I concur in the affirmance of the judgment as to guilt: my review of the record discloses no prejudicial error on that issue. I dissent, however, from the affirmance of the judgment as to penalty: in my opinion, the special circumstance findings must be set aside and the judgment of death must accordingly be reversed as unsupported as a matter of law.
At the guilt phase the trial court instructed the jury on the special circumstances of murder while lying in wait (Pen. Code, § 190.2, subd. (a)(15)) and murder by torture (id, § 190.2, subd. (a)(18)). As to the former, the court stated in relevant part: “To find that the [lying-in-wait] special circumstance ... is true, each of the following facts must be proved: []J] 1. That the defendant intentionally killed the victim, and [1J] 2. That the murder was committed while defendant was lying in wait .... [1f] Lying in wait requires the following elements: waiting, watching, and concealment. . . . [][] The element of concealment which is required in lying in wait may manifest itself either by an ambush or by the creation of a situation where the victim is taken unawares even though he sees his murderer. [][] While concealment is an element necessary before lying in wait can be applied, it is only a concealment which puts the defendant in a position of advantage from which it can be inferred that lying in wait was part of the defendant’s plan to take his victim by surprise.” As to the latter special circumstance, the court stated in relevant part: “To find that the [torture-murder] special circumstance ... is true, each of the following facts must be proved: []j] 1. That the murder was intentional, and [][] 2. That the murder involved the infliction of torture.”
Following deliberations at the guilt phase, the jury found each of the special circumstance allegations to be true and thereby determined that defendant was eligible for capital punishment. At the penalty phase they returned a verdict of death.
*574I believe that the lying-in-wait special circumstance finding must be vacated. The trial court erred by instructing the jury as it did on the allegation. I agree with the majority that the elements of the special circumstance are waiting, watching, and concealment. I cannot agree, however, “concealment” means anything other than actual physical concealment. In Richards v. Superior Court (1983) 146 Cal.App.3d 306 [194 Cal.Rptr. 120], the Court of Appeal held—consistently with reason and authority—that “ * “[t]he gist of ‘lying in wait’ is that the person places himself in a position where he is waiting and watching and concealed from the person killed with the intention of inflicting bodily injury upon'such person or of killing such person.” ’ ” (Id., at p. 316, quoting People v. Thomas (1953) 41 Cal.2d 470, 473 [261 P.2d 1], and adding italics.) Judged against this holding, the trial court’s instruction in this case effectively omitted the physical concealment element of the special circumstance and as a consequence was erroneous.
Further, the trial court’s error was prejudicial. In People v. Odle (1988) 45 Cal.3d 386, 410-415 [247 Cal.Rptr. 137, 754 P.2d 184], the court held that failure to instruct on an element of a special circumstance is subject to harmless error analysis under the harmless-beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065],1 As noted above, the trial court, in practical effect, failed to instruct on physical concealment. Having reviewed the record in its entirety, I am simply unable to declare a belief, beyond a reasonable doubt, that the jury would have found physical concealment had they been properly instructed. The reason is manifest: the evidence establishes without dispute that defendant was not physically concealed from the victim.
But even if the majority were correct in holding that the lying-in-wait special circumstance requires concealment of only the defendant’s true purpose and intent, I would nevertheless be compelled to conclude that the special circumstance finding must be vacated: insofar as it purports to serve as a predicate for the determination of death-eligibility, it is constitutionally invalid.
*575To withstand scrutiny under the Eighth Amendment as a valid predicate for the determination of death-eligibility, a special circumstance “ . . must . . . provide a “meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” ’ ” (Carlos v. Superior Court (1983) 35 Cal.3d 131, 151 [197 Cal.Rptr. 79, 672 P.2d 862], overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306]; see People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468].) Whether the basis for distinguishing between cases is “meaningful” depends on whether it serves the principal social goals of the death penalty: retribution and deterrence. (Carlos v. Superior Court, supra, 35 Cal.3d at p. 149.)
In my view, the lying-in-wait special circumstance does not pass constitutional muster. My reasons are as follows. First, this special circumstance does not distinguish the few cases in which the death penalty is imposed from the many in which it is not. Indeed, it is so broad in scope as to embrace virtually all intentional killings. Almost always the perpetrator waits, watches, and conceals his true purpose and intent before attacking his victim; almost never does he happen on his victim and immediately mount his attack with a declaration of his bloody aim. Second, the lying-in-wait special circumstance does not provide a meaningful basis for distinguishing between murderers who may be subjected to the death penalty and those who may not. To my mind, the killer who waits, watches, and conceals is no more worthy of blame or sensitive to deterrence than the killer who attacks immediately and openly.
