People v. Fainkina CA2/7

Filed 7/22/14 P. v. Fainkina CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B251130

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA085985) v.

NATALYA FAINKINA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael D. Carter, Judge. Affirmed as modified.

Dee A. Hayashi, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________

During a parole search of Natalya Fainkina, police officers found stolen credit cards in her wallet. They also found a small plastic bag containing methamphetamine in her car. The People filed an information charging Fainkina with transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and theft of access cards or account information (Pen. Code, § 484e, subd. (d)) with special allegations she had suffered one prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), had served six separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)) and had suffered one prior drug-related conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). Fainkina pleaded not guilty and denied the special allegations. Fainkina entered an open plea of no contest orally and in writing to both counts and admitted the prior strike and prior conviction allegations for an indicated sentence of seven years four months. At the time she entered her plea, Fainkina was advised of her constitutional rights and the nature and consequences of the plea, which she stated she understood. Defense counsel joined in the waivers of Fainkina’s constitutional rights. The trial court expressly found Fainkina’s waivers and plea were voluntary, knowing and intelligent. The trial court scheduled a sentencing hearing and agreed to release Fainkina on her own recognizance under the terms of a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5). In accordance with that waiver, Fainkina acknowledged that she understood and agreed that if she appeared for sentencing, she would receive an aggregate state prison term of seven years four months and the one-year prior prison term enhancements would be dismissed, but that if she failed to appear for sentencing, she could receive a state prison term of up to 16 years four months at the trial court’s discretion. Fainkina did not appear for sentencing, and the trial court ultimately sentenced her to an aggregate state prison term of nine years four months: four years (two-year lower term doubled under the three strikes law) for transporting a controlled substance, 16 months (one-third the middle two-year term doubled) for theft of access cards or account