APPEAL from a judgment of the Superior Court of Sacramento County, Helena R. Gweon, Judge. Reversed. (Super. Ct. No. 06F10348).
The opinion of the court was delivered by: Raye, Acting P. J.
CERTIFIED FOR PUBLICATION
Jacob Miller, Charles Morgan, and defendant Steven Treadway were charged with attempted murder (Pen. Code, §§ 664, 187, subd. (a)),*fn1 conspiracy to commit robbery (§§ 182, subd. (a)(1), 211), attempted second degree robbery (§§ 664, 211), and assault with a firearm (§ 245, subd. (a)(2)). Defendant was also alleged to have personally used and discharged a firearm, causing great bodily injury, in the commission of the first three offenses (§ 12022.53, subds. (b), (c) & (d)), and to have personally used a firearm and inflicted great bodily injury in the commission of the fourth offense (§§ 12022.5, subds. (a) & (d), 12022.7, subd. (a)).
Co-defendants Miller and Morgan entered into negotiated plea agreements. As a condition of their agreements, the prosecution required Miller and Morgan to agree not to testify at defendant's trial even though the 18-year-old defendant was brain damaged and they were percipient witnesses to the shooting that occurred three days after defendant was released from a psychiatric unit.
At the close of the prosecution's case, the trial court dismissed the conspiracy count. The jury found defendant guilty of attempted robbery and assault with a firearm, and found the special allegations true. The jury was unable to reach a verdict on the attempted murder count and a mistrial was declared.
The trial court sentenced defendant to 18 months in state prison for the attempted robbery and 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and stayed imposition of the remaining sentence pursuant to section 654.
In closing argument, defendant, through counsel, conceded he shot the victim in an apparent attempt to rob him. His sole defense was that he did not have the requisite intent to sustain the firearm enhancements. On appeal, he contends he was denied his constitutional rights to compulsory process and due process by the prosecution's plea bargains barring two material witnesses from testifying at his trial, two witnesses who could have provided evidence favorable to his defense. We agree as to Morgan but not Miller, and reverse the judgment.
On October 8, 2006, defendant, then 18 years old, was hit by a drunk driver and sustained catastrophic injuries, including a severe closed-head injury, a broken shoulder, a broken collarbone, several fractures of the spine, a collapsed lung, damage to the small and large intestines, a bruised liver, and a bruised pancreas. His spleen was removed. He was hospitalized for eight days. His recovery following his release from the hospital was slow. Initially, he could not dress himself and he became depressed. Friends and family members testified he was a completely different person after the accident; while he had been fun and easygoing before, he became violent and easily provoked after. He suffered nightmares and was terrified he was going to die.
By the middle of November, defendant's mental condition was deteriorating. On November 14 a friend drove to defendant's house to pick him up and defendant came running outside, climbed on the hood of the car, and started smashing the windshield with his foot. His family persuaded him to admit himself to Sutter Psychiatric Hospital, where he stayed for about five days.
On November 19, a few hours after being released, defendant jumped out of bed and announced he was returning to the hospital. He refused his mother's offer to drive him there, and he threatened to kill himself if she called 911. She called 911 as soon as he left. Soon he called his mother to inform her he had crashed his truck and was going to jump in front of a car. He was put on a 72-hour hold at Sacramento County Mental Health Clinic and eventually transferred back to Sutter Psychiatric, where he remained until November 26.
Three days later defendant and his friend Jacob Miller were at Chuck Morgan's house, where the friends drank, played cards, and watched a movie. Miller, Morgan, and defendant left in Miller's Lincoln Continental to buy cigarettes. Defendant got out of the car and approached the victim, who was walking to work at 3:30 a.m. According to the victim, defendant drew a gun, pointed it at him, and stated, "[G]ive me everything you got or I'll kill you."
As he reached for his wallet, which was in his right rear pocket, the victim heard what he thought was gunfire. He threw his bag lunch and charged defendant in an attempt to grab the gun. Defendant broke away and shot him four more times. The victim was hospitalized for 11 days, missed work for two months, and continues to suffer chronic pain.
Morgan, Miller, and defendant went back to Morgan's house. Morgan told another friend, Steven Jones, who had fallen asleep on his couch, "Treadway's crazy, he just shot somebody." Jones confronted defendant. Defendant replied that someone had swung a bag at him, and he had shot ...