Further, I believe that the torture-murder special circumstance finding must also be vacated. Like the majority, I am of the opinion that the trial court erred by instructing the jury as it did: intent to torture—i.e., intent to inflict extreme physical pain—is an element of this special circumstance (People v. Davenport (1985) 41 Cal.3d 247, 260-271 [221 Cal.Rptr. 794, 710 P.2d 861]); the court, however, failed to so instruct. But unlike the majority I cannot conclude the error was harmless. Having reviewed the record in its entirety, I am simply unable to declare a belief, beyond a reasonable doubt, that the jury would have found an intent to inflict extreme physical pain had they been properly instructed. The evidence is clear in showing that defendant intended to kill the victim: his use of the belt, the hammer, and the knife compels the conclusion. But the evidence is far from clear in revealing whether he intended to inflict extreme physical pain.
Indeed, on defendant’s motion for new trial the trial court expressly found that there was “insufficient credible evidence” to support a finding that defendant intended to inflict extreme physical pain, and as a result *576vacated what it took to be the jury’s implied verdict or finding of guilty of murder by torture. The court stated as follows.
“If somebody wants to cause torture he doesn’t use a belt. That’s the first thing the defendant did was try and strangle the victim with a belt. It was a rather clumsy attempt. The belt broke and so he went on to the hammer. And each of the—each of the blows with a hammer it appears to me to be more consistent with an attempt to kill than an attempt to simply cause pain. They were all in the head area. Again, a clumsy attempt.
“He couldn’t accomplish his objective with a hammer so then he eventually used the knife and finally rendered the victim dead with the knife.
“But we don’t have any of these elements that we do in the other cases that support the intent element where we have wounds to an area of the body which would be nonfatal. And simply the statement that the defendant wanted to hurt the girl I don’t think raises these clumsy attempts to kill to an indication of an intent to inflict pain separate and apart from the killing.”
The majority assert that the jury impliedly found that defendant was guilty of murder by torture and hence impliedly found that he acted with intent to inflict extreme physical pain. The assertion is without basis. As the Attorney General himself argues, the jury made no finding, express or implied, on murder by torture: they merely found that the victim “was aware of extreme physical pain inflicted” by defendant. Such a finding, of course, implies neither a verdict of guilty of murder by torture in general nor a finding of intent to inflict extreme physical pain in particular.
The majority state: “we may conclude the jury necessarily or impliedly found a torture murder—otherwise there would have been no purpose in its special finding regarding the victim’s awareness of the extreme physical pain inflicted by defendant.” (Maj. opn. at p. 562, ante.) They are wrong. The jury made the finding because the trial court directed them to expressly resolve the issue of awareness of extreme physical pain. And the trial court directed them to do so because it perceived “some problem with the language in the [standard] torture special circumstance instruction,” and desired to preserve a finding of true—if such a finding was made—against invalidation on appeal.2
*577But even if the jury could be understood to have impliedly found that defendant intended to inflict extreme pain on the victim, its “finding” was vacated by the trial court. In deciding whether to set aside a verdict or finding on motion for new trial, the trial court “has very broad discretion and is not bound by conflicts in the evidence, and reviewing courts are reluctant to interfere with [its] decision . . . unless there is a clear showing of an abuse of discretion.” (People v. Robarge (1953) 41 Cal.2d 628, 633 [262 P.2d 14].) In this case the trial court plainly acted within the broad scope of its discretion and cannot be shown to have committed any abuse.
For the foregoing reasons, I would vacate the special circumstance findings and accordingly reverse the judgment of death as unsupported as a matter of law.
In a concurring opinion in People v. Kimble (1988) 44 Cal.3d 480 [244 Cal.Rptr. 148, 749 P.2d 803], I expressed the view that failure to instruct on an element of a special circumstance is automatically reversible, subject to the following exceptions: (1) the erroneous instruction was given in connection with a special circumstance allegation that was not found true; (2) the defendant conceded the issue underlying the omitted element; and (3) the issue was necessarily resolved adversely to the defendant under other, properly given instructions. (Id., at pp. 517-526 (conc. opn. of Mosk, J.).) I continue to adhere to that view as a matter of personal belief. I have not succeeded, however, in persuading my colleagues of the soundness of my position. After reflection, I have decided not to beat a rataplan. Accordingly, I join the majority in concluding that failure to instruct on an element of a special circumstance is subject to harmless error analysis under the Chapman test, but do so only under compulsion of People v. Odle, supra, 45 Cal.3d 386.
The language the trial court found problematic was the following: “To prove the infliction of torture, the infliction of extreme physical pain must be proved no matter how long its duration. [][] Awareness of pain by the deceased is not a necessary element of torture.” The court evidently believed that “pain” necessarily entailed awareness of pain on the part of the sufferer.