IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
June 29, 2011
IN RE GINA SARGENT,
ON HABEAS CORPUS.
(Super Ct. Nos. 08HC1070, 09HC1146, 10HC1281)
The opinion of the court was delivered by: Raye , P. J.
In re Sargent
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 and the skills necessary to succeed outside prison.
Parole Board Hearing
At the parole hearing, Sargent admitted to "a pattern of abuse that had been going on for some time." She explained she singled Ilana out because she was angry with Henry. Having been abused herself, she became a bully and directed her anger at Ilana. She took out all her negative feelings on Ilana. Sargent claimed she was a "very angry, immature, messed up person." Sargent realized her abuse of Ilana had a profound effect on her own daughter, who considered Ilana her best friend. Her daughter still had guilt. Sargent had reconciled with her daughter, who supported her release.
Sargent admitted that in lucid moments she evaluated what she was doing and promised not to do it again. She never sought help, however, because she was in denial. Sargent explained her thought process had changed, helped by the parenting classes. She now saw that children are little people; their feelings need to be considered and they need to be taken care of. "[S]panking and yelling and screaming is not the way to do things." The turning point came when she grew up. She explained she had never been alone before. In prison she was alone for the first time and had to learn who she was and what she had done; it was very shocking.
The day of the crime she had drunk one or two beers and was still hung over from the night before. While in prison Sargent smoked some "weed" (marijuana) in 1984 and drank once in 1985. She had not used drugs or alcohol since, although they were available.
Sargent had a five-year plan if released. She had been accepted into two residential programs. She planned to get her associate of arts degree and get a job in dental prosthetics. Sargent had letters from dental labs, offering her an interview upon release and stating good dental technicians were in demand.
Sargent had letters of support from many family members, including her mother and her daughter. In 2002 the judge who sentenced her wrote a letter recommending parole as he believed Sargent "is no longer a danger to society."
The Board asked Sargent about the incident in 2001 that led to counseling. It was a brewing situation with another inmate who believed Sargent was not handing out supplies in a timely manner. At one point the inmate cornered Sargent up against a counter and Sargent feared a physical altercation. She went to her supervisor, who was too busy to intervene, so Sargent left. The Board thought she did the right thing. Sargent said she had learned from the incident; she could have kept her temper down and her mouth shut, and have been in better control.
The Board questioned Sargent about the 12 steps of Alcoholics Anonymous. Sargent identified the eighth step as making a list of those she had harmed and being willing to make amends. Sargent had written letters to Ilana's family members and given them to the district attorney, who sent them back, having determined it was not appropriate to forward them. The fourth step was to make a moral inventory, which Sargent said she did every night. Sargent intended to continue Alcoholics Anonymous for the rest of her life: "That's how I stay sober."
Under questioning by a chief assistant district attorney from Amador County, Sargent admitted she abused Ilana daily and the physical abuse escalated. Sargent used drugs and alcohol at least every other day, which allowed her to sweep the abuse under the rug and not deal with it. Sargent pushed Ilana down the stairs in a rage when the child would not move fast enough. She did not seek medical help for a good three hours. Sargent noticed an abrasion on Ilana's side after the fall, but did not notice a bump on her head. Ilana seemed all right so she did not get help.
The chief assistant district attorney opposed parole for Sargent. She argued Sargent was not suitable for parole due to the nature and circumstances of the cruel and heinous crime, the vulnerability of the victim, the months of physical and mental abuse, Sargent's extensive drug and alcohol abuse history, and her initial lack of responsibility. Noting that experts had questioned whether the injuries were caused by a fall, the district attorney stated, "we still do not know the actual act that caused the extensive injury to this child that caused her death."
Sargent "humbly and sincerely" apologized for Ilana's death. She recognized Ilana was not her only victim, but also those who knew her. "I'm sorry for the pain that I've caused. My heart will always be heavy with the burden that I took a life and the life of a vulnerable human being. I have to live daily knowing how much I hurt -- how much I have hurt and caused so many hurt."
The Board found Sargent was not a threat to public safety. It noted the factors favoring parole: her lack of a juvenile record or further adult record, her enhanced ability to function while in prison, her education, her marketable skill which made her employable, the reduced probability of recidivism, her realistic parole plans, close family support, and positive institutional behavior. Sargent had accepted responsibility for her criminal behavior and desired to change. The Board granted Sargent parole.
