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Filed 6/1/22 In re Kakowski CA2/5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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