Osotonu

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 (§ 11413), two counts of use of a destructive device to destroy property…