Filed 5/2/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                 SECOND APPELLATE DISTRICT
                           DIVISION SIX

THE PEOPLE,                               2d Crim. No. B262102
                                       (Super. Ct. No. 2014006310)
     Plaintiff and Respondent,              (Ventura County)

v.

MATTHEW THOMAS SLOUGH,

     Defendant and Appellant.



       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


        1 All statutory references are to the Penal Code unless
otherwise stated. Section 12022.7, subdivision (a) is hereinafter
referred to as section 12022.7(a).
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

      2 A narcotics detective testified that $100 would purchase
one to one-and-a-half grams of heroin.



                                2
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




                                3
(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 guilty of
involuntary manslaughter.
       Appellant’s request to set aside the true finding on the GBI
allegation was denied. The court sentenced him to six years in
state prison, consisting of the low term of three years on count 1
plus a three-year enhancement under section 12022.7(a).
                            DISCUSSION
       Appellant contends the evidence is insufficient to support
the finding that he personally inflicted GBI on Zermeno, as
provided in section 12022.7(a). We agree.
       “‘We review the sufficiency of the evidence to support an
enhancement using the same standard we apply to a conviction.
[Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 806.)
Namely, “‘“we review the whole record in the light most favorable
to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]”’
[Citation.]” (Ibid.) To the extent appellant’s claim implicates an
interpretation of section 12022.7(a), our review is de novo.
(People v. Elder (2014) 227 Cal.App.4th 411, 417.)
       Section 12022.7(a) provides that “[a]ny person who
personally inflicts [GBI] on any person other than an accomplice
in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment
in the state prison for three years.” (Italics added.) “‘[T]he




                                 4
meaning of the statutory requirement that the defendant
personally inflict the injury does not differ from its nonlegal
meaning. Commonly understood, the phrase “personally inflicts”
means that someone “in person” [citation], that is, directly and
not through an intermediary, “cause[s] something (damaging or
painful) to be endured” [citation].’ [Citation.]” (People v.
Martinez (2014) 226 Cal.App.4th 1169, 1184 (Martinez).) In
enacting section 12022.7, “the Legislature intended to impose an
additional penalty for causing [GBI] only on those principals who
perform the act that directly inflicts the injury . . . .” (People v.
Cole (1982) 31 Cal.3d 568, 571.) “[T]he defendant must directly
cause an injury, not just proximately cause it. [Citation.]”
(People v. Guzman (2000) 77 Cal.App.4th 761, 764 (Guzman).)
Accordingly, “one who merely aids, abets, or directs another to
inflict the physical injury is not subject to the enhanced penalty
of section 12022.7.” (Cole, at p. 571.)
       If the Legislature had intended for section 12022.7(a) to
apply to defendants who proximately cause GBI or death rather
than personally inflict it, it would have said so. The Legislature
made such an express statement in enacting subdivision (d) of
section 12022.53, which imposes a sentence enhancement of 25
years to life on any defendant who, in the commission of a
specified felony, “personally and intentionally discharges a
firearm and proximately causes [GBI] . . . or death, to any person
other than an accomplice . . . .” In analyzing that statute, our
Supreme Court recognized: “Section 12022.53(d) requires that
the defendant ‘intentionally and personally discharged a firearm’
(italics added), but only that he ‘proximately caused’ the [GBI] or
death. . . . Proximately causing and personally inflicting harm
are two different things. The Legislature is aware of the




                                  5
difference. When it wants to require personal infliction, it says
so. (E.g., Pen. Code, § 12022.7, subd. (a) [imposing a sentence
enhancement on a person who “personally inflicts great bodily
injury”].) When it wants to require something else, such as
proximate causation, it says so, as in section 12022.53(d).”
(People v. Bland (2002) 28 Cal.4th 313, 336 (Bland).)
       Although section 12022.7(a) is broadly construed (People v.
Sainz (1999) 74 Cal.App.4th 565, 574), our Supreme Court has
made clear that proximate cause does not equate with personal
infliction and that “[t]he Legislature is aware of the difference.”
(Bland, supra, 28 Cal.4th at p. 336.) Indeed, the court cited
section 12022.7(a) in making that point. Moreover, the evidence
in this case is insufficient to support a finding that appellant
personally inflicted GBI. He sold heroin to Zermeno, but his
performance of that act did not directly cause Zermeno’s injuries.
The act that did so—Zermeno’s ingestion of the drugs—occurred
at a different time and location where appellant was not present.
That Zermeno would not have suffered GBI but for appellant
selling him the drugs merely demonstrates that appellant was a
proximate cause of the injury, which is not enough to sustain a
finding of personal infliction. (Guzman, supra, 77 Cal.App.4th at
p. 764; Bland, at pp. 335-337 [approving CALJIC No. 17.19.5,
which defines proximate causation of GBI or death for purposes
of section 12022.53(d) as “an act or omission that sets in motion a
chain of events that produces as a direct, natural, and probable
consequence of the act or omission, the [GBI] or death and
without which the [GBI] or death would not have occurred”].)
       Martinez, supra, 226 Cal.App.4th 1169, upon which the
People rely, is inapposite. The defendant in that case was
convicted in a bench trial on three counts of furnishing a




