THE PEOPLE, Plaintiff and Respondent, v. TREYVON LOVE OLLO, Defendant and Appellant.
S260130
IN THE SUPREME COURT OF CALIFORNIA
June 21, 2021
B290948 | KA115677
Second Appellate District, Division Two; Los Angeles County Superior Court
Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Cuellar, Kruger, Groban, and Jenkins concurred.
PEOPLE v. OLLO
S260130
I.
On June 29, 2017, 18-year-old Ollo sent his 16-year-old girlfriend, Reina, a text message telling her that he had cocaine. Reina arrived at Ollo‘s house around 5:00 p.m. Reina used an identification card to separate two lines of white powder, and she then snorted one line. Ollo did not partake. He later told the police that the powder “smell[ed] like gasoline” and was less white than the cocaine he usually purchased. Around 7:30 or 8:00 p.m., 30 minutes after snorting the substance, Reina fell asleep. At 9:00 p.m., Ollo checked to make sure Reina was still breathing. Ollo then fell asleep next to Reina.
Ollo woke up the next morning between 8:00 and 9:00 a.m. When he tried to rouse Reina, she was nonresponsive, cold, and stiff. Ollo sent text messages to a friend asking for help putting Reina in a car to take her to the hospital, but the friend said he did not want to get involved. Ollo then called 911. Reina was pronounced dead at the scene.
A white powdery substance collected from the dresser near Reina‘s body tested positive for fentanyl. Toxicology samples collected during Reina‘s autopsy also tested positive for fentanyl. The medical examiner determined that Reina died from fentanyl intoxication.
Ollo was charged with furnishing, giving, or offering to furnish or give a controlled substance to a minor. (
In his closing statement, defense counsel argued that there was no evidence Ollo gave the fentanyl to Reina. He did not discuss whether the facts met the elements of the great bodily injury enhancement. The jury convicted Ollo of offering a controlled substance to a minor and furnishing or giving away a controlled substance to a minor. It also sustained the allegation that Ollo personally inflicted great bodily injury upon Reina within the meaning of
The court sentenced Ollo to nine years in prison, plus an additional three years for the great bodily injury enhancement.
On appeal, Ollo argued that the trial court erred by limiting defense counsel‘s closing argument. The Court of Appeal affirmed. (Ollo, supra, 42 Cal.App.5th at pp. 1158–1159.) It noted that “trial courts enjoy ’ “great latitude” ’ in regulating the permissible scope of closing argument . . . , and on that basis may preclude any argument that is contrary to the law.” (Id. at p. 1156, citation omitted.) It then held 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.” (Id. at p. 1158.) Acknowledging the breadth of its holding, the court said that “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.” (Id. at p. 1159, italics added.) We granted review.
II.
“California has many sentencing statutes that increase the prison term otherwise available for the charged offense.” (People v. Modiri (2006) 39 Cal.4th 481, 491 (Modiri).) These sentence enhancements ” ‘typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.’ ” (People v. Ahmed (2011) 53 Cal.4th 156, 161 (Ahmed).) “[T]here are at
The issue is whether a defendant who furnishes a controlled substance “personally inflicts” great bodily injury as a matter of law whenever a person to whom he or she provides drugs dies or suffers other great bodily injury from using the drugs. (
Ollo and the Attorney General agree that “the act of providing drugs to a person who subsequently overdoses should not automatically result in a great bodily injury enhancement.” We agree as well. As explained below, whether the furnishing of drugs constitutes personal infliction within the meaning of
We begin with the language of
The meaning of “personally inflict” is less clear in the context of a drug furnishing offense where the defendant provides a controlled substance and the injury arises only after the victim ingests the substance. But nothing in the language of
In Ahmed, we reviewed a trial court‘s imposition of enhancements for “personally inflict[ing] great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony” (
In Modiri, we construed the identical phrase “personally inflicts great bodily injury” in
Legislative history also counsels against the broad application of
Furnishing a controlled substance may take many different forms, and not all furnishers fall within the class of individuals who “perform the act that directly inflicts the injury.” (Cole, supra, 31 Cal.3d at p. 571.) Two cases illustrate this point and demonstrate why a fact-specific analysis accords with the Legislature‘s intent. In Martinez, the case on which the trial court here relied, the defendant was convicted of three counts of furnishing a controlled substance after supplying an individual with six to seven 10-milligram methadone pills and six to eight 10-milligram hydrocodone pills over the course of a night of drinking. (Martinez, supra, 226 Cal.App.4th at p. 1178.) The defendant supplied the pills “knowing that the drugs were more dangerous when combined with alcohol” and continued to supply drugs to the individual while “watch[ing] her continue to consume alcohol and become intoxicated, so intoxicated that [the defendant] felt she was not in any condition to drive.” (Id. at p. 1186.) The individual overdosed due to her consumption of “a lethal quantity of drugs.” (Ibid.) On those facts, the court found substantial evidence that the defendant personally inflicted great bodily injury within the meaning of
In Martinez, the court reasonably characterized the defendant‘s act of personally providing a lethal quantity of drugs to the victim while observing her increasing intoxication as a direct cause of her overdose. (See Martinez, supra, 226 Cal.App.4th at p. 1186.) In Slough, by contrast, the defendant provided drugs but played no role in the victim‘s ingestion. The Slough court reasonably concluded that because the defendant “neither performed nor participated in the act that directly inflicted the injury,” the great bodily injury enhancement could not apply. (Slough, supra, 11 Cal.App.5th at p. 425.) If the enhancement were to apply to defendants like those in Slough, who play no part in the act that directly inflicts the injury, the term “personally” in the phrase “personally inflicts” would be read out of
In determining whether the personal infliction requirement is satisfied, the key inquiry is whether “the furnishing was akin to administering.” (Slough, supra, 11 Cal.App.5th at p. 425.) When a defendant administers the drugs without the victim‘s consent, the defendant has participated in the injury-causing act and thus may be held liable for personal infliction of the overdose. Where a defendant simply provides drugs to a user who subsequently overdoses, the defendant facilitates but does not personally inflict the overdose. This distinction recognizes the importance of the voluntariness of a victim‘s ingestion in the determination of whether a defendant personally inflicts great bodily injury in the drug furnishing context. To be eligible for the great bodily injury enhancement, a defendant‘s participation in the act of ingestion must occur in circumstances in which the victim is not an independent “intermediary” capable of breaking the “personal[]” nexus between the defendant and the overdose injury. (Cross, supra, 45 Cal.4th at p. 68.) Whereas a victim with full capacity who voluntarily chooses to ingest a
III.
