soap dispenser in a 24-

hour commercial laundromat. (Bunyard, supra, 9 Cal.App.5th at pp. 1240, 1244.) The

trial court determined that such conduct did not “comport with the commonsense

meaning of ‘shoplifting’ ” and thus denied the defendant’s resentencing petition. (Id. at

pp. 1239-1240.) The appellate court reversed, concluding that when the defendant

entered the laundromat during its regular business hours with the intent to commit

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larceny by theft he met the statutory definition of shoplifting. (Id. at p. 1244.) In making

this determination, the court held that it did not matter whether the defendant “used a tool

to effectuate the intended theft or force to attempt to break into the coin box.” (Id. at p.

1244.) Rather, it concluded that the electorate did not intend section 459.5 to cover “only

the theft of merchandise or goods displayed for sale,” opining: “It would make no sense

to distinguish, for purposes of misdemeanor versus felony treatment, between the

intended theft of merchandise worth $10 to $15 and the intended theft of coins worth $10

to $15, simply because the former is openly displayed and offered for sale and the latter

is not.” (Id. at p. 1245.) Similarly, in this case, the fact that the money sought was

located inside of the ATM is of no moment where the commercial establishment was

entered with the requisite intent. (See Ravenscroft, supra, 198 Cal.App.3d at p. 644

[“[t]he gravamen of burglary is an act of entry, no matter how partial or slight it may be,

. . . accompanied by the proper intent”]; see also Davis, supra, 18 Cal.4th at p. 715;

Colbert, supra, 5 Cal.App.5th at p. 392 (dis. opn. of Rushing, P.J.) [under “plain

language” of section 459.5, “a defendant commits shoplifting as soon as he or she enters

a commercial establishment with the requisite intent”].)3

As a final matter, we conclude—again based upon our consideration of the

electorate’s objectives, as well as the need to broadly construe section 459.5 in order to

effectuate its underlying purposes—that an ATM’s “regular business hours” for purposes

3

We are not unsympathetic to the Attorney General’s argument that characterizing

the instant offense as shoplifting expands that term far beyond its commonly understood

meaning. Were we drafting section 459.5 to more closely resemble the crime of

shoplifting as it is conventionally understood, we might have limited its application to

only nonviolent entries into commercial establishments and/or to thefts solely of retail

merchandise. But these limitations might very well have excluded from resentencing

many nonserious burglaries that the electorate would otherwise have chosen to reach, as

the developing caselaw has illustrated. And, in any event, where such concepts are not

included in the statutory language as it was enacted, we cannot add them by judicial fiat.

(See Gonzales, supra, 2 Cal.5th at p. 871 [when construing a term of art, courts must

assume that the electorate was aware of the ramifications of its choice of language]; id. at

p. 874 [noting that section 490.5 limits its scope to petty theft of retail merchandise, while

section 459.5 contains no such limiting language].)

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of the shoplifting statute are not necessarily the “banker’s hours” associated with its

affiliated financial institution. As stated above, an ATM is useful precisely because it

“constitutes a place where specific services are provided when the main facility is closed

and not open for banking business.” (Donald, supra, 209 Cal.App.3d at p. 1194.) Thus,

even when the bank, itself, is closed to the public, many ATMs are still engaged in active

commerce. While some may be located inside banks or other commercial establishments

with more restricted business hours, many are open and available for the business of

financial transactions 24 hours a day. Where the offense at issue otherwise falls below

the statutory ceiling of $950 (§ 459.5), we can discern no meaningful distinction between

theft from an ATM that is open after formal banking hours and one that it only open

during the bank’s normal business day for purposes of applying Proposition 47. We

therefore reach the rather unremarkable conclusion that an ATM’s “regular business

hours” for purposes of section 459.5 are those hours during which the ATM, itself, is

open for business.

The Attorney General, however, asserts that a petitioner bears the burden of

showing eligibility for resentencing under Proposition 47 and that Osotonu failed to

establish that the ATM he burglarized in this case was indeed a 24-hour enterprise. (See

People v. Sherow (2015) 239 Cal.App.4th 875, 880.) In this regard, we note that

Osotonu’s resentencing petition alleges that he is eligible for Proposition 47 relief, and

the District Attorney did not raise the 24-hour issue in the court below. Indeed, at the

resentencing hearing, Osotonu’s attorney argued that the ATM was “presumably a 24-

hour operating machine,” and the District Attorney did not challenge this point. While

there is evidence in the record which suggests that the ATM, being an externally mounted

machine, was accessible to the public at all hours, it is clear that the trial court did not

resolve this and other eligibility issues because it believed that Osotonu’s petition was

legally barred for the reasons discussed herein. Under such circumstances, the proper

remedy is to reverse the order denying relief and remand the matter to the trial court to

determine whether Osotonu satisfies the remaining conditions for resentencing. (Smith,

supra, 1 Cal.App.5th at p. 275.)

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In sum, because we conclude in this case that Osotonu entered the ATM at issue

with the intent “to get money” and that an ATM is “open during regular business hours”

for purposes of section 459.5 when it is available to the public for the provision of

financial services, we remand to the trial court to determine whether resentencing is

appropriate under the specific facts of this case.

III. DISPOSITION

The order denying defendant’s petition for recall of sentence and request for

resentencing is reversed and the matter is remanded to the trial court for further

proceedings consistent with this opinion.

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_________________________

REARDON, J.

We concur:

_________________________

STREETER, ACTING P. J.

_________________________

SMITH, J.*

*Judge of the Superior Court of California, County of Alameda, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.

A147060 People v. Osotonu

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Trial Court:

Solano County Superior Court

Trial Judge:

Hon. Peter B. Foor

Counsel for Defendant and Appellant:

Carla Castillo, First District Appellate Project

Shannon Chase, First District Appellate Project

Counsel for Plaintiff and Respondent:

Kamala D. Harris, Attorney General

Gerald A. Engler, Chief Assistant Attorney General

Jeffrey M. Laurence, Senior Assistant Attorney General

René A. Chacón, Supervising Deputy Attorney General

Bruce Ortega, Deputy Attorney General

A147060 People v. Osotonu

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