(concurring) — I concur in the majority's result. I write separately, however, to emphasize our adherence to the analysis set forth in In re Haverty, 101 Wn.2d 498, 681 P.2d 835 (1984) and In re Hagler, 97 Wn.2d 818, 650 P.2d 1103 (1982).
Petitioner challenges the constitutionality of two jury instructions used in his 1969 conviction of first degree murder. He claims that the challenged instructions are erroneous under Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). He asks us to apply Sandstrom retroactively and to grant his personal restraint petition based on the erroneous instructions. Since petitioner is unable to show actual and substantial prejudice resulting from the use of the instructions, however, his petition is properly denied.
In 1969, petitioner was convicted of one count of robbery, three counts of attempted robbery and felony murder. At trial, petitioner attempted to prove that he was either too intoxicated to formulate the requisite intent for robbery or that he could not comprehend his acts and did not know right from wrong when he attempted to rob the slain victim. The following jury instructions, which are now chai-*195lenged, were given by the trial court:
No. 9
The court instructs the jury 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.
No. 25
The law presumes every man to be sane and mentally responsible, and to intend the natural and probable consequences of his acts, until the contrary is shown.
The burden of proving insanity as a defense to a crime rests upon the defendant to establish by a preponderance of the evidence, and unless insanity is established by a fair preponderance of the evidence, the presumption of sanity must prevail.
These instructions were not challenged on direct appeal. This court affirmed petitioner's conviction on all counts. State v. Music, 79 Wn.2d 699, 489 P.2d 159 (1971). After the United States Supreme Court vacated the death sentence in Music v. Washington, 408 U.S. 940, 33 L. Ed. 2d 764, 92 S. Ct. 2877 (1972), petitioner was resentenced to life imprisonment for the murder conviction, to run concurrently with the sentences on the other convictions for robbery and attempted robbery.
In 1979 the United States Supreme Court held an instruction nearly identical to that used in petitioner's trial unconstitutional. Sandstrom v. Montana, supra. The Court held that a jury instruction which creates either a conclusive or burden shifting presumption with respect to an element of a crime for which there must be specific intent conflicts with the presumption of innocence to which every person is constitutionally entitled. Such an instruction has the effect of relieving the State of its obligation to prove every element of a crime beyond a reasonable doubt. Sandstrom, 442 U.S. at 524. In 1980 this court followed Sandstrom and declared unconstitutional an instruction essentially identical to instruction 9 above. State v. Cald*196well, 94 Wn.2d 614, 618 P.2d 508 (1980).
Instructions 9 and 25 given in petitioner's trial contain the presumed intent language condemned in Sandstrom. Petitioner argues that Sandstrom and Caldwell should be applied to overturn his murder conviction.
Even if we assume that it was error for the challenged instructions to be given, the petitioner is not automatically entitled to relief. A personal restraint petitioner has the burden of proving that any constitutional error committed at trial caused actual and substantial prejudice. In re Hag-ler, supra. In cases such as this, we have in the past determined whether the required prejudice existed before we reached the question of whether to apply Sandstrom. In re Hagler, supra; In re Haverty, supra.
Actual prejudice must be determined in light of the totality of circumstances. This court will consider the jury instructions given, the arguments of counsel, the weight of evidence of guilt, and other relevant factors in evaluating whether a particular instruction caused actual prejudice. In re Gunter, 102 Wn.2d 769, 689 P.2d 1074 (1984). The ultimate question for this court is whether the giving of the Sandstrom-offending instruction so infected petitioner's entire trial that the resulting conviction violates due process. In re Lile, 100 Wn.2d 224, 668 P.2d 581 (1983).
Petitioner argues that instructions 9 and 25 actually prejudiced him because they might have been understood by the jury to be conclusive on the issue of intent, or to shift the burden of proof on that issue. Specifically, as to instruction 25, petitioner argues that the presumed intent phrase, in combination with the presumption of sanity instruction, caused him actual prejudice because the jury would reasonably assume, from the wording of the instruction, that petitioner had the burden of proof on intent as well as insanity.
A careful review of the record shows that the potential harm engendered by instructions 9 and 25 did not actually prejudice petitioner's trial. First, as to instruction 9, other jury instructions clearly informed the jury that it could not *197convict petitioner if it found that he was "intoxicated to such a degree that he is not capable of forming a specific intent . . Instructions 10 and 11, immediately following the offensive instruction 9, made this point very plainly. Notably, petitioner concedes in his brief that he likely cannot prove actual prejudice as to instruction 9, because instructions 10 and 11 clearly stated that presumed intent is inapplicable if petitioner was too intoxicated to form intent. See In re Haverty, supra, where this very question was decided against petitioner.
