George E. Griffith was convicted of first degree murder and second degree assault on November 25, 1975. This court affirmed his conviction in State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979). In this personal restraint petition, Griffith contends the rule in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979) should apply retroactively and his convictions should be set aside. We decline to reach the Sandstrom issue and deny the petition.
Decision
At trial, petitioner had argued that his history of mental disorders prevented his forming a requisite intent to kill and, therefore, he was incapable of forming intent to establish premeditation, a required element of first degree murder. In the original trial, the prosecuting attorney and defense counsel agreed upon the following instruction on intent which was submitted to the jury.
You are instructed that the law presumes that every man intends the natural and probable consequences of his own acts. It is not necessary to establish intent by direct and positive evidence, but intent may be established by inference and in the same way as any other fact by taking into consideration the acts of the parties and all the facts and circumstances of the case.
"Intent" is a mental condition or process and may be shown by direct proof of [sic] may be derived from and established by the attendant facts and circumstances as shown by the evidence.
In determining the question of the intent of the defendant, you may consider the consequences of the act or acts, the circumstances surrounding the commission of the act or acts, and the ability of the defendant to form the intent to commit the crimes as charged.
(Italics ours.) Report of Proceedings, at 634.
In 1979, 4 years after petitioner's trial, the United States Supreme Court held that an instruction stating
"the law presumes that a person intends the ordinary consequences of his voluntary acts,"
violates the Fourteenth Amendment's requirement that the *102State prove every element of a criminal offense beyond a reasonable doubt. Sandstrom v. Montana, supra at 512. This court subsequently held such an instruction unconstitutional in State v. Caldwell, 94 Wn.2d 614, 618 P.2d 508 (1980).
We decline to address the retroactivity of Sandstrom in the instant case. Petitioner proposed the challenged instruction, and he cannot now complain it was error. In re Haynes, 95 Wn.2d 648, 628 P.2d 809 (1981), overruled on other grounds in In re Hews, 99 Wn.2d 80, 660 P.2d 263 (1983); State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979).
Petitioner contends he should not be held to have requested the instruction because the tainted language involving presumption of intent was offered by both the prosecution and the defense. Since the instruction had been approved by this court at the time of petitioner's trial, State v. Mays, 65 Wn.2d 58, 395 P.2d 758 (1964), cert. denied, 380 U.S. 953 (1965), he argues the trial court inevitably would have given the instruction based on the State's request. Petitioner argues that he requested his version of the instruction in order to place it before the jury in a more favorable form. United States v. Squires, 440 F.2d 859 (2d Cir. 1971).
In United States v. Squires, supra, the Second Circuit Court of Appeals held that a defendant did not waive his right to challenge an instruction which he had requested at trial in response to a similar but less favorable instruction proposed by the prosecution. The Squires court observed that the defendant proposed his instruction only after it became apparent that a government-submitted charge was about to become accepted. Petitioner, however, fails to point out on the record in the instant case where he proposed a more favorable instruction than the prosecutor.
Conclusion
The subject instruction given is one which petitioner Griffith proposed. He cannot now challenge his own pro*103posed instruction. State v. Boyer, supra. We deny petitioner's personal restraint petition.
Rosellini, Brachtenbach, Dolliver, and Dimmick, JJ., concur.
Stafford and Pearson, JJ., concur in the result.