Metropolitan News-Enterprise


Thursday, September 6, 2018


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Blowing Up ATM in Middle of Night Might Have Been Shoplifting—C.A.


By a MetNews Staff Writer


The First District Court of Appeal has held that a man serving time for using explosives to steal from an ATM in the middle of the night might be entitled to resentencing because such conduct can qualify as shoplifting.

The opinion by Justice Timothy A. Reardon of Div. Four was filed Tuesday.

The defendant, Oston Osotonu, is serving a 26-year prison sentence for, among other things, second degree burglary under Penal Code §459, after helping his cohorts blow up a Wells Fargo ATM in Vallejo. In 2015, he filed a petition in Solano Superior Court requesting resentencing under Proposition 47.

That 2014 ballot measure allows defendants who were sentenced for second degree burglary, a felony, to petition, under some circumstances, to have their sentences recalled, and to be resentenced for  shoplifting, a misdemeanor. Penal Code §459.5 sets forth:

“Notwithstanding Section 459, shoplifting is 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).”

Petition Hearing

Solano Superior Court Judge Peter B. Foor did not accept Osotonu’s argument that blowing up the ATM qualified as shoplifting. Denying the petition, he said:

“It does not appear to the Court that the ATM outside the building is a burglary of a commercial building, a bank.”

He added that the crime did not take place during the bank’s “business hours.”

Osotonu’s counsel countered that “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.”

Foor termed that “an interesting theory” and said the lawyer should “certainly feel free” to determine if the Court of Appeal would accept it.

Term of Art

It did. Reardon noted that the state Supreme Court, last year in People v. Gonzales, described the term “shoplifting” as used in §459.5, as a “a term of art, which must be understood as it is defined not in its colloquial sense.”

Courts have regularly interpreted banks as being commercial establishments under §459.5, Reardon said, continuing:

“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.”

Reardon observed that that there was no evidence on the record as to whether the ATM had been open for business when Osotonu blew it up, making it unclear whether it had been “open during regular business hours.” The opinion remands the case for determination of that element.

The case is People v. Osotonu, 2018 S.O.S. 4394.

Other Bombings

Osotonu in 2000 was sentenced to 26 years in prison after entering a plea of no contest to 17 of the 20 counts. The destruction of the ATM was one of a string of 1997 bombings in the area.

A defendant in a three-strikes narcotics case hired Osotonu and others to blow up criminal-justice facilities, including a wall of the Solano Courthouse and a police evidence room, in an effort to impede his trial. The explosions at the bank were intended to divert attention from the actual purpose.

Vallejo Police Lt. Ron Jackson said at the time of the arrest of Osotonu and another:

“The motive, we believe, was an attempt to stop the county criminal justice system. It’s not gang-related or militia-related or anything like that, but as simple as they wanted to stop a relatively serious court case and they thought if they could destroy the evidence they could stop the trial.”

The opinion quotes Osotonu as saying that he participated in blowing up the ATM “to create a diversion and to get money.”


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