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PEOPLE v. OLLO (2019)

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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Treyvon Love OLLO, Defendant and Appellant.


Decided: December 05, 2019

Rachel Lederman, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.

A criminal defendant furnishes controlled substances to another, who dies from ingesting those drugs. Is that defendant immune from criminal liability for personally inflicting great bodily injury upon the drug user by virtue of the user's voluntary ingestion of the drugs? The courts do not agree on how to answer this question: People v. Martinez (2014) 226 Cal.App.4th 1169, 172 Cal.Rptr.3d 793 (Martinez) says “no,” while People v. Slough (2017) 11 Cal.App.5th 419, 217 Cal.Rptr.3d 598 (Slough) says “yes.” We conclude that Martinez has the better argument. Because we also reject the sentencing challenges raised by defendant in this case (in the unpublished portion of our decision), we affirm.


I. Facts

In late June 2017, Treyvon Love Ollo (defendant), then 18 years old, invited his 16-year-old girlfriend Reina over to his house. He told her that he “ha[d] some coke that [he] got last night.” Reina came over, and the couple retreated to defendant's bedroom and had sex.

Defendant then provided Reina with a white, powdery substance that he thought was cocaine, but which had a “[weird] smell.” Reina cut the powder into lines using defendant's driver's license, and snorted it up her nose. She passed out within 30 minutes.

As it turns out, the white powdery substance was not cocaine. It was fentanyl. Like cocaine, fentanyl is a controlled substance, but one that is 50 to 100 times more potent than heroin.

Reina died from a fentanyl overdose later that night.

When defendant awoke the next morning, he found her dead. At first, he tried to get a friend to help him put her corpse in an Uber to transport it to a hospital. However, when no one would agree to help, he called 911.

II. Procedural Background

The People charged defendant with the crime of furnishing, giving, or offering to furnish or give a controlled substance to a minor (Health & Saf. Code, § 11353). The People further alleged that defendant personally inflicted great bodily injury upon Reina (Pen. Code, § 12022.7, subd. (a)).1

The jury was instructed on two possible theories of criminal liability—namely, that defendant (1) furnished or gave drugs to Reina, and (2) offered to furnish or give drugs to Reina.

The jury found defendant guilty of furnishing or giving drugs to Reina, and found true the allegation that he had personally inflicted great bodily injury upon her.

The trial court sentenced defendant to 12 years in prison. On the furnishing count, the court imposed an upper-term sentence of nine years. To that, the court added another three years for the personal infliction enhancement. The court also imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)).

Defendant filed this timely appeal.


I. Personal Infliction of Great Bodily Injury

During the conference regarding jury instructions, defendant indicated his intention to argue, in closing, that Reina's voluntary ingestion of the drugs was an “intervening cause” that precluded his liability for personally inflicting great bodily injury upon her. The court ultimately ruled that this argument was “contrary to the law” and prohibited defendant from making it.

Although closing argument is a critical part of a criminal trial because it provides the parties with “the opportunity finally to marshal the evidence ․ before submission of the case to judgment” (Herring v. New York (1975) 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593), trial courts enjoy “ ‘great latitude’ ” in regulating the permissible scope of closing argument (People v. Edwards (2013) 57 Cal.4th 658, 743, 161 Cal.Rptr.3d 191, 306 P.3d 1049), and on that basis may preclude any argument that is contrary to the law (People v. Baldwin (1954) 42 Cal.2d 858, 871, 270 P.2d 1028).

This case accordingly presents the question: Does a drug user's voluntary ingestion of drugs provided by a defendant, when those drugs result in an overdose or other injury, preclude a finding that the defendant personally inflicted great bodily injury under section 12022.7?

Because the answer to this question turns largely on the construction of section 12022.7, our review is de novo. (People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 234, 219 Cal.Rptr.3d 436, 396 P.3d 568.)

A. Personal infliction and causation, generally

Section 12022.7, subdivision (a) empowers a trial court to impose “an additional and consecutive” three-year prison term if a defendant “personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony.” (§ 12022.7, subd. (a).)