                                 6
controlled substance (Health & Saf. Code, § 11352, subd. (a)) and
one count of involuntary manslaughter (§ 192, subd. (b)). The
court also found GBI allegations true as to two of the drug
counts. The evidence indicated that the victim died from an
overdose after the defendant gave her six or seven 10-milligram
methadone pills and six to eight 10-milligram hydrocodone pills
over the course of a night of drinking. In concluding the evidence
was sufficient to support the GBI enhancements, the Court of
Appeal rejected the defendant’s claim that the victim’s death was
directly caused by her volitional use of the drugs, rather than by
the defendant’s act of furnishing the drugs to her. The court
reasoned: “More than one person may be found to have directly
participated in inflicting a single injury.” (Martinez, at p. 1185.)
“Appellant may not have forced [the victim] to take a lethal
quantity of drugs, but he supplied her with them knowing that
the drugs were more dangerous when combined with alcohol.
Appellant continued to supply drugs to [the victim] as he watched
her continue to consume alcohol and become [more] intoxicated
. . . . Appellant’s act of personally providing [the victim] a lethal
quantity of drugs while she was in an intoxicated state was the
direct cause of [the victim’s] death.” (Id. at p. 1186.)
        Here, there is no such direct factual connection between the
furnishing of the drugs and the user’s ingestion. Appellant
handed off drugs to Zermeno in exchange for money. After that,
they each went their separate ways. In Martinez, the defendant
repeatedly supplied drugs to the victim while observing her
increasing intoxication; the furnishing was akin to administering.
Appellant, by contrast, played no part in Zermeno’s ingestion of
the drugs. He neither performed nor participated in the act that
directly inflicted the injury, so the GBI enhancement cannot




                                 7
apply. (People v. Cole, supra, 31 Cal.3d at p. 571.)3 Because the
trial court’s decision to impose the low term was premised upon
the imposition of the enhancement that is now being stricken, we
remand for resentencing.4


      3 The result in Martinez is also consistent with the
requirement that the personal infliction of GBI occur “in the
commission of a felony . . . .” (§ 12022.7(a).) In Martinez, the
events were ongoing when the injury was inflicted; in the instant
matter the crime of selling or furnishing the drug had concluded
and was complete. To accept the dissent’s analysis, the statute
would have to read “in the commission or as a consequence of the
commission” of a felony. Moreover, any concern that a seller or
furnisher of illegal drugs cannot otherwise be punished for GBI
or death proximately resulting from the use of the drugs is
allayed where, as here, a homicide is charged—i.e., involuntary
manslaughter (§ 192, subd. (b)). That the defendant in Martinez
was convicted of involuntary manslaughter, while appellant was
acquitted of that offense, only further demonstrates that the
cases are inapposite.

      4 We reject the dissent’s assertion that our result
effectively adds the sale of heroin to the list of crimes, as set
forth in subdivision (g) of section 12022.7, to which the GBI
enhancement cannot apply. Our conclusion is based on the facts
underlying appellant’s conviction of the substantive offense, not
on the mere fact of that conviction.

        The dissent’s complaint that we are “narrowly” construing
section 12022.7(a) is also unfounded. We simply follow
controlling precedent in recognizing that a GBI enhancement
cannot be imposed upon a showing of proximate causation, which
is all that was established here. The dissent, however, would
rewrite the statute rather than broadly construe it. It
erroneously contends the requirements of section 12022.7(a) were



                                 8
                           DISPOSITION
       The true finding on the section 12022.7(a) allegation
as to count 1 is reversed, and the corresponding three-year
enhancement is stricken. The matter is remanded for
resentencing. In all other respects, the judgment is affirmed.
       CERTIFIED FOR PUBLICATION.




