Filed 3/10/21 In re Kakowski CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 granted.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Petitioner.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Senior Assistant Attorney General, Julie A. Malone and Jennifer
O. Cano, Deputy Attorneys General, for Respondent.
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.
The parties agree that three of the crimes for which
petitioner is serving a prison sentence—second degree burglary,
use of another’s identifying information, and making criminal
threats—are nonviolent felonies. (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).) There is no dispute that our
1 All further statutory references are to the Penal Code.
2
holding in In re Mohammad (2019) 42 Cal.App.5th 719 (review
granted Feb. 19, 2020, S259999 (Mohammad)), if applied to the
facts in this proceeding, supports granting petitioner’s request for
early parole consideration. (Id. at p. 725 [“[Proposition 57] grants
eligibility for early parole consideration to ‘[a]ny person convicted
of a nonviolent felony offense . . . after completing the full term of
his or her primary offense,’ and the use of the singular ‘a’ in a
sentence that expressly contemplates criminals would be sent to
prison for more than one offense means any nonviolent felony
offense component of a sentence will suffice. Mohammad was
convicted of a nonviolent offense, among others, and he has
completed the full term of his primary offense. That means he is
now entitled to early parole consideration notwithstanding [the
Department of Corrections and Rehabilitation’s] regulatory
exclusion to the contrary—which we shall invalidate”].) The
Attorney General simply asks us to refuse to follow our decision
in Mohammad. We decline to do so. Petitioner is entitled to
early parole consideration for the reasons articulated in
Mohammad.
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The petition for writ of habeas corpus is granted.
Petitioner shall be deemed eligible for early parole consideration
pursuant to the terms of Proposition 57.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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