Filed 12/5/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TREYVON LOVE OLLO,

Defendant and Appellant.

 B290948

 (Los Angeles County

 Super. Ct. No. KA115677)

APPEAL from a judgment of the Los Angeles Superior 

Court, Steven D. Blades, Judge. Affirmed.

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.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of part II of the Discussion.
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* * * * * *

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 

(Martinez) says “no,” while People v. Slough (2017) 11 

Cal.App.5th 419 (Slough) says “yes.” We conclude that Martinez

has the better argument. Because we also reject the sentencing 

challenges raised by the defendant in this case (in the 

unpublished portion of our decision), we affirm.

FACTS AND PROCEDURAL BACKGROUND

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. 
3

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 (§ 1202.4, subd. (b)), a $30 

criminal conviction assessment (Gov. Code, § 70373), and a $40 

court operations assessment (§ 1465.8, subd. (a)(1)). 

Defendant filed this timely appeal. 

DISCUSSION

I. Personal Infliction of Great Bodily Injury

During the conference regarding jury instructions, 

defendant indicated his intention to argue, in closing, that 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
4

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), trial 

courts enjoy “‘great latitude’” in regulating the permissible scope 

of closing argument (People v. Edwards (2013) 57 Cal.4th 658, 

743), and on that basis may preclude any argument that is 

contrary to the law (People v. Baldwin (1954) 42 Cal.2d 858, 871). 

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.)

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 
5

that causes the physical injury.” (People v. Cole (1982) 31 Cal.3d 

568, 572-573, 579 (Cole); People v. Modiri (2006) 39 Cal.4th 481, 

495 (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 the chain of events” that “natural[ly]” ripened into the 

injury. (People v. Sanchez (2001) 26 Cal.4th 834, 845; People v. 

Rodriguez (1999) 69 Cal.App.4th 341, 346-347 (Rodriguez); see 

also, People v. Bland (2002) 28 Cal.4th 313, 336 (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.) 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 (Guzman) [direct causation requirement serves “the goal 

of deterring the infliction of great bodily injury”]; see also Cole, at 

p. 571; People v. Ahmed (2011) 53 Cal.4th 156, 162 [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 

[“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 
6

injury. (E.g., Modiri, at p. 486 [multiple assailants engage in a 

“group attack”; each has personally inflicted great bodily injury]; 

People v. Corona (1989) 213 Cal.App.3d 589, 594 [same]; 

Guzman, supra, 77 Cal.App.4th at p. 764 [defendant, while 

intoxicated, turned vehicle into oncoming traffic and was struck 

by a third party; defendant personally inflicted great bodily 

injury]; cf. People v. Valenzuela (2010) 191 Cal.App.4th 316, 323 

[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 [victim 

injured while “struggling and attempting to pull away [from]” 

defendant; defendant personally inflicted injury]; People v.

Dominick (1986) 182 Cal.App.3d 1174, 1185, 1210-1211 [same]; 

cf. Rodriguez, supra, 69 Cal.App.4th at pp. 346, 351 [victim 

injured after hitting his head while trying to tackle the 

defendant; defendant did not personally inflict injury]; People v. 

Jackson (2000) 77 Cal.App.4th 574, 575-576, 580 [victim injured 

tripping over curb while walking away from the defendant; 

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) 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

(Cross) [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 
7

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.) 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.) 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 sections 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 [“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 
8

defendant in Martinez both supplied the drugs and stuck around 

while the victim ingested them. (Slough, supra, 11 Cal.App.5th 

at p. 425.) 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.) 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; People v. Schmies

(1996) 44 Cal.App.4th 38, 49), it is irrelevant to the very different 

question of direct causation (People v. Autry (1995) 37 

Cal.App.4th 351, 363 [it is improper to “label[] a concurrent cause 

as a superseding cause”]; see also, Bland, supra, 28 Cal.4th at p. 

336). 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 
9

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

Defendant argues that the trial court erred in (1) imposing 

the upper-term sentence of nine years on the furnishing count 

based on impermissible factors, and (2) imposing the restitution 

fine and assessments without first holding an ability-to-pay 

hearing, in violation of People v. Dueñas (2019) 30 Cal.App.5th 

1157 (Dueñas).

A. Imposition of upper-term sentence

The trial court imposed the upper-term sentence of nine 

years on the furnishing count, and justified this selection by 

citing six aggravating factors: (1) “[t]he crime involved great 

violence” insofar as the victim died, (2) the crime involved an 

underage victim, (3) defendant engaged in “despicable” behavior 

in enlisting a friend to put the victim’s corpse in an Uber, (4) 

defendant “took advantage of the position of trust and confidence 

that the victim had in him,” (5) defendant was on probation at 

the time of the crime, and (6) defendant’s “prior performance on 

probation was not satisfactory.”

Defendant argues that the court erred in relying upon the 

first three aggravating factors because the first factor is 

duplicative of the great bodily injury enhancement, the second is 

duplicative of an element of the underlying crime (namely, that 

the controlled substance was furnished to a minor), and the third 
10

is not a permissible aggravating factor under California Rules of 

Court, rule 4.421. 

