Filed 2/15/24 P. v. Ludwig CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH JAMES LUDWIG,

Defendant and Appellant.

 D081107

 (Super. Ct. No. SCD287753)

APPEAL from an order of the Superior Court of San Diego County, 

Kenneth K. So, Judge. Affirmed.

Kenneth James Ludwig, in pro. per.; and Lindsey M. Ball, under 

appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Kenneth James Ludwig pled guilty to one count of continuous sexual 

abuse of a child (Pen. Code,1 § 288.5, subd. (a)) and eight counts of 

committing a lewd act upon a child (§ 288, subd. (a)). In accordance with the 

1 Further undesignated statutory references are to the Penal Code.
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terms of his plea bargain, the trial court sentenced Ludwig to 22 years in 

prison. 

Ludwig appeals. His appointed appellate counsel filed an opening brief 

raising no arguable issues and requesting that we exercise our discretion to 

review the record for potential issues under People v. Wende (1979) 25 Cal.3d 

436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Ludwig

also filed a supplemental brief on his own behalf.

We have independently reviewed the record and find no arguable issue 

that would result in a modification or reversal of the judgment. Accordingly, 

we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2020, Ludwig was charged by felony complaint with two

counts of continuous sexual abuse of a child (§ 288.5, subd. (a)) and 25 counts 

of committing a lewd act upon a child (§ 288, subd. (a)) for molesting his 

younger sisters when the girls were under the age of 14 years old. In July

2021, the trial court held a preliminary hearing. Two of Ludwig’s younger 

sisters testified at the hearing that Ludwig had molested them (and others)

over the course of several years. Much of the abuse took place when Ludwig 

was an adult and his sisters were between the ages of 7 and 13. The 

prosecution also played a recording of a pretext call that took place between 

Ludwig and one of his sisters, during which Ludwig admitted to molesting all 

four of his younger sisters when the girls were children. 

In July 2022, Ludwig pled guilty to one count of continuous sexual 

abuse of a child (§ 288.5, subd. (a)) and eight counts of committing a lewd act 

upon a child (§ 288, subd. (a)). In exchange, the prosecution dismissed the 

balance of the charges filed against him in the third amended information, 

which included one additional count of continuous sexual abuse of a child and 
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eight additional counts of committing a lewd act upon a child. The parties 

agreed that Ludwig’s exposure at sentencing would range from probation to 

28 years in state prison. The parties further agreed the factual basis of the 

plea would be the third amended information’s allegations underlying each 

count of conviction. 

The trial court accepted the plea agreement by its terms and ultimately 

sentenced Ludwig to 22 years in prison.

DISCUSSION

Appointed appellate counsel filed a brief summarizing the facts and 

proceedings below, arguing no specific contentions as grounds for relief, and 

asking this court to review the entire record for error as mandated by Wende, 

supra, 25 Cal.3d 436. To assist the court in its review, and in compliance 

with Anders, supra, 386 U.S. 738, counsel identified the following possible, 

but not arguable, issues: (1) “Whether the sentence, in consideration of 

appellant’s age at the time of the offenses and current health circumstances, 

constitute[s] cruel and unusual punishment in violation of the Eighth 

Amendment”; (2) “Whether the trial court abused its discretion in denying 

probation despite it being authorized by the plea agreement”; and 

(3) “Whether appellant is entitled to credits for time spent on electronic 

monitoring without court-ordered home supervision.” Some of these issues 

overlap with the contentions raised by Ludwig in his supplemental brief.

None of the issues identified has arguable merit. As to the first, 

Ludwig’s guilty plea precludes him from attacking his sentence on the ground 

that it constitutes cruel and unusual punishment under the Eighth 

Amendment. Section 1237.5 provides that “[n]o appeal shall be taken by the 

defendant from a judgment of conviction upon a plea of guilty . . . except 

where” the trial court has issued a certificate of probable cause for the
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appeal. The prosecution agreed to a sentence of 0 to 28 years in prison in 

return for Ludwig’s plea. Ludwig now claims that the sentence he received, 

which was within that agreed-upon range, constitutes cruel and unusual 

punishment. “By arguing that [his] sentence is unconstitutional, [Ludwig] is 

arguing that part of his plea bargain is illegal and is thus attacking the 

validity of the plea.” (People v. Young (2000) 77 Cal.App.4th 827, 832

(Young); see also People v. Shelton (2006) 37 Cal.4th 759, 770–771 (Shelton)

[same].) Ludwig did not obtain a certificate of probable cause, so he cannot 

contest the validity of his plea. (§ 1237.5; Young, at p. 832; Shelton, at 

p. 771.) 

