(Alameda County Super. Ct. No. CH-9135).
The opinion of the court was delivered by: Kline, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 1989, petitioner Kuldip S. Kler was convicted of the second degree murder of his daughter, Simron, and sentenced to an indeterminate term of 15 years to life in prison. The Board of Parole Hearings (Board) denied parole for the fifth time on June 22, 2007, and set the next parole hearing in two years. Petitioner sought a writ of habeas corpus from the Alameda County Superior Court, which denied his petition. After he filed a petition for such a writ in this court, we issued an order to show cause. Concluding that the Board‟s decision to deny parole is not supported by "some evidence," we now grant the petition and issue the writ. (In re Lawrence (2008) 44 Cal.4th 1181, 1190-1191 (Lawrence).)
1. The Commitment Offense and Trial
In the early morning hours of February 25, 1987, 10-month-old Simron Kler died from injuries sustained while she was at home alone with petitioner, her father. Simron‟s mother, Rupinder Kler, petitioner‟s wife, was at work that morning until called home by petitioner. Shortly thereafter, police and fire department personnel were dispatched to the apartment. As discussed in our opinion affirming the judgment convicting petitioner, "[f]irefighters responding to a 911 call from the aunt at 4:33 a.m. found Simron was not breathing and began CPR. She was bruised on her torso and had abrasions on her face and mouth." (People v. Kler (Jan. 29, 1991, A046790) [nonpub. opn.], p. 2.) An ambulance was called and paramedics observed Simron to be "bruised from head to foot, blue, cool and unresponsive. They rushed her to a hospital emergency room, where she was similarly observed and pronounced dead on arrival at 5:08 a.m." (Id. at p. 3.)
An autopsy revealed that "Simron died of blunt force trauma, having suffered 110 bruises and scrapes over her arms, legs, torso, neck and body. Internal injuries included eight broken ribs, liver, intestinal, lung and chest cavity bruising, and lacerations of the duodenum and small bowel mesentery." (People v. Kler, supra, A046790, at p. 3.) In denying parole, the Board stated that "the beating of Simron Kler was so extensive and thorough that she had in her vaginal area, blood coming from that area, which is indicative of literally the internal organs being pulverized."
Petitioner‟s defense was that he inflicted the fatal injuries while unconscious during an epileptic seizure. Yet, when his sister-in-law arrived that night, petitioner told her that "he was feeding the child when she started gagging." (People v. Kler, supra, A046790, at p. 3.) Petitioner explained to a responding officer and to the child‟s pediatrician that "[t]he child awoke crying at 3:15 a.m.; he took her from her crib, brought her into the living room, got a bottle and began feeding her; and part way through the feeding she began breathing heavily and vomiting." (Ibid.)
Petitioner‟s wife informed the police that she had observed prior bruising on the child. She "told a police detective that she had noticed bruises on Simron before which concerned her, that defendant admitted slapping Simron when she cried and would not sleep." (People v. Kler, supra, A046790, at p. 3.) Later the wife "saw bruises on Simron again, while bathing her the week before the death, and that when she accused him of further hitting, [petitioner] said the child had fallen down." (Ibid.) Tellingly, the autopsy "revealed older rib fractures that had occurred on two to four different occasions." (Ibid.)
At trial, petitioner presented a not-guilty-by-reason-of-insanity defense, claiming he had a grand mal seizure while feeding Simron, blacked out, "and then "recovered‟ to find them both on the floor." (People v. Kler, supra, A046790, at p. 4.) He theorized that Simron struck her head on a coffee table. (Ibid.) Rejecting this defense, the jury convicted petitioner of second degree murder with a finding that he intentionally inflicted great bodily injury and, in the sanity phase, found him legally sane. (Id. at p. 1.) Before this conviction, petitioner had no prior arrests and no criminal history.
2. The 2007 Board Hearing
At the June 22, 2007 parole hearing, petitioner acknowledged, as he has since the 1997 parole hearing, that he killed Simron. He explained that he was taking care of his daughter because his wife had to work the night shift. He went to bed around 2:30 or 3:00 in the morning, after completing paperwork for his job as an insurance agent. About half an hour after going to sleep, Simron‟s crying woke him; he gave her a bottle and put her back in her crib. Fifteen minutes later she again awoke crying; he attempted to quiet her and again put her back in the crib. When Simron woke a third time he started yelling, slapped her, and, when she started crying harder, petitioner said he "lost control" and "started beating her." When asked if he used any weapons, petitioner testified he did not, that he beat her with his fists.
Petitioner reiterated his 1999 acknowledgement that he had hit Simron on days prior to inflicting the injuries that caused her death. At the 2007 hearing, he told the board that he slapped her previously and that "every time I‟ve been told there was the bruises and this, Sir, maybe I did it, but I don‟t recall." Given the importance it attached to this issue, the Board explored the subject further. After petitioner declared his inability to recall the details of when or how he first inflicted injury on his daughter, the following exchange took place:
"PRESIDING COMMISSIONER PRIZMICH: So besides the slap, are you saying that there were other injuries that you caused to her?
"PRESIDING COMMISSIONER PRIZMICH: Okay. In terms of imposing discipline on your daughter, was it always with your hands?
"INMATE KLER: Yes, Sir, most of the time. I yell too.
"PRESIDING COMMISSIONER PRIZMICH: Okay. But in terms of injuries, were they always with your hands?
"PRESIDING COMMISSIONER PRIZMICH: And would they be slapping or would they be punching? Do you remember punching her?
"INMATE KLER: Slapping, Sir. Most of the time, it was slapping and on that day, I did punch, Sir.
"PRESIDING COMMISSIONER PRIZMICH: You did close your fist and actually-
"PRESIDING COMMISSIONER PRIZMICH: -punch her?
After again discussing the murder and petitioner‟s treatment of his wife and his two younger children, the prior beating of Simron was again explored:
"PRESIDING COMMISSIONER PRIZMICH: . . . Now, the injuries that the baby had preceding the murder-
"PRESIDING COMMISSIONER PRIZMICH: -where were those located on the body? Where did you-where did-if you slapped her or hit her, ...