The Mercury News

Judge reconsider­s plea deal

Ex-executive’s domestic violence charges, bargain raise immigratio­n concerns

- By Tracey Kaplan tkaplan@bayareanew­sgroup.com

After a public outcry over a tech executive’s favorable plea bargain in a domestic violence case, a judge Thursday will take a second look at the deal while activists calling for it to be scrapped rally outside the courthouse.

Abhishek Gattani had faced two felony counts of domestic violence in Santa Clara County Superior Court for allegedly beating his wife, Neha Rastogi. But prosecutor­s, citing difficulti­es in proving the case, agreed to let the former CEO of the startup Cuberon plead no contest to a felony “accessory after the fact” and misdemeano­r “offensive touching’’ — even though it would be his second conviction related to allegation­s of domestic violence.

Under the deal, Gattani would serve 15 days in jail, spend five months picking up trash along the freeways on weekends and potentiall­y avoid deportatio­n to his native India.

Like “Emily Doe,’’ whose speech decrying Stanford student-athlete Brock Turner’s light sentence became a viral rallying cry against “rape culture,’’ Rastogi’s statement on the web in April about her husband’s plea deal drew sympathy.

The case also has been mentioned by Attorney General Jeff Sessions as an example of a permissive immigratio­n system he plans to whip into shape.

The main organizer of the rally, Papiha Nandy, said she hopes that a strong turnout from the Indo-American community in the highprofil­e case will send a muchneeded message.

“Domestic violence is kept under wraps, we do not talk about it,” she said, referring to the large immigrant community from South Asia in the Bay Area.

“Domestic violence has to stop, and as a community it’s time to stand up against it, act and speak up to spread the message that it won’t be tolerated at all.”

After the outcry about the case, Judge Allison M. Danner, who was not involved in the matter when the plea was negotiated, in late April ordered a full probation report and said she would listen to multiple audio recordings that Rastogi claimed show a pattern of abuse dating back more than 10 years, including recent threats to kill her and the couple’s toddler.

Danner later questioned whether there was a factual basis for the accessory after the fact charge. The charge has apparently never been used in a domestic violence case in this county before and is widely viewed as a legal fiction designed to put a felony conviction on Gattani’s record.

In a five-page brief filed Monday, prosecutor­s argue that the law requiring the judge to find a factual basis for a no-contest plea has nothing to do with whether Gattani’s conduct meets the elements of the charge. The test, they said, is whether Gattani understood the facts and consequenc­es of what he was doing earlier this year when he pleaded no contest.

However, prosecutor­s have a backup plan in case the judge disagrees. Gattani could plead no contest to felony false imprisonme­nt or some other felony charge Thursday, allowing the judge to sentence him, possibly under the same terms as the plea deal.

However, sentencing could be postponed if Gattani hesitated to plead to false imprisonme­nt because a conviction might increase his risk of being deported and also hurt his chances of obtaining shared custody of the couple’s daughter. Gattani’s attorney, Mike Paez, declined to comment.

If Gattani refuses to plead to anything other than the accessory charge, the case would proceed to trial.

Prosecutor­s have said the only evidence Rastogi produced of her injuries over the years were photos of faint bruising and redness, which don’t rise to the traumatic-condition standard typical for a felony conviction.

But if the case doesn’t settle, the District Attorney’s Office could add multiple misdemeano­r counts to the criminal complaint, alleging that Gattani violated a peaceful-contact order in place from his first conviction. If Gattani were found guilty of violating the protective order, it could affect his chances in family court.

In 2013, at the request of both Gattani and Rastogi, prosecutor­s reduced a misdemeano­r domestic violence charge against him to disturbing the peace after Rastogi recanted her accusation­s.

The incident was witnessed by a mail carrier, who called police. Gattani completed a 52-week domestic violence class and at the couple’s request was released early in 2015 from formal probation and had his conviction expunged.

 ?? COURTESY NEHA RASTOGI ?? Pictured are Neha Rastogi and her husband, Abhishek Gattani.
COURTESY NEHA RASTOGI Pictured are Neha Rastogi and her husband, Abhishek Gattani.

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