(Super Ct. Nos. 08HC1070, 09HC1146, 10HC1281)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Gina Sargent has been incarcerated for 30 years for the second degree murder of her stepdaughter. The crime was committed when she was an out of control and angry young mother who, at 22 years old, was a heavy user of drugs and alcohol attempting to take care of her own four year old, her five-year-old stepdaughter, and, on that fateful night, two other toddlers and a baby. She was given a minimum eligible parole date of August 22, 1991, almost 20 years ago. Based on her unblemished conduct in prison, her successful completion of a vast array of treatment and job training programs, her acceptance of responsibility, her remorse, her job prospects, and her family support, in December 2007 the Board of Parole Hearings (the Board) found she no longer poses an unreasonable threat to public safety and is suitable for parole. In May 2008 the Governor reversed the Board's suitability finding. Sargent petitions this court for a writ of habeas corpus.
The issue before us is whether there is some evidence to support the Governor's finding that Sargent is unsuitable for parole because she poses a current threat to public safety. While the facts surrounding the abuse and death of the child are indisputably heinous, they alone do not demonstrate that Sargent continues to pose an unreasonable danger to the public. Nor is there evidence to support the Governor's finding that Sargent has failed to fully acknowledge responsibility for her crimes. Because there is not the modicum of evidence necessary to support it, we must vacate the Governor's decision and reinstate the Board's finding that she is suitable for parole. Our decision vacates the Board's later decision finding Sargent unsuitable for parole and renders moot her petition for a writ of habeas corpus challenging that decision.
FACTUAL AND PROCEDURAL BACKGROUND
At about 10:00 p.m. on November 19, 1980, the police were summoned to Sargent's house. On the couch they found five-year-old Ilana Sargent unconscious, but breathing. Sargent told the officers Ilana had fallen down the stairs. Sargent said she had not seen the fall, but she believed Ilana was all right so she did nothing. Later, Ilana passed out in the shower. Sargent placed her on the couch and went to the neighbor's to summon help.*fn1 Ilana was taken to the hospital, where she had emergency surgery to relieve pressure on her brain.
At the hospital, the doctors were suspicious of the reported accident and suspected child abuse. They noted a great number of marks and bruises on Ilana in different stages of healing, including a large bruise on her forehead that was suggestive of an extensive head injury. The emergency room doctor believed Ilana might have been saved if she had been brought in earlier. The doctors also remarked on Sargent's unemotional demeanor and lack of concern for Ilana.
Sargent told the doctors Ilana appeared okay after the fall. Later Ilana vomited; she did again at dinner. In response, Sargent told her to take a shower. Ilana complied, but passed out. Only then did Sargent go to the neighbor's for help.
In an interview with sheriff's deputies, Sargent said Ilana fell down the stairs and whined, and then she began crying. Sargent asked the child if she was okay and Ilana said yes. At dinner Ilana would not eat, so Sargent fed her. Ilana threw up and Sargent told her to take a shower. Ilana fell in the shower and would not wake up. Sargent ran to the neighbor's for help. In response to questioning, Sargent agreed that a bump came right up on Ilana's head after the fall. Sargent put a cold washcloth on it.
Ilana died on November 21, 1980; the cause of death was craniocerebral trauma with subdural hematoma and brain swelling. The coroner's report noted over 100 scars on Ilana's body, mostly on her arms and forearms. In addition, there were multiple abrasions and bruises of different colors to her head, neck, torso, and extremities. The coroner concluded these findings were strongly suggestive of child abuse. Dr. Pierce Rooney, a pathologist, opined the subdural hematoma could not have happened as Sargent described, and the multiple injuries on Ilana were typical of battered child syndrome. Dr. Noguchi, an expert in child abuse, opined the hematoma was not caused by the fall; he believed it was a classic case of child abuse.
