Filed 4/30/14 Certified for publication 5/21/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION ONE


In re CHESTER N. LEBLANC on Habeas                                 A139769
Corpus.
                                                                   (Alameda County
                                                                   Super. Ct. No. 70098)



         Petitioner Chester N. LeBlanc challenges the Governor’s denial of his parole.
Petitioner received a life sentence for the 1980 fatal stabbing of his domestic partner’s
two-year-old son. The Governor denied parole because he found petitioner’s explanation
for the crime to be superficial and was concerned about petitioner’s continuing mental
health problems. Because we find some evidence to support the Governor’s conclusion
that petitioner continues to present a risk of danger if released, we deny the requested writ
of habeas corpus.
                                            I. BACKGROUND
         Petitioner, 24 years old at the time, pleaded guilty in 1980 to second degree
murder after he fatally stabbed a two-year-old boy. Petitioner was living with Brigid
Williams and her two children. He was the father of the younger child, a daughter, but
the older child, the stabbing victim, was not his child, despite being named Chester
LeBlanc, Jr. (Chet, Jr.). Domestic violence was a regular feature of the relationship;
petitioner later acknowledged abusing Williams “on a weekly basis.” Less than a week
before the murder, he had thrown Williams into a closet, nailed the door shut, and
“hidden” their daughter, before eventually releasing Williams.
       Late in the afternoon on the day of the murder, petitioner and Williams were in
their bedroom. Defendant, who had been drinking, demanded to have sexual intercourse
with Williams. When she refused, he threatened to “ ‘get a knife and cut your vagina
out.’ ” Afraid, Williams submitted to rape. Afterward, defendant accused Williams of
infidelity. He pulled a butcher knife from his sock and began cutting off her hair, in the
process leaving large gashes in her scalp. After a struggle, Williams escaped upstairs to
her sister’s apartment, who then called the police. When the officers arrived at
petitioner’s apartment, he refused to admit them. In response to their inquiry about the
children, he said, “ ‘They won’t be okay, if you come in.’ ” By the time the officers
forced open the locked door, Chet, Jr. had already suffered the fatal wound. At the time
of his conviction, petitioner claimed the stabbing was an accidental result of the police
action, but by the time of his most recent parole hearing in 2012, he acknowledged
intentionally stabbing Chet, Jr. in the chest as the police were banging down the door.
For this crime, petitioner was sentenced to a term of 15 years to life in prison. He has
been incarcerated ever since.
       By the time of his appearance before the Parole Board (Board) in October 2012,
petitioner was nearly 57 years old. He suffered from a number of health problems,
including heart and lung conditions that had required surgical intervention. For the prior
several years, he had been a model prisoner, and he is well regarded by prison officials
and employees.1 Petitioner had arranged to stay at a half-way house if released, and he
demonstrated fairly regular contact with sisters and other family members who were
ready to support his efforts to live independently. Petitioner has developed some job
skills while in prison, and he planned to stay active in substance abuse programs such as
Alcoholics Anonymous.

       1
         Two months before his parole hearing, petitioner was stopped by a prison guard
after he removed a tablet of prescription morphine from his mouth and placed it in his
pants pocket. Following a hearing, he was found guilty of possession of a controlled
substance. The Board appears to have accepted petitioner’s innocent explanation for the
incident, and the Governor did not cite the incident in reversing the Board. We do not
consider the incident in reviewing the Governor’s denial of parole.


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       In discussing his commitment crime, petitioner straightforwardly acknowledged
and discussed his conduct and culpability. He expressed unqualified remorse, saying he
“made those choices myself,” did not “blame [Williams] for anything,” and took “full
responsibility for my actions.” He had concluded his violence against Williams and
Chet, Jr. was the result of a violent childhood family life, his alcohol and drug abuse, a
“selfish and self-centered” and “insecure” personality, and the fear of losing the family he
had built with Williams. He said he “dealt with [that fear] in the only way I knew how,”
using violence in an attempt to control Williams. After an extensive analysis of
petitioner’s circumstances, the risk assessment prepared by a psychologist in connection
with his parole hearing rated him a “Low or non-elevated risk of violence.”
       The Board granted parole, noting that although the commitment offense was
“particularly horrible, offensive, and cold,” petitioner had “addressed the drug and
alcohol issues,” and “the positive aspects of your case heavily outweigh the other
considerations . . . .”
       The Governor reversed the decision. His decision “acknowledge[d] Mr. LeBlanc
has made efforts to improve himself while incarcerated,” citing in particular petitioner’s
acquisition of trade skills and participation in substance abuse programs. The Governor
was concerned, however, that petitioner “has failed to sufficiently explain why his history
of domestic violence against Ms. Williams ultimately culminated in his stabbing a
toddler.” The decision noted that being self-centered was a “shallow explanation” for
killing a child, while being a victim of child abuse “does not adequately explain” why he
suddenly chose to kill Chet, Jr. The Governor was also concerned that petitioner could
not “better articulate the reasons for his pattern of violence towards Ms. Williams,”
saying it was “nonsensical” to believe “abusing Ms. Williams would keep their family
together.” Finally, the Governor was “troubled by Mr. LeBlanc’s history of mental
instability,” including recent instances of depression. After noting he had “considered the
evidence in the record that is relevant to whether Mr. LeBlanc is currently dangerous,”
the Governor concluded, “[T]he evidence I have discussed shows why he currently poses
a danger to society if released from prison.”


