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.


                                                1
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).




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                                        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).) The
statute further provides that “[a]ny other entry into a commercial establishment with
intent to commit larceny is burglary.” (Ibid.; see People v. Rivera (2015)
233 Cal.App.4th 1085, 1091.) 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).)
       After the release of our initial opinion in this matter, the Supreme Court issued its
opinion in Colbert, which presented the following question concerning the line separating
shoplifting from burglary: “If a person enters a store during regular business hours but
then proceeds to a private back office with intent to steal therefrom, which crime has he
or she committed?” (Colbert, supra, 6 Cal.5th at p. 598.) In rejecting Colbert’s claim
that he was guilty only of misdemeanor shoplifting, the court concluded that “entering an
interior room that is objectively identifiable as off-limits to the public with intent to steal
therefrom is not shoplifting, but instead remains punishable as burglary.” (Ibid.)
       Osotonu argues that Colbert does not apply because unlike entering a private back
office in a store, there is no need to move between public and non-public spaces when



                                               3
gaining access to the interior of an ATM. He maintains that because an ATM is not an
“interior room,” entering one with the intent to steal money is shoplifting, not burglary.
The Attorney General agrees that an ATM is a commercial establishment open to the
public and concedes that the inside of an ATM is not like a room in the traditional sense,
but contends this interior place containing the bank’s money is objectively identifiable as
off-limits to the public.2 We agree.
       It has long been the law that a burglary under “section 459 occurs when a
defendant with the requisite intent enters a structure where he or she has no right to
be . . . .” (Colbert, supra, 6 Cal.5th at p. 606, italics added.) A primary purpose of the
burglary statute is “ ‘to protect against the increased risk to personal safety that attends
the commission of a felony’ in such locations, as well as ‘to prevent the invasion of an
owner’s or occupant’s possessory interest in a space against “a person who has no right to
be in the building.” ’ [Citation.]” (Colbert, supra, 6 Cal.5th at p. 607.) “ ‘Section 459, in
short, is aimed at the danger caused by the unauthorized entry itself.’ [Citation.]”
(People v. Davis (1998) 18 Cal.4th 712, 721 (Davis).)
       In contrast, “[i]n enacting the shoplifting statute as part of Proposition 47, the
electorate signaled that these interests do not apply in the same way when a person
intends to steal property in a place where he or she has been invited to peruse the goods
and services that are on offer. Store owners and employees do not, of course, consent to
the theft of property. But the core of the crime of burglary is not theft but physical
intrusion, and owners and employees have every reason to expect that members of the
public will enter where they have been invited.” (Colbert, supra, 6 Cal.5th at p. 607,
second italics added.)
       However, as Colbert explains, “it is different when members of the public venture
into private back offices, employee locker rooms, or other interior rooms that are
objectively identifiable as off-limits. The nature of the intrusion, and the potential risk to
personal safety, when a person exceeds the physical scope of his or her invitation to enter

       2
       Although the point was initially disputed, the Attorney General now agrees that
the ATM constitutes a commercial establishment.

                                               4
are not dissimilar from those associated with exceeding the temporal scope of the
invitation by entering after regular business hours—conduct that clearly remains
punishable as burglary after the enactment of section 459.5. (§ 459.5, subd. (a).)”
(Colbert, supra, 6 Cal.5th at p. 607.)
       Here, it cannot be seriously disputed that Osotonu’s use of explosives to access the
inside of the ATM posed a serious danger to personal safety to anyone in the vicinity of
the ATM. Indeed, the force of the explosives was enough to break apart the steel frame
and cause a crater in the cement wall near the machine. By using explosives, as opposed
to a stolen debit card (see, e.g., Davis, supra, 18 Cal.4th at p. 722), Osotonu
unquestionably exceeded the physical scope of his invitation when he blew open the
ATM. The interior of an ATM, like a locked vault inside a bank, was objectively
identifiable as off-limits. For these reasons, and following the rationale of Colbert, we
conclude that using explosives to blow open an ATM is not punishable as shoplifting
under section 459.5.
       Osotonu’s reliance on People v. Bunyard (2017) 9 Cal.App.5th 1237 is unavailing.
Bunyard was convicted of second degree burglary after he used a screwdriver in an
attempt to break into a coin-operated soap dispenser in a 24-hour commercial
laundromat. (Id. at pp. 1240, 1244.) In denying the petition for resentencing, the trial
court reasoned that defendant’s conduct did not “comport with the commonsense
meaning of ‘shoplifting.’ ” (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 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.” (Ibid.) 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


                                              5
displayed and offered for sale and the latter is not.” (Id. at p. 1245.) The court explained
that expanding the scope of shoplifting beyond the so-called “ ‘five-finger discount’ ”
furthered the “readily apparent” purpose of Proposition 47 “to lessen punishment for
‘nonserious, nonviolent crimes like petty theft and drug possession . . . .’[Citation.]”
(Ibid.)
          Contrary to Osotonu’s contention, his case is not similar to Bunyard. Using a
screwdriver to pry open a coin-operated machine inside a commercial establishment is a
far cry from using a bomb to blow up the commercial establishment itself. Under
Colbert, a defendant commits burglary when he or she enters an area that is “objectively
identifiable as off-limits to the public with the intent to steal . . . .” (Colbert, supra,
6 Cal.5th at p. 598.) To the extent the inside of a coin-operated machine arguably
constitutes a location that is objectively identifiable as off-limits, the holding in Bunyard
is now of dubious value. In any event, we are not bound by an opinion of another District
Court of Appeal. (Greyhound Lines, Inc. v. County of Santa Clara (1986)
187 Cal.App.3d 480, 485.) Instead, we apply the law as explained by the California
Supreme Court in Colbert and conclude that because Osotonu entered an area of the
ATM “objectively identifiable as off-limits to the public with the intent to steal,” his
offense is not shoplifting under section 459.5. (Colbert, at p. 598.)

                                        DISPOSITION
          The order denying defendant’s petition for recall of sentence and request for
resentencing is affirmed.




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                                _________________________
                                Brown, J.

We concur:



_________________________
Streeter, Acting P.J.


_________________________
Tucher, J.




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People v. Osotonu (A147060)




                              8
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




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People v. Osotonu (A147060)




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