A defendant “personally inflicts” great bodily injury if he directly causes the injury—that is, if the defendant “himself” “actually” “inflicts the injury” by “directly perform[ing] the act that causes the physical injury.” (People v. Cole (1982) 31 Cal.3d 568, 572-573, 579, 183 Cal.Rptr. 350, 645 P.2d 1182; see People v. Modiri (2006) 39 Cal.4th 481, 495, 46 Cal.Rptr.3d 762, 139 P.3d 136 (Modiri) [requiring a “direct physical link between [defendant's] own act and the victim's injury”].) Under this definition, it is not enough to show that the defendant “proximately cause[d]” the great bodily injury—that is, it is not enough to show that the defendant's conduct was a “substantial factor contributing” to the injury because that conduct “set[ ] in motion a chain of events” that “natural[ly]” ripened into the injury. (People v. Sanchez (2001) 26 Cal.4th 834, 845, 111 Cal.Rptr.2d 129, 29 P.3d 209;see People v. Rodriguez (1999) 69 Cal.App.4th 341, 346-347, 81 Cal.Rptr.2d 567 (Rodriguez); also, People v. Bland (2002) 28 Cal.4th 313, 336, 121 Cal.Rptr.2d 546, 48 P.3d 1107 (Bland) [“Proximately causing and personally inflicting harm are two different things.”].) It is also not enough to show that the defendant aided and abetted the person who directly caused the injury. (Cole, at p. 571, 183 Cal.Rptr. 350, 645 P.2d 1182.) Requiring this direct causal link furthers the enhancement's underlying purpose of imposing a greater penalty upon (and thereby deterring) persons who inflict such grievous injuries. (People v. Guzman (2000) 77 Cal.App.4th 761, 764, 91 Cal.Rptr.2d 885 (Guzman) [direct causation requirement serves “the goal of deterring the infliction of great bodily injury”]; see also Cole, at p. 571, 183 Cal.Rptr. 350, 645 P.2d 1182; People v. Ahmed (2011) 53 Cal.4th 156, 162, 133 Cal.Rptr.3d 856, 264 P.3d 822 [section 12022.7 aims to “punish more severely” those who engage in such conduct].)

At times, there can be more than one direct cause of a victim's great bodily injury. (Modiri, supra, 39 Cal.4th at p. 493, 46 Cal.Rptr.3d 762, 139 P.3d 136 [“The term ‘personally’ ․ ‘inflicts’ ․ does not mean exclusive[ly] ․”].) When the acts of more than one person combine to inflict great bodily injury, each of those persons has directly caused that injury and each has personally inflicted that injury. (E.g., Modiri, at p. 486, 46 Cal.Rptr.3d 762, 139 P.3d 136 [multiple assailants engage in a “group attack”; each has personally inflicted great bodily injury]; People v. Corona (1989) 213 Cal.App.3d 589, 594, 261 Cal.Rptr. 765 [same]; Guzman, supra, 77 Cal.App.4th at p. 764, 91 Cal.Rptr.2d 885 [the defendant, while intoxicated, turned vehicle into oncoming traffic and was struck by a third party; the defendant personally inflicted great bodily injury]; cf. People v. Valenzuela (2010) 191 Cal.App.4th 316, 323, 119 Cal.Rptr.3d 340 [causal mechanism for injury sustained as a result of collision of cars unknown; no personal infliction].) This is true, even when one of the persons contributing to the injury is the victim herself. (E.g., People v. Elder (2014) 227 Cal.App.4th 411, 420-421, 174 Cal.Rptr.3d 192 [victim injured while “struggling and attempting to pull away [from]” the defendant; the defendant personally inflicted injury]; People v. Dominick (1986) 182 Cal.App.3d 1174, 1185, 1210-1211, 227 Cal.Rptr. 849 [same]; cf. Rodriguez, supra, 69 Cal.App.4th at pp. 346, 351, 81 Cal.Rptr.2d 567 [victim injured after hitting his head while trying to tackle the defendant; the defendant did not personally inflict injury]; People v. Jackson (2000) 77 Cal.App.4th 574, 575-576, 580, 91 Cal.Rptr.2d 805 [victim injured tripping over curb while walking away from the defendant; the defendant did not personally inflict injury].) What is more, a defendant whose act is one of many concurrent direct causes of an injury is liable for personal infliction under section 12022.7 even if that injury is inflicted accidentally (Guzman, at p. 764, 91 Cal.Rptr.2d 885) and even if the injury occurs days, weeks or even months after the defendant's act (People v. Cross (2008) 45 Cal.4th 58, 66, 68-69, 82 Cal.Rptr.3d 373, 190 P.3d 706 (Cross) [the defendant's act of engaging in sexual intercourse may be a direct cause of subsequent conception and pregnancy]).

