Filed 3/12/13 P. v. Casio CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

VINCENT ROBERT CASIO,

Defendant and Appellant.

 B239547

 (Los Angeles County Super. Ct.

 No. GA076492)

APPEAL from a judgment of the Superior Court of Los Angeles County, Teri 

Schwartz, Judge. Affirmed as modified.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Allison H. 

Chung, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________
2

The jury convicted defendant and appellant Vincent Robert Casio in counts 1 

and 2 of murder (Pen. Code § 187, subd. (a)),1in counts 3-6 of premeditated attempted 

murder (§§ 187, subd. (a), 664), and in count 9 of possession of a firearm by a felon 

(§ 12021, subd. (a)(1)).2 As to the murder counts, the jury found true the multiple murder 

special circumstance (§ 190.2, subd. (a)(3)) and gang special circumstance (§ 190.2, 

subd. (a)(22)). The jury found true allegations that defendant personally and intentionally 

discharged a handgun within the meaning of section 12022.53, subdivisions (b)-(d). As 

to counts 1-6 and 9, the jury found true the allegations that defendant committed the 

offenses for the benefit of, at the direction of, and in association with a criminal street 

gang with the specific intent to promote, further, and assist in criminal conduct by gang 

members (§ 186.22, subds. (b)(1)(B), (b)(1)(C)). As to count 9, the jury additionally 

found true the gang allegation pursuant to section 186.22, subdivision (b)(1)(A).

The trial court sentenced defendant to 145 years to life in state prison, plus two life 

terms without the possibility of parole, plus four life terms with the possibility of parole. 

The court ordered that defendant serve a minimum of 15 years on each of the four life 

terms.3

Defendant contends the life sentences on each of his four attempted murder 

convictions (counts 3-6) must be reversed because the prosecution failed to plead that the 

offenses were committed with premeditation and deliberation.

We affirm the judgment.

 

1 All further statutory references are to the Penal Code, unless otherwise stated.

2 Defendant was found not guilty of false imprisonment by violence (§ 236) in 

counts 7 and 8.

3 The trial court dismissed the allegations that defendant suffered prior prison terms 

within the meaning of section 667.5, subdivision (b) as to all counts, on the prosecution‟s 

motion.
3

DISCUSSION4

Where it has been pleaded and proven that an attempted murder was willful, 

deliberate, and premeditated, section 664, subdivision (a) provides for an increase in the 

maximum determinate term to a life sentence. (People v. Arias (2010) 182 Cal.App.4th 

1009, 1011, fn. 2 (Arias).) The statute specifically requires that “[t]he additional term 

provided in this section for attempted willful, deliberate, and premeditated murder shall 

not be imposed unless the fact that the attempted murder was willful, deliberate, and 

premeditated is charged in the accusatory pleading and admitted or found to be true by 

the trier of fact.” (§ 664, subd. (a).) Additional to the pleading requirements contained in 

section 664, the federal Constitution requires that “the accused . . . be informed of the 

nature and cause of the accusation” (U.S. Const., 6th Amend.), such that he/she is 

afforded a reasonable opportunity to prepare a defense. (People v. Jones (1990) 51 

Cal.3d 294, 317 (Jones).) This includes fair notice of allegations that will increase the 

defendant‟s punishment, including section 664, subdivision (a) allegations. (People v. 

Houston (2012) 54 Cal.4th 1186, 1227 (Houston).)

The Attorney General does not contest that the information and amended 

information failed to allege the attempted murders were deliberate and premeditated but 

contends defendant has forfeited this claim by failing to object, despite having fair notice 

of the allegations. We agree. Fair notice may be accomplished by various means, as was 

the case here. (See, e.g., Jones, supra, 51 Cal.3d at pp. 317-318.)

None of three versions of the information against defendant included allegations 

that any of the four attempted murders charged were willful, deliberate, and 

premeditated. Before the close of its case-in-chief, however, the prosecution provided a 

list of jury instructions to the trial court and opposing counsel, including Judicial Council 

 

4 Because the facts of the case are not relevant to the issue on appeal, we do not 

recount them here.
4

of California Criminal Jury Instructions (2009-2010) CALCRIM No. 601 (Attempted 

Murder: Deliberation and Premeditation), as follows:

“If you find the defendant guilty of attempted murder, you must then decide 

whether the People have proved the additional allegation that the attempted murder was 

done willfully, and with deliberation and premeditation.

“The defendant acted willfully if he intended to kill when he acted. The defendant 

deliberated if he carefully weighed the considerations for and against his choice and, 

knowing the consequences, decided to kill. The defendant premeditated if he decided to 

kill before acting.

“The attempted murder was done willfully and with deliberation and 

premeditation if either the shooter or both perpetrators acted with that state of mind.

“The length of time the person spends considering whether to kill does not alone 

determine whether the attempted killing is deliberate and premeditated. The amount of 

time required for deliberation and premeditation may vary from person to person and 

according to the circumstances. A decision to kill made rashly, impulsively, or without 

careful consideration of the choice and its consequences is not deliberate and 

premeditated. On the other hand, a cold, calculated decision to kill can be reached 

quickly. The test is the extent of the reflection, not the length of time.

“The People have the burden of proving this allegation beyond a reasonable doubt. 

If the People have not met this burden, you must find this allegation has not been 

proved.” 

The trial court discussed proposed modifications to CALCRIM No. 601 with 

counsel prior to the close of the prosecution‟s case. Defense counsel did not object to 

inclusion of the instruction.5

The verdict forms submitted to the jury as to counts 3-6 included the allegation 

that the attempted murders were done willfully, and with deliberation and premeditation. 

 

5 The only modification made was to replace the words “the defendant or both of 

them” in paragraph three with “the shooter or both perpetrators.”
5

The trial court asked defense counsel if he had any objection to the verdict forms, and he 

responded that he did not. The jury expressly found true the allegations that the 

attempted murders charged in counts 3-6 were committed willfully, deliberately, and with 

premeditation. 

The prosecutor‟s sentencing memorandum sought imposition of a life term on all 

four attempted murder convictions. The trial court sentenced defendant to a consecutive 

life term on each count of attempted murder without objection. 

We agree with the Attorney General that the instant case is more closely 

analogous to Houston, supra, 54 Cal.4th 1186, than it is to Arias, supra, 182 Cal.App.4th 

1009, upon which defendant relies. 

In Arias, the information charged the defendant with two counts of attempted 

murder, but, as in this case, failed to allege that the attempted murders were willful, 

deliberate, and premeditated, or to reference section 664, subdivision (a). (Arias, supra, 

182 Cal.App.4th at p. 1017.) The information was never amended to include the 

allegations. (Ibid.) Without objection from either of the parties, the jury was instructed

that if it found defendant guilty of attempted murder, it must then determine whether the 

attempted murders were willful, deliberate, and premeditated. (Ibid.) The verdict forms, 

which were also submitted to the jury without objection, did not state that the jury must 

make a separate finding as to whether each attempted murder was willful, deliberate, and 

premeditated. (Ibid.) Instead, the verdict forms required the jury‟s finding as to whether 

the defendant was guilty of “first degree attempted murder,” although attempted murder 

is not divided into degrees. (Ibid.) The jury found the defendant guilty of “first degree 

attempted murder” as to both counts. (Ibid.) At sentencing, the trial court imposed life 

imprisonment on the basis of the “first degree attempted murder” convictions. (Ibid.) 

We held in Arias that the defendant‟s claim had not been forfeited and ordered the 

trial court to strike the section 664, subdivision (a) sentencing enhancements, remanding 

the matter for further sentencing. (Arias, supra, 182 Cal.App.4th at pp. 1021-1022.) We 

based our decision on the fact that the defendant was given no notice of the section 664, 

subdivision (a) enhancement, and we concluded “[t]his was no mere formal defect in 
6

information,” but rather an omission that prejudiced a substantial right. (Id. at p. 1020.) 

We held that neither abuse of discretion nor harmless error standards of review were 

applicable, distinguishing the case from those in which the charging document was 

amended during trial. (Ibid.)

In Houston, our Supreme Court held that the defendant forfeited his claim that his 

life sentences for attempted murder must be reversed because “defendant received 

adequate notice of the sentence he faced, and the jury made an express finding that the 

attempted murders were willful, deliberate, and premeditated.” (Houston, supra, 54 

Cal.4th at p. 1228.) As in this case and Arias, the information failed to allege the 

attempted murders were deliberate and premeditated. (Id. at p. 1226.) Also like Arias

and the instant case, the trial court in Houston issued instructions that included an 

instruction on willful, deliberate, and premeditated attempted murder. (Id. at p. 1227.) In 

contrast to Arias, however, the trial court in Houston issued verdict forms including 

willful, deliberate, and premeditated attempted murder as a special finding. (Ibid.) 

Additionally, during the presentation of the defendant‟s case, the trial court noted the 

defendant faced life imprisonment and asked the parties if there were any objections to 

the instructions or verdict forms. (Ibid.) Neither party objected. (Ibid.) The trial court 

instructed the jury as to willful, deliberate, and premeditated attempted murder and 

indicated that the verdict forms contained a special finding on the issue. (Ibid.) The jury 

expressly found defendant guilty of willful, deliberate, and premeditated attempted 

murder, and the defendant was sentenced in accordance. (Id. at pp. 1227-1228.) 

Defendant did not object at any time. (Ibid.)

The Houston court declined to decide whether we erred in Arias by holding the 

defendant had preserved his claim that the indictment was inadequate. (Houston, supra, 

54 Cal.4th at p. 1229.) Houston distinguished Arias on the basis that in Arias, it was not

clear when the jury instructions and verdict forms were issued, or whether the parties had 

discussed the issue of the section 664, subdivision (a) allegations, and the jury had not 

expressly found that the murders were willful, deliberate, and premeditated. (Ibid.) 

Houston reasoned that the defendant had fair opportunity to object to the instructions or 
7

jury forms at many times during the proceedings, but had failed to do so, depriving the 

trial court of the opportunity to hear argument on whether the information should be 

amended, and remedy the situation appropriately. (Id. at pp. 1227-1228.) Accordingly, 

Houston held that the defendant had forfeited his claim. (Id. at p. 1229.)

The circumstances here are the same. Although the information was inadequate, 

defendant had fair notice of the prosecutor‟s intent to pursue the finding and sufficient 

time to object. Counsel specifically discussed modifications to CALCRIM No. 601 prior 

to the close of the prosecution‟s case, but there were no objections to its inclusion. 

Because a minor modification was made, as noted above, it is clear that the defense had 

actual notice of the instruction and therefore had notice of the allegations as well. There 

were numerous discussions regarding jury instructions, and counsel were specifically 

asked whether they objected to the verdict forms, which included the special findings. 

Moreover, here the jury expressly found defendant guilty of willful, deliberate, and 

premeditated attempted murder in counts 3-6, whereas in Arias the jury convicted the 

defendant of “first degree attempted murder,” a crime which did not exist. We therefore 

hold that under the reasoning of Houston, defendant has forfeited his claim that his four 

life sentences must be reversed due to defects in the charging document.

SUPPLEMENTAL BRIEFING

Defendant filed a supplemental letter brief requesting that we order the trial court 

to amend the awards of direct victim restitution against him and codefendant Sean 

Martinez to reflect the imposition of joint and several liability. 

Defendant and Martinez were tried together but sentenced separately. There was a 

delay in receipt of the verdicts as to Martinez, and defendant‟s record on appeal does not 

indicate the jury‟s disposition as to any of the counts with respect to Martinez. In fact, 

Martinez was convicted of the same charges, with the exception of felon in possession of 
8

a firearm (§ 12021, subd. (a)(1) (count 9)) for which only defendant was convicted.6 On 

February 28, 2011, the trial court ordered defendant to pay direct victim restitution in the 

amount of $36,990.89 plus ten percent interest to the Victim‟s Compensation Board, and 

$1,669.54 to Nicole Richards for out-of-court funeral expenses (§ 1202.4, subd. (f)). 

Martinez was ordered to pay $38,530.89 to the Victim‟s Compensation Board and 

$1,669.54 to Nicole Richards for out-of-court funeral expenses (§ 1202.4, subd. (f)) at 

sentencing on July 10, 2012. 

