California Court of Appeals, Second District, Sixth Division
Superior Court of Ventura County, No. 2014006310, Kevin G.
Alvarez Barnes, under appointment by the Court of Appeal, for
Defendant and Appellant.
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
by Perren, J., with Tangeman, J., concurring. Dissenting
opinion by Yegan, Acting P. J.
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
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 felony.
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
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 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. 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 [217