The Governor reversed the Board's decision. The Governor noted the positive factors favoring parole but found her crime especially atrocious.*fn3 The Governor noted that after Sargent pushed Ilana down the stairs, she waited hours to get medical help although Ilana was complaining of pain, Sargent saw an abrasion, and Sargent told sheriff's deputies she saw a bump on Ilana's head. Moreover, Sargent's motive was very trivial compared to the magnitude of the crime. The Governor stated the nature and circumstances of the crime alone would be sufficient to conclude Sargent posed an unreasonable public safety risk, but there were other factors.
The Governor was concerned about Sargent's history of violently abusing Ilana for months before the murder. The abuse grew worse despite intervention of family members and Sargent's promise it would stop. The probation report set forth a record of violent abuse, resulting in close to 100 scars and over 100 bruises, which weighed against parole suitability.
The Governor also questioned whether Sargent accepted full responsibility for the murder. The Governor noted experts questioned whether Ilana's injuries were caused by a fall down carpeted stairs.*fn4 Further, it took Sargent 17 years of incarceration to admit that she both pushed Ilana down the stairs and abused her. Even now, the Governor felt, Sargent minimized her actions. She told the Board that after she pushed Ilana down the stairs she saw an abrasion but did not see a bump on her head. This claim was inconsistent with her statements at the time of the crime. She told both a sheriff's deputy and a doctor that she saw a bump on Ilana's head. A deputy observed a prominent bruise on Ilana's forehead.
The Governor concluded the gravity of the murder, Sargent's record of violence towards Ilana, and evidence suggesting she did not accept responsibility for her actions outweighed the positive factors. He believed her release from prison would pose an unreasonable risk of danger to society.
In 2008 Sargent petitioned the Amador County Superior Court for a writ of habeas corpus. After issuing an order to show cause and appointing counsel, the court denied the petition. In January 2009 Sargent petitioned this court for a writ of habeas corpus. This court issued an order to show cause, returnable to Amador County Superior Court. (In re Sargent (Mar. 27, 2009, C060896) [order to show cause issued].) The trial court found some evidence to support the Governor's finding that Sargent posed a danger to the public and denied the petition.
Sargent again petitioned this court for a writ of habeas corpus. This court issued an order to show cause. While the petition was pending in this court, the Board conducted yet another parole suitability hearing in January 2009. Relying on the same rationale expressed by the Governor, the Board this time found her unsuitable for parole. There was no new evidence submitted at the hearing that Sargent posed a current risk of danger.
We must first determine if Sargent's writ of habeas corpus asking us to reverse the Governor's decision is now moot because the Board conducted yet another parole suitability hearing it could not have had if Sargent had been released as ordered by the Board in 2007. Relying on the Supreme Court's holding in In re Prather (2010) 50 Cal.4th 238 and other decisions by the Courts of Appeal, the warden insists the Governor's decision is moot. The warden argues that Sargent has already received the remedy she seeks and the due process to which she is entitled--a parole suitability hearing. We disagree.
Quite simply, Prather, as well as the two other cases cited by the warden, In re Criscione (2009) 173 Cal.App.4th 60 and In re Lazor (2009) 172 Cal.App.4th 1185, did not involve the review of a Governor's decision reversing the Board's suitability finding. In Prather, Criscione, and Lazor, the Board never found the inmates suitable for parole. Thus, after concluding that the Board's findings were not supported by some evidence, the courts remanded each of the cases to the Board as the statutory body charged with determining whether an inmate poses an unreasonable risk of danger to the public. Because the Legislature has vested primary responsibility for determining parole suitability in the Board, the Supreme Court rejected the notion that the parole suitability hearing on remand was to be limited to new evidence. (Prather, at pp. 257-258.)
Unlike in Prather et al., the Board found Sargent suitable for parole, thus fulfilling its statutory obligation to set a parole release date since she no longer posed an unreasonable risk of danger to public safety. It was the Governor in our case, and not the Board, that found Sargent unsuitable for parole. Prather, therefore, does not dictate the remedy.
