(Alameda County Super. Ct. No. CH-9135).
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In 1989, petitioner Kuldip S. Kler was convicted of second degree murder and sentenced to an indeterminate term of 15 years to life in prison. In May 2009, we granted petitioner's petition for writ of habeas corpus that challenged his June 22, 2007 parole denial. (In re Kler (May 19, 2009, A121800) [nonpub. opn.].) In September 2009, the Board of Parole Hearings (Board) held a new hearing and found petitioner suitable for parole, a decision the Governor, in February 2010, reversed, relying exclusively on the facts of the commitment offense and petitioner's purported lack of insight. Petitioner has filed another petition, challenging the Governor's reversal, which we shall grant.
Because the facts of the commitment offense and most of petitioner's post-conviction record were set forth in detail in our 2009 opinion (In re Kler, supra, A121800), we present an abbreviated narrative.
1. The Commitment Offense*fn3
On February 25, 1987, 10-month-old Simron Kler died from injuries sustained while she was at home alone with petitioner, her father. Rupinder Kler, Simron's mother and 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. We observed in our opinion affirming petitioner's conviction that "[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 found Simron "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.) The autopsy revealed that the beating was fierce: "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." (Ibid.) As noted by the Board in 2007, "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." (In re Kler, supra, A121800, at p. 2.)
Initially, petitioner gave differing version of how Simron died. His sister-in-law explained at the trial that when she 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 (who happened to be on-call at the emergency room when Simron was taken to the hospital) 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.) Yet, at trial petitioner claimed that he inflicted the fatal injuries while unconscious during an epileptic seizure. (Ibid.)
There was also evidence of prior abuse. 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 his 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.)
2. The 2007 Parole Hearing and Board Decision*fn4
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 while his wife worked the night shift. After he went to bed around 2:30 or 3:00 in the morning, Simron woke him crying; he gave her a bottle and put her back in her crib. Fifteen minutes later she again awoke crying; petitioner attempted to quiet her and again put her back in the crib. When Simron woke a third time he "lost control" and "started beating her." Petitioner also acknowledged, as he had since 1999, that he had hit Simron on days prior to inflicting the injuries that caused her death. He told the Board that while he only recalled slapping Simron prior to her February 25, 1987 murder, he was responsible for her pre-existing injuries--i.e., bruises and broken ribs--and that those injuries could not have been caused by slapping. In other words, he accepted responsibility for the previous beatings of Simron, although he did not specifically remember the attacks. (In re Kler, supra, A121800, at p. 3.)
Much of the remainder of the hearing was spent on petitioner's exemplary prison record. He was twice disciplined for relatively minor infractions early in his prison career, in 1994 and 1998. Although there are no Sikh programs (his own religion), petitioner has participated in almost 40 religion and bible study classes, and competed an impressive amount of self-help and counseling. "For instance, according to the 2007 Mental Health Evaluation, in the two years between his 2005 and 2007 hearings, petitioner completed at least 75 Correctional Learning Network programs." (In re Kler, supra, A121800, at p. 7.)
"Petitioner also received commendations for his excellent ceramics work, which he donates for sale to benefit various charities. His pottery and other handiwork has been donated to the 2000, 2002, and 2003 Annual Art Sales and the San Joaquin County Child Abuse Prevention Council, where his gifts were auctioned and helped raise $16,000 for that charity." (In re Kler, supra, A121800, at p. 7.)
"The evaluations and psychological reports before the Board were also supportive. The 2003 Life Prisoner Evaluation Report states that in 1997 petitioner 'admitted guilt to the instant offense and expressed remorse for his actions,' and in 1999 he explicitly acknowledged that he had abused Simron on more than one occasion. The report concluded with the following recommendation:
" 'This writer believes the prisoner would probably pose a low degree of threat outside an institutional setting, considering the commitment offense, prior record, prison adjustment and Staff Psychologist Dr. Roger Kotila's, Mental Health Evaluation of 7-14-99, in which he states in part, " . . . this man would be a good candidate for parole. The likelihood of his committing future violence is low." "From a psychiatric view point, he is a good candidate for parole with low risk of future violence, and a high probability that he will be a law abiding citizen." He also has a strong support system of family and friends, which give him an excellent chance of success.'*fn5
"The psychological reports all also found that petitioner presented a below-average risk for reoffending. For instance, in the 1999 Mental Health Evaluation, the psychologist concluded that '[t]he likelihood of [petitioner] committing future violence is very low' and that '[f]rom a psychiatric view point, he is a good candidate for parole with low risk of future violence, and high probability that he will be a law-abiding citizen.' That positive conclusion is echoed in [his 2007] Mental Health Evaluation . . . . That report recognizes that '[a]ll factors that have been identified in the research as positive indicators of success on parole are present in Mr. Kler's case,' and concludes that the '[a]ssessment of dangerousness if released into the community is seen as below average in comparison with other inmates.' " (In re Kler, supra, A121800, at pp. 8-9.)