The Court of Appeal below warned that if a victim‘s independent ingestion of drugs were to shield the drug furnisher from a finding of personal infliction, this would contravene the plain language of
The Court of Appeal also reasoned that applying the enhancement to “drug dealers . . . whenever the persons to whom they furnish drugs are subjected to great bodily injury due to their drug use” serves the deterrent goals of
Further, the Court of Appeal reasoned that “a defendant‘s act of furnishing drugs and the user‘s voluntary act of ingesting them constitute concurrent direct causes. . . . [¶] . . . [A] defendant directly causes — and hence, personally inflicts — great bodily injury when his conduct, together with the victim‘s, accidentally produces that injury.” (Ollo, supra, 42 Cal.App.5th at p. 1158.) The Court of Appeal is correct to recognize that more than one person may personally inflict a single injury. In Modiri, we found that a defendant involved in a group beating need not have struck the injuring blow to support a great bodily injury enhancement, provided that the defendant‘s personal application of force shows direct participation in the group beating. (Modiri, supra, 39 Cal.4th at p. 493.) In reaching this conclusion, we explained that “[t]he term ‘personally,’ which modifies ‘inflicts’ . . . , does not mean exclusive . . . .” (Ibid., italics added.) “[N]othing in the terms ‘personally’ or ‘inflicts,’ when used in conjunction with ‘great bodily injury’ . . . necessarily implies that the defendant must act alone in causing the victim‘s injuries.” (Ibid.; see People v. Dominick (1986) 182 Cal.App.3d 1174, 1210–1211 [defendant who grabbed the victim‘s hair and held the victim while a codefendant struck her was directly responsible for the injury the victim suffered when she fell while pulling away].)
However, a person who merely aids, abets, or directs another to inflict an injury is not subject to the enhanced penalty of
The Legislature‘s use of the term “personally inflict” in
IV.
We conclude the trial court erred as a matter of law by precluding defense counsel from arguing that the facts of this case do not support a great bodily injury enhancement in light of Reina‘s voluntary ingestion of the controlled substance. When defense counsel requested permission to argue that the facts of this case do not meet the elements of the great bodily injury enhancement, the court responded that it was “contrary to law” to argue that Reina “voluntarily took the drugs.” The court told defense counsel that he was only permitted to argue that Ollo was not subject to the enhancement because he did not furnish the drugs, and Reina brought her own drugs. The court then stated, “If your argument is going to be [Ollo] gave [Reina] the drugs” but “he‘s not responsible because she voluntarily took them, I don‘t think that can be done.”
The trial court‘s statement of the law contravenes our reasoning that the voluntariness of a victim‘s ingestion is a key consideration in the determination of whether a defendant personally inflicts great bodily injury in the drug furnishing context. The trial court erred by precluding defense counsel from making a legally valid argument that the facts of this case do not support a great bodily injury enhancement. (See In re Charlisse C. (2008) 45 Cal.4th 145, 159 [“a disposition that rests on an error of law constitutes an abuse of discretion“].)
We reverse the judgment and remand to the Court of Appeal to apply the holding herein and to consider any other issues raised but not resolved in the Court of Appeal‘s original consideration.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUELLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Ollo
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Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 42 Cal.App.5th 1152
Review Granted (unpublished)
Rehearing Granted
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Opinion No. S260130
Date Filed: June 21, 2021
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Court: Superior
County: Los Angeles
Judge: Steven D. Blades
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Counsel:
Rachel Lederman, under appointment by the Supreme Court, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, Colleen M. Tiedemann and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Rachel Lederman
Attorney at Law
558 Capp St.
San Francisco, CA 94110
(415) 282-9300
Colleen M. Tiedemann
Deputy Attorney General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
(213) 269-6599