There's probable cause to hold the man charged with the death of Los Gatos bicyclist Joshua Ryan West to answer for trial, Santa Clara County Superior Court Judge Gilbert Brown ruled this week.
During a Nov. 16 hearing, Brown set Kevin Derr's arraignment for 1:30 p.m., Nov. 28, in department 24 of the San Jose Hall of Justice.
It will be determined then if the case will go to trial, explained Santa Clara County Deputy District Attorney Cody Jones, who's prosecuting the case.
He was pronounced dead at the scene. He left behind a young daughter, Briana.
Jones said Wednesday's hearing reviewed the evidence in the case against Derr, 52, who appeared in court with attorney Kenneth W. Robinson.
If convicted of vehicular manslaughter with gross negligence, Derr could face probation or up to six years in prison, Jones said. He has plead not guilty to the original charge, Jones said.
In March, the case took an interesting turn when Santa Clara County Superior Court Judge Ron Del Pozzo rejected Derr's plea agreement. The deal was refused his previous attorney, Edward Esqueda objected to Del Pozzo's plan to impose a four-year jail sentence and withdrew Derr's original "no contest" plea, which had allowed his punishment to be determined by a judge.
Esqueda had negotiated a court offer of a so-called "two-year-top" sentence, but Del Pozzo decided two years was not enough time in prison for the crime, Jones said.
Esqueda had argued that Derr has no criminal record, suffered a seizure at the time of the accident and has medical records that indicate his roommate had reported him having "convulsions" about once a month that lasted about 20 minutes, according to Santa Clara County Deputy District Attorney Leigh Frazier, who's no longer prosecuting the case.
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, 2010, he had a lapse of consciousness while driving, Frazier said.
Robinson didn't immediately return a call seeking comment.