In re Rogowski (Cal. Ct. App., May 22, 2025, No. D084748) 2025 WL 1691929, at *1–2
Summary: In 2022, after he had served 31 years in prison, the Board granted Rogowski parole a second time. The Governor found Rogowski still posed an unreasonable danger to society if released from prison and, again, reversed the Board’s decision to grant parole. Rogowski filed a petition for writ of habeas corpus in the Court of Appeal which issued an order to show cause. The Court upheld the Governor’s decision and denied Rogowski’s petition.
Judicial Review of Parole Decisions
“Whether to grant parole to an inmate serving an indeterminate sentence is a decision vested in the executive branch, under our state Constitution and statutes. The scope of judicial review is limited.” (In re Shaputis (2011) 53 Cal.4th 192, 198–199, 134 Cal.Rptr.3d 86, 265 P.3d 253 (Shaputis II).) “The awesome responsibility of deciding whether to release a convicted murderer on parole—an act that inherently runs the risk of recidivism, i.e., the risk that the inmate will again kill an innocent person—lies with the executive branch, not the judicial branch.” (In re Lawrence (2008) 44 Cal.4th 1181, 1230, 82 Cal.Rptr.3d 169, 190 P.3d 535 (dis. opn. of Chin, J.) (Lawrence).)
“The Board is given initial responsibility to determine whether a life prisoner may safely be paroled.” (Shaputis II, supra, 53 Cal.4th at p. 215.) The Governor is authorized by article V, section 8, subdivision (b) of the California Constitution to then conduct “an independent, de novo review of the inmate’s suitability for parole.” (Lawrence, supra, 44 Cal.4th at p. 1204.) “The Governor has discretion to be ‘more stringent or cautious’ in determining whether a[n] [inmate] poses an unreasonable risk to public safety.”
The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety. Judicial review is conducted under the highly deferential ‘some evidence’ standard. The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed. The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.” (Shaputis II, at pp. 220–221.)
Any relevant evidence that supports the parole authority’s determination is sufficient to satisfy the ‘some evidence’ standard.”
In reviewing the Governor’s reversal of a grant of parole, a court considers the whole record in the light most favorable to the Governor’s decision. (Shaputis II, supra, 53 Cal.4th at p. 214, 134 Cal.Rptr.3d 86, 265 P.3d 253.) A court may look to the entire record for evidence supporting the reversal, and is not limited to the evidence specified in the Governor’s written decisio (In re Van Houten (2023) 92 Cal.App.5th 1, 32) (
The regulations provide that the relevant circumstances “are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [parole authority].” (Regs., tit. 15, § 2402, subds. (c), (d).) “Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Id., subd. (b).) Importantly, “ ‘[t]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of … the Governor.’ ” (Shaputis II, supra, 53 Cal.4th at p. 210, 134 Cal.Rptr.3d 86, 265 P.3d 253.) “ “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 Governor.”
Rogowski’s 2021 Altercations with Other Inmates Are Not Irrelevant to His Current Risk for Violence.
Rogowski challenged the Governor’s reliance on Rogowski’s response to the altercations with other inmates documented in the 2021 chronos as justification for denying him parole. He contends the incidents do not have “a nexus to present dangerousness.”
“Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Regs., tit. 15, § 2402, subd. (b).) Thus, “a factor that might not by itself establish an inmate’s unsuitability for parole may still contribute to a finding of unsuitability.” (In re Busch (2016) 246 Cal.App.4th 953 (Busch).)
The Governor concluded that through the 2021 incidents and Rogowski’s discussion of them, Rogowski had “demonstrated that [he] lack[s] the self-control and skills to prosocially navigate conflict.” The Governor stated, “Although Mr. Rogowski’s conduct did not ultimately result in disciplinary action, [his] discussion of the incidents highlighted gaps in insight. In both instances, Mr. Rogowski blames the other party and the staff involved for the altercation. While [he] may not have been the initial aggressor, [he was] not able to account for [his] contributing role, including escalating verbal disagreements and remaining in areas of conflict.” The Governor also noted that Rogowski was “not fully honest with correctional staff.”
The Governor acknowledged Rogowski was not “the initial aggressor” but faulted him for his inability to account for his contributing role in the altercations, “including escalating verbal disagreements and remaining in areas of conflict.” Rogowski’s “lapse in judgment” that was the focus of concern, not his violence.
This is some evidence Rogowski continues to lack awareness of dangerous or high-risk situations, placing him at risk for future violence. Rogowski’s response to the incidents also reveals a concerning pattern of dishonesty and avoidance of accountability, traits that are relevant to recidivism because they tend to show a belief that one’s wrongdoing will not be exposed and punished.
Rogowski’s response to the incidents at least “contribute[s] to a finding of unsuitability,” even if it does not establish unsuitability by itself. (Busch, supra, 246 Cal.App.4th at p. 966, 201 Cal.Rptr.3d 237; see Regs., tit. 15, § 2402, subd. (b).)
The Court rejected his challenge to the Governor’s reliance on these incidents and denied the petition.
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