Second, the evidence on the issue of petitioner's intent to rob Traice Walters is substantial. Two young men actually involved in the crimes with petitioner testified at petitioner's trial. Both of these men stated that all four occupants of the car, including petitioner, had the specific intent to rob Traice Walters and his companion of their leather jackets at the time they encountered the two victims. The testimony of these two companions was that Walters ran away from the car prior to any demand for his jacket; petitioner shot him in the back. Petitioner then robbed Walters' companion of his leather jacket and fired one shot in his direction as he ran away. The robbery of Walters' companion, immediately after the shooting of Walters, is further evidence of petitioner's intent to rob Walters also. Additionally, petitioner and his companions had been involved in several robbery attempts earlier that day and were involved in a robbery after the encounter with Walters and his companion.
The testimony that petitioner was so intoxicated that he could not form intent was very slight. Conversely, there was strong evidence that he did form such an intent. In view of the totality of evidence and the overall instructions, petitioner has failed to prove that the presumed intent instruction in instruction 9 so infected his trial as to deny him the due process of law.
Similarly, the repetition of the Sandstrom-offending phrase in instruction 25 caused no actual prejudice. The jury was clearly instructed that the State had the burden of *198proof on each element of attempted robbery and that a reasonable doubt as to any element must result in petitioner's acquittal. Instruction 13. The jury was also instructed that the first element of attempted robbery is that defendant acted "willfully, unlawfully and feloni-ously". Instruction 16. In instruction 12, the terms willfully, unlawfully and feloniously were defined for the jury as "intentionally and purposely". Thus, the jury was clearly instructed that the State had the burden of proof on the element of intent. Although the general instruction on presumption of innocence and proof beyond a reasonable doubt (instruction 2) is alone insufficient to remedy a Sandstrom-offending instruction, State v. Caldwell, supra at 617, the overall instructions which reiterated the State's burden of proof on the element of intent, together with the very substantial evidence of petitioner's specific intent, indicate that petitioner cannot show actual prejudice from the mixed instruction given in instruction 25.
Furthermore, instruction 25 did not prejudice petitioner's insanity defense by mixing the issue of intent into the instruction. Petitioner does not challenge the rule that he, as the defendant, carried the burden of proof on the issue of insanity. The insanity instructions correctly stated that petitioner had that burden of proof. The presumed intent phrase of the instruction, now objected to by petitioner, imposed no additional burden upon him in presenting his insanity defense. Significantly, the jury was clearly instructed that it must acquit petitioner if it found that he could not comprehend his acts and did not know right from wrong when he attempted to rob Walters. Instruction 24.
A voluminous amount of expert testimony was offered by each side on the question whether petitioner could comprehend his acts and whether he knew right from wrong. Petitioner's expert witness expressed the opinion that petitioner did not know right from wrong at the moment the robbery of Walters and his companion was being planned by the group, but that he did know it was wrong to shoot a person when he shot Walters moments later. Because peti*199tioner was charged under the felony-murder rule, the relevant point in time for him to be capable of distinguishing right and wrong was during the robbery, not the shooting.
The State's expert testified that, in his professional opinion, it was not possible to so sharply demarcate petitioner's cognitive ability as to say that petitioner knew right from wrong at one point during the incident but not at another point. This expert testified that petitioner knew right from wrong at all relevant times that evening. The jury, in rejecting the insanity defense, evidently agreed with this expert witness that petitioner had not proven his insanity.
In sum, petitioner has not shown that the giving of instruction 9 actually prejudiced his trial. Similarly, he has not shown that the part of instruction 25 related to intent prejudiced his trial. Further, petitioner's insanity defense was not compromised by the mixed instruction on presumption of sanity and presumption of intent. Petitioner's failure to meet the threshold burden of showing actual and substantial prejudice arising from the use of the challenged instructions makes it unnecessary for us to address the issue of whether Sandstrom v. Montana, supra, and State v. Caldwell, supra, should be applied retroactively to his convictions.
Under the above Hagler-Haverty analysis, I concur.
Utter, Pearson, and Goodloe, JJ., concur with Brach-tenbach, J.