Filed 5/2/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MATTHEW THOMAS SLOUGH,

 Defendant and Appellant.

2d Crim. No. B262102

(Super. Ct. No. 2014006310)

(Ventura County)

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).
2

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.
3

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 
4

(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 
5

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 
6

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 
7

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 
8

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 
9

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.)
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 
2

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.
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.