Filed 5/15/13 P. v. Mahler CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v.
DAVID MAHLER,
Defendant and Appellant. B241517
(Los Angeles County Super. Ct. No. BA323719)

APPEAL from a judgment of the Superi or 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.

_____________ ______________2 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 tr ial court improperly instructed the jury on felony murder, reve rsed the murder convic tion, and remanded for further proceedings. ( People v. Mahler B220082 (Sept. 7, 2011) nonpub. opn.) Following remand, the trial court grante d 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 ente red a negotiated plea of guilty to voluntary manslaughter (§ 192, subd. (a)), added as am ended count 3, and he admitted a firearmuse 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 tria l court heard Mahler’s motions, in which he maintained that his current plea constituted one rather than two st rikes, 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 accordan ce with the plea agreemen t. The murder count was dismissed on the People’s motion. The court ordered Mahler to pay a $40 se curity fee and a $30 criminal conviction assessment on each count and a $4,000 re stitution fine. The court imposed and

1 Unless otherwise indicated, all further stat utory references are to the Penal Code.

2 The two-year term reflected in the abstract of judgment for assault with a firearm appears to have been clerical error. The abstract of judg ment is ordered corrected to conform to the trial court’s oral prono uncement of judgment and corresponding minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89.)3 suspended a parole revocation fine pursuant to section 1202.45. The court awarded Mahler 2,061 days of presen tence credit (1,792 actual days and 269 days of conduct credit). Mahler filed a timely notice of appeal in which he checked the preprinted box indicating, “[t]his appeal is based on the sentence or other matters that occurred after the plea” and attached a typed lis t of assertions attacking th e validity of his agreed-upon sentence. Mahler did not request a certificate of probable cause. We appointed counsel to re present Mahler on appeal.
After examination of the r ecord counsel filed an opening brief in which no issues were raised. On December 10, 2012, we advi sed Mahler he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has
been received to date. 3 A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause can only cha llenge the denial of a motion to suppress evidence or raise grounds arisi ng after the entry of the plea that do not affect the plea’s validity . (Cal. Rules of Court, rule 8.304(b)(1 ).) Mahler’s appeal is inoperative to the extent he is challenging the validity of hi s plea by challenging the sentence imposed in
accordance with the terms of hi s plea. The issues specific ally identified in Mahler’s typed attachment to his notice of appeal can only be construed as an attack on the validity of the plea itself, or are not germane to his co nviction or sentence or concern matters that are not supported in the record on appeal. With respect to other potential sentenci ng or post-plea issues that do not in substance challenge the validity of the plea it self, we have examined the record and are satisfied Mahler’s attorney ha s fully complied with the resp onsibilities of counsel and no arguable issue exists. ( Smith v. Robbins (2000) 528 U.S. 259, 2 77-284 [120 S.Ct. 746,

3 Counsel filed two motions, which this Court granted, for judicial notice (12/10/2012), and to augmen t the record (2/4/2013).4 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v

. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed. The superior co urt is directed to prepare and forward to the Department of Correcti ons and Rehabilitation an ame nded abstract of judgment changing Mahler’s sentence fo r assault with a firearm (count 2) from two years to three years to conform to trial court’s oral pronouncement of judgment.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.