Friday, February 21, 2019
Court of Appeal:
Fifth District Says Trial Court Must Determine Whether Alleged Child Molester, Now in Hospice, Missed Court Appearances Based on Temporary or Permanent Disability
By a MetNews Staff Writer
The Fifth District Court of Appeal yesterday reversed an order denying a surety’s motion to exonerate a bail bond or to toll the 180-day appearance period, declaring that the judge erred in not considering the debilitated state of the 91-year-old criminal defendant who is in hospice care and suffers from dementia.
Reversal of the order by Fresno Superior Court Judge Brian F. Alvarez was ordered in a memorandum opinion signed by Acting Presiding Justice Herbert I. Levy and Justices Charles S. Poochigian and Rosendo Peña Jr.
The man who was released on a $40,000 bond, Thomas Gerald McCoy, did not appear at a pre-preliminary hearing on June 21, 2016. His lawyer, Scott David Levy, advised Alvarez that the defendant, who is charged with a lewd or lascivious act with a minor, had suffered a major stroke and was in a coma.
On Aug. 2, McCoy again did not appear, and his lawyer advised that the client was still hospitalized and the prognosis was “not good.”
When the defendant did not show up for a Sept. 28 hearing, Alvarez lifted a stay on execution of an arrest warrant and ordered the bond forfeited.
Surety Seeks Relief
The surety, Seaview Insurance Company, on March 29, 2017 sought relief, including exoneration of the bond under Penal Code §1305(d) on the ground that the defendant was permanently disabled. It also moved, pursuant to §1305(e) for a tolling of the 180-day period within which the forfeiture may be ordered vacated by virtue of the defendant appearing in court, asserting that the man was temporarily disabled.
Alvarez denied the motion to exonerate and declined to hear argument with respect to a tolling. He said records showed that the defendant could be released from the medical facility in the care of a responsible party in order to make a court appearance.
Seaview appealed from a Sept. 13, 2017 summary judgment on the forfeiture of the bond.
The memorandum opinion declares:
“Interestingly, while section 1305 allows for relief due to permanent or temporary disability based on “illness, insanity, or detention,” no California court decision has addressed what constitutes such a disability. Accordingly, there is no described threshold, or for that matter, other analogous cases to compare defendant’s illness to determine whether it would qualify as a temporary or permanent disability. Here, despite acknowledging that defendant was infirm and was being held in a skilled nursing facility, the court summarily denied appellant’s request for tolling based on defendant’s health. Regardless of the showing required, the court abused its discretion in failing to consider appellant’s health at all in determining whether defendant was suffering from a temporary or permanent disability that prevented him from appearing in court.”
The “threshold of proof” of a disability is low, the opinion says, and Alvarez had the defendant’s medical records showing he was in ill health.
“To the extent that the court found that there was no evidence to support a showing that defendant was sufficiently disabled to provide for tolling, it made no record of its decision,” the opinion notes. “Alternatively, if the trial court could not determine from the records presented whether defendant’s illness was sufficient to warrant tolling, it abused its discretion in denying the motion.”
“The fact that [McCoy] may have been able to leave the nursing facility with a responsible person was not determinative as to whether defendant was not sufficiently disabled. The trial court did not inquire as to what level of care defendant would require if removed from the facility or if he could safely leave the facility for a sufficiently long enough period of time to be held on the warrant. Having presented the court with pertinent evidence of disability, it was incumbent on the court to determine whether it appeared defendant was disabled.”
The opinion instructs the court, on remand, to determine if McCoy is permanently or temporarily disabled and, if so, to vacate the summary judgment, vacate the forfeiture and either exonerate the bond or order a tolling of the appearance period.
The case is County of Fresno v. Seaview Insurance Co., F076464.
Copyright 2019, Metropolitan News Company