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People v. Slough

California Court of Appeals, Second District, Sixth Division

May 2, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
MATTHEW THOMAS SLOUGH, Defendant and Appellant.

         Superior Court County No. 2014006310 of Ventura Kevin G. DeNoce, Judge

          Christina Alvarez Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          PERREN, J.

         Anyone 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, [1] § 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 felony.

         Appellant 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.

         FACTS AND PROCEDURAL HISTORY

         In 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.

         On 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.[2] 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].”

         Zermeno 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 the station.

         Zermeno 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.

         Zermeno 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.

         Appellant 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.

         Appellant was convicted on counts 1 and 3 and the GBI allegation was found to be true. The jury found him not ...


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