S.C. Will Not Review Conviction in Death of Pitcher

Thursday, February 28, 2013

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S.C. Will Not Review Conviction in Death of Pitcher

By a MetNews Staff Writer

–AP

Andrew Thomas Gallo, 22, looks out into the crowd while his attorney reviews court documents in Orange Superior Court.

The California Supreme Court yesterday denied review in the case of a defendant convicted of murder as a result of a car crash that killed three people, including a Los Angeles Angels pitcher.

The justices, at their weekly conference in San Francisco, unanimously left standing the convictions of Andrew Thomas Gallo, which were affirmed by the Fourth District Court of Appeal Dec. 4. That court’s Div. Three rejected claims that Orange Superior Court Judge Richard Toohey exhibited bias against the defendant.

Gallo was found guilty of three counts of second degree murder and one count each of felony drunk driving and felony hit-and-run, both with findings of great bodily injury. He is currently serving a sentence of 51 years to life in prison.

Killed were Nick Adenhart, 22, Courtney Stewart, 20, and Henry Pearson, 25. Jon Wilhite, 24, survived the crash but was severely injured.

Adenhart was a rookie pitcher for the Angels, and appeared in his last game just hours before his death. Pearson, a law student and son of Los Angeles attorney Nigel Pearson, and Stewart, a college student who was driving, were killed instantly, while Adenhart died in surgery shortly after the crash.

Prosecutors presented evidence that Gallo and his stepbrother drank multiple pints of beer at multiple bars before the crash. His blood alcohol tested at more than twice the legal limit two hours after the crash, and may have been as high as .24 at the time of impact.

He had previously been convicted of drunk driving and gone to rehab twice, was on probation and had a suspended driver’s license. Prosecutors successfully argued that he was guilty of murder under People v. Watson (1981) 30 Cal.3d 290, which allows a murder conviction in a vehicular homicide case if the defendant exhibited “a wanton disregard for life” and had “a subjective awareness of the risk created.”

On appeal, the defense argued that the trial judge exhibited prejudice by disparaging trial counsel at a pretrial hearing where she substituted into the case, and routinely ruled against Gallo on evidentiary issues.

But Justice William Rylaarsdam, in an unpublished opinion for the Court of Appeal, said the defendant could not have been prejudiced by comments the judge made at a pretrial hearing, and noted that the substitution was allowed. As for the evidentiary rulings, the justice said the defense failed “to establish they were erroneous, much less prejudicial.”

Rylaarsdam also rejected several claims of instructional error, including the argument that Toohey should have allowed jurors to consider involuntary manslaughter as a lesser included offense, based on voluntary intoxication. The defense contended that Gallo suffered an alcoholic blackout before the crash and lacked the malice requisite to a murder conviction.

The justice, however, cited Penal Code Sec. 22, which limits consideration of voluntary intoxication to “the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”

Because murder under Watson is a question of implied, rather than express, malice, Sec. 22 precludes consideration of voluntary intoxication as a defense, Rylaarsdam said.

The case is People v. Gallo, G044732.

The justices also unanimously rejected a petition for review by Marvin Mercado, convicted of eight counts of murder and 10 counts of attempted murder. Mercado was a leader of the “Asian Boyz,” a gang linked to a number of violent crimes in the San Fernando and San Gabriel valleys.

Mercado was convicted of killing Armando Estrada and Miguel Limon, rival gang members, in Van Nuys; Cheng Peng, Paul Vu and Ben Liao, who prosecutors said were pursued by the Asian Boys after being mistaken for gang rivals and killed near an off-ramp in El Monte; Oscar Palis, killed in Mission Hills on his way home from an arcade; Jon Gregory, killed during a home invasion robbery in Reseda; and Tony Nguyen, who was killed with a shotgun, allegedly by an accomplice of Mercado.

Jurors rejected prosecutors’ bid for the death penalty. Mercado is serving eight life terms without the possibility of parole. Seven other members of the gang received life-without-parole sentences while Mercado was a fugitive. He was extradited from the Philippines.

Mercado was living in the Philippines under an assumed name after marrying into a socially prominent family when he was arrested in 2007. He was extradited to Los Angeles to stand trial.

The Court of Appeal’s Div. Four rejected several claims of error, one of which was that the prosecutor violated the defendant’s right to due process by discussing his extradition.

“Appellant’s flight to the Philippines in the wake of the police investigation of the various crimes committed was a critical piece of evidence against appellant at trial, used by the prosecution as evidence of his consciousness of guilt,” Presiding Justice Norman Epstein wrote. “Except for one passing allusion in opening statements, there was no mention during trial of him exercising his legal right to resist extradition, and not one piece of evidence to be weighed by the jury was introduced on the topic.”

The case is People v. Mercado, B232004.

In other conference action, justices unanimously declined to review a ruling by this district’s Div. Eight requiring the City of Los Angeles to revoke permits exempting two outdoor advertising companies from city ordinances regulating outdoor advertising.

Div. Eight unanimously ruled in December, in Summit Media v. City of Los Angeles, B220198, that a settlement agreement under which the city exempted CBS Outdoor and Clear Channel Outdoor from ordinances banning the conversion of billboards to digital displays was invalid and that the city was required to revoke the permits for the displays.