42 Cal.App.5th 1152
Cal. Ct. App.2019Background
- Defendant (Treyvon Love Ollo), age 18, gave a white powder he believed was cocaine to his 16‑year‑old girlfriend, who snorted it and later died of a fentanyl overdose.
- The substance was actually fentanyl (far more potent than heroin).
- Prosecutor charged defendant with furnishing a controlled substance to a minor (Health & Safety §11353) and alleged a §12022.7(a) personal‑infliction great‑bodily‑injury enhancement.
- Jury convicted on the furnishing count and found true the personal‑infliction enhancement.
- Trial court sentenced to 12 years (9‑year upper term + 3‑year §12022.7 enhancement) and imposed $370 in fines/assessments.
- On appeal defendant argued (1) the victim’s voluntary ingestion was an intervening cause barring the §12022.7 enhancement, and (2) sentencing errors (upper term factors and failure to hold an ability‑to‑pay hearing under Dueñas).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a victim’s voluntary ingestion of drugs furnished by defendant precludes a §12022.7 “personally inflicts” enhancement | People: furnishing the drugs is a direct cause that can personally inflict great bodily injury when combined with the victim’s act | Ollo: victim’s voluntary ingestion is an intervening/superseding cause that absolves him of "personal infliction" | The furnishing and voluntary ingestion are concurrent direct causes; enhancement applies (Martinez reasoning adopted; Slough rejected) |
| Whether the trial court abused discretion by imposing the upper‑term based on certain aggravating factors | People: court relied on multiple valid aggravators (trust, probation status, unsatisfactory probation performance) | Ollo: court impermissibly relied on duplicative or improper factors (death, victim’s age, post‑offense conduct) | Defendant forfeited contemporaneous challenge; any error was harmless because other valid aggravators supported the upper term |
| Whether imposing $370 in fines/assessments without an ability‑to‑pay hearing violated Dueñas or constituted cruel and unusual punishment | People: Dueñas reasoning rejected; failure to hold hearing harmless here because defendant can earn that amount in prison wages; amount not grossly disproportional | Ollo: failure to determine ability to pay violates due process and Eighth Amendment | Court rejects Dueñas argument, finds harmless error re ability to pay, and holds $370 is not grossly disproportionate |
Key Cases Cited
- People v. Martinez, 226 Cal.App.4th 1169 (Cal. Ct. App. 2014) (supports holding that furnishing drugs can be a concurrent direct cause for §12022.7)
- People v. Slough, 11 Cal.App.5th 419 (Cal. Ct. App. 2017) (contrasting authority treating voluntary ingestion as superseding cause)
- People v. Cole, 31 Cal.3d 568 (Cal. 1982) (defining "personally inflict" as direct causation)
- People v. Modiri, 39 Cal.4th 481 (Cal. 2006) (multiple actors may each personally inflict injury)
- People v. Cross, 45 Cal.4th 58 (Cal. 2008) (direct cause need not be contemporaneous with injury)
- People v. Bland, 28 Cal.4th 313 (Cal. 2002) (distinguishing proximate cause from personal infliction)
- People v. Guzman, 77 Cal.App.4th 761 (Cal. Ct. App. 2000) (reinforcing deterrence rationale for direct causation requirement)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (ability‑to‑pay argument invoked by defendant; court here rejects Dueñas’ approach)
- United States v. Bajakajian, 524 U.S. 321 (U.S. 1998) (gross disproportionality standard for Eighth Amendment forfeiture/excessive fine analysis)