Other Offenses Involving Ilana
The corporal injury charge was supported by a statement from Ilana's grandmother. Her son, Henry Sargent, reported Sargent and Ilana were not getting along, so the grandmother offered to keep Ilana a few days to give Sargent a rest. She noticed bruises all over Ilana's buttocks, and black-and-blue marks on her wrists and elbows. There was a hand mark on Ilana's cheek. Sargent admitted she caused the injuries. She had been washing Ilana's hair and soap got in Ilana's eyes. Ilana squirmed and kicked, knocking over some dishes; she also bit Sargent's finger. Ilana fell to the floor and cut her chin on a cup. Sargent spanked Ilana to punish her. Sargent and her husband confirmed Sargent "smacked [Ilana] good," leaving "black marks all over her butt." A friend of the grandmother told an officer she had observed numerous bruises on Ilana after the hair washing incident and said her "fanny was completely covered." In the interview, Sargent's husband told deputies Sargent had left marks on Ilana; after a family conference she agreed not to do it again.
A misdemeanor charge of child cruelty was supported by a statement by Cynthia Kemperman. A few days before Halloween, Sargent stopped by with Ilana. Ilana had chicken pox and Kemperman's roommate was concerned her child would get it, so Sargent made Ilana wait outside for over an hour. It was 40 degrees at the time. That was not the only time the children were left in the car. Kemperman had observed Sargent strike Ilana.
In high school Sargent was a poor student; she did not like school and got "hooked up in the wrong crowd." She began using drugs at 15; her drug use included methamphetamine, cocaine, and marijuana. Sargent began using alcohol at 18 and abused it from ages 20 to 23. At 16, Sargent dropped out of school and got married. The marriage produced a daughter but did not last long. Her husband was stationed in the Philippines, found someone else, and left her. Sargent then married Henry Sargent. They obtained custody of Henry's daughter Ilana.
Sargent was abused as a child, spanked with a belt, and abused during her first marriage.
Conduct While Incarcerated
Sargent had no serious misconduct while in prison, receiving no "115's," but she was counseled for minor misconduct eight times.*fn2 The first Form 128-A counseling was in 1983 for having a kitten in her housing area; the last was for a minor incident involving a co-worker in 2001.
Sargent was kept in protective custody, where she had little access to groups, until 1987. In 1987 she began participating in Alcoholic Anonymous, which she has continued. She has a sponsor on the outside. She completed her GED (general educational development) certificate and is within six credits of an associate of arts degree.
While in prison, Sargent worked at the dental lab; she received glowing evaluations from her supervisors and obtained a certificate of proficiency as a metal technician in the areas of survey and design, set-up, finishing, plaster room, and metal cast. She completed many self-help courses, especially in anger management, stress management, and parenting, as well as many Christian programs.
Institutional Reports--Sargent's Acceptance of Responsibility
Initially, Sargent claimed Ilana's death was an accident. By 1996 she had admitted she pushed Ilana down the stairs. She also admitted to ongoing emotional abuse of Ilana and administering a severe spanking on one occasion. She refused to admit to ongoing physical abuse of Ilana for the four or five months before her death. Sargent requested a postponement of her parole hearing so she could study the records to address the factual disparities between her account and that in the probation report.
In 1997 Sargent still admitted the push, but expressed doubt as to her responsibility for the crime. She believed the emergency surgery on Ilana might have contributed to her death.
By 1998 a psychological evaluation found "Sargent has taken great strides in acknowledging her responsibility for the death of her step daughter." She admitted physically abusing Ilana on numerous occasions. Her insight enabled Sargent "to express her full remorse for her actions. 'I know what I did and I am sorry for it. I took the life of a child that had no defenses at all.'" The evaluation found Sargent had developed the proper steps to control her anger and found her level of dangerousness was average when compared to other inmates. Sargent admitted her abuse was progressive; she slapped Ilana and her spanking left bruises.
In 2003 a mental health evaluation found Sargent was not a psychopath, but she was a substance abuser with maladaptive personality traits. She was at low to moderately low risk for future violence. Sargent speculated that the best thing she had done was to change herself in prison. She now knew who she was and was no longer a follower.
A June 2007 psychological evaluation noted that since 1998 Sargent had steadfastly accepted full responsibility and declared herself "100% responsible." She had gained insight into her crime and understood that she had displaced her anger at her life with Henry Sargent onto Ilana; she recognized that there was nothing Ilana could have done to please her. She was in the low range of risk for violence and recidivism. Sargent had never utilized mental health services, and there was no suggestion of mental illness. She was diagnosed with alcohol and polysubstance dependence.
A 2007 life prisoner evaluation found Sargent continued to meet the expectations of the Board, was discipline free, and had the capacity to obtain and hold assignments. She had a positive attitude ...