Where the Governor's decision to reverse the Board's suitability finding is not supported by some evidence, the courts routinely vacate the Governor's decision and reinstate that of the Board. This is true of the Supreme Court (In re Lawrence (2008) 44 Cal.4th 1181, 1229 (Lawrence)) and our court (In re Burdan (2008) 169 Cal.App.4th 18, 39-40), as well as appellate courts in other districts (see, e.g., In re Moses (2010) 182 Cal.App.4th 1279, 1315; In re Dannenberg (2009) 173 Cal.App.4th 237, 257; In re Vasquez (2009) 170 Cal.App.4th 370, 387). For the reasons we discuss below we conclude that here, as in the cases cited above, the Governor's decision that Sargent poses a current danger is not supported by some evidence. Sargent's petition challenging that decision is not rendered moot by the subsequent parole suitability hearing, a hearing that should never have been held. Adhering to well-established precedent, we must vacate the Governor's decision and reinstate the Board's decision granting Sargent parole.
Moreover, in In re Copley (June 8, 2011, C063289) ___ Cal.App.4th ___ [2011 Cal.App. Lexis 706], the warden conceded that vacating the Governor's decision and reinstating the Board's 2008 decision finding Copley suitable for parole "also vacates the Board's 2009 decision, as that was a hearing the Board had no authority to conduct." (Id. at p. ___ [2011 Cal.App. Lexis at pp. 14-15].) We therefore will dismiss the petition for a writ of habeas corpus challenging the Board's 2009 decision in case No. C066553 as moot. In short, the first petition is properly before us; the second one is not.
II. Statutory and Regulatory Framework
The Board is the agency within the executive branch charged with determining whether and when an inmate should be paroled. (Pen. Code, §§ 3040, 3041, 5075, 5075.1.)*fn5 Pursuant to section 3041, subdivision (a), the Board "shall normally set a parole release date" one year prior to the inmate's minimum eligible parole release date. Pursuant to section 3041, subdivision (b), the Board must set a parole release date unless the Board determines that "public safety requires a more lengthy period of incarceration."
The California Code of Regulations sets forth the criteria tending to establish suitability and unsuitability for parole of inmates who committed murders on or after November 8, 1978. (Cal. Code Regs., tit. 15, §§ 2400, 2402.) The importance attached to any circumstance or combination of circumstances is left to the judgment of the panel. (Id. at § 2402, subds. (c), (d).) Circumstances tending to show suitability for parole include that the inmate (1) does not have a juvenile record of assaulting others or committing crimes with the potential of personal harm to the victims; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress built up over a long period; (5) committed the crime as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release, or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities suggesting an enhanced ability to function within the law upon release. (Id. at § 2402, subd. (d).)
Circumstances tending to establish unsuitability for parole include that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
Any parole decision by the Board with respect to a life-term inmate is subject to review by the Governor pursuant to the California Constitution, article V, section 8, subdivision (b). "The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider." (Ibid.) The Governor undertakes an independent, de novo review of the inmate's suitability for parole. (Lawrence, supra, 44 Cal.4th at p. 1204.) When reviewing the Board's decision, the Governor shall review the materials provided by the Board. (Pen. Code, § 3041.2, subd. (a).)*fn6 If the Governor decides to reverse the Board's decision, "he or she shall send a written statement to the inmate specifying the reasons for his or her decision." (Pen. Code, § 3041.2, subd. (b).)
Scope of Judicial Review
Because the Board is statutorily appointed to determine an inmate's suitability for parole and uniquely positioned to assess his or her credibility, the scope of judicial review is exceedingly narrow. The judicial branch is authorized to review the factual basis of a decision of the Board denying parole to ensure that the decision comports with the requirements of due process of law, but it may inquire only whether some evidence in the record before the Board supports the decision to deny parole. Only a modicum of evidence is required; resolution of any conflicts in the evidence and the weight to be given the evidence are within the Board's exclusive authority. (Lawrence, supra, 44 Cal.4th at pp. 1201, 1205.)
