Just a few months ago, on March 11, the unthinkable happened—a horrific crash that devastated my family and wrenched through everything we had ever believed in. At the age of 23, Sho Funai—my baby brother, the perfect student, inspiring athlete, and generous friend who had just embarked on a promising engineering career—was struck by a fatal hit-and-run. The driver was a then-18-year old woman, Nikolette Gallo, who later confessed to having consumed alcohol and marijuana at a party earlier that evening. Sho was struck from behind and left to die. Despite her confessions, she was not charged with any felony besides hit-and-run, due to a mishandled investigation and the lack of action in completing a reconstruction report of the crash. Now, the driver is scheduled for sentencing on July 26th with the judge “strongly considering probation and some sort of custody or alternatives to custody at the time of sentencing.” That is, for the killing and abandoning of a pedestrian by someone admitting to drinking, the judge is considering the lowest punishment possible by law. This letter is about injustice and an appeal for your help.
The world lost one of the best that day; my brother Sho was as good as they come. The 350 friends and family who attended his funeral spoke with grief, as well as fondness and appreciation for all that he had done in his short time with us. He was an athlete, respected for his abilities on the field as well as his unassuming grace and character off the field.
Sho’s academic achievements also hinted at the bright future he had ahead of him. From early on, he was a math prodigy, attending classes at the local high school while in elementary and middle schools. He won trophies for chess and graduated valedictorian of his high school. He excelled at UC San Diego, majoring in structural engineering and graduating magna cum laude. He was admitted into the master’s program at the same school and received job offers from several companies, including Boeing and Goodrich Aerostructures, before finishing his graduate degree. At the funeral, his academic advisor and mentor spoke of Sho’s advanced research on composite materials and contributions to airline safety. Sho had submitted his thesis, while working fulltime at Goodrich, just weeks before he was killed. He was awarded his master’s degree posthumously on June 16th.
He wasn’t just perfect on paper; it’s the way he did things too. And this is not just an older brother’s pride. His professor remembered not only a brilliant man who, at such a young age, made contributions to the aerostructure field, but also a person with integrity and character and one who approached everyone and everything with a smile. Sho’s life was full, his outlook on life and the future, second to none. It was infectious.
He was inspired and worked hard but never flaunted his gifts. He was an empathetic classmate who reached out to strangers. One classmate wrote: “I was desperately looking for a group and Sho was the one person who willingly invited me. … I knew who he was. He was the guy that went up during Structural Analysis and correctly drew influence lines on the board in front of our intimidating professor.”
Another friend spoke of how she had never been able to stay upset with Sho, because his attitude exuded love, understanding and politeness. He was the first to admit any wrongdoing. He was selfless and willing to sacrifice any of his own comfort, so that he wouldn’t rob you of yours, so that he wouldn’t inconvenience you. He was the guy that gave you the good seat and offered you the last cookie.
Perhaps he was polite to a fault, because it was that same courtesy and the tendency to put others first that put him in the situation that evening. Ironically, it was with the sense of deep responsibility that he chose to walk to the work party one mile from his home, so that he wouldn’t have to worry about drinking and driving. It was with a deeply engrained sense of chivalry and not wanting to burden others, that he walked a colleague to her car but refused her offer for a ride home. And for that, he paid dearly.
But, on the other side of town, someone else made many different decisions. The decision to drink alcohol illegally. The decision to get in a car, despite having been drinking. The decision to leave the scene of a crime. The decision to leave a dying man on the road.
Having a loved one taken from you violently, knowing that his death was entirely preventable, inflicts unbearable suffering; it is a torment that no person should have to endure, especially parents. Yet, what has added to this sense of helplessness and frustration is the way in which this criminal case has unfolded.
There have been inaccurate stories floating around, but the media are not at fault. The criminal investigation necessitated a certain amount of caution, as prosecutors and detectives tried to cull together the facts. According to police reports and verbatim interview transcripts (and contrary to local news reports), there is no conclusive evidence that Sho was walking in the middle of a freeway. Sho had been out, celebrating a colleague’s birthday, with about 15 colleagues from his first job at Goodrich Aerostructures. As was customary for him, he had walked to the party to avoid drinking and driving. At the end of the night, he walked a colleague to her car and refused a ride home. He’d just moved to Ocean Beach and had not been completely familiar with the area, and it’s likely he got lost on the way home. He was struck on the shoulder, past the crosswalk where the sidewalk of Sunset Cliffs Blvd turns into Highway 8. It was the next major street parallel to his apartment.
The official reports also confirm that Nikolette Gallo of Rancho Bernardo had been drinking. She admitted to drinking several shots of vodka and smoking marijuana before getting in a car that evening. Another friend, Haley Bertrand, also drinking underage, had been driving the car earlier, claiming “she [Bertrand] felt like she was more safe to drive than Gallo was.” But according to Gallo, she took over driving because Bertrand was driving “too slow (sic)”. Despite the significant damage to her car—including a “shattered windshield, dented hood, broken/dented bumper, dented fender, missing front grille, shattered headlamp, and missing fog lamp ”—she didn’t stop, and only turned herself in the next day, after seeing news reports. Gallo’s judgment and/or vision was so impaired that she allegedly didn’t know she hit a person (claiming she thought she hit a sofa or some animal). When asked if they had discussed the possibility that they’d hit a person, Bertrand replied, “I don’t want to say, yes.” Gallo has expressed no remorse.
