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Name: People v. Slough
Case #: B262102
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/02/2017

Evidence was insufficient to support finding that defendant drug dealer personally inflicted great bodily injury (GBI) on heroin user who died of an overdose. Slough sold heroin to Zermeno, who went home, ingested the heroin, and died from an overdose. Slough was convicted of selling or furnishing heroin (Health & Saf. Code, § 11352, subd. (a)), and the jury found true an allegation that defendant personally inflicted GBI in committing the offense (Pen. Code, § 12002.7, subd. (a)). He was sentenced to six years in prison, including three years for the GBI enhancement. On appeal, Slough challenged the sufficiency of the evidence to support the enhancement. Held: Reversed. Under section 12022.7, subdivision (a), any person who personally inflicts GBI on any person other than an accomplice in the commission of a felony shall receive an additional three-year prison term. The term “personally inflicts” refers to direct participation, not through an intermediary. One who merely aids, abets, or directs another to inflict physical injury is not subject to the enhancement. The defendant must directly cause an injury, not just proximately cause it. Here, Slough proximately caused Zermeno’s injuries by selling him the drugs, but Slough’s performance of this act was not the direct cause of Zermeno’s injuries. Rather, Zermeno’s own injection of the heroin, at a separate location when Slough was not present, directly caused Zermeno’s injuries. Because Slough did not perform or participate in that act, the GBI enhancement cannot apply. The court distinguished People v. Martinez (2014) 226 Cal.App.4th 1169, where a GBI enhancement was upheld based on evidence that the victim died of an overdose after the defendant gave her a number of pills over the course of a night of drinking. Unlike in Martinez, where the defendant repeatedly supplied drugs to the victim while observing her increasing intoxication, here Slough played no part in Zermeno’s ingestion of the drugs.

The full opinion is available on the court’s website here: