People v. Fambro CA3

Filed 6/30/25 P. v. Fambro CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C100125 Plaintiff and Respondent, (Super. Ct. No. 21FE019125) v. DONALD LAMONT FAMBRO, Defendant and Appellant. A jury found defendant Donald Lamont Fambro guilty of various counts of committing lewd and lascivious acts upon a minor victim, including six counts of forcible lewd acts. The trial court sentenced defendant to 137 years in state prison, including full, separate, and consecutive terms on the forcible lewd act counts. On appeal, defendant contends: (1) the trial court prejudicially erred in failing to provide a factual basis for finding the forcible lewd act counts were committed on separate occasions; (2) the trial court erroneously imposed full, separate, and consecutive terms on three forcible lewd act counts on the basis that they were committed on separate 1 occasions; (3) the trial court abused its discretion by declining to strike a prior strike conviction; and (4) the aggregate sentence constitutes cruel and unusual punishment. The People concede the trial court erred in finding two of the forcible counts were committed on separate occasions. We conclude defendant has forfeited his claim regarding failure to provide a factual basis. We accept the People’s concession regarding separate occasions and remand for resentencing on one of the forcible counts and for the opportunity for the trial court to reconsider defendant’s motion filed under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Due to the remand, defendant’s remaining contentions are moot. Statutory references are to the Penal Code and rule references are to the California Rules of Court. FACTUAL AND PROCEDURAL BACKGROUND 1. The garage incident Victim lived with her family and defendant, her sister’s boyfriend, in a house. Defendant and victim’s sister stayed in the attached garage that had been converted into a bedroom. The garage was furnished with a couch and a bed and had a door that led into the house. Victim recalled defendant touched her in the garage when she was 12 years old: “[H]e would pull me into the garage, put me on the couch, pull my pants down, and rub my butt and he would pull his pants down.” During that incident, defendant pulled victim from the hallway of the house into the garage. When they got into the garage, defendant put victim on the couch and pulled her shorts down. He then forced victim to lay on her stomach, pulled her buttocks up, and applied pressure to victim’s back to make it arch. With victim in that position, defendant pulled his pants down and started touching his penis. 2  During the incident, defendant also massaged victim’s back and buttocks, touched victim’s thighs, and rubbed his penis against victim’s vagina. 2. The charges The People charged defendant with seven counts of lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (a); counts 1-7); six counts of lewd and lascivious acts by force on a child under the age of 14 (§ 288, subd. (b)(1); counts 8-13); and one count of unlawful and knowing possession of an image depicting a person under the age of 18 engaging in and simulating sexual conduct (§ 311.11, subd. (a); count 14). The People further alleged: (1) defendant had substantial sexual contact with a victim under the age of 14 (§ 1203.066, subd. (a)(8)); and (2) defendant had a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike (§§ 667, subds. (b)-(i), 1170.12). As to aggravating sentencing factors, the People alleged: (1) the victim was particularly vulnerable (rule 4.21(a)(3)); (2) the manner in which the crimes were carried out indicates planning, sophistication, or professionalism (rule 4.421(a)(8)); (3) defendant took advantage of a position of trust or confidence to commit the crimes (rule 4.421(a)(11)); and (4) defendant was on probation when the crimes were committed (rule 4.421(b)(4)). Among the charges, counts 8 to 10 related to the garage incident. Count 8 alleged defen