Lead Opinion
*420Anyone who personally inflicts great bodily injury (GBI) on anyone other than an accomplice in the commission of a felony shall, in *421addition to the term of imprisonment imposed for the underlying offense, receive an additional three-year prison term. (Pen. Code,
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 (§ 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.
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 *600was out of view of the surveillance cameras. Less than 30 seconds later, appellant and *422Zermeno 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 (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.
*423" '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)
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 meaning of the statutory requirement that the defendant *601personally 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)
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 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 *424as proximate causation, it says so, as in section 12022.53(d)." (People v. Bland (2002)
Although section 12022.7(a) is broadly construed (People v. Sainz (1999)
*602Martinez , supra ,
*425Here, 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 apply. (People v. Cole , supra , 31 Cal.3d at p. 571,
*603DISPOSITION
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.
I concur:
TANGEMAN, J.
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).
A narcotics detective testified that $100 would purchase one to one-and-a-half grams of heroin.
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.
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 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. 604.) 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)
Dissenting Opinion
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)
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 *604not 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 *427sale 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. ----,