In re Kakowski CA2/5

Filed 6/1/22 In re Kakowski CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re BRIAN KAKOWSKI B307097
on (Los Angeles County
Super. Ct. No.
Habeas Corpus. BH013122)
ORIGINAL PROCEEDING; petition for writ of habeas
corpus. Superior Court of Los Angeles County, William C. Ryan,
Judge. Petition denied.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Petitioner.
Rob Bonta, Attorney General, Phillip J. Lindsay, Senior
Assistant Attorney General, Julie A. Malone and Jennifer O.
Cano, Deputy Attorneys General, for Respondent.
I. BACKGROUND
Petitioner Brian Kakowski is currently serving a 40 year to
life term in prison for multiple violent and nonviolent felony
convictions, including second degree robbery (Pen. Code, § 212.5,
subd. (c)),1 second degree burglary (§ 459), use of another’s
identifying information (§ 530.6, subd. (a)), and making criminal
threats (§ 422).
On July 12, 2020, petitioner filed a petition in the superior
court contending he was entitled to early parole consideration
under the Public Safety and Rehabilitation Act of 2016
(Proposition 57). Proposition 57 added section 32, subdivision (a)
to Article I of California’s Constitution. Subdivision (a)(1) reads:
“Any person convicted of a nonviolent felony offense and
sentenced to state prison shall be eligible for parole consideration
after completing the full term of his or her primary offense.” The
trial court denied petitioner’s request for relief, finding he was
not entitled to early parole consideration because “he was
convicted of second degree robbery in his controlling case . . . and
all robberies are violent felonies.” After the superior court denied
relief, petitioner filed a petition for habeas corpus in this court
seeking the same Proposition 57 relief he sought in the trial
court.
In an opinion filed March 10, 2021, we concluded petitioner
was eligible for early parole consideration under Proposition 57,
for the reasons articulated in In re Mohammad (2019) 42
Cal.App.5th 719 (Mohammad I), which was then under review by
the Supreme Court. The Supreme Court granted the People’s
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
petition to review our decision in this case and held the matter
pending its review of Mohammad I.
On January 3, 2022, the Supreme Court reversed
Mohammad I. (In re Mohammad (2022) 12 Cal.5th 518(Mohammad II).) Two months later, it transferred this matter
back to this court with directions to vacate our March 10, 2021,
opinion and reconsider the cause in light of Mohammad II. The
People filed a supplemental brief, arguing petitioner is not
entitled to an early parole hearing under Mohammad II.
Petitioner did not file a supplemental brief. We now vacate our
March 10, 2021, decision and deny the petition for writ of habeas
corpus.
II. DISCUSSION
Section 32, subdivision (a)(1) of article I of the California
Constitution provides that “[a]ny person convicted of a nonviolent
felony offense and sentenced to state prison shall be eligible for
parole consideration after completing the full term for his or her
primary offense.” At issue in Mohammad I and Mohammad II
was whether this constitutional provision unambiguously extends
early parole consideration to any inmate “convicted of a
nonviolent felony offense,” irrespective of whether the inmate was
also convicted of a violent offense.
Reversing Mohammad I, the Supreme Court concluded the
provision is ambiguous. (Mohammad II, supra, 12 Cal.5th at
pp. 531–534.) To resolve the ambiguity, it looked to Proposition
57’s ballot materials for evidence of the voters’ intent. Those
ballot materials, the court found, “conveyed to the voters that
Proposition 57 would establish ‘parole consideration for
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nonviolent offenders’ [citation omitted] and would not authorize
early parole consideration for ‘violent offenders’ [citation
omitted].” (Id. at p. 537.) As such, the Department of
Corrections and Rehabilitation’s regulation excluding from early
parole consideration inmates who are “currently serving a term of
incarceration for a violent felony” is consistent with the voter’s
intent and “‘reasonably necessary to effectuate the purpose’” of
Proposition 57. (Id. at p. 538.)
The parties agree petitioner’s four convictions for second
degree robbery are violent offenses while his convictions for
second degree burglary, use of another’s identifying information,
and making criminal threats are nonviolent offenses. (Cal. Code
Regs., tit. 15, § 3495, subd. (c) [for purposes of Proposition 57, a
“[‘v]iolent felony’ is a crime or enhancement as defined in
subdivision (c) of section 667.5 . . .”]; see also § 667.5, subd. (c).)
Under Mohammad II, he is ineligible for early parole
consideration pursuant to Proposition 57 because he was
convicted of violent felonies in addition to his nonviolent felony
offenses.
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III. DISPOSITION
The petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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