More recently, the Supreme Court has succinctly articulated the applicable standard of review as follows: "[B]ecause the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate's due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists 'some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor. [Citation.]" (In re Shaputis (2008) 44 Cal.4th 1241, 1254 (Shaputis); see Lawrence, supra, 44 Cal.4th at p. 1191.) The circumstances of the commitment offense, as well as any other factor suggesting unsuitability, "establish unsuitability if, and only if, those circumstances are probative of the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Lawrence, supra, 44 Cal.4th at p. 1212.)
Thus, while our review must be deferential, it is not "toothless." (Lawrence, supra, 44 Cal.4th at p. 1210.) "'[D]ue consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Ibid.) Where the Board relies on one or more factors to support a denial of parole, we must determine whether those factors, when considered in light of the other factors in the record, are predictive of the current danger posed by the inmate. (Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)
Lawrence and Shaputis, issued by the Supreme Court on the same day, apply the "some evidence" standard and arrive at opposite results. In Lawrence, the Governor's decision vacating the Board's grant of parole was not supported by "some evidence" of current dangerousness, whereas "some evidence" the petitioner remained dangerous supported the Governor's decision to set aside the Board's grant of parole in Shaputis. We examine the quantum of evidence in each case to gain insight into what modicum of evidence satisfies the legal threshold.
In Lawrence, the defendant murdered her lover's wife by shooting and stabbing her repeatedly. After remaining a fugitive for 11 years, she voluntarily turned herself in. The Board found the defendant suitable for parole based on multiple positive factors, including an exemplary record of rehabilitation, her acceptance of responsibility, and her close family ties. The Governor reversed the Board based on the gravity of the commitment offense. (Lawrence, supra, 44 Cal.4th at pp. 1190, 1193.)
The Supreme Court concluded that the Governor's decision was not supported by some evidence the defendant remained a threat to public safety. The court noted that during her nearly 24 years of incarceration, the defendant had participated in many years of rehabilitative programming specifically tailored to address the circumstances that led to the crime, including anger management programs. The court also noted the passage of time since the crime, the defendant's age and lack of criminal history before and after the crime, her lack of serious rules violations, the stress she was under at the time of the crime, and the unlikelihood that the same circumstances would reoccur. According to the court: "[W]e conclude that the unchanging factor of the gravity of petitioner's commitment offense has no predictive value regarding her current threat to public safety, and thus provides no support for the Governor's conclusion that petitioner is unsuitable for parole at the present time." (Lawrence, supra, 44 Cal.4th at p. 1226.)
By contrast, some evidence did support the Governor's conclusion that Shaputis posed a current risk to public safety. That evidence included his failure to take responsibility for his wife's murder, "and despite years of rehabilitative programming and participation in substance abuse programs, [he] failed to gain insight into his previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense." (Shaputis, supra, 44 Cal.4th at p. 1246.) The circumstances surrounding the shooting were especially aggravated. Shaputis, a heavy drinker with a blood alcohol level between .14 percent and .24 percent, shot his wife in the neck at very close range and most likely from less than 12 to 16 inches. Although the murder was his first felony conviction, he had a long and violent criminal record. (Id. at pp. 1247-1248.)
The low risk-of-violence rating he received was accompanied by the cautionary warning "'as long as he maintains sobriety and involvement in an active relapse prevention program.'" (Shaputis, supra, 44 Cal.4th at p. 1251.) The same assessment also confirmed that Shaputis "had a 'schizoid quality to interpersonal relationships,' and noted that [he] seemed to have 'limited . . . insight' regarding his antisocial behavior and the circumstance that his history of alcohol abuse was closely associated with his history of domestic violence." (Ibid.) The report advised external verification of his sobriety given that his third wife was a recovering alcoholic. (Id. at p. 1252.)
In both Lawrence and Shaputis, as here, the petitioners' conduct in prison was exemplary. All three petitioners demonstrated consistent progress toward rehabilitation. Yet there was evidence in Shaputis demonstrating a palpable nexus between the character of the petitioner at the time he shot his wife and his character at the time of his most recent parole hearing, when he was 71 years old. In other words, Shaputis's failure to take responsibility for past violence and his lack of insight into his behavior, when taken into consideration with the particularly egregious circumstances surrounding the shooting, constitute some evidence he continues to be a danger to society.
