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,                            B290948

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. KA115677)
       v.

TREYVON LOVE OLLO,

       Defendant and Appellant.


     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.
                             ******
      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unpublished portion of our decision), we affirm.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.




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       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.




                                3
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




                                 4
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




                                   5
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




                                 6
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




                                 7
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




                                  8
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




                                 9
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




                                 10
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.)




                                 11
       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




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