I concur in the affirmance of the conviction and finding of special circumstances. With respect to the penalty judgment, however, the appropriate inquiry is not whether there exists a legitimate basis for believing the jury was misled as to its sentencing responsibilities (see maj. opn., ante, p. 583), but whether there is a “‘legitimate basis for finding ambiguity concerning the factors actually considered by the’jury.” (California v. Brown (1987) 479 U.S. 538, 546 [93 L.Ed.2d 934, 943, 107 S.Ct. 837] (O’Connor, J., conc.), italics added.) In other words, in an ambiguous situation—one in which the jury may, or may not, have misunderstood its responsibilities —we must find error under the federal standard. Error does not require a finding that the jury was in fact misled, or was probably *588misled; it requires only a finding that there is a legitimate basis (i.e., reasonable grounds) for believing it might have been misled. Because I believe that there is no legitimate basis to question whether the penalty jury in this case was misled concerning its responsibility, I concur in the affirmance of the penalty judgment.
Appellant’s petition for a rehearing was denied April 21, 1988.