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          After the superior court denied a petition for a writ of habeas corpus seeking
review of the denial of parole, petitioner filed a pro se petition in our court in
September 2013. We entered an order to show cause and appointed counsel to represent
him.
                                       II. DISCUSSION
          The “awesome responsibility” of deciding whether to release a convicted murderer
on parole “lies with the executive branch, not the judicial branch.” (In re Lawrence
(2008) 44 Cal.4th 1181, 1230 (dis. opn. of Chin, J.) (Lawrence).) The Board’s and the
Governor’s “ ‘discretion in parole matters has been described as “great” [citation] and
“almost unlimited” [citation].’ ” (In re Rosenkrantz (2002) 29 Cal.4th 616, 655.)
          Under Penal Code section 3041, a prisoner eligible for parole must be granted
parole unless the Board or the Governor concludes “the public safety requires a more
lengthy period of incarceration.” (Id., subd. (b).) Title 15, section 2402 of the California
Code of Regulations, which governs a prisoner’s suitability for parole, lists a variety of
factors to be considered in evaluating a prisoner’s suitability for parole, including the
heinousness of the crime, psychological factors, institutional behavior, signs of remorse,
age, and understanding and plans for the future. (Id., subds. (c)(1), (5), & (6), (d)(3), (7)
& (8).)
          While we have the authority to review a decision of the Board or the Governor
denying parole to an eligible prisoner, our review is confined to ensuring the prisoner was
afforded due process of law in the consideration of his or her application. (Lawrence,
supra, 44 Cal.4th at pp. 1204–1205.) This entails ensuring the Board’s or the Governor’s
decision “reflects ‘an individualized consideration of the specified criteria’ and is not
‘arbitrary and capricious.’ ” (Id. at p. 1205.) The latter consideration, a measure of the
substantive merit of the decision, is satisfied if the record contains “some evidence that
the inmate remains a current threat to public safety.” (Id. at p. 1206.)
          The “some evidence” standard is “more deferential than substantial evidence
review, and may be satisfied by a lesser evidentiary showing.” (In re Shaputis (2011)
53 Cal.4th 192, 210.) “[U]nder the ‘some evidence’ standard, ‘[o]nly a modicum of


                                                4
evidence is required. Resolution of any conflicts in the evidence and the weight to be
given the evidence are matters within the authority of [the Board or] the Governor. . . .
[T]he precise manner in which the specified factors relevant to parole suitability are
considered and balanced lies within the discretion of [the Board or] the Governor . . . . It
is irrelevant that a court might determine that evidence in the record tending to establish
suitability for parole far outweighs evidence demonstrating unsuitability for parole. . . .’
[Citation.] [¶] . . . [¶] . . . Only when the evidence reflecting the inmate’s present risk to
public safety leads to but one conclusion may a court overturn a contrary decision by the
Board or the Governor.” (Id. at pp. 210, 211.) In determining whether a decision is
supported by some evidence, we are not limited to the evidence actually mentioned by
the Board or the Governor in their decision denying parole. (Id. at p. 214, fn. 11.) That
said, the aggravated nature of the commitment crime alone does not provide such
evidence “unless the record also establishes that something in the prisoner’s pre- or
postincarceration history, or his or her current demeanor and mental state, indicates that
the implications regarding the prisoner’s dangerousness that derive from his or her
commission of the commitment offense remain probative of the statutory determination
of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
       We conclude the Governor’s decision is supported by some evidence that
petitioner remains a current danger if released. As the Governor noted, petitioner has not
provided an adequate explanation for the murder that led to his incarceration. While he
appears to understand the psychological dynamics behind his terrorizing of Williams—
insecurity expressed through intimidating violence, an approach he learned from his
father—the decision to murder Chet, Jr. was an entirely different sort of act.
       Before the Board, petitioner tended to treat the murder as an extension of the
domestic violence he directed against Williams. When asked to justify it separately, he
begged off, saying, “There’s no reason that anyone can come up with for taking the life
of a two-year-old.” Pressed, petitioner told the Board, “Well, I’ve seen that I was abused
and I treated this child the same way my parents treated me.” As the Governor
suggested, neither explanation satisfies. The first is a truism, not an explanation. It is a


