Defendant was not eligible for resentencing under Proposition 47 because the use of explosives to gain access to an ATM machine constituted burglary rather than shoplifting. Osotonu pleaded no contest to numerous offenses, including a burglary based on an incident where explosives were used in the middle of the night to open an ATM machine affixed to the side of the bank. He filed a petition under Proposition 47, requesting that he be resentenced to misdemeanor shoplifting for this offense. The trial court denied the petition and Osotonu appealed. After the Court of Appeal initially reversed, the California Supreme Court transferred the case back to the appellate court for reconsideration in light of People v. Colbert (2019) 6 Cal.5th 596. Held: Affirmed. Proposition 47 added Penal Code 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” $950. In Colbert, the California Supreme Court concluded that “entering an interior room [of a commercial establishment] that is objectively identifiable as off-limits to the public with intent to steal therefrom is not shoplifting, but instead remains punishable as burglary.” Here, the Court of Appeal concluded that, although an ATM is not like a room in the traditional sense, the interior place containing the money is objectively identifiable as off-limits to the public. Even though an ATM is a commercial establishment open to the public, Osotonu exceeded the physical scope of his invitation when he used explosives (as opposed to a stolen debit card) to open the ATM. The court distinguished People v. Bunyard (2017) 9 Cal.App.5th 1237 and questioned its holding in light of Colbert.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A147060A.PDF