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California Supreme Court: Furnishing Drugs Resulting in Overdose Death Does Not Automatically Trigger Great Bodily Injury Enhancement

by Dale Chappell

The Supreme Court of California held that a conviction by itself for furnishing a controlled substance to someone who subsequently suffers injury from its use is insufficient, as a matter of law, to establish personal infliction of great bodily injury under Pen. Code, § 12022.7. Rather, the applicability of the great bodily injury (“GBI”) enhancement in § 12022.7, subd. (a) depends on the particular facts of each case, according to the Court.

In 2017, Treyvon Ollo gave some cocaine to his girlfriend Reina. While she did some of the drug, he opted to sit out, saying the drug smelled like gasoline and didn’t look right. Hours later, Reina was dead from an overdose. The cocaine was laced with fentanyl. Because she was 16, Ollo was charged with giving drugs to a minor and also charged with “personally inflicting great bodily injury” upon Reina in violation of § 12022.7, subd. (a). He took his case to trial.

After the State presented its case to the jury, Ollo’s defense lawyer argued that because Reina had voluntarily ingested the fentanyl-laced cocaine, Ollo did not “personally inflict” great bodily injury by giving her the drugs. However, that line of defense was cut off by the judge: “If your argument is going to be [Ollo] gave [Reina] the drugs—if you believe he gave her the drugs, he’s not responsible because she voluntarily took them, I don’t think that can be done because I think it’s in contravention to [People v. Martinez, 226 Cal. App. 4th (2014).]” The jury convicted Ollo of both counts, and he was sentenced to nine years in prison for the drug offense, plus a mandatory three years consecutively for the GBI enhancement. He appealed.

Ollo argued on appeal that his Sixth Amendment right to present his defense was thwarted by the trial court and that the court erred in doing so. The Court of Appeal disagreed, stating “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.” See Martinez. The court concluded that the law prevents Ollo’s defense. It issued the following sweeping statement: “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.”

The California Supreme Court granted review and rejected the Court of Appeal’s position. The Court began its analysis by noting that the question of law before it 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.”

At the outset, the Court made it clear that the act of providing drugs to someone who overdoses is not automatically subject to the GBI enhancement. Rather, the Court explained that it depends on the facts involved in the furnishing offense. It instructed: “A fact-specific inquiry is required to determine whether a defendant personally inflicted great bodily injury where such injury resulted from ingestion of the furnished drugs.”

The Court based its conclusion on a careful interpretation of the statute itself together with a review of the relevant case law, determining that nothing in the statute “suggests that all acts of providing a controlled substance subsume the personal infliction of injuries resulting from consumption of the substance.”

The Court explained that the phrase “personally inflicts” means that someone directly causes something damaging or painful to be endured, i.e., the actual cause-in-fact rather than merely the proximate cause—or legal cause. “To ‘personally inflict’ injury, the actor must do more than take some direct action which proximately causes injury,” the Court said. “Proximately causing and personally inflicting harm are two different things. The Legislature is aware of the difference. When it wants to require personal infliction, it says so.” People v. Bland, 48 P.3d 1107 (Cal. 2002).

The Court further explained that “the act of furnishing drugs is merely the proximate cause of injury suffered by the drug user,” so courts must distinguish between cases involving circumstances where the defendant causes injury “directly and not through an intermediary” from those cases where the furnishing of “drugs and a user’s act of ingesting them constitute concurrent direct causes of a subsequent injury.” Distinguishing between these two types of cases requires “a fact-specific analysis of the circumstances of the furnishing offense, including the role of the defendant and the victim in the events resulting in injury,” the Court instructed.

In addition, the legislative history also supports the foregoing interpretation of the statute, according to the Court. “In 1977, the Legislature amended section 12022.7 by adding the term ‘personally’ before the word ‘inflicts.’” This means that lawmakers intended the change to limit the category of persons subjected to the GBI enhancement, the Court reasoned, meaning that one who merely “aids, abets, or directs” another person to inflict injury is not ensnared by the GBI enhancement.

The Court provided the example of a case in which the court ruled a person who sold heroin to someone and then left did not personally inflict great bodily injury as a result of the overdose-death. People v. Slough, 11 Cal. App. 5th 419 (2017). In contrast, where a person who remained in the presence of the victim and continued to provide narcotics to the victim who was visibly incapacitated, the overdose-death from the drugs was deemed to have been “personally inflicted” and thus supported a GBI enhancement. People v. Martinez, 226 Cal. App. 4th 1169 (2014) (the defendant’s behavior was “akin to administering” the drug, resulting in the fatal overdose).

Turning to the present case, the Court ruled that the trial court erred as a matter of law by preventing defense counsel from arguing the facts don’t support a GBI enhancement.

Accordingly, the Court reversed the Court of Appeal and remanded to that court to apply the holding of this opinion. People v. Ollo, 487 P.3d 981 (Cal. 2021). 

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