B. Personal infliction and causation, as applied

Applying the above stated law, we conclude that a defendant's act of furnishing drugs and the user's voluntary act of ingesting them constitute concurrent direct causes, such that the defendant who so furnishes personally inflicts great bodily injury upon his victim when she subsequently dies from an overdose.

We reach this conclusion for three reasons. First, this conclusion is consistent with the precedent cited above, which holds that a defendant directly causes—and hence, personally inflicts—great bodily injury when his conduct, together with the victim's, accidentally produces that injury. Martinez came to the same conclusion with similar reasoning. (Martinez, supra, 226 Cal.App.4th at pp. 1184-1186, 172 Cal.Rptr.3d 793.) Second, this conclusion is consistent with the purpose of section 12022.7 to punish (and hence deter) those defendants who themselves directly cause the injury; indeed, “[a] contrary [conclusion] would mean that those who” personally furnish drugs that cause a fatal overdose “would often evade enhanced punishment.” (Modiri, supra, 39 Cal.4th at p. 486, 46 Cal.Rptr.3d 762, 139 P.3d 136.) Lastly, this conclusion is consistent with the plain language of section 12022.7, subdivision (g), which spells out the specific crimes to which the personal infliction enhancement is inapplicable—namely, murder, manslaughter, or arson as defined in section 451 or 452. Were we to conclude that a victim's voluntary ingestion of a drug furnished by another breaks the causal chain as a matter of law, we would effectively be adding the crime of furnishing controlled substances to subdivision (g)’s list. This we cannot do. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92, 124 Cal.Rptr.2d 530, 52 P.3d 703 [“no court has the ‘ “power to rewrite [a] statute ․” ’ ”].)

In reaching this conclusion, we part ways with Slough. Slough purported to distinguish (and hence preserve) Martinez on the ground that the defendant in Slough merely “handed off [the] drugs” to the victim, “went [his] separate way[ ],” and thus “played no part in [the victim's] ingestion of the drugs,” while the defendant in Martinez both supplied the drugs and stuck around while the victim ingested them. (Slough, supra, 11 Cal.App.5th at p. 425, 217 Cal.Rptr.3d 598.) Although it is possible to draw this factual distinction between Slough and Martinez, that distinction is not in our view analytically significant. As noted above, a concurrent direct cause of an injury remains such even if the act and injury are separated by time and space. (Cross, supra, 45 Cal.4th at pp. 66, 68-69, 82 Cal.Rptr.3d 373, 190 P.3d 706.) By placing dispositive weight on the temporal and spatial distance between the defendant's conduct of furnishing and the victim's act of ingesting, Slough contravenes this principle of direct concurrent causation. Slough also effectively treats the victim's ingestion as an intervening or superseding cause (albeit an entirely foreseeable one). Because superseding cause is a concept relevant to proximate causation (e.g., People v. Brady (2005) 129 Cal.App.4th 1314, 1324-1325, 1328, 29 Cal.Rptr.3d 286; People v. Schmies (1996) 44 Cal.App.4th 38, 49, 51 Cal.Rptr.2d 185), it is irrelevant to the very different question of direct causation (People v. Autry (1995) 37 Cal.App.4th 351, 363, 43 Cal.Rptr.2d 135 [it is improper to “label[ ] a concurrent cause as a superseding cause”]; see also, Bland, supra, 28 Cal.4th at p. 336, 121 Cal.Rptr.2d 546, 48 P.3d 1107). For much the same reason, we decline defendant's invitation to find other factual distinctions between this case and Martinez.

We recognize that our disagreement with Slough means that, under our holding, drug dealers are liable for additional prison time whenever the persons to whom they furnish drugs are subjected to great bodily injury due to their drug use. Policy makers may come to a different conclusion about whether this is a desirable result. However, our Legislature has—for now, at least—already weighed in by choosing not to declare this enhancement inapplicable to crimes related to the distribution of controlled substances. (§ 12022.7, subd. (g).) We must defer to that legislative judgment.

Because the victim's voluntary ingestion of the drugs furnished by defendant did not absolve him of his direct causal role in her injury, the argument that it did is contrary to the law and was properly barred by the trial court.

II. Sentencing Errors **


The judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise indicated.


We concur: ASHMANN-GERST, Acting P. J., and CHAVEZ, J., concurred. petition Appellant's for review by the Supreme Court was granted March 18, 2020, S260130.

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