In re Ludwig
Filed 3/10/06 In re Ludwig G. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re LUDWIG G., a Person Coming Under
the Juvenile Court Law.
A110513
THE PEOPLE,
(San Mateo County
Plaintiff and Respondent, Super. Ct. No. 72745)
v.
LUDWIG G.,
Defendant and Appellant.
_______________________________________/
Ludwig G. (appellant) appeals from a disposition committing him to the California Youth Authority (CYA). He contends the juvenile court failed to exercise its discretion when calculating the maximum period of his confinement. We will reject this argument and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2004, appellant admitted committing a burglary and an attempted burglary. The juvenile court adjudged appellant a ward of the court and placed him at Camp Glenwood for a maximum period of six years, eight months.
In August 2004, appellant admitted committing another burglary. The juvenile court continued appellant's placement at Camp Glenwood, but increased his maximum commitment to eight years.
On February 25, 2005, appellant got into a fight while incarcerated in juvenile hall. Authorities searched appellant and found a shank made from a piece of sharpened tile in his sock.
Based on these facts, a petition was filed alleging appellant continued to come within the jurisdiction of the juvenile court because he possessed a shank while incarcerated in a juvenile facility. (Welf. & Inst. Code, § 871.5.)[1] After a contested jurisdictional hearing, the court found the allegation to be true. At disposition, the court committed appellant to the CYA for a maximum period of eight years, eight months.
II. DISCUSSION
On April 21, 2005 the juvenile court imposed the maximum possible term of confinement in CYA of eight years, eight months. Appellant now contends his case must be remanded for a new dispositional hearing because the record fails to show the court was aware it had the discretion under section 731, subdivision (b),[2] to commit him for less than the maximum term.
Appellant is correct that recent amendments to section 731, subdivision (b), grant discretion to the juvenile to commit a minor to the CYA for less than the maximum term. (See In re Sean W. (2005) 127 Cal.App.4th 1177, 1183; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) Furthermore, he is correct that the transcript of the dispositional hearing fails to show the court was aware of that discretion. However, the transcript also fails to show the court was unaware of its discretion.
A lower court's ruling is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 644.) One aspect of that presumption is that we must presume the lower court was aware of and applied the correct statutory and case law. (People v. Coddington (2000) 23 Cal.4th 529, 664, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Based on the ambiguous record before us, we are required to presume the juvenile court was aware of its discretion under section 731, subdivision (b), and that it exercised that discretion to impose the maximum term.
It is entirely reasonable to apply the presumption under the facts of this case. The recent amendments to section 731, subdivision (b), unambiguously grant the juvenile court the discretion to place a juvenile in the CYA for less than the maximum possible term. (In re Sean W., supra, 127 Cal.App.4th at p. 1183; In re Carlos E., supra, 127 Cal.App.4th at p. 1541.) The appellate cases expressly so holding -- In re Sean W. and In re Carlos E. -- predate the dispositional hearing in this case. (In re Sean W., supra, 127 Cal.App.4th 1177; In re Carlos E., supra, 127 Cal.App.4th 1529.) The trial court was fully capable of identifying and applying this unambiguous law.
We conclude the trial court was aware of its discretion.
III. DISPOSITION
The disposition is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Reardon, J.*
*Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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[1] Unless otherwise indicated, all further statutory references will be to the Welfare and Institutions Code.
[2] Section 731, subdivision (b), states in part, â€
