Is a defendant's failure to object to a verdict form adding to count 2 in the multiple murder special circumstance sufficient to vacate his life without parole sentence?

Defendant forfeited this contention by failing to object in the trial court. (People v. Toro (1989) 47 Cal.3d 966, 976, overruled on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3 [failure to object to verdict form adding a previously uncharged offense is deemed implied consent to the new charge and a forfeiture of any objection based on lack of notice].) Defendant's failure to object to the submission of the verdict form for count 2 constituted implied consent to adding a reference to count 2 in the multiple murder special circumstance, and a forfeiture of any challenge on appeal.

In any event, any error in failing to mention count 2 in the multiple murder special circumstance as alleged in the information could not possibly have prejudiced defendant so as to require vacating his life without parole sentence. Although not expressly mentioned, count 2 was implicitly alleged as part of the multiple murder special circumstance: it applies only if the defendant is convicted of more than one murder in the same proceeding. Moreover, "In any one proceeding in which a [true] finding [on the multiple murder special circumstance] is made, the fact that a murder is one of multiple murders applies equally to all the murders of which the defendant is convicted" (People v. Garnica (1994) 29 Cal.App.4th 1558, 1563), and authorizes a capital sentence on each murder (id., at pp. 1563-1564). Thus, the immaterial failure to expressly mention count 2 in the multiple murder special circumstance does not require vacating defendant's life without parole sentence on that count.

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IV. Restitution Fine