P. v. Mahler CA2/7

Filed 5/15/13 P. v. Mahler CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B241517

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA323719) v.

DAVID MAHLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven A. Marcus, Judge. Affirmed. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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This case comes before us a second time. David Mahler was convicted of the second degree murder (Pen. Code,1 § 187) of Kristen Baldwin, with a firearm-use enhancement (§ 12022.53, subd. (d)), and of assault with a firearm against Donald Van Develde (§ 245, subd. (a)(2)). On appeal, we concluded the trial court improperly instructed the jury on felony murder, reversed the murder conviction, and remanded for further proceedings. (People v. Mahler B220082 (Sept. 7, 2011) nonpub. opn.) Following remand, the trial court granted Mahler’s request to represent himself (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]) on November 29, 2011. On March 2, 2012, the court granted Mahler’s request to rescind his pro per status. Represented by retained counsel, Mahler entered a negotiated plea of guilty to voluntary manslaughter (§ 192, subd. (a)), added as amended count 3, and he admitted a firearm- use enhancement (§ 12022.5). In return, Mahler was to be sentenced to an aggregate state prison term of 21 years, consisting of the 11-year upper term for voluntary manslaughter, plus the 10-year upper term for the firearm-use enhancement, and a concurrent three-year term for assault with a firearm.2 At sentencing on April 27, 2012, the trial court heard Mahler’s motions, in which he maintained that his current plea constituted one rather than two strikes, that mitigating factors justified imposition of middle terms and that sentencing him to upper terms on the offense and the enhancement violated section 1192.7. The court denied the motions and sentenced Mahler in accordance with the plea agreement. The murder count was dismissed on the People’s motion. The court ordered Mahler to pay a $40 security fee and a $30 criminal conviction assessment on each count and a $4,000 restitution fine. The court imposed and