A state appeals court panel upheld the conviction of a San Gabriel man convicted in the 2009 drunken driving crash in Fullerton that killed Angels rookie pitcher Nick Adenhart and two other people.
Andrew Thomas Gallo was sentenced to 51 years to life in prison in December 2010. The ruling from the Fourth District Court of Appeal was dated Monday, but was not made public until today.
Adenhart, 22, his girlfriend Courtney Frances Stewart, 20, and his friend Henry Pearson, 25, died in the April 9, 2009, crash. Jon Wilhite, 24, of Manhattan Beach, survived the crash, but had to have his skull reattached to his spine.
Gallo was convicted Sept. 27, 2010, of three counts of second-degree murder, DUI and hit-and-run.
Gallo's attorney, Susan Shors, argued in her appeal that Orange County Superior Court Judge Richard Toohey showed bias against the defendant during the trial. She also alleged a failure of effective assistance by Gallo's trial attorney and challenged jury instructions.
Shors argued jurors should have been able to consider the lesser offense of involuntary manslaughter and they should have been instructed that no crime occurred if the defendant was "legally unconscious" at the time of the crash.
In a ruling written by Associate Justice William Rylaarsdam -- with Presiding Justice Kathleen O'Leary and William Bedsworth -- concurring, the panel rejected the involuntary manslaughter, noting Gallo had been convicted of drunken driving before and was warned that if he drove under the influence again and a death occurred he would be charged with murder.
A drunken driver such as Gallo can act with "implied malice" in a deadly crash, according to the ruling.
A defendant "who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication (now) cannot negate," Rylaarsdam wrote in the opinion. "No reason exists to carve out an exception where a person drinks so much as to render him or her unconscious."
The justices also rejected the argument that Gallo was unconscious, because he responded to his stepbrother's advice to run after the collision and that a witness testified she heard Gallo say, "Oh (expletive), I'm in trouble" as he tried to leave the crime scene.
Gallo's defense expert even acknowledged in testimony that when he left the van he was not in an alcohol-induced blackout.
Shors told City News Service she planned to appeal again.
"The Court of Appeal disagreed with our reading of the record and analysis of the law," she said. "We will take the case to the California Supreme Court on petition for review."
Toohey said he gave Gallo the maximum sentence possible, in part, because he had previously been in a rollover drunken driving crash, for which he was on probation the night of the deadly wreck in Fullerton.
"Not only was he under the influence, he was obliterated," Toohey said, referring to Gallo's blood-alcohol level of 0.19 percent two hours following the Fullerton collision.
Also, Gallo was speeding when he ran a red light, leading to the crash, Toohey said.
Gallo was driving his stepmother's Toyota Sienna when the minivan slammed into a Mitsubishi Eclipse carrying Adenhart and his friend just after midnight.
The right-handed rookie had been out celebrating the six scoreless innings he had just pitched at Angel Stadium against the Oakland A's.
While Adenhart was setting down opposing hitters, Gallo and stepbrother, Raymond Rivera, drank heavily at a restaurant, bikini bar and another tavern before Rivera said he was too drunk to drive and handed Gallo the keys.
Gallo was going 66 mph in a 35-mph zone eastbound on Orangethorpe Avenue when he ran a red light and collided with the southbound Mitsubishi on Lemon Street.
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