                                     PERREN, J.


I concur:



            TANGEMAN, J.




met because the act of selling or furnishing heroin to Zermeno
“was an actual cause, a legal cause, and a proximate cause of
the death. [Citations.]” (Dissent, at p. 2.) Actual cause, or cause
in fact, is established when the defendant’s conduct was a
substantial factor in bringing about the injury. (CALCRIM No.
620; Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 665.)
Legal cause is the same as proximate cause. (Lombardo, at p.
665.) None of these forms of causation are sufficient to sustain
the imposition of a GBI enhancement under section 12022.7(a).
(Bland, supra, 28 Cal.4th at p. 336; Guzman, supra, 77
Cal.App.4th at p. 64.)



                                 9
YEGAN, Acting P. J., Dissenting:
             I respectfully dissent. A heroin peddler sells death.
The seller does not necessarily want his customer to die
immediately. He or she would prefer that the customer will
experience euphoria and return to buy more heroin. But the
peddler never quite knows what he is selling. Few, if any, heroin
peddlers test their wares in laboratory conditions. A heroin
peddler does not sell pharmaceutical grade opiate derivatives.
Death, whether instantaneous or after repeated use, is to be
expected. The possibility of overdose is always present. Here the
victim overdosed on a single and lethal dose of about a gram of a
substance containing heroin.
             In my view, the majority opinion reaches out to
create new law which, in my view, is at variance with legislative
direction. It also makes for bad public policy. The exclusion list
of Penal Code section 12022.7, subdivision (g), says that the
enhancement does not apply to “murder, manslaughter, arson,
and unlawfully causing a fire . . . .” (People v. Cross (2008) 45
Cal.4th 58, 66, fn. 3 (Cross).) The net effect of the majority
opinion is the addition to the exclusion list. This violates the
familiar rule of “expressio unius est exclusio alterius” i.e., the
expression of enumerated items is to the exclusion of others. An
appellate court is not “empowered to insert what a legislative
body has omitted from its enactments. [Citation.]” (Wells Fargo
Bank v. Superior Court (1991) 53 Cal.3d l082, l099.) The
legislature will be surprised to learn that the explicit list of
excluded offenses now has one more—sale of heroin. The
California Supreme Court will be equally surprised to see that
their express indication that this enhancement be “broadly”
construed (Cross, at p. 66, fn. 3) has been ignored. Not only has it
been narrowly construed, it has been “construed” as a matter of
law to have no application whatsoever to sale of heroin.
              The majority opinion purports to engage in a
substantial evidence inquiry and concludes that no rational jury
could make the factual finding that appellant did directly inflict
great bodily injury upon Zermeno. This is an impermissible
reweighing of the evidence. Indeed, we can add the jury to the
list of those who will be surprised by the majority opinion. Here,
it is apparent that about an hour after appellant personally sold
a substance containing a lethal dose of heroin to Zermeno, he
went home and used it. My common sense tells me that this is
“direct.”
              The majority opinion points out that the seller and
buyer went their separate ways after the transaction and so
appellant did not personally and directly inflict the great bodily
injury. It is true the death occurred out of appellant’s presence.
This does not, in my view, relieve him from liability for infliction
of great bodily injury. This overdose was “sealed” at the time of
the sale. In other words, appellant sold the victim what was
tantamount to a “time bomb.” This death by overdose is a direct
result of appellant’s personal sale of heroin to the victim. This
furnishing was an actual cause, a legal cause, and a proximate
cause of the death. (See Burrage v. United States (2014) __ U.S.
__, __ [134 S.Ct. 881, 891-892, 187 L.Ed.2d 715] [discussing
contributing cause]; see also People v. Jennings (2010) 50 Cal.4th
616, 643-644 [substantial factor].) I auger for judicial restraint. I
would affirm the judgment with the finding of great bodily injury.
              CERTIFIED FOR PUBLICATION.

                                            YEGAN, Acting P. J.




                                 2
                    Kevin G. DeNoce, Judge
               Superior Court County of Ventura
                ______________________________

      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.
