Filed 2/28/24 In re Kakowski CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re BRIAN KAKOWSKI

on

Habeas Corpus.

 D080001

 (San Diego County

 Super. Ct. No. HSC11878)

Original proceeding on a petition for writ of habeas corpus. Order to 

show cause discharged and petition dismissed. 

Brian Kakowski, in pro. per.; and Gerald J. Miller, under appointment 

by the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Heather M. Heckler, and Rachael Anne 

Campbell, Deputy Attorneys General, for Respondent. 

INTRODUCTION

Brian Kakowski, a prisoner in the custody of the California 

Department of Corrections and Rehabilitation (Department), petitions this 

court for writ of habeas corpus. He raises an equal protection challenge to a 

Department policy permitting transgender female inmates, but not cisgender 

male inmates, to possess certain personal hygiene items. While Kakowski’s 

petition was pending, the Department changed its policy so as to make the 

subject hygiene items available to both cisgender male inmates and 
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transgender female inmates. We conclude this development has made 

Kakowski’s petition for writ of habeas corpus moot. Accordingly, the order to 

show cause is discharged and the petition dismissed. 

BACKGROUND

In February 2022, Kakowski filed with this court a petition for writ of 

habeas corpus challenging a Department policy that prohibited cisgender 

inmates housed at male institutions from accessing certain hygiene 

products—specifically, tweezers, emery boards, shower caps, and facial 

scrub—while allowing such access to transgender inmates and inmates 

having symptoms of gender dysphoria housed at male institutions. He 

asserted the policy violated his rights to equal protection. (Cal. Const., art. I, 

§ 7, subd. (a); U.S. Const., 14th Amend.) 

The difference in inmate access to the specified hygiene products was 

the result of two sets of personal property schedules incorporated by 

reference in title 15, section 3190 of the California Code of Regulations. (See 

Cal. Code Regs., tit. 15, § 3190, subds. (b), (e).) Under the first set of 

schedules, the Authorized Personal Property Schedules (APPS), an inmate’s 

right to possess personal property depended on the type of institution (male 

or female) and security level in which the inmate was housed. (See Cal. Code 

Regs., tit. 15, § 3190, subd. (b).) In 2017, the Department added a second 

schedule, the newly created Transgender Inmates Authorized Personal 

Property Schedule (TIAPPS), which was “a separate list of allowable personal 

property afforded to transgender inmates and inmates with symptoms of 

gender dysphoria as identified and documented . . . by medical or mental 

health personnel within a CDCR institution.” (See Cal. Code Regs., tit. 15, 

§ 3190, former subd. (d), now subd. (e).) 
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The TIAPPS listed emery boards, facial cleanser, shower caps, and 

tweezers as personal property items available to transgender inmates and 

inmates with symptoms of gender dysphoria who were housed in general 

population levels I, II, III, and IV of male institutions. However, these 

toiletries were not listed in the APPS. By including these items in the 

TIAPPS but not in the APPS, the Department allowed transgender inmates 

and inmates with symptoms of gender dysphoria to possess them while 

denying them to cisgender male inmates housed in the same institutions at 

the same security levels. This gender-identity-based difference in access to 

the specified hygiene items was the disparate treatment Kakowski 

challenged as an equal protection violation. 

After requesting and receiving an informal response to Kakowski’s 

petition from the Attorney General on behalf of the Department, we issued an 

order summarily denying Kakowski’s petition. Kakowski then successfully 

sought review in the California Supreme Court. In August 2022, the matter 

was transferred back to this court with directions to vacate the summary 

denial and issue an order directing the Department to show cause why relief 

should not be granted on the ground that the Department’s policy violated 

the equal protection clauses of the state and federal Constitutions. We 

vacated our summary denial, issued the order to show cause as directed, and 

arranged for Kakowski to be represented by appointed counsel. In January 

2023, Kakowski, now represented by appointed counsel, filed a supplemental 

writ petition.1 In May, the Department filed its return, and in June, 

Kakowski filed a traverse. 

1 This was actually the second supplemental petition filed on behalf of 

Kakowski. The first supplemental petition was prepared and submitted in 

November 2022 by an attorney whose appointment Kakowski subsequently 

challenged. We construed Kakowski’s challenge as a motion pursuant to 
4

While Kakowski’s petition was pending, however, effective November 

2023, the Department revised the APPS. (See Cal. Code Regs., tit. 15, § 3190, 

subd. (b) [incorporating schedules with revision date of “11/23”]; California 

Department of Corrections and Rehabilitation, Authorized Personal Property 

Schedule <https://www.cdcr.ca.gov/regulations/wpcontent/uploads/sites/171/2023/10/Authorized-Personal-PropertySchedule.pdf> [as of Feb. 27, 2024] archived at <https://perma.cc/LT6NUS8R>.) The newly amended APPS authorizes inmates housed in general 

population levels I, II, III, and IV of male institutions to possess, among other 

things, emery boards, facial cleanser, shower caps, and tweezers. Thus, it is 

no longer Department policy to deny cisgender inmates access to these items. 