We reject defendant’s argument for two reasons.

First, defendant cannot now object to the imposition of the 

upper term because he did not object to this “discretionary”

“sentencing choice[]” before the trial court. (People v. Scott (1994) 

9 Cal.4th 331, 356.)

Second, any error was not prejudicial. Defendant is correct 

that the trial court abused its discretion (1) in treating a fact 

underlying a sentencing enhancement and a fact constituting an 

element of the offense as aggravating factors (§ 1170, subd. (b); 

Cal. Rules of Court, rule 4.420(c), (d); People v. Forster (1994) 29 

Cal.App.4th 1746, 1758), and (2) in treating a fact not 

enumerated in Rule 4.421 or any other statute as an aggravating 

factor (Cal. Rules of Court, rule 4.421(c)). (See generally, People 

v. Sandoval (2007) 41 Cal.4th 825, 847 [abuse of discretion 

review].) However, these errors with respect to the first three 

factors were not prejudicial because “a single factor in 

aggravation suffices to support an upper term” (People v. Osband

(1996) 13 Cal.4th 622, 730; People v. Coleman (1989) 48 Cal.3d 

112, 163) and the trial court relied on three other aggravating 

factors when imposing the upper term. Those other factors are 

supported by substantial evidence, as defendant’s long-time 

friendship with Reina and their intimacy meant he occupied a 

“position of trust and confidence” with the victim that caused her 

not to question the safety of the drugs he furnished, he was on 

probation, and his admission to acquiring and offering drugs 

meant he was violating the law, such that his performance on 

probation was “not satisfactory.” These other factors are also 

legally valid. (Cal. Rules of Court, rule 4.421(a)(11) [occupying a 
11

position of trust], 4.421(b)(4) [being on probation], 4.421(b)(5) 

[unsatisfactory performance on probation].) 

Defendant offers two further arguments. Citing People v. 

Young (1983) 146 Cal.App.3d 729, 734 and People v. Moreno

(1982) 128 Cal.App.3d 103, defendant asserts that a trial court 

may only impose the upper term if his offense is “‘distinctively 

worse’” than the ordinary commission of the offense. He is 

wrong. Young and Moreno do not support his position because 

they deal with whether a fact that is an element of an offense 

may sometimes be used as an aggravating factor; they do not 

speak to reliance on aggravating factors that are not subject to a 

“dual use.” None of the last three factors the trial court cites are

used elsewhere. Defendant next contends that his trial counsel 

was constitutionally ineffective. However, it is well settled that 

counsel is not ineffective for failing to make an argument that 

lacks merit. (People v. Lucero (2000) 23 Cal.4th 692, 732.) 

Because the trial court’s imposition of an upper term sentence 

rested on three valid aggravating factors, and the trial court in no 

way indicated that its imposition of the upper term depended on 

any of the invalidated factors or on the totality of all six factors, 

any objection to the trial court’s reliance on the invalid factors 

would have been meritless.

B. Imposition of restitution fine and assessments

Relying upon Dueñas, defendant contends that the trial 

court’s imposition of the $300 restitution fine and $70 in 

assessments without an ability-to-pay hearing (1) violated due 

process and (2) constituted cruel and unusual punishment. These 

are constitutional questions that we review de novo. (People v. 

Ramos (1997) 15 Cal.4th 1133, 1154.)
12

We reject defendant’s due process-based argument for two 

reasons. First, the sole basis for defendant’s argument is Dueñas,

supra, 30 Cal.App.5th 1157. However, we have rejected Dueñas’s

reasoning. (See People v. Hicks (2019) 40 Cal.App.5th 320.) 

Second, even if Dueñas were good law, the trial court’s failure to 

conduct an ability-to-pay hearing when imposing $370 in 

monetary obligations was harmless because defendant will earn 

more than twice that amount as prison wages prior to his release. 

(Accord, People v. Johnson (2019) 35 Cal.App.5th 134, 139 [“The 

idea that [defendant] cannot afford to pay $370 while serving an 

eight-year prison sentence is unsustainable.”].)

We also reject defendant’s argument that the $370 in 

monetary obligations constitutes cruel and unusual punishment. 

Whether such an obligation is excessive for these purposes turns 

on whether it is “grossly disproportional to the gravity of [the] 

defendant’s offense.” (United States v. Bajakajian (1998) 524 

U.S. 321, 334, superseded by statute on other grounds as stated 

in United States v. Jose (2001) 499 F.3d 105, 110.) Factors 

relevant to gross disproportionality include “(1) the defendant’s 

culpability; (2) the relationship between the harm and the 

penalty; (3) the penalties imposed in similar statutes; and (4) the 

defendant’s ability to pay. [Citations.]” (People ex rel. Lockyer v. 

R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Under 

this standard, a defendant’s ability to pay is a factor, not the only

factor. (Bajakajian, at pp. 337-338.) Applying these factors, we 

conclude that the minimum monetary obligations totaling $370 

are not grossly disproportionate to his crime of furnishing a 

controlled substance to his 16-year-old girlfriend that resulted in 

her death from a drug overdose.
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DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