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

Page 420

         COUNSEL

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

         Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Perren, J., with Tangeman, J., concurring. Dissenting opinion by Yegan, Acting P. J.

          OPINION

          PERREN, J.

          [217 Cal.Rptr.3d 599] Anyone who personally inflicts great bodily injury (GBI) on anyone other than an accomplice in the commission of a felony shall, in

Page 421

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 (Pen. Code, § 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 e. 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 [217 Cal.Rptr.3d ...


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