As to the second issue, we conclude that the trial court did not err in 

declining to grant probation. “A denial of a grant of probation generally rests 

within the broad discretion of the trial court and should not and will not be 

disturbed on appeal except on a showing that the court exercised its 

discretion in an arbitrary or capricious manner.” (People v. Edwards (1976) 

18 Cal.3d 796, 807.) An appellate court should only interfere with the trial 

court’s discretion in denying probation in “a very extreme case.” (People v. 

Kingston (2019) 41 Cal.App.5th 272, 278, internal quotation marks omitted.) 

This is not one of those cases. Ludwig pled guilty to nine counts of molesting 

three of his younger sisters over the course of many years. The trial court 

emphasized that Ludwig’s conduct had “caused incalculable damage to the 

victims” and found several aggravating factors existed, including the 

significant emotional injury to the victims, the fact that Ludwig took 

advantage of a position of trust as the victims’ older brother, and the 

vulnerability and young age of the victims at the time the abuse took place. 

(See Cal. Rules of Court, rules 4.414(a)(4), 4.414(a)(9), 4.421(a)(3).) These 
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findings are supported by the record and establish that the court properly 

exercised its discretion in denying probation. 

On the issue of custody credits, we also find no grounds for reversal. 

Defendants are generally entitled to credit for days spent “in custody.” 

(People v. Johnson (2010) 183 Cal.App.4th 253, 289.) This includes pretrial 

and postjudgment detainees who participate in a home detention program. 

(People v. Yanez (2019) 42 Cal.App.5th 91, 93, 99–100; People v. Gerson

(2022) 80 Cal.App.5th 1067, 1091.) Ludwig contends he is entitled to credit 

for the period he wore an electronic monitor prior to sentencing. However, 

there is no evidence that Ludwig was actually home-detained or that the 

electronic monitor restricted his movements in any way. We therefore 

conclude he was not “in custody” during the period he wore the electronic 

monitor and is not eligible for custody credits. (See People v. Anaya (2007) 

158 Cal.App.4th 608, 613 [reversing an award of custody credits where the 

defendant’s “electronic monitoring agreement did not restrict her 

movements”].). 

Ludwig also filed his own supplemental brief raising additional 

contentions. None has arguable merit. Ludwig contends that his sentence is 

unconstitutional and the remainder of his sentence should be suspended 

under section 1170, subdivision (a). He further asserts that he received 

ineffective assistance of counsel because the statute of limitations had 

expired on certain of the charges against him to which he pled guilty and

because counsel failed to sufficiently inform him that only his sentence would 

be appealable if he accepted a plea bargain, that he had the opportunity to 

present additional facts to the court at sentencing under section 1170, 

subdivision (b)(4), and that his Harvey waiver had significant consequences. 
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As we have explained, Ludwig cannot attack the constitutionality or 

validity of his sentence because he did not obtain a certificate of probable 

cause. (§ 1237.5; Young, supra, 77 Cal.App.4th at p. 832; Shelton, supra, 37 

Cal.4th 759 at pp. 770–771.) To the extent Ludwig contends that the trial 

court abused its discretion in sentencing him to 22 years in prison, we again 

reject that contention. Ludwig entered a negotiated plea agreement and was 

sentenced in accordance with that agreement. His sentence of 22 years was 

within the parties’ agreed-upon range of 0 to 28 years and thus properly 

imposed in accordance with the terms of the plea agreement. We cannot say 

the trial court exercised its discretion in an arbitrary or capricious manner. 

Finally, Ludwig’s claim that trial counsel provided ineffective 

assistance of counsel regarding his plea ultimately attacks the validity of that 

plea. Again, this claim cannot be raised on direct appeal absent a certificate 

of probable cause. (§ 1237.5; Young, supra, 77 Cal.App.4th at p. 832; Shelton, 

supra, 37 Cal.4th 759 at pp. 770–771.) Nor does the record demonstrate that 

his counsel’s representation fell below an objective standard of 

reasonableness or that Ludwig suffered prejudice as a result of his counsel’s 

representation. (Strickland v. Washington (1984) 466 U.S. 668, 687–688.)

We have reviewed the entire record, as required by Anders, supra, 386 

U.S. 738, and Wende, supra, 25 Cal.3d 436, and determined that there are no 

arguable grounds for reversal. We have also determined that Ludwig

received competent representation in his appeal.
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DISPOSITION

The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.