Driver in Los Gatos Fatal Crash Could Face Trial

A man involved in a tragic car crash in Los Gatos the morning of Feb. 1, 2010, that resulted in the death of , was not sentenced Friday morning as expected. Instead, a Santa Clara County Superior Court judge rejected his plea agreement.

District Attorney's spokeswoman Amy Cornell confirmed Friday that Kevin Derr, 52, was not sentenced as expected and that Deputy District Attorney Leigh Frazier had appeared in court Friday morning for a case that now appears to be headed for trial.

Judge Ron Del Pozzo rejected the plea bargain in the case, offering Derr a four-year sentence, which he said would be more appropriate, Frazier explained.

However, Derr, appearing with attorney Edward Esqueda, rejected the sentence and withdrew his original "no contest" plea to one count of vehicular manslaughter with gross negligence, which had allowed the defendant's punishment be determined by the judge, Frazier noted.

The case is headed back to court for a new plea at 2 p.m. May 6, in Department 23. Del Pozzo has rejected plea bargains before, Frazier indicated, something rarely done.

Derr's attorney had asked the judge for probation instead of jail time, and when Del Pozzo declined, Esqueda asked for his client's plea to be withdrawn, Frazier said.

On Dec. 7, 2010, Derr, of San Jose, had pleaded no contest to the charge of vehicular manslaughter after losing control of his speeding sport utility vehicle on Lark Avenue, killing West, 28.

According to police records, West was on his bicycle at the intersection of Lark Avenue and Garden Hill Way when Derr struck him. He was pronounced dead at the scene.

After the accident, the community rallied around West's family to raise money to help care for his then-7-year-old daughter, Briana. A fund was set up in his honor at Wells Fargo Bank. West lived with his daughter across the street from The Diner of Los Gatos.

In February, Frazier, who's prosecuting the case, said Derr could receive leniency, because he has no criminal record and is believed to have suffered a seizure at the time of the accident. The maximum sentence being considered then was two years in prison or probation, said Frazier.

She said Derr's medical records indicate his roommate had reported him having "convulsions" about once a month that lasted about 20 minutes. Hospital documents reveal he had seizures on Oct. 15, 2009, while he was driving for 15 minutes, and also on Nov. 22, 2009—and that on Feb. 1 of 2010 he had a lapse of consciousness while driving.

The reason Santa Clara County Superior Court Judge Rene Navarro had offered that form of punishment is because the DA's office didn't plea-bargain the case. Derr pleaded as charged, she added. 

When a defendant does that, the judge solely controls the amount of time he'll get in jail, she said.

The victim's family was present during the hearing this morning, Frazier said. "I can certainly understand why Judge Del Pozzo did not want to give the defendant the two-year sentence, especially after hearing the victim impact statements, something that Judge Navarro didn't have an opportunity to do when he made his offer on this case.

"Judge Del Pozzo was seeing this case from a totally different perspective, and given how serious the defendant's actions were, he didn't believe a two-year sentence was merited, and I agree."

Derr's attorney, Esqueda, didn't return calls seeking comment today. Esqueda has asked to be released from the case, but the judge has denied his request, because Derr doesn't have another lawyer to represent him.

Derr is out of custody. 

The four-year "midterm" prison term is one of several sentencing options the court has for a charge of vehicular manslaughter with gross negligence. The other choices are local jail, or two, four and six years in state prison, Frazier said.