Sentencing in death of UC San Diego graduate student Funai

SAN DIEGO — A 19-year-old Rancho Bernardo woman who pled guilty to a felony hit-and-run, causing death, was sentenced to 365 days in county jail and five years probation for the March 11 death of a University of California, San Diego graduate student.

Judge Dwayne Moring handed down the sentencing on July 27 to Nikolette Kristina Gallo in the death of Sho Funai, 23.

Family of the victim, however, believe the sentence was too short and sends the wrong message.

Before Moring read his sentence, he said of the Nikkei: “We lost an incredibly talented young man.”

Speaking to Gallo, Moring said, “You are going to jail because you fled the scene. I want the public to know that if you flee the scene of an accident, you will receive custody.”

Moring said once Gallo has served her county jail prison term, he would personally monitor the first year of her probation period. With good behavior, Gallo may be released from county jail within six months.

Some of the terms of Gallo’s five-year probation include random drug and alcohol testing; 100 hours of volunteer service to be completed by Jan. 2, 2014; and participation in substance abuse counseling as directed by her probation officer.

Had Gallo not fled the scene, Moring said she would probably have been charged with a misdemeanor and 180 days in jail since she had no prior criminal record.

The emotionally charged sentencing took place over a two-day period from July 26 to 27. On the first day, more than 130 people showed up, with supporters from the Higashi Honganji Buddhist Temple in Los Angeles; Nikkei for Civil Rights and Redress; former middle school, high school and college classmates of Funai; co-workers from Goodrich Aerostructures; family friends; and complete strangers who were outraged over the early proceedings of the case, which leaned toward Gallo getting no jail time.

The case also attracted an outpouring of support from around the world. Daisuke, Funai’s oldest brother, presented the judge with an online petition, which, as of the sentencing date, had more than 13,000 signatures. The online petition went live on the last week of June, and within five weeks, people as far away as Europe and Japan were signing on.

The judge also received more than 100 victim impact letters, to which Moring noted in court that he had read every letter written by those who had known Funai.

The Case
The case revolved around the hit-and-run death of Funai in the early morning hours of March 11. Funai had been walking home after celebrating a colleague’s birthday. He chose to walk to and from the party to avoid drinking and driving. Since he had recently moved into the area, the family believes he got lost.

He was struck from behind by Gallo’s car. The police report noted that the impact of Funai’s body hitting Gallo’s car “shattered (the passenger side) windshield, dented hood, broken/dented bumper, dented fender, missing front grille, shattered headlamp and missing fog lamp.”

That same evening, Gallo had been partying and involved in underage drinking and illegal marijuana use. She did not stop to provide aid but made two cell phone calls to her father.

A call reporting a body on the shoulder of the eastbound Interstate 8 was reported around 4:30 a.m. on March 11.

The Gallo family did not contact police until 9:30 a.m. Gallo reported that she had thought she hit a sofa or a coyote.

Fleeing the Scene
The case brought to light a disturbing recommendation told among drinkers and drug users that it is more advantageous to flee the scene of a hit-and-run and turn ones self in the next day after the alcohol or drug has left a defendant’s system, rather than to remain at the scene. This suggestion is especially prevalent on the Internet.

Ajay Chanayil, Funai’s brother-in-law, is an attorney who specializes in alcohol-related public policy. He asked the judge for a strict, multiple year sentence to prevent others from taking advantage of this loophole.

“It is considered stupid to stay because the punishment for a hit-and-run is much less than for a DUI so it is considered smarter to flee, sober up and then turn yourself in,” said Chanayil.

Gallo was not charged with driving under the influence of drugs or alcohol, although she admitted to police that she had been drinking and smoking marijuana. Deputy District Attorney Rebecca Zipp said the District Attorney’s office did not charge Gallo with driving under the influence because of insufficient evidence.

“One of the key pieces of evidence that we rely on in most DUI cases is blood alcohol level,” said Zipp. “And we were unable to obtain an accurate blood alcohol level from the time of the crash or even within a couple of hours of the crash to determine what her blood alcohol level had been when she was driving that night and what drugs, if any, were present while she was driving and she crashed because we did not obtain a sample until nine hours later.”

Zipp said the victim had a blood-alcohol level of .17 percent when he was hit.

Zipp declined to speculate on what message this sentencing sent to the public.

Daisuke Funai, on the other hand, felt this sentence sent the wrong message. “I think this sentence sends a message that our laws provide an incentive to leave the scene or a crime,” he said. “The outcome today tells other drivers, who are under the influence of drugs or alcohol, that it is advantageous to flee the scene rather than report a crash, resulting in death.”

Daisuke’s wife, Anjana Funai, had also been struck by a motorist in New York, but in her case, the driver had not been driving under the influence and had stopped to call paramedics. She suffered traumatic head injuries and required months of therapy.

“In my case, I am alive today because the driver didn’t flee the scene,” Anjana Funai said.

The Funai family had requested the judge to sentence Gallo to the maximum term of four years in state prison.

The Funai family brought up the issue that Funai might have lived had paramedics been called immediately. However, the defense attorney Paul Pfingst noted that the medical examiner’s report concluded that Funai died instantly.

Pfingst, who was a former San Diego district attorney, also brought up the issue that a couple going to the airport had called 911 shortly before Funai had been killed, reporting that there was a pedestrian in the roadway, causing a dangerous situation where the pedestrian could be hit.

Before the sentencing, Gallo requested to address the Funai family. “I will be thinking of him (Sho) and will be regretting my actions for the rest of my life,” said a teary Gallo.

The Funai family will, no doubt, be thinking of Funai for the rest of their lives, as well. Yuji Funai, Funai’s father, said he never wants to celebrate his birthday again since his son’s death occurred on his birth date. Daisuke and Anjana Funai’s wedding anniversary is a few days after Funai’s death.

“We are glad that this is over so we can mourn in private,” said Daisuke Funai. “We do, however, want to express that we are forever indebted to thousands of supporters who came out today, wrote letters and signed our petition. It’s been a dark and difficult time for us, but we do find some small comfort in the outpouring of support, knowing that Sho touched so many lives.”

A restitution hearing is set for Sept. 21.

(Full disclosure: The author supported the Funai family before the sentencing.)