California Court of Appeals, Second District, Sixth Division
Court County No. 2014006310 of Ventura Kevin G. DeNoce, Judge
Christina Alvarez Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Becerra, Kamala D. Harris, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Viet H. Nguyen, Deputy
Attorney General, for Plaintiff and Respondent.
who personally inflicts great bodily injury (GBI) on
anyone other than an accomplice in the commission of a felony
shall, in addition to the term of imprisonment imposed for
the underlying offense, receive an additional three-year
prison term. (Pen. Code,  § 12022.7, subd. (a).) Here we
follow settled precedent in recognizing that
“personally” in this context means the GBI is
directly caused by the offender in his or her commission of a
Matthew Thomas Slough sold heroin to Michael Zermeno. Zermeno
thereafter returned to his home, injected some of the heroin
and suffered a fatal overdose. A jury convicted appellant of
selling or furnishing heroin (Health & Saf. Code, §
11352, subd. (a)), and found true an allegation that he
personally inflicted GBI in committing the offense (§
12022.7(a)). We conclude the evidence is insufficient to
support the GBI finding: Slough sold the heroin, but it was
Zermeno who “personally” inflicted GBI upon
himself. We order the judgment reversed and the matter
remanded for resentencing. Otherwise, we affirm.
AND PROCEDURAL HISTORY
February 2014, a heroin delivery service known as “the
Girls” operated in the city of Ventura. Appellant had
access to the service and often acted as a
“middleman” on behalf of friends and
acquaintances who wanted to purchase heroin.
February 9, 2014, Zermeno was living in Ventura with his
girlfriend Dayna Cushing, his brother Brandan, and
Brandan's fiancé. Zermeno was addicted to heroin
and had previously purchased drugs from “the
Girls” through appellant. He texted appellant that
morning and asked if appellant could contact “the
Girls” for him. Appellant responded that he had
contacted “the Girls” on Zermeno's behalf and
that a delivery driver could meet up with them at about noon.
Zermeno also sent a text to appellant's brother stating
that he wanted to purchase $100 worth of
heroin. At 12:55 p.m., appellant texted
Zermeno that the driver was on his way and added, “Just
text me when you're walking out and I'll meet you at
[the] 76 [gas station].”
left his house and told Cushing he was going to repay someone
$100. He drove to the 76 gas station and met up with
appellant, who arrived in a separate car. A surveillance
video depicted appellant and Zermeno entering the
station's minimart and walking to a hallway that was out
of view of the surveillance cameras. Less than 30 seconds
later, appellant and Zermeno walked to the cash register and
got in line. After making purchases, the men separately left
immediately returned home and told Cushing he was going to
the bathroom. Over an hour later, Cushing texted Zermeno but
received no reply. She knocked on the bathroom door and again
there was no response. Brandan forced the door open and found
Zermeno lying on the floor next to a belt and needle. Heroin
was on a nearby table. Brandan performed CPR on Zermeno and
Cushing called 911. The paramedics arrived and transported
Zermeno to the hospital. Brandan threw away the remaining
heroin because he did not want Zermeno, who was employed as a
firefighter and paramedic, to get into trouble.
was not breathing when he arrived at the hospital and a
breathing tube was placed in his trachea. He was taken off
life support two days later and died. The cause of death was
brain damage resulting from acute heroin intoxication.
Although the toxicology report indicated Zermeno had also
ingested oxycontin prior to the overdose, the medical
examiner concluded “it was the injection of the heroin
that actually caused him to succumb to the drug death.”
The police subsequently searched appellant's bedroom and
found glass smoking pipes, hypodermic needles, and a spoon
with heroin residue.
was charged with selling or furnishing a controlled
substance, i.e., heroin (count 1) with an attendant GBI
allegation; involuntary manslaughter (count 2) (§ 192,
subd. (b)); and misdemeanor possession of an
injection/ingestion device (count 3) (Health & Saf. Code,
former § 11364.1, subd. (a); now Health & Saf. Code,
§ 11364, subd. (a)). His motion to dismiss the GBI
allegation pursuant to section 995 was denied.
was convicted on counts 1 and 3 and the GBI allegation was
found to be true. The jury found him not ...