I concur fully in Justice Kaus’s fine opinion.
Since the special circumstance findings and penalty judgment must be reversed as a result of the trial court’s error under Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], the majority correctly decline to note the existence of other special circumstance or penalty phase issues which might require reversal of those verdicts.
*437In this case, the trial court gave the so-called “Briggs commutation instruction” that this court has held invalid on state due process grounds in People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430]. In addition, the trial court failed to exercise its discretion to strike the special circumstance findings under People v. Williams (1980) 30 Cal.3d 470 [179 Cal.Rptr. 443, 637 P.2d 1029]. Since these issues might require reversal, the final vote in this case does not reflect the views of the justices on these errors.
LUCAS, J., Concurring and Dissenting. — I concur in the majority opinion to the extent it affirms defendant’s conviction of first degree murder, burglary, robbery and kidnapping. I respectfully dissent, however, to the setting aside of the special circumstances finding and penalty judgment.
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 and the penalty judgment. 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.]), and I can no longer concur in judgments which reverse special circumstances findings under their compulsion (see People v. Guerra (1985) 40 Cal.3d 377, 389 [220 Cal.Rptr. 374, 708 P.2d 1252] [dis opn.]).
The concurring opinion by Justice Grodin reluctantly agrees that Carlos/ Garcia principles apply here. He attempts to place responsibility for those cases upon the shoulders of the United States Supreme Court and its fragmented decision in Connecticut v. Johnson (1983) 460 U.S. 73 [74 L.Ed.2d 823, 103 S.Ct. 969], a case which appears to impose a per se reversal rule whenever the issue of intent is improperly removed from the jury’s consideration. I have no quarrel with that case, whatever principle may be gleaned from the various opinions written therein. My principal quarrel is with Carlos itself, wherein my colleagues rewrote Penal Code section 190.2, subdivision (a)(17), and introduced an “intent to kill” requirement which was mandated by neither state nor federal law. (See Carlos v. Superior Court, supra, 35 Cal.3d 131, 156-159 [dis. opn. by Richardson, J.].) As we proceed to reverse one death penalty judgment after another on Carlos grounds, let us not assign the blame to some other court — the fault is ours. I continue to urge reconsideration and disapproval of that unfortunate decision.
But even were Carlos considered “good law,” it does not require setting aside the special circumstances finding in this case. Here, defendant’s intent *438to kill was established as a matter of law, and no contrary evidence was introduced which might raise a possible doubt on the issue.
As the majority acknowledges, defendant’s victim was stripped to her underwear, bound hand and foot, repeatedly stabbed, partially dismembered and finally decapitated. At least one stab wound, to the stomach, probably occurred prior to her death. The majority postulates, however, that “The victim might have been killed accidentally, with defendant deciding after-wards to mutilate the body in an attempt to prevent identification. [Fn. omitted.] We simply do not have enough evidence as to the circumstances of the victim’s death to be able to conclude that intent to kill was established as a matter of law.” {Ante, p. 432.)
To the contrary, I suggest that the condition of Mrs. Buchanan’s body amply established an intent to kill in the absence of any evidence in the record supporting the majority’s accidental death theory. We cannot reverse a judgment, even a death penalty judgment, based on nothing more than mere speculation or surmise. (See Cal. Const., art. VI, § 13 [requiring a “miscarriage of justice”].)
It is simply inconceivable that, if the killing were indeed “accidental,” defendant would have neglected to attempt to prove that fact. Although lack of intent to kill was not relevant during the guilt phase, it 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, defendant’s penalty phase evidence was limited to general character and background evidence, and pleas by defendant’s friends and relatives to spare his life. 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?1
My colleagues continue to reverse capital cases on Carlos/Garcia grounds, despite the fact that in many 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.
*439I would affirm the judgment in its entirety.
Justice Grodin, in his concurring opinion, speculates that trial counsel may have had a tactical reason for failing to raise potentially mitigating evidence regarding defendant’s lack of intent to kill. Any such “tactics” would border upon incompetence in light of the absence of any other significant mitigating evidence presented at the penalty phase. I believe we should assume the more logical explanation—that no such evidence existed—and reserve to defendant his right to contradict that assumption in a habeas corpus proceeding.