Section 1202.4, subdivision (f), states in relevant part, “in every case in which a 

victim has suffered economic loss as a result of the defendant‟s conduct, the court shall 

require that the defendant make restitution to the victim or victims in an amount 

established by court order.” Defendant argues that the order for restitution in his case 

should have been made joint and several with the order in Martinez‟s case to avoid 

multiple reimbursement for a single expense, which would result in a windfall to the 

victims‟ families.

Defendant forfeited his claim by failing to object below. (People v. O’Neal (2004) 

122 Cal.App.4th 817, 820.) “[A]ll „claims involving the trial court‟s failure to properly 

make or articulate its discretionary sentencing choices‟ raised for the first time on appeal 

are not subject to review. [Citations.]” (People v. Smith (2001) 24 Cal.4th 849, 852 

(Smith).) Relying on People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 

(Blackburn), defendant argues the sentence was unauthorized, and as a result, his claim 

was not forfeited. Defendant‟s reliance is misplaced. First, Blackburn did not address 

forfeiture by failure to object and “[i]t is axiomatic that an opinion does not stand for a 

proposition the court did not consider.” (People v. Taylor (2010) 48 Cal.4th 574, 626.) 

Moreover, the unauthorized sentence exception only applies to sentences that could not 

be lawfully imposed under any circumstance, where it is unnecessary to review the 

factual findings of the trial court, and where there is no need to remand the matter to the 

 

6 Codefendant Martinez‟s appeal is separately pending in case No. B242591.
9

trial court. (Smith, supra, at p. 852; People v. Brach (2002) 95 Cal.App.4th 571, 578.) 

The exception does not apply here.

Even if defendant had not forfeited his claim by failing to raise it, it is without 

merit. Although Blackburn held that a trial court has “the authority to order direct victim 

restitution paid by both defendants jointly and severally[,]” neither Blackburn nor the 

other cases defendant cites stand for the proposition that the court must order joint and 

several liability. (Blackburn, supra, 72 Cal.App.4th at p. 1535; People v. Neely (2009) 

176 Cal.App.4th 787, 800; People v. Madrana (1997) 55 Cal.App.4th 1044, 1049-1052 

(Madrana).)

Section 1202.4, subdivision (j) provides that restitution paid “shall be credited to 

any other judgments for the same losses obtained against the defendant arising out of the 

crime for which the defendant was convicted.” “The court in People v. Zito [8 

Cal.App.4th 736, 745] construed the term „defendant‟ to include „codefendants.‟ 

[Citation.] Thus if the combined payments made by multiple defendants exceed the 

victim‟s loss, each defendant would be entitled to a pro rata refund of any overpayment.” 

(People v. Arnold (1994) 27 Cal.App.4th 1096, 1100 (Arnold).) Although Arnold

discussed an earlier statute (Gov. Code, § 13967, subd. (c)), the language of the two 

versions of the law is sufficiently similar for its interpretation to be applicable here. 

(Madrana, supra, 55 Cal.App.4th at pp. 1050-1051.) Because the law protects defendant 

against overpayment to the victims, we conclude there was no error meriting a remedy on 

appeal.

In her response to defendant‟s letter brief, the Attorney General correctly notes 

that the abstract of judgment does not include the ten percent interest on the $36,990.89 

restitution to the Victim‟s Compensation Board ordered by the trial court at sentencing.7 

We order the abstract of judgment modified to conform to the court‟s pronouncement. 

(People v. Mitchell (2001) 26 Cal.4th 181, 185.)

 

7 The abstract of judgment reflects a total restitution amount of $38,660.43, the total 

of the $36,990.89 restitution to the Victim‟s Compensation Board and the $1,669.54 to 

Nicole Richards.
10

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment, corrected to 

include the ten percent interest of $3,699.09 on the $36,990.89 restitution to the Victim‟s 

Compensation Board, for a total restitution of $42,389.52, including the $1,669.54 in 

restitution to Nicole Richards, and to forward a certified copy of the amended abstract of 

judgment to the Department of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.