Despite this evidence and California’s zero-tolerance laws, the District Attorney informed us that they were not in a position to prove Gallo’s intoxication. At the interrogation the next day, during which the officer “smelled alcohol on her (Gallo’s) breath,” she walked away to eat something and tested negative to the breathalyzer. A reconstruction report of the crash—which could have revealed vital evidence—was never completed. Because she didn’t remain at the scene, because of a mishandled interrogation and because of a missing reconstruction report, Gallo’s admission wasn’t considered sufficient evidence for a DUI, and the defense has settled for a hit-and-run. She has not been, and will not be, charged with driving under the influence, vehicular manslaughter, or any other crime connecting her actions to Sho's death. The outcomes suggest that our laws provide incentive to leave the scene of a crime. Our justice system encourages drunk people to drive rather than walk, and to flee the scene rather than report a crash.
Without a hearing and behind closed doors, Judge Dwayne Moring has set a sentencing date, stating that he would “’strongly consider’ probation and some sort of custody or alternatives to custody at the time of sentencing.” According to the DA, the judge has decided that since Gallo is young, has a job, and has no prior record, that the leniency of probation is warranted. Never mind that Sho was all of the above and broke no laws—yet is now serving a life sentence.
I am a reasonable man who believes in compassion and forgiveness, and I am aware of humanity’s many flaws. But I am also keenly aware that our society rests on the trust it places in our judicial system to bring about justice and peace. I cannot be at peace knowing that my brother, who walked to a work party to avoid drinking and driving, is paying a life sentence, while another who made many different decisions that evening can walk away with probation. Had Gallo been playing with a gun and inadvertently shot Sho, would she still be granted this same leniency? And although I am not implying that race played a factor in this case, I do have to wonder about the lack of outrage over it, because it involved a white, female driver and an Asian male pedestrian. Had this been a case of black and white, I can’t help but imagine that this would be a bigger deal.
I realize that no sentence will bring Sho back. I am disappointed that the District Attorney was not more aggressive about pursuing a harsher indictment (i.e., not only felony hit-and-run but also driving under the influence resulting in death and vehicular manslaughter). And I am disappointed with the judge's decisions, but what we can do now is hold our publicly elected officials accountable to the people they serve and represent. I would like the judge to reconsider the case. That these decisions and this plea deal were made behind closed doors is legal yet lacks transparency. That the defendant was able to afford THE former District Attorney for a defense, before reaching this deal is their prerogative, but it doesn’t sit well. We do not know on what basis any decisions were made.
In addition to asking the judge to reconsider, what we can do now is work towards ensuring that the rest of the process is more transparent and that the judge takes the people’s voice into account in determining the sentence. If the judge believes that probation is the appropriate sentence, then I implore him to explain publicly, under which laws and factors he based his decisions. I would like him to explain how probation equates to the killing and abandoning of a man. According to the DA, the judge is leaning towards his lenient sentence because the defendant is young, has a job, and has no prior record. I would like an explanation as to which laws and rules make these the most important for consideration. I would like for the judge to explain how the following factors are then taken into account: that my brother was also young, that he had a fulltime job at Goodrich and was completing his master’s in engineering, that he had a clean record and reputation as the “designated driver,” that he broke no laws. That the defendant has expressed no remorse for ruining so many lives.
I also ask that the judge explain to what end this lenient sentence will ultimately serve. Giving second chances to those who selfishly and recklessly broke laws which resulted in death—while knowing that there will be no such second chances for us—seems biased and unfair. If the judge believes that this lenient sentence will rehabilitate the defendant, then I also ask that he consider the impact that this decision will have on us, Sho’s friends and society. What is the cost of teaching one woman a lesson? At least one man dead. A life sentence for family and friends. And improper lessons for society writ large. What we will learn from such an outcome is that life is cruel and unfair. We will learn that the justice system is broken. We will learn that our laws provide incentive to leave the scene of a crime. We will learn that our justice system encourages drunk people to drive rather than walk. We will learn that it is advantageous to flee the scene rather than report a crash resulting in death. We will learn that people like Sho are too good for this world.
It is true what they say about people revealing their true colors in times of great adversity. And it seems equally true that people reveal their true colors in how they treat and behave towards others who are down, who are the most vulnerable and in need of help, empathy and space. Time has yet to heal, but we’ve faced the darkest and most difficult of days, thanks to the empathy and kindness of friends, colleagues, community members and strangers. I am writing in appeal to that kindness that so many people have shown us over these last few months. If you feel that this case deserves more careful consideration, if you feel that a punishment of probation does not fit the crime, then I ask you to get involved. Here’s how:
1) Sign this petition and pass it on to someone else.
2) Write a letter to Judge Dwayne Moring. As a publicly elected official, Judge Moring should make decisions that make sense to the people. We ask that the case and sentence be given careful reconsideration. You can send your letters to the address below; they will be accepting victim impact letters until July 17th:
Reference: People vs. Nikolette Kristina Gallo (Case number CD239761)
Presiding Court Room
The Honorable Dwayne Moring
San Diego Superior Court, Central Division
220 West Broadway Dept.30
San Diego, CA 92101
3) Attend Ms. Gallo’s public sentencing on July 26th, 2:00 pm at the address above. Holding public officials accountable for their work means being vocal. Come out to the sentencing and let the judge know your thoughts.
Thank you for your support.