I concur with the majority opinion to the extent it affirms defendant’s conviction of first degree murder and other lesser offenses. I dissent, however, to the setting aside of the special circumstances finding and reversal of the judgment of death.
The majority relies upon People v. Garcia (1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826], and Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], in concluding that the failure to instruct the jury regarding intent to kill was prejudicial error requiring us to set aside the special circumstances finding. For reasons I have previously explained, I strongly disagree with the holdings in those cases. (See People v. Whitt (1984) 36 Cal.3d 724, 749 [205 Cal.Rptr. 810, 685 P.2d 1161] [dis. opn.].) But even if these cases were correctly decided, they do not require setting aside the special circumstances finding here.
As the majority explains, under the evidence in this case defendant was either the actual killer or an accomplice. If he was an accomplice, the jury was specifically instructed that an intent to kill was a prerequisite to a special circumstances finding, thereby satisfying Carlos’ demands. If he was the actual killer, an intent to kill was demonstrated as a matter of law by his act of firing five shots at point blank range into the chest area of the Brinks guard, victim Martinez. (A sixth cartridge had been struck but failed to fire.) No contrary intent evidence worthy of consideration was submitted by defendant. Accordingly, any Carlos error under the “actual killer” theory was clearly harmless. (See Garcia, supra, 36 Cal.3d at p. 556.)
The majority nonetheless speculates that defendant might have presented available evidence negating an intent to kill had he realized that such an intent was required even as to the actual killer. To the contrary, it is simply inconceivable that any such evidence existed, for if it did, defendant had a dual incentive to present it. First, such evidence was crucial in the event *643the jury determined that defendant was merely an accomplice rather than the triggerman, a hotly disputed issue at trial. As indicated above, the jury was specifically told that an intent to kill was required in order to sustain the special circumstances allegation against an accomplice.
Second, lack of an intent to kill would have been a strong mitigating factor at the penalty phase of the trial. (See Pen. Code, § 190.3, subds. (a) [circumstances of the crime], (d) [extreme mental or emotional disturbance], (f) [reasonable belief killing was justified], (g) [extreme duress], (h) [impaired capacity to appreciate criminality of conduct or conform to law], and (k) [any other extenuating circumstance].) Yet, as the majority observes, defendant’s penalty phase evidence was limited to general character and background evidence. Can there be any reasonable doubt whatever that defendant would have presented evidence bearing on his lack of intent to kill had there been any such evidence to present?
My colleagues continue to reverse capital cases on Carlos/Garcia grounds despite the fact that in most of these cases it is readily apparent that the defendant possessed the requisite intent to kill, and that a failure to instruct on that issue was, at worst, harmless error.
I would affirm the judgment.