July 25, 2014

Plea deal for Modesto man who caused infant son’s death

A Modesto man on Friday pleaded no contest to assaulting his 7-week-old son, causing the infant’s death. Abinesh Kumar was sentenced to six years in prison, avoiding a trial.

A Modesto man on Friday pleaded no contest to assaulting his 7-week-old son, causing the infant’s death. Abinesh Kumar was sentenced to six years in prison, avoiding a trial that was scheduled to start Tuesday.

At trial, Kumar would have faced charges of murder and child abuse causing death. Instead, he was convicted of assault likely to cause great bodily injury as part of his plea deal with prosecutors. The felony charge included an enhancement for inflicting great bodily injury on a child younger than 5 years.

The infant, Abinav Kumar, died Aug. 18, 2011, in his north Modesto home. Emergency personnel responded to reports of an unresponsive child about 1 a.m. and found the boy dead. Kumar was arrested that afternoon after police questioned him.

Kumar also pleaded no contest to assaulting the baby’s mother, a misdemeanor charge of battery on a spouse reduced from a felony in exchange for his plea. Kumar was sentenced to a year’s incarceration on the battery charge, which he already has served in jail.

Nancy Smith, Kumar’s defense attorney, negotiated the plea deal with prosecutors.

Stanislaus Superior Court Judge Nan Jacobs told Kumar he must serve 85 percent of his prison sentence and three years of parole once he is released from custody. The defendant can’t own or possess a gun for the rest of his life, and the felony assault charge is considered a strike under the state’s “three strikes” law.

Kumar has been held in the Stanislaus County jail since Aug. 18, 2011. He has served 1,233 days in custody, which includes 160 days of credit for good behavior in jail.

During a brief hearing Friday afternoon, Deputy District Attorney Annette Rees told the judge that facts show Kumar assaulted his infant son, causing his death.

After the hearing, Rees said the defendant shook his son. The infant suffered a subdural hematoma, a collection of blood on the surface of the brain. He also suffered subarachnoid hematoma, bleeding in the area between the brain and thin tissues covering the brain.

Experts who were expected to testify at trial for the defense and prosecution determined the child was suffering from pneumonia at the time of his death. The experts concluded the infant likely went into cardiac arrest due to the untreated pneumonia.

The prosecutor said the defendant neglected to seek treatment for his son’s pneumonia. The infant was born prematurely and would have been susceptible to respiratory problems such as pneumonia.

Kumar tried to perform cardiopulmonary resuscitation on the child, which likely caused his rib fractures.

Considering the experts’ conclusions, Rees said the resulting felony assault charge with the enhancement was more appropriate. Prosecutors said the facts didn’t show there was an intent to kill the baby.

In a December 2011 preliminary hearing, Rees argued that Kumar was alone with his infant son from 8:40 p.m. to midnight, the time the injury occurred.

Stanislaus County forensic pathologist Sung-Ook Baik testified that the child died of shaken-baby syndrome, citing bleeding in the brain and retina.

Martin Baker, who represented Kumar at the preliminary hearing, argued that the medical testimony left open a possibility that the infant died of child endangerment, not murder.

Baker said the infant’s size, 8 pounds, and premature birth could lead one to believe that possible mishandling of the child could have caused his death, not an intentional act.

Kumar’s ex-wife testified that the defendant beat her with his fists, choked her and stepped on her neck as she was lying on the ground.

The couple had two boys who were 11 months apart. At the time of baby Abinav’s death, Kumar and the children’s mother were separated and involved in legal proceedings over child custody. The ex-wife has gained custody of her other son.

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