                                               5
means to avoid an explanation. The second rings false. Petitioner claimed never to have
abused Chet, Jr. in the day-to-day manner he had been abused by his father. Further, the
sudden and unprovoked stabbing was of a different order entirely from the type of abuse
that had been directed at petitioner in his childhood. Petitioner’s lack of insight into the
cause of his commitment crime, and his attempt to avoid grappling with it by mixing it
with the manipulative violence directed against Williams, provides some evidence of
continued, present dangerousness. (See Shaputis, supra, 53 Cal.4th at pp. 219–220.)
       We note that petitioner’s murder of Chet, Jr. appears to have been the result, not of
insecurity over his relationship with Williams, but of an unreasoning, literally murderous
rage, undoubtedly enhanced by the well-known effect of alcohol in lowering inhibitions.2
Before the Board, petitioner acknowledged his continuing struggle to control his anger:
“It can come on and it’s sparked up if I’m thinking negative and through my—going
through the day, if I dwell on certain things and someone says something to me that I
don’t agree with, then I’ll get angry. I understand that I have these anger problems. And
today, what I do is I step back, take a deep breath. [¶] . . . [¶] And there are other things
that I can do.” The psychologist who prepared the risk assessment noted petitioner
“acknowledged that he continues to struggle with managing his anger in a constructive
manner, maintaining an open and clear mind, and focusing on being slow to anger.”
Petitioner’s acknowledgment of his temperament may be the first step in anger control,
but the Governor was not required to take the risk that petitioner would succeed in
controlling it, particularly since, as the Governor noted, petitioner continues to struggle
with occasional depression.3



       2
         Petitioner did tell the evaluating psychologist that he “has discovered that his
behavior was rooted in anger and insecurity.” Since petitioner did not repeat this
explanation to the Board, we cannot conclude he has internalized it, particularly the role
of rage in his killing of Chet, Jr.
       3
          Petitioner had attempted suicide prior to the commitment crime and twice while
in jail after the crime. He sought mental health treatment in 2007 for symptoms of
depression associated with his medical and family issues, again in 2010, and again in

                                               6
       Petitioner argues the Governor’s decision failed to consider his age and poor
health as factors in favor of suitability. While the Governor is required to engage in “ ‘an
individualized consideration of the specified criteria’ ” (Lawrence, supra, 44 Cal.4th at
p. 1205), it has never been held that the Governor’s decision must address individually
each factor in section 2042 of title 15 of the California Code of Regulations. The
Governor’s decision stated he had “considered the evidence in the record that is relevant
to whether Mr. LeBlanc is currently dangerous,” and we have no reason to doubt that
statement. The decision reflects a careful consideration of petitioner’s individual
circumstances, which is sufficient. Further, neither petitioner’s age nor his health
problems were of sufficient magnitude as to prevent him from engaging in violent
conduct. While in prison, petitioner had taken a wife, and while the couple has
“separated,” they remained legally married. In addition, petitioner anticipates the
possibility of developing a romantic relationship if released. The risk of domestic
violence remains, particularly if petitioner’s commitment to sobriety lags.




2011, for a “Mood Disorder.” Petitioner continued to take an antidepressant medication at
the time of his parole hearing.


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                                  III. DISPOSITION
      The petition for writ of habeas corpus is denied.




                                                _________________________
                                                Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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Filed 5/21/14
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION ONE


In re CHESTER N. LEBLANC on Habeas                  A139769
Corpus.
                                                    (Alameda County
                                                    Super. Ct. No. 70098)

                                                    ORDER CERTIFYING OPINION FOR
                                                    PUBLICATION

                                                    [NO CHANGE IN JUDGMENT]



THE COURT:
         The opinion in the above-entitled matter filed on April 30, 2014, was not certified
for publication in the Official Reports. After the court’s review of a request under
California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is
hereby ordered that the opinion should be published in the Official Reports.
Dated:

                                                   ___________________________
                                                   Margulies, J.
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Larry J. Goodman

Counsel:

Jonathan Soglin and Frances Marie Ternus, under appointment by the Court of Appeal,
for Appellant.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General,
Claudia H. Amaral and Amanda Lloyd, Deputy Attorneys General for Respondent.




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