"After considering [this] evidence, the Board found that petitioner's release 'would pose an unreasonable risk of danger to society or a threat to public safety.' The factors relied upon by the Board were the cruel manner of the crime, that the offense was 'carried out dispassionately,' an escalating pattern of behavior (as exhibited by the prior beatings of Simron), and callous disregard for human suffering. The Board also found it 'noteworthy' that petitioner 'only recently acknowledged the crime itself' and 'has only in part and only very recently started talking about pre-existing injuries that the child had and even today, doesn't recall some substantial rib injuries that were pre-existing.' The Board also found it 'noteworthy' that petitioner 'only acknowledge[d] that he slapped her once prior to the death.' This led the Board to believe that 'acceptance of total responsibility is only now starting to come out with Mr. Kler.'
"Finally, the Board 'note[d] that [it found that] the letters from Mr. Kler's wife had some particularly disturbing information in them'; namely, that 'she seems to be deeply in love or committed to her husband [and] stuck up completely and totally for him.' Because of her level of devotion to her husband, the Board concluded that '[s]he seems to be a troubled woman with regard to commitment of love in this case.' Given this 'over the top' family support, the Board was not sure whether petitioner's wife and other family members would 'stand up to' petitioner 'if he were to be going down the wrong road.' "" (In re Kler, supra, A121800, at pp. 9-10.)
3. Our Prior Decision*fn6
We granted the petition for writ of habeas corpus, finding that the Board's decision to deny parole was not supported by "some evidence" that petitioner would pose an unreasonable risk to public safety. (In re Kler, supra, A121800, at p. 19.) We did so because all of the factors the Board relied upon were immutable. Specifically, the Board denied parole based on the following factors: (1) the commitment offense was carried out in an especially cruel manner; (2) the offense was carried out dispassionately; (3) there was an escalating pattern of child abuse; and (4) the offense was carried out in a manner that demonstrated exceptional callous disregard for human suffering. We assumed these findings were supported by the record, but recognized that they all pertain to the commitment offense and thus cannot be used to deny parole unless it can be shown that they "support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety." (In re Lawrence (2008) 44 Cal.4th 1181, 1221 (Lawrence).) As the Board did not connect the facts of the commitment offense to a continued unreasonable risk of public safety in any respect, we concluded that the immutable factors did not provide "some evidence" that petitioner continues to be an unreasonable risk to public safety. (In re Kler, supra, A121800, at p. 13.)
We also reviewed the factors the Board cited as "noteworthy," although it was not clear from the record that they were considered by the Board as a basis for denying parole. (In re Kler, supra, A121800, at p. 13.) "[Those] 'noteworthy' factors were: (1) that petitioner 'only acknowledge[d] that he slapped [his daughter] once prior to the death'--leading the Board to conclude that 'acceptance of total responsibility is only now starting to come out'; and (2) that the letters submitted indicating family support were 'disturbing' and 'over the top,' which lead the Board to conclude that petitioner's wife 'seems to be a troubled woman' who might not 'stand up to' petitioner." (Id. at pp. 13-14.)
We found the factors cited by the Board either were not supported by the record or did not provide "some evidence" that petitioner remains an unreasonable risk to safety. Specifically, the conclusions that petitioner only now acknowledged one prior slapping and that petitioner's " 'acceptance of total responsibility is only now starting to come out' " were not supported by the record, as petitioner acknowledged multiple incidents of prior abuse, for which he accepted responsibility since 1999. (In re Kler, supra, A121800, at p. 14.) Regarding the support letters, we found it "inexplicable" that a loving, stable relationship with his wife, which is a factor that tends to show he is suitable for parole (see Cal. Code Regs., tit. 15, § 2281, subd. (d)(2)), would be used against petitioner. (In re Kler, supra, A121800, at pp.15-16.) We ended our opinion by observing that "the only factors supported by the record that the Board relied on in denying parole are immutable ones: the circumstances of the commitment offense. As we have said, since 1997 petitioner has accepted full responsibility for his crime, and since 1999 has acknowledged his prior abuse of his daughter. He has been a model prisoner in almost every regard and enjoys strong family and community support. Importantly, the psychological evaluations are all very positive, indicating a low risk of recidivism. Indeed, the reports conclude that '[t]he likelihood of [petitioner] committing future violence is very low' and that, '[f]rom a psychiatric view point, he ...