In its notice of regulatory change, the Department states that it revised the 

APPS “to ensure gender equality within the [D]epartment’s inmate 

population.” (Initial Statement of Reasons (Dec. 15, 2023), p. 4, 

<https://www.cdcr.ca.gov/regulations/wpcontent/uploads/sites/171/2023/12/NCR_23-15_Restriced_Housing_Units.pdf> 

[as of Feb. 27, 2024] archived at <https://perma.cc/8HBC-UXH7>.) 

In light of this development, we issued an order directing the parties to 

submit supplemental briefs addressing whether Kakowski’s petition for writ 

of habeas corpus had been rendered moot by the Department’s revisions to 

the APPS. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 

455, 479–480 [appellate court may examine mootness on its own motion].) In 

response, the Attorney General agreed that it had been rendered moot. 

Kakowski, however, asserted that it had not. He attached to his 

People v. Marsden (1970) 2 Cal.3d 118, granted the Marsden motion, and 

struck the original supplemental petition. A new attorney was then 

appointed to represent Kakowski, and the operative supplemental petition 

was filed in January 2023. 
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supplemental brief a copy of a document that he described as a January 2024 

“Canteen Price List” for the Robert J. Donovan Correctional Facility, where 

he is currently housed. The document, which was not authenticated, set 

forth prices for apricot scrub, emery boards, and tweezers; next to these items 

was a notation stating “TRANSGENDER CARD REQUIRED.” Kakowski

argued his petition was not moot because, based on this document, “the policy 

of equal access to the subject items has apparently not been fully 

implemented.” (Italics added.) 

DISCUSSION

Ordinarily, we do not review questions that have become moot. “As a 

general rule, an appellate court only decides actual controversies. It is not 

the function of the appellate court to render opinions ‘upon moot questions or 

abstract propositions, or . . . declare principles or rules of law which cannot 

affect the matter in issue in the case before it.’” (People v. Rish (2008) 163 

Cal.App.4th 1370, 1380, some internal quotation marks omitted.) “ ‘Thus, 

appellate courts as a rule will not render opinions on moot questions[.]’ ” 

(In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231.) 

We conclude that Kakowski’s petition for writ of habeas corpus has 

been rendered moot by the Department’s November 2023 revision of the 

APPS. “A case becomes moot when events ‘render[ ] it impossible for [a] 

court, if it should decide the case in favor of plaintiff, to grant him any 

effect[ive] relief.’ ” (In re D.P. (2023) 14 Cal.5th 266, 276, some internal 

quotation marks omitted.) That is what has occurred here. Kakowski’s 

petition challenged the Department’s statewide policy of differential access to 

the subject hygiene items. In his supplemental petition, he identified title 15, 

section 3190 of the California Code of Regulations, to the extent it 

incorporated the APPS and TIAPPS, as the assertedly discriminatory policy 
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and asked us to “invalidate the subject policy and regulations”; in his 

traverse, he reiterated his attack and requested the same relief. Our order to 

show cause required the Department to defend its policy against Kakowski’s 

claim that it violated equal protection. It has now revised that policy, and it 

has expressly done so to ensure gender equality in its inmate population. To 

declare the Department’s now-defunct policy invalid on equal protection 

grounds would be a meaningless gesture.

To the extent Kakowski asserts, based on the January 2024 “Canteen 

Price List,” that the change in Department policy has “apparently” not yet 

been fully implemented, we disagree he has identified a circumstance 

sufficient to render his petition not moot. The relevant question for purposes 

of determining mootness is whether a favorable decision on the merits of 

Kakowski’s petition would grant effective relief. (In re D.P., supra, 

14 Cal.5th at p. 276.) “For relief to be ‘effective,’ two requirements must be 

met. First, the plaintiff must complain of an ongoing harm. Second, the 

harm must be redressable or capable of being rectified by the outcome the 

plaintiff seeks.” (Ibid.) The circumstance Kakowski identifies fails to satisfy 

these requirements. For one thing, his assertion of an “apparent” failure to 

implement the Department’s recent change in policy falls short of 

establishing an actual, as opposed to a possible, ongoing harm. Courts do not 

redress potential violations of law. (Cf. ibid. [“A court is tasked with the duty 

‘ “to decide actual controversies by a judgment which can be carried into 

effect, and not to give opinions upon moot questions or abstract propositions, 

or to declare principles or rules of law which cannot affect the matter in issue 

in the case before it.” ’ ” (Italics added)].) For another, Kakowski’s petition 

sought an order declaring the Department’s policy to be invalid; he did not 

seek an order compelling the Department to comply with an assertedly valid 
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policy. For this reason, the harm Kakowski identifies as a basis for avoiding 

mootness is not one that is “capable of being rectified by the outcome [he] 

seeks.” (Ibid.)

We therefore conclude that Kakowski’s petition has been rendered moot 

by the Department’s November 2023 revisions of the APPS. “The proper 

disposition of a moot case is dismissal.” (In re Miranda (2011) 191 

Cal.App.4th 757, 762.) 

DISPOSITION

The order to show cause is discharged, and the petition for writ of 

habeas corpus is dismissed as moot.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.