3 to Stand Trial in Drive-By Killing

Three men were ordered to stand trial Thursday on a murder charge stemming from a drive-by shooting, but a judge dismissed a second controversial murder count in the death of a fetus carried by a shooting victim.

Concluding a preliminary hearing, Van Nuys Municipal Court Judge Robert L. Swasey determined that prosecutors had presented enough evidence to show that 16-year-old Nikki Foley was murdered as she stood outside a party last year in Panorama City.

Of the three defendants, who allegedly are gang members, only Robert Harvey, a 20-year-old North Hills man, was identified by a witness as a gunman in the May 15, 1993, attack. A second shooter remains at large.

Two others--Brandon Reed, 22, of Sun Valley, and Ronald Ausborne, 20, of North Hollywood--did not fire weapons, according to the testimony, but prosecutors consider them liable for the crime because they participated in the incident.

Last week, prosecutors conceded they had insufficient evidence to prove that a barrage of shots fired led to the death of a 3-month-old fetus carried by a 15-year-old girl who was wounded in the attack. Swasey agreed and did not order a trial on the second murder charge.

The expectant mother, Mona Moore, survived her wounds, but her fetus showed no signs of life when she was brought to the hospital for treatment. In addition to the question of when life begins, Deputy Dist. Atty. Franco Baratta was faced with proving that the fetus was alive when Moore was shot.

Moore did not obtain prenatal care, according to Baratta, so he could not show that the fetus had a heartbeat prior to the shooting. The California Supreme Court is currently weighing the issue of when a fetus is viable--22 weeks, as is now the accepted rule, or at about seven weeks, just past the embryonic stage.

The ruling means prosecutors will not be able to seek the death penalty for the three men accused in the shooting. If convicted on a single first-degree murder charge, each defendant could be sentenced to life in prison.

Harvey, Reed and Ausborne will be arraigned in Van Nuys Superior Court on April 7.