Presumably all prisoners serving life terms have committed heinous crimes. That immutable evidence alone is not sufficient to deny parole. "Indeed, it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole--it is the implication concerning future dangerousness that derives from the prisoner's having committed that crime. Because the parole decision represents a prospective view--essentially a prediction concerning the future--and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision." (Lawrence, supra, 44 Cal.4th at pp. 1213-1214.)
III. Review of the Governor's Decision
While the Governor found the nature and circumstances of Sargent's crime alone sufficient to conclude that releasing her posed an unreasonable public safety risk, the Governor also relied on additional factors. He considered Sargent's history of violently abusing Ilana over several months before her death, despite family intervention, and Sargent's failure to accept full responsibility for the murder. As to the latter, the Governor cited Sargent's long delay, after 17 years of incarceration, in admitting both that her actions caused Ilana's death and that she abused Ilana daily. Further, the Governor found that Sargent still minimized her actions. Sargent maintained she did not see a bump on Ilana's head after the fall. The Governor cited evidence, including Sargent's own earlier statements, that indicated the bump on Ilana's head was very prominent. We consider whether some evidence supports the Governor's decision that Sargent was currently dangerous based on the commitment offense, her history of violently abusing Ilana, and her failure to accept full responsibility for her actions.
The Commitment Offense
A circumstance tending to establish unsuitability for parole is that petitioner "committed the offense in an especially heinous, atrocious or cruel manner." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) Child abuse resulting in second degree murder is always "heinous, atrocious or cruel." In reviewing a parole suitability determination, however, we must ask whether the facts surrounding the abuse and death were "especially" heinous, atrocious, or cruel so as to be predictive of perpetual dangerousness. In other words, did the manner of killing support a finding that, despite a perfect record of rehabilitation, Sargent remained a threat to public safety?
It is true that as a result of months of abuse, Ilana was covered with bruises and scars when Sargent pushed her down the stairs. Sargent told the Board that after the fall, Ilana was whining and crying. And yet Sargent did not seek medical attention for her until she vomited and finally passed out in the shower. Indeed, Sargent admitted to the Board she pushed Ilana without thinking. She was angry that Ilana's father was not home and Ilana wanted to live with her mother. She was overwhelmed caring for five very young children and was hung over. She acknowledges that Ilana was blameless; she did nothing to provoke the abuse. Thus, the Governor could conclude that Sargent's displaced anger and frustration was a trivial motive for her crime.
Nevertheless, the immutable facts of the crime alone do not render an inmate unsuitable for parole. As a 22-year-old unemployed high school dropout with a ninth grade education, a young mother of one natural child and one stepdaughter, and a drug and alcohol abuser, Sargent may not have had an explicable motive for acting out on a defenseless child. But those circumstances do not constitute the requisite quantum of evidence to support a finding that 30 years later a now sober 52-year-old woman, with job training and family support, remains at risk of abusing children if released.
Pattern of Abuse
Closely akin to the Governor's analysis of the circumstances surrounding Ilana's death is his concern about Sargent's "shocking record of violent abuse." The fatal push was, to be sure, part of a tragic pattern of abuse for several months. The same factors that led Sargent to abuse the child also appear to have caused her to lose control when Ilana failed to retrieve a baby bottle as fast as Sargent demanded. Abusing drugs and alcohol, sizzling in anger, and attempting to care for five very young children, Sargent again snapped.
The relevant inquiry is not whether the inmate's crimes were "shockingly vicious," but whether they are probative "to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." (Lawrence, supra, 44 Cal.4th at p. 1221.) We conclude the abuse leading up to Ilana's tragic death was part and parcel of the circumstances surrounding her ultimate death. Hence, the pattern of abuse does not add weight to the Governor's finding of current dangerousness. Like murder itself, the antecedent abuse is an immutable fact anchored in the past. The dispositive question in this case is whether, as the Governor found, there is some evidence that Sargent fails to accept full responsibility for her actions.
Sargent's full acceptance of responsibility for abusing and ultimately causing Ilana's death was slow in coming. But the psychologists who interviewed her as well as the Board were persuaded that by 1998 she had accepted full responsibility. Since 1998 Sargent "has steadfastly accepted full responsibility for the death of her stepdaughter." In 2003 she described her actions in 1980 as "cruel and heinous" and added "I accepted (responsibility), I did it, and now I have to move on. I've changed myself over the years, to make sure that something like this could not happen again."
Not only has Sargent accepted responsibility for her actions, but she has expressed remorse for all the pain she has caused. She "humbly and sincerely apologize[d]." In her words, she conveyed her sorrow and helplessness.
"I would like to start by saying to everyone involved or affected by the death of [I]lana that I humbly and sincerely apologize. I wish there was some way I could reverse all the damage that I've caused and take away the heartache and trauma that I know I'm responsible for. Unfortunately, that isn't possible, nor can I mend the lives of which I have shattered. I know that had it not been for me and my actions [I]lana would still be with her family today. [I]lana is not the only victim. Her family and those who know her also suffer. I offer my deepest apologies to them all. I am aware of the tremendous grief, heartache and deep sense of incompleteness they still suffer because I have robbed them of their loved one. All the words that I could be -- that could be used to express my regrets sound blase and overused. It ultimately just boils down to I'm sorry. I'm sorry for the pain that I've caused. My heart will always be heavy with the burden that I took a life and the life of a vulnerable human being. I have to live daily knowing how much I hurt -- how much I have hurt and caused so many [sic] hurt. For that I am deeply and most sincerely sorry, and the repercussions of my bad choices are never ending."
Despite her tearful expressions of remorse accepted by psychologists for many years and by the Board at her parole suitability hearing, the Governor questioned whether Sargent has actually accepted responsibility for her crimes. The Governor's claim that she has not accepted full responsibility rests on the 17-year delay in making those admissions and a slight change in her recall of the offense. She told the Board that she saw an abrasion but did not see a bump on Ilana's head following the push down the stairs. In the Governor's estimation, her comment she did not see the bump contradicted her own prior account of the incident and the accounts of others, suggesting a retreat from her acceptance of full responsibility.
The 17-year delay in admitting full responsibility is another historical fact that will not change. Neither the delay nor the 2007 statement to the Board offers any support for the Governor's conclusion that Sargent's release would pose an unreasonable risk of danger to society.
The "some evidence" standard of review "is unquestionably deferential, but certainly is not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1210.)
Here there is no rational nexus. The Governor's vague musings about the nature of Ilana's fall, and his extraction of snippets of testimony from Sargent's statement to the Board accepting full responsibility for her criminal conduct, do not constitute some evidence of current dangerousness.
We examine the Governor's snippets of testimony in context. A deputy district attorney's questions did not follow in a chronological order or time sequence. At some point the district attorney asked how long after Ilana had been pushed down the stairs did she have something to eat. Then the district attorney asked, "Did you notice any physical injuries on her as a result of falling down the stairs or being pushed down the stairs?" Sargent unequivocally responded, "Yes."
Then both Sargent and the district attorney started to speak over each other. The district attorney then asked, "What did you notice?" This question, as posed, does not specify a particular point in time and it was the district attorney's last question to Sargent. There was no follow-up or clarification requested after Sargent responded, "I remember she had an abrasion on her side. I didn't notice any bump on her head. I know I remember asking her her name and she seemed all right and so I didn't pursue any medical influence [sic] after that."
The Governor infers that her response to that final question reflects a retreat from her previous admissions that at some point in time she observed a bump on Ilana's forehead.
We are unconvinced that Sargent's response reflects any calculated minimization of her responsibility for Ilana's death, or her so-called "denial"--seeing a bump on the child's head--permits an inference that Sargent continues to excuse her conduct in not seeking medical help sooner. Rather, when read in the context of the entire hearing, there is but the slightest discrepancy over precisely when she observed the bump, an inconsequential discrepancy that does not detract from her acceptance of responsibility or suggest she continued to minimize her own conduct.
Similarly, the Governor also expressed his concern that although Sargent acknowledged she abused Ilana daily, she now describes that abuse only as spanking. Again, the Governor sees the reference to spanking as minimization of her conduct. The record reflects that Sargent admitted she abused Ilana mentally and physically and that the abuse occurred "daily." She admits the abuse "escalated" or "got worse as time progressed." She admitted that her drug and alcohol abuse allowed her to "not deal with it and shove it under the rug, so to speak, so that it did continue to get worse." And she admits that it included slapping and spanking. She described how Ilana received her injuries on November 19, 1980, which included swinging out and slapping her and pushing her down the stairs. Her comment to the Board--that she learned from her parenting education program that "spanking and yelling and screaming [are] not the way to do things"--does not mean she believed these actions were the only kind of abuse of which she was guilty. In our view, her answer was not provided in a context that permits the inference that she fails to accept the extent of her abuse of Ilana. The Board commissioner merely asked, "What'd you get out of the Parenting Education program?" The "spanking/yelling/screaming" response was just a part of what Sargent described she learned in the three parenting courses she had taken.
None of the questions posed by either of the commissioners or the deputy district attorney specifically asked Sargent to comment on Ilana's fragile condition as of the date of the crime. In response to a question from one of the commissioners, Sargent explained why she believed she directed her anger toward Ilana. Sargent was asked to describe the turning point in terms of her acceptance of the crime and taking full responsibility for it, and what contributed to that turning point. Sargent acknowledged that she followed the pattern of abuse that was inflicted on her when she was a child. She admitted that she had no self-control.
We believe Sargent acknowledged the extent of her abuse of Ilana, as described above. It is true that at the conclusion of the hearing, when offered the opportunity to address the panel on the subject of her suitability for parole, Sargent did not repeat the specifics of how she had abused Ilana, or the fragile condition the child was in. But it seems she answered all the questions put to her and viewed this moment as the opportunity to express her sincere remorse for her actions, rather than to return to the details of her offenses. Her comments are apologies and acknowledgments of her responsibility for the "damage," "heartache and trauma" that she caused. She acknowledged that Ilana was not the only victim. She concluded that she has to live daily with the knowledge of how much she has hurt and caused so many to hurt, and that the repercussions of her bad choices are never ending. Thus, we cannot agree that some evidence supports the Governor's findings that Sargent failed to accept full responsibility by retreating in part from earlier admissions and by minimizing her conduct at the hearing.
Moreover, we conclude the evidence is much more analogous to the evidence presented to the Governor in Lawrence than it is to the evidence outlined in Shaputis. Sargent, like Ms. Lawrence, was young and under considerable stress at the time of her criminal conduct. Neither had any serious rules violations during their lengthy prison terms, nor much of a criminal history. The murder of Shaputis's wife was, by contrast, not an isolated incident arising from a stressful incident that was unusual or unlikely to recur, but the culmination of years of violent and brutalizing behavior toward members of his family. (Shaputis, supra, 44 Cal.4th at p. 1259.) He still claimed the shooting was an accident despite evidence of his intent. (Id. at p. 1260.) Unlike Lawrence and Sargent, Shaputis failed to gain insight or understanding into either his violent conduct or his crime. (Ibid.)
It is undisputed that Sargent committed an atrocious crime, and that by admitting full responsibility for her acts, she must live with the realization that she brutally abused and finally took the life of an innocent child. But because we cannot find some evidence predictive of current dangerousness and the Board has found her suitable for parole, we must reverse the Governor's decision.
Our decision vacating the Governor's decision (reversing the Board) and reinstating the Board's 2007 parole decision does not guarantee Sargent's immediate release. The Board is empowered to rescind a parole date for good cause. (§§ 3041.5, subd. (a), 3041.7; Cal. Code Regs., tit. 15, § 2451; In re Powell (1988) 45 Cal.3d 894, 901-902.) We "direct the Board to proceed in accordance with its usual procedures for release of an inmate on parole unless within 30 days of the finality of this decision the Board determines in good faith that cause for rescission of parole may exist and initiates appropriate proceedings to determine that question. [Citations.]" (In re Twinn (2010) 190 Cal.App.4th 447, 474.)
The orders to show cause heretofore issued by this court in case Nos. C062982 and C066553 are discharged, and the petition for a writ of habeas corpus in case No. C062982 is granted. The Governor's decision in case No. C062982 is reversed and the Board's 2007 decision granting Sargent parole is reinstated. The Board's later decision finding Sargent unsuitable for parole is vacated and the petition in case No. C066553 is dismissed as moot. This decision is final forthwith. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
We concur: